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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
FIRST APPEAL No.457 OF 2006
Dhanraj s/o. Onkar Mor,
Aged about 30 years,
Occupation : Business,
R/o. Wardhaman Nagar,
Darwha, Tah. Darwha,
District Yavatmal. : APPELLANT
...VERSUS...
1. The State of Maharashtra,
Represented by the Collector,
Yavatmal, Distt. Yavatmal.
2. The Sub Divisional Officer,
and Land Acquisition Officer,
Darwha, Tah. Darwha,
Distt. Yavatmal.
3. The Executive Engineer,
Lower Pus Project, Pusad,
Ta. Pusad, District Yavatmal. : RESPONDENTS
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Shri Firdos Mirza, Advocate for the Appellant.
Mr. H.N. Jaipurkar, Asstt. Government Pleader for Respondent Nos.1 and 2.
Shri M.A. Kadu, Advocate for the Respondent No.3.
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CORAM : S.B. SHUKRE, J.
th DATE : 8 NOVEMBER, 2017.
ORAL JUDGMENT :
1. This is an appeal which challenges the legality and ::: Uploaded on - 10/11/2017 ::: Downloaded on - 11/11/2017 01:56:02 ::: J-fa457.06.odt 2/10 correctness of the judgment and order dated 8 th November, 2005, rendered in Land Acquisition Case No.1256/2004 by Civil Judge, Senior Division, Darwha, District Yavatmal, on the ground that the compensation granted by it is inadequate.
2. The appellant owned two pieces of lands bearing Gat No.153/1 and 153/2, admeasuring 5 hectare 78 R and 1 hectare 42 R respectively, both situated at mouza Kumbharkinhi, Tq. Darwha, Distt. Yavatmal. Smaller portions of the land from both these Gat numbers were compulsorily acquired by the State for the purposes of Kumbharkinhi Dam Project. From out of Gat No.153/1 only 74 R of the land was acquired and out of Gat No.153/2, only 76 R land was acquired, making the total area of the acquired land to be 1 hectare 50 R. Section 4 Land Acquisition Act (in short, "LA Act") notification was published in Government Gazette on 24.10.1996. The Land Acquisition Officer declared his award under Section 11 of the LA Act on 30.6.1999. He paid compensation to the appellant at the rate of Rs.41,000/- per hectare for the acquired land, Rs.1,21,028/- as costs of the construction of Well, Rs.3,14,470/- for 20 orange trees (at the rate of Rs.1,530/- per tree), Rs.920/- for two blackberry (Jambhul) trees, Rs.5,485/- for one mango tree and Rs.4,108/- for 13 Bamboo bunches, as compensation. The appellant, however, was not satisfied with the same and, therefore, accepting this compensation under protest, he filed an application under Section 18 of the LA Act for seeking enhancement in compensation. He ::: Uploaded on - 10/11/2017 ::: Downloaded on - 11/11/2017 01:56:02 ::: J-fa457.06.odt 3/10 also claimed compensation for severance of land, cost of pipeline and cost of tank constructed on Gat No.153/2.
3. The application so filed by the appellant was referred to the Court of Civil Judge, Senior Division, Darwha for adjudication. It was contested by respondents. On merits, the Reference Court found that the application deserved to be partly allowed and accordingly it was partly allowed by the Reference Court by the impugned judgment and order. The Reference Court determined the market value of the acquired land to be at Rs.71,000/- per hectare and also evaluated 205 orange trees, one mango tree and two jambhul trees at the rate of Rs.2,000/- per orange tree, Rs.8,000/- per mango tree and Rs.1,500/- per blackberry tree. The Reference Court rejected the claim in respect of compensation for severance of the land, pipeline and other trees. Not being satisfied with the same, the appellant is before this Court in the present appeal.
4. I have heard Shri Firdos Mirza, learned counsel for the appellant, Ms. H.N. Jaipurkar, learned Assistant Government Pleader for the respondent Nos.1 and 2 and Shri M.A. Kadu, learned counsel for respondent No.3. I have gone through the record of the case including the impugned judgment and order.
5. Now, the only point which arises for my determination is :
Whether the compensation granted by the Reference Court is just and proper ?
