fa.196.06.jud 1/11
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
FIRST APPEAL NO.196 OF 2006
Appellant : Suryabhan s/o Sripat Kamble,
(Ori. Applicant) Aged - Adult, Occu. Agriculturist,
R/o. Nagpur, Taluka Nagpur, Nagpur.
-- Versus --
Respondents : 1] The State of Maharashtra,
(Ori. Non-Applicant) Through Collector,, Nagpur.
2] The Special Land Acquisition Ofcer,
Minor Irrigation Works, Nagpur.
3] Executive Engineer,
Minor Irrigation Division, Nagpur.
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Shri C.B. Dharmadhikari, Advocate for the Appellant.
Shri M.A. Kadu, A.G.P. for the Respondents/State.
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CORAM : S.M. MODAK, J.
RESERVED ON : 3rd DECEMBER, 2020.
PRONOUNCED ON : 10th MARCH, 2021.
J U D G M E N T :-
The issues involved in this Appeal are:-
a) Whether the evidence adduced on behalf of the claimant is sufcient to grant him compensation for orange trees and if yes what should be the quantum?
And
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fa.196.06.jud 2/11
b) Whether the act of not claiming the compensation for orange trees initially while fling reference application debars him from claiming it at subsequent stage?
2. Some facts need to be stated:-
The special land acquisition ofcer granted compensation for land as well as trees to the claimant. The claimant was not satisfed. He fled a reference under Section 18 of Land Acquisition Act to the Collector, Nagpur. It was forwarded to the District Court, Nagpur.
3. When the Reference was pending before the District Court, the claimant sought amendment. It was allowed. The claimant was permitted to seek additional compensation of Rs.20,00,000/- (200 orange trees x Rs.10,000/- per tree). He gave his evidence and examined valuer Dadan Borkar whereas special land acquisition ofcer Dhanashyam Payal also gave evidence. The Reference Court as per the judgment dt.12.10.2005 passed in LAC No.175/2002 was pleased to dismiss the reference. His fndings are as follows:
a) Claim for land was not accepted for want of evidence.
b) Claim for orange trees was rejected for the reason;
i) Even though reference was made in the year 1999 the said claim was made for the frst time in 2005.
ii) And there is no acceptable evidence to show presence of 200 orange trees on 16.02.1998 (Section 4 notifcation). ::: Uploaded on - 16/03/2021 ::: Downloaded on - 01/09/2021 02:07:23 :::
fa.196.06.jud 3/11 These fndings are challenged by the claimant.
4. I have heard learned Advocate Shri C.B. Dharmadhikari for the claimant-appellant and learned AGP Shri M.A.Kadu for Respondent No.1.
It is true that in the memo of appeal, there is a challenge to the fndings 'refusing compensation for land'(ground no.2). Learned Advocate Shri Dharmadhikari during oral arguments has conveyed that claimant is not pressing his demand in that behalf. So the scope of appeal falls within narrow compass. There is a reliance on the observations of Hon'ble SC in case of Ambya Kalya Mhatre (dead) through Lrs and others v/s. State of Maharashtra1. They are perfectly applicable to the facts of this appeal.
Subsequent Amendment
5. The land admeasuring 1.37 hect. Bearing Suvey No.126/3 village Malkajhari, Tal. Umred, Dist. Nagpur belonging to the claimant was acquired. It was due to submergence of the area of Malkajhari tank project. It is a matter of record that compensation on three heads was offered by special land acquisition ofcer. They are;
a) Land
b) Trees
c) Well The claimant has not accepted the offer and hence made a reference. It 1 2012(1) Mh.L.J.
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fa.196.06.jud 4/11 is true that enhanced compensation for land as well as trees (other than orange) was asked. It is by way of amendment, permitted in the year 2005, compensation for orange trees to the tune of 20 lakhs was asked.
6. Before the Reference Court there was a contention raised about not claiming orange tree compensation initially in the reference application. While dismissing the Reference Petition this fact has weighed the mind of the Reference Court. The law on the point of the amendment vis-a-vis the reference petition needs to be looked into.
7. In case of Ambya Kalya, this Court has decided two appeals at different point of time. The claimants appeal for enhancement was allowed in part. The claim for increase for trees and well was rejected (para 6). It is true that in that case compensation for trees was demanded by way of amendment in the reference application. It mean to say that compensation on account of that head was not asked initially when the Reference application was fled (para 4(ii)). The reference Court allowed the amendment. Compensation for trees was also granted. However, when the claimant went in appeal, further increase for trees was not accepted by this Court (para 5).
8. As said above the appeal fled by the State was decided later on. In that Appeal, this Court held that amendment was barred as per law of ::: Uploaded on - 16/03/2021 ::: Downloaded on - 01/09/2021 02:07:23 ::: fa.196.06.jud 5/11 limitation and it ought not to have accepted it. This Court set aside the compensation for trees (as well as for well).
9. Hon'ble Supreme Court dealt with the issue of amendment in