IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
FIRST APPEAL NO.821/2008
Vidarbha Irrigation Development Corporation,
Through Executive Engineer,
Lower Wardha Canal Division, Wardha.
APPELLANT
VERSUS
1. Ashok s/o Onkar Nandvikar,
Aged about 50 years, Occu: Cultivator,
R/o Rohana, Tah. Arvi Dist. Wardha.
2. State of Maharashtra,
Through Collector, Wardha.
3. The Special Land Acquisition Officer,
Vidarbha Canal and Dam Development
Corporation, Wardha.
4. The Deputy Director of Horticulture,
Wardha.
RESPONDENTS
===================================================
Shri V.G. Palshikar, Advocate for appellant Shri S.C. Bhalerao, Advocate for Respondent No.1 Shri M.A. Kadu, A.G.P. for Respondent No.2 to 4 =================================================== CORAM : DR. SMT. SHALINI PHANSALKAR-JOSHI,J DATED : 15th JUNE 2017 ORAL JUDGMENT
1. The appellant, which is an acquiring body, has preferred this appeal against the judgment and order dated 8th October 2007, passed by the Ad-hoc Additional District Judge Wardha in ::: Uploaded on - 23/06/2017 ::: Downloaded on - 28/08/2017 06:12:15 ::: -2- LAC no. 69/2000, being aggrieved by the enhanced amount of compensation, awarded by the Reference Court.
2. Facts which are necessary for deciding this appeal are to the effect that, in pursuance of the notification issued under section 4(1) of the Land Acquisition Act 1894, on 16.3.1998, the land belonging to respondent no.1 and ad-measuring about 1.07 H.R. situated at village Saikheda came to be acquired by Special Land Acquisition Officer, who computed the compensation towards market value of the land, the Orange Trees and the Well existing in the land to the extent of Rs. 1,16,530/-.
Being dissatisfied with the meager amount of compensation granted towards all the 3 heads, the original claimant/respondent no.1 approached the Reference Court u/s 18 of the Land Acquisition Act. In support of his contention that the compensation awarded on all the 3 heads was not adequate, respondent no.1 examined himself and also lead the evidence of on expert to prove the construction and value of the well. He also ::: Uploaded on - 23/06/2017 ::: Downloaded on - 28/08/2017 06:12:15 ::: -3- examined the Horticulture Expert to prove the value of Orange trees standing in the land.
3. On appreciation of the evidence adduced before it, learned Reference Court enhanced the compensation amount of the land from Rs. 53,500/- per hectare to Rs.1,07,000/- per hector. Similarly, the compensation for the well standing in the land was also enhanced from Rs. 5,123/-, as awarded by the Special Land Acquisition Officer to Rs.50,000/-. Even as regards, the orange trees, the Reference Court found that there were totally 150 orange trees at the time of notification and accordingly enhanced the compensation to Rs. 2500/- per orange tree from Rs. 162/- per tree.
4. This enhancement in the amount of compensation, as awarded by the Reference Court, on all the 3 heads is challenged in this appeal by learned counsel for appellant, by submitting that without that there being any cogent, convincing and reliable evidence on record, the Reference Court has enhanced the compensation, that too multiple times and hence interference is warranted ::: Uploaded on - 23/06/2017 ::: Downloaded on - 28/08/2017 06:12:15 ::: -4- in the impugned judgment and order of the reference court.
5. I have heard learned counsel for appellant and respondent. On the basis of their rival submissions, the only issue necessarily arising for consideration is whether the Reference Court was justified in enhancing the amount of compensation on all the 3 heads ?