6. So far as the land is concerned, as stated earlier, its market ::: Uploaded on - 10/11/2017 ::: Downloaded on - 11/11/2017 01:56:02 ::: J-fa457.06.odt 4/10 value has been evaluated by the Reference Court to be at Rs.71,000/- per hectare at the relevant time. This appears to be done by the Reference Court by partly relying upon the sale instance of the land at Exh.-56, which was situated at village Kumbharkinhi. This sale instance disclosed the value of the land in the year 1994 to be at about Rs.1,10,000/- per hectare. But, this value was assessed on the basis that the land was having 175 orange trees on it and, therefore, by some guesswork, the Reference Court reduced the value to Rs.71,000/- per hectare.
7. Shri Firdos Mirza, learned counsel for the appellant submits that in the case of Shankar Rathod, the Reference Court in old Land Acquisition Case No.239/1999 (new Land Acquisition Case No.1067/2004), determined the market value of the land to be at Rs. 1,50,000/- per hectare that land was from village Kumbharkinhi. So, it is submitted by him that the Reference Court in the present case also should have adopted the same value for making assessment as to the market value of the acquired land. Learned A.G.P. for the State submits that against the award so passed by the Reference Court in the said land acquisition case, State has filed an appeal which is pending for adjudication by this Court. Therefore, he submits that no reliance on such determination made in another case can be made. I think, in view of the pendency of the appeal, Shri M.A. Kadu, learned counsel for respondent No.3 is right. But, there is one more case, which is in fact a group of appeals starting with First Appeal no.520/2005, decided by this ::: Uploaded on - 10/11/2017 ::: Downloaded on - 11/11/2017 01:56:02 ::: J-fa457.06.odt 5/10 Court on 27th July, 2017 in which the market value of the lands situated at village Kumbharkinhi, Tq. Darwha, District Yavatmal which were acquired for the purpose of Kumbharkinhi Dam Project covered by Section 4 of the LA Act notification dated 24.10.1996 and in which the award under Section 11 of the LA Act was passed by the Land Acquisition Officer on 30th June, 1999, this Court confirmed the valuation of the land made by the Reference Court situated at village Kumbharkinhi to be at Rs.1,50,000/- per hectare. As the land involved in this appeal is also from the same village, has been acquired for the same project and is also similarly a perennially irrigated land and has been covered by the same notification under Section 4 LA Act and same award under Section 11 of the LA Act, I am of the view that even for the present land, same rate can be safely applied and doing so, I find that the true market value of the land acquired in the present case is of Rs.1,50,000/- per hectare at the time when Section 4 of the LA Act notification was issued. Therefore, I also find that the appellant is entitled to receive compensation for his acquired land at the rate of Rs.1,50,000/- per hectare.
8. So far as number and type of trees are concerned, there is no dispute about the fact that on the acquired land, there were 205 orange trees, two blackberry trees, one mango tree and 13 bamboo bunches. As regards other trees, no evidence has been led by the appellant and, therefore, claim of the appellant in respect of other trees cannot be granted.
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9. However, the argument made by the learned counsel for the appellant about the need for re-evaluating these trees on the higher side deserves consideration. There is an evidence of an agricultural valuer PW 5 Vishnu Gangadhar Paradkar. Although he holds licence issued by Central Board of Director, New Delhi as an agricultural valuer, there is no denying the fact that he has studied subject of horticulture as a part of his degree course and, therefore, it cannot be said that this witness has no knowledge whatsoever of the orchard or the horticultural plants. Even the Reference Court, as seen from the impugned judgment and order, has partly relied upon his evidence when it enhanced the valuation of the trees done by the horticulture expert on the one hand and some what reduced the valuation carried out by this witness on the other. According to him, the value of each orange tree was of Rs.6,400/-, the value of mango tree was of Rs.15,000/-, the value of blackberry tree was of Rs.7,500/-.
10. If we take at a look of the cross-examination of this witness carried out on behalf of State, we would find that such valuation carried out by PW 5 Vishnu Paradkar has not been disputed at all by the State. There is not a single suggestion of denial of this evidence put to him by the learned A.G.P., who cross-examined PW 5 Vishnu Paradkar. But, that would not mean that such valuation deserves to be accepted by the Court in a blind manner. On the face of it, one can see that this valuation insofar as the orange trees and mango tree are concerned, is somewhat ::: Uploaded on - 10/11/2017 ::: Downloaded on - 11/11/2017 01:56:02 ::: J-fa457.06.odt 7/10 on the higher side. This can be said on the basis of knowledge acquired by the Court while conducting various appeals involving similar lands from the same village, covered by same notification and acquired for the purposes of same project. In a group of appeals, starting with First Appeal No.520/2005, decided on 27 th July, 2017, on which reliance has been placed in this very appeal for determining the true market value of the acquired land earlier by both sides, this Court has confirmed the valuation of the big and small orange trees respectively to be at Rs.3,500/- and Rs.2,500/- carried out by the Reference Court. As the land involved in the present case is similar to the land involved in the said appeals, same valuation can also be adopted to evaluate the orange trees in the present case.
