fa-j 791-10.odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
FIRST APPEAL NO. 791 OF 2010
Vidarbha Irrigation Development Corporation,
Through its Executive Engineer,
Bembla Project Division,
Taq. & Dist. Yavatmal. ....... APPELLANT.
...V E R S U S...
1] Vinayak s/o Shankarrao Parimal
Aged about 62 years, Occ.: Housewife
2] Nanibai w/o Vinayak Parimal
Aged - 62 years, Occ.: Housewife
Both R/o Kolhi, Tq. Babhulgaon
District-Yavatmal.
2] The State of Maharashtra
Through the Collector, Yavatmal.
3] The Special Land Acquisition Officer
Bembla Project Division,
Yavatmal. .......RESPONDENTS.
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Shri A. B. Patil, Advocate for Appellant.
Shri A. B. Nakshane, Advocate for Respondent nos. 1 & 2.
Shri. M. A. Kadu, A.G.P. for respondent nos. 3 & 4.
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CORAM: DR. (SMT.) SHALINI PHANSALKAR-JOSHI, J.
DATE : 11 th JULY, 2017.
ORAL JUDGMENT By this appeal, filed under Section 54 of the Land Acquisition Act 1894, the acquiring body has challenged the ::: Uploaded on - 05/08/2017 ::: Downloaded on - 28/08/2017 09:51:17 ::: fa-j 791-10.odt 2 enhancement in the compensation as awarded by Civil Judge, Senior Division, Yavatmal vide its Judgment and Order dated 25.11.2008 in Land Acquisition Case No. 313/06.
2] Brief facts of the appeal can be stated as follows:-
The land bearing plot no. 28, situated at village- Kohli, was owned and possessed by respondent nos. 1 and 2. It was an open plot of land which came to be acquired for the purpose of Bembla Project by virtue of Notification issued under Section 4(1) of the Land Acquisition Act and published on 31.7.2003. The Special Land Acquisition Officer (S.L.A.O) by his Award dated 4.4.2005, awarded compensation at the rate of Rs.90/- per square meter. Being not satisfied with the amount of compensation awarded by the S.L.A.O., respondent nos. 1 and 2 filed Reference before the Trial Court seeking enhancement of compensation at the rate of Rs.1,000/- per square meter.
3] This petition came to be resisted by the appellant herein contending inter-alia that the compensation awarded by the S.L.A.O. is just and reasonable and as per the prevailing market rate. It was submitted that the sale transaction on which respondent nos. 1 and 2 are relying, are not pertaining to the property situated in the same ::: Uploaded on - 05/08/2017 ::: Downloaded on - 28/08/2017 09:51:17 ::: fa-j 791-10.odt 3 village and not having same potentiality and fertility. It was also submitted that respondent nos. 1 and 2 had not made any specific claim for enhancement of compensation before the S.L.A.O. They had also not produced any expert opinion before the S.L.A.O. In such situation, no interference is warranted in the amount of compensation as awarded by the S.L.A.O.
4] In support of his case, respondent examined himself and adduced the evidence of one expert by name Dhananjay Wamanrao Pachghare to prove the valuation report produced at Exh.33/1. On behalf of appellant, however, no oral or documentary evidence was adduced.
5] On appreciation of the evidence on record, learned Reference Court was pleased to enhance the compensation amount at the rate of Rs.753/- per square meter in place of Rs.90/- per square meter, as awarded by S.L.A.O.