6. As regards the land, respondent no.1 has claimed the compensation at the rate of 2,50,000/- per hector on the ground of it being an irrigated land . In support of his claim, he has relied upon two sale instances produced in the case at exhibit-44 and 45 as well as 7/12 extract of the acquired land produced at Exhibit-42. The sale instances at Exh. 44 and Exh. 45 are in respect of the land situate at village Bodad and Nagpur respectively. Respondent No.1 has examined witness No. 3 Subhash Kamdi in respect of the sale instance of village Bodad. As against it, Special Land Acquisition Officer has, in his award discussed as many as 9 sale transactions of village Saikheda ::: Uploaded on - 23/06/2017 ::: Downloaded on - 28/08/2017 06:12:15 ::: -5- preceding 5 years of date of notification under section 4(1) of the Land Acquisition Act.
7. Thus it is clear that for comparison of the market value of the acquired land which is situate at Saikheda, the sale transactions of the same village are available. Hence reference court has rightly held that sale instances at Exh.44 and 45, which are of the lands at adjoining villages cannot be relied upon.
8. Perusal of the award shows that, there are 2 sale transactions of the year 1997. The first one is of survey no. 123 dated 6.5.1997 in which the price of the land was shown at the rate of Rs. 57,851/- per hector. In second transaction of survey no. 78, the price was shown at the rate of Rs. 52,326/- per hector. It appears that Special Land Acquisition Officer has however not considered these two sale transactions, nor assigned any reason for not doing so. He has considered the third sale transaction of survey no. 173 and by giving 5% yearly increase from 1995 to 1998, he has fixed the price of the acquired land at the rate of Rs. 39,600/- per hector. Special Land Acquisition ::: Uploaded on - 23/06/2017 ::: Downloaded on - 28/08/2017 06:12:15 ::: -6- Officer also considered the ready reckoner rates and by having regard to revenue assessment of the acquired land, he accepted the ready reckoner price at the rate of Rs.49,500/-per hector and it being, higher price than the sale transaction of survey no.173, he valued the land of the respondent no.1 at the rate of Rs.49,500/- per hector and then considering the ready reckoner prices he granted the compensation towards the land at the rate of Rs. 53,500/- per hector.
9. Perusal of the impugned judgment of the Reference Court reveals that, the sale transaction referred by S.L.A.O was having less land revenue than the land revenue of the acquired land but its price was much higher. The Reference Court has considered in detail as to how the land having less land revenue was given more price than the land having more land revenue such as transaction dated 6.5.1997 having land revenue of Rs. 3.72 per hector but valued at the rate of Rs. 57,851/-. Similarly in the case of other 2 sale transactions dated 6.11.1993 and 28.4.1996, though the land revenue was between Rs.4.16 to 4.37, it s market value was ::: Uploaded on - 23/06/2017 ::: Downloaded on - 28/08/2017 06:12:15 ::: -7- ranging from Rs.12,871/-to Rs.31,666/-P.H. Hence Reference Court has rightly held that fixing the price of the acquired land at the rate of Rs.49,500/-per hector on the basis of the land revenue was not proper and SLAO should have, at least fixed the price on the basis of ready reckoner rate at the rate of Rs.53,500/-per hector, even if sale instances relied upon by claimants are ignored.
10. Reference Court has even considered the fact that the acquired land is irrigated one as admittedly a well is situate therein. Moreover the 7/12 extract of the acquired land clearly goes to prove that irrigated crops were being cultivated in the said land. In view thereof, the Reference Court has by placing reliance on the judgment of this in the case of State of Maharashtra V/s Baliram 2006(6) Mh.L.J. 82 rightly held that market price of irrigated land would be double the market price of non-irrigated land. Accordingly, considering the ready reckoner rate of Rs.53,500/-per hector for non-irrigated land, the Reference Court doubled the said price and hence held respondent no.1 claimant ::: Uploaded on - 23/06/2017 ::: Downloaded on - 28/08/2017 06:12:15 ::: -8- entitled to get the compensation at the rate of Rs. 1,07,000/- per hector for acquired land as it was admittedly irrigated one. If one considers the detail- reasoning and the legal position considered by the Reference Court, it has to be held that the finding arrived by the Reference Court, as regards the price of the acquired land, being based on the evidence on record, no interference is warranted therein.