11. The evidence of PW 5 Vishnu Paradkar discloses that the orange trees were of age 8 and that would mean that they were all big trees. Therefore, for these trees the valuation would be at Rs.3,500/- per tree which I hold to be so. About the mango tree, I do not find that any error could be found in the evaluation done by the Reference Court. The mango tree has been found to be carrying value of Rs.8,000/- by the Reference Court which I confirm in this order. However, this may not be so in respect of two blackberry trees, each of which has been valued by the Reference Court to be at Rs.1,500/-. This valuation is extremely on the lower side but at the same time, it can also not be taken that whatever valuation has been carried out of these trees by PW 5 Vishnu ::: Uploaded on - 10/11/2017 ::: Downloaded on - 11/11/2017 01:56:02 ::: J-fa457.06.odt 8/10 Paradkar is correct. His valuation goes towards the other end of the scale which is the higher side. This would call for balancing of both extremities. That would be possible by making some reduction in a reasonable manner. Considering the average size of full-grown and mature blackberry tree, which must be forming a canopy having an average diameter of 20 feet, it can be safely inferred that such a big tree would certainly have immense commercial value for it's fruits and wood. Even if we take it's value as yielding just fire-wood, still, it cannot be evaluated at Rs.1,500/- in the year 1996. It's value will be much higher and by making some estimate it can be said that the value of the two blackberry trees would be no less than of Rs.4,000/- per tree in the year 1996. This is the value at which compensation for two blackberry trees must be given to the appellant.
12. The Land Acquisition Officer has evaluated all the 13 bamboo bunches in lump-sum at Rs.4,108/- and I am of the view that such evaluation being reasonable, deserves to be confirmed, which I do so.
13. The Land Acquisition Officer has also granted separate compensation of Rs.1,21,028/- towards cost of construction of Well, which has not been granted by the Reference Court. But, considering the fact that the cost is always involved in digging out and constructing a Well, compensation for the same deserves to be granted to the land owner. In the present case, the evidence of an expert, PW 4 Rahul Sangle, is available on this point. There is nothing in his ::: Uploaded on - 10/11/2017 ::: Downloaded on - 11/11/2017 01:56:02 ::: J-fa457.06.odt 9/10 cross-examination to entertain any doubt about the methodology adopted and the valuation made by him in respect of construction of Well. His valuation stands at Rs.1,91,700/- after deducting depreciation value. This can be accepted as it is and compensation to the appellant towards cost of construction of the Well at this stage deserves to be granted, which I do so. The claimant has also sought additional compensation on account of severance of the land and pipeline and also for the additional 45 orange trees. However, no specific evidence has been led in this regard in order to prove that additional amount on account of damages or cost of the pipeline and value of the trees affected by the severance of the land has been led by the appellant and, therefore, no additional compensation under these head can be granted to the appellant. His claim in respect of compensation under these heads is, therefore, rejected.
14. In the result, I am of the view that this appeal deserves to be partly allowed and it is allowed accordingly.
15. It is declared that the appellant is entitled to receive compensation for the acquired land at the rate of Rs.1,50,000/- per hectare. It is further declared that the appellant is also entitled to receive additional compensation as follow :
(a) For 205 orange trees, at the rate of Rs.3,500/- per tree;
(b) For 1 mango tree which is granted by it at the
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rate of Rs.8,000/-.
(c) For 2 blackberry (jambhul) trees at the rate of
Rs.4,000/- per tree.
(d) For Well, towards cost of construction, at the rate
of Rs.1,91,700/-.
16. The compensation as detailed above shall be paid by the respondents to the appellant along with all statutory benefits at the same rates as given by the Reference Court in the impugned Judgment and award.
17. The impugned judgment and order stand modified in the above terms.
18. Additional Court fees, if any, be paid expeditiously.
19. Appeal is disposed of accordingly.
20. Parties to bear their own costs.
JUDGE okMksns ::: Uploaded on - 10/11/2017 ::: Downloaded on - 11/11/2017 01:56:02 :::