6] While challenging this judgment and order of the Reference Court, submission of learned counsel for appellant is that there is absolutely no evidence produced on record by respondent to prove the ::: Uploaded on - 05/08/2017 ::: Downloaded on - 28/08/2017 09:51:17 ::: fa-j 791-10.odt 4 market value of the acquired plot of land at the rate of Rs.753/- per square meter, as awarded by the Reference Court. It is submitted that the Reference Court has relied upon sale instances of village Pahur. Village Pahur is on the side of the road whereas place Kohli is three kilometer interior to road. Further, it is submitted that the Reference Court has relied upon the amount of compensation awarded in respect of the open plot situated at village Dighi and considered it as base for enhancement of compensation of the acquired land. However, in respect of the open plots at village Dighi, this Court has already fixed the rate of Rs.500/- per square meter and therefore, the compensation awarded by the Reference Court also needs to be reduced. 7] Per contra, learned counsel for respondent nos. 1 and 2 has supported the impugned judgment and order of the Reference Court by relying upon various authorities and also pointing out that the sale instances on which the respondents have relied upon were of the year 1994 and that too at the rate of Rs.888/- per square meter. Notification is of the year 2003. Hence, the market rate should have been enhanced to Rs.1,680/- per square meter. Despite, that the Reference Court has awarded the compensation at the rate of Rs.753/- square meter only and hence, no interference is warranted in the said amount. ::: Uploaded on - 05/08/2017 ::: Downloaded on - 28/08/2017 09:51:17 :::
fa-j 791-10.odt 5 8] Having considered the submissions advanced by learned counsel for both the parties, the only point which arises for my determination is, whether Reference Court was justified in granting compensation @ rate of 753/- square meter for the acquired plot of respondent nos. 1 and 2?
9] Perusal of the evidence of respondent no.1 and the judgment of Reference Court reveal that the Reference Court has considered the sale instance of village Pahur, the copy of which was produced on at Exh.29. As per the said sale-deed, the open plot of land admeasuring 56.25 square meter situated at village Pahur was sold for Rs.50,000/- on 25.3.1994 and hence, the market rate according to learned counsel for respondent, of the open plot of land situated at village comes to Rs.888.88 per square meter in the year 1994. In the instant case, as the Notification is issued on 31.7.2003, the said rate will have to be enhanced at Rs.1,086 per square meter. 10] Now in order to ascertain whether village Kohli and village Pahur are situated nearby or having the same set of facilities, one has to go to the evidence of respondent no.1 himself. He has admitted that ::: Uploaded on - 05/08/2017 ::: Downloaded on - 28/08/2017 09:51:17 ::: fa-j 791-10.odt 6 Bembla river flows in between village Kohli and Pahur. He has further admitted that population of village Kohli is 1600, education facility available there is upto 7th standard. The facilities like bank, school, P.H.C. are available at Pahur. Village Pahur is situated on the road whereas his village Kohli is three kilometers interior from the road. Village Pahur is three to four times bigger than his village. According to him, the distance between Kohli and Pahur is 20 kilometers by road, whereas distance between Babhulgaon and Pahur is approximately six to seven kilometers. His witness Dhananjay has also admitted in his cross-examination that population of village Pahur is 10,000 to 15,000/- and all facilities are available there. According to him, distance between Babhulgaon to Kohli is 15 kilometer, whereas distance between Babhulgaon to Pahur is 18 kilometer. He has also admitted that the prices of the landed property in small villages cannot be compared with the big villages. Thus, it can be seen that the village Pahur is totally a different village, much developed than village Kohli. In such situation, the market price of the land situated at village Pahur cannot be compared with the market value of the land at village Kohli. 11] The law is well settled that only when the acquired land and the lands under sale instances are identical or situated nearby and ::: Uploaded on - 05/08/2017 ::: Downloaded on - 28/08/2017 09:51:17 ::: fa-j 791-10.odt 7 are similar in other aspects, those sale instances can be considered; not otherwise. Herein the case, not a single sale instance of village Kohli is produced on record by any of the parties. Kohli is a very small village. Therefore, the price which the land of village Pahur can acquire cannot be considered as base for deciding the compensation for the land situated at village Kohli. Hence, the submission advanced by leaned counsel for the respondent that the market price of the acquired land should also be considered at the rate of sale-deed of the land of village Pahur produced at Exh.29 cannot be accepted, Reliance placed therefore, on the decision in the case of Mahesh Dattatray Thirthkar Vs. State of Maharashtra, AIR 2009 Supreme Court 2238 is misplaced.