11. Even as regards the compensation awarded towards construction of the well, it can be seen that Special Land Acquisition Officer has awarded meager amount of Rs. 5,123/-. The claimant/ respondent No.1 has examined witness no.4 Diwakar Bedarkar who has valued the construction of the well and submitted valuation report, stating therein that valuation of the well can be assessed to Rs. 1,05,846/- by deducting deprecated value. Considering the admissions giving by him in his cross examination, the Reference Court has awarded the compensation to the tune of Rs. 50,000/- towards the construction of the well. In this respect the Reference Court has also taken into ::: Uploaded on - 23/06/2017 ::: Downloaded on - 28/08/2017 06:12:15 ::: -9- consideration the fact that, as the area comprising of the well has been acquired, after acquisition respondent no.1 is left with no water for his remaining portion of land and this factor needs to be considered, because after the acquisition of the land to the extent of 1.07 R out of total area 2.53 R, respondent no.1 the claimant still remains in possession of 1.76 R and in view thereof, as the said land is now not having any source of irrigation, due to the acquisition of the land comprising of well, the cost or the value awarded to the tune of Rs. 50,000/- towards the well by the Reference Court cannot be faulted.
12. Lastly, the Reference Court has enhanced the amount of compensation in respect of the price of Orange trees. Special Land Acquisition Officer has valued the orange trees at Rs. 162 per tree and granted only Rs. 24,416/-. However, respondent no.1 has examined the horticulture expert,who has valued the orange trees for Rs. 4,050/- per Orange tree. According to him, there were 150 fruit bearing orange trees, out of which 80 were in canal and 70 were on the boundary of canal. He found from ::: Uploaded on - 23/06/2017 ::: Downloaded on - 28/08/2017 06:12:15 ::: -10- history of the trees that they were of good quality and were in good condition. Hence he fixed the value of the trees at the rate of Rs. 4,050/-. Respondent no.1 has claimed the value at the rate of Rs. 4,000/- per tree.
13. However, this court has to consider the various admissions given by the Horticulture Expert in his cross examination. He has admitted that he had not examined the soil and hence he cannot say exactly the quality of the Orange trees. Further he has admitted that he has assessed the value of the trees on the basis of yearly income from claimant, however, he did not enquire about the yearly income of the claimant. Further, he has admitted that he does not know how much produce was sold by claimant each year. The claimant himself has not given any details of the yield of the trees or the income from the trees. He has further admitted that orange trees generally start giving fruits 5 to 6 years after the plantation of the trees; they give fruits for further 5 to 6 years and thereafter the capacity to give the fruits reduces. Hence it was necessary for respondent claimant to state what was ::: Uploaded on - 23/06/2017 ::: Downloaded on - 28/08/2017 06:12:15 ::: -11- age of his orange trees, what was their approximate yield and the income therefrom. No receipts are produced by the respondent claimant nor any responsible officer is examined from APMC to prove the income received from the orange fruits. The Horticulture expert has also admitted that 70 trees which were on the boundary of the canal were dried due to the excavation of land for canal and due to other construction work. Having regard to these facts on record, in my considered opinion, the enhanced amount of compensation, as awarded by the Reference Court to the orange trees at the rate of Rs. 2500/- per tree appears to be on higher and excessive side and to that limited extent, the inference is warranted in the impugned judgment and order of the Reference Court. Considering the evidence on record, the true and correct value of the orange trees can be Rs. 1,000/- per tree.
In the result, the appeal is allowed partly.
The impugned judgment and order of the Reference Court is accordingly modified to the ::: Uploaded on - 23/06/2017 ::: Downloaded on - 28/08/2017 06:12:15 ::: -12- extent that the amount of compensation towards the orange trees is reduced to Rs. 1000/- per tree.
Rest of the judgment and order of the Tribunal stands confirmed.
Appeal is disposed of in above terms with no order as to costs.
JUDGE NANDURKAR ::: Uploaded on - 23/06/2017 ::: Downloaded on - 28/08/2017 06:12:15 :::