12] It may be true that in this case appellant had not led any evidence to prove true market value of the acquired property but it was for the reason that already appellant had produced such evidence before S.L.A.O. and relying upon the same, whatever market value was fixed by S.L.A.O. for awarding compensation being just and reasonable, appellant preferred not to adduce any further evidence. 13] As regards the evidence adduced by the respondent nos. 1 ::: Uploaded on - 05/08/2017 ::: Downloaded on - 28/08/2017 09:51:17 ::: fa-j 791-10.odt 8 and 2, as stated above, the reliance placed upon the sale-deed of the land at village Pahur cannot be considered having regard to the fact that village Kohli and village Pahur are not identically situated, nor having the similar facilities, nor situated adjacent to each other also. Therefore, it appears that the Reference Court has also not relied upon this sale-deed.
14] The Reference Court has in this respect relied upon the amount of compensation which was granted to the open plot situate at village Dighi in LAC No. 88/2004. According to Reference Court as in LAC No. 88/2004, the compensation was granted at the rate of Rs.753/- per square meter for open plot at village Dighi, that would be just and proper amount of compensation. However, it is pointed out that in this appeal by learned counsel for appellant that, amount of compensation which was granted to the open plot at village Dighi in LAC No. 88/2004 was subsequently reduced by this Court at Rs.500/- per square meter. If it is so, in this case also, if the price of the land at village Dighi was considered as base by the Reference Court, then the same price of Rs.500/- square meter as fixed by this Court for the plots at village Dighi will be considered as proper market value. However, considering that Rs.500/- per square meter was fixed by this Court for ::: Uploaded on - 05/08/2017 ::: Downloaded on - 28/08/2017 09:51:17 ::: fa-j 791-10.odt 9 plot which was acquired in pursuance of Notification in the year 1999, whereas in this case the Notification under which the respondents' land is acquired is of the year 2003, hence proportionate increase needs to be made in the said rate and it has to be accordingly fixed at Rs.650 per square meter.
15] As regards the reliance placed by the learned counsel for the respondent on the judgment of the Hon'ble Apex Court in the case of Ali Mohammad Beigh and others Vs. State of J & K, AIR 2017 Supreme Court 1518, it has to be reiterated that only when acquired land and the land situated nearby are identical and similar and acquisition is for the same purpose, under the same Notification, there need not be any discrimination in between the two lands to pay more to some of the landowners and less compensation to others. Here in the case, not only the village Pahur and Kohli are different one and not identical and similar in any manner but the lands are also not acquired under the same notification, though may be for the same purpose. In view thereof, this judgment cannot be made applicable to the facts of the present case.
16] So far reliance placed on the judgment of Mehrawal ::: Uploaded on - 05/08/2017 ::: Downloaded on - 28/08/2017 09:51:17 ::: fa-j 791-10.odt 10 Khewaji Trust (Registered), Faridkot and others Vs. State of Punjab and others, (2012) 5 Supreme Court Cases 432, what it lays down is that the transaction representing the higher value should be accepted as base, unless there are strong circumstances justifying the different course. However, the necessary requisite for applying this ratio is that the lands must be situated in the same locality and the sale instances should be of the same locality. Here in the case not a single instance of village Kohli is produced and village Kohli is not at all similarly situated like village Pahur. Hence, the market rate of the land at Pahur cannot be applied to the land at village Kohli.
17] Therefore, having regard to the entire evidence on record, in my considered opinion, interference is warranted in the impugned judgment and order of the Reference Court for reducing compensation amount awarded at the market rate of Rs.753/- per square meter to Rs.650/- square meter.
18] The appeal is accordingly allowed partly, with no order as to costs.
The impugned judgment and order of the Reference Court is modified to the extent that respondent nos. 1 and 2 are entitled to get ::: Uploaded on - 05/08/2017 ::: Downloaded on - 28/08/2017 09:51:17 ::: fa-j 791-10.odt 11 compensation at the rate of Rs.650/- square meter in the place of Rs.753/- square meter.
Rest of the judgment of the Reference Court stands confirmed.
The appeal is disposed of.
JUDGE RGIngole ::: Uploaded on - 05/08/2017 ::: Downloaded on - 28/08/2017 09:51:17 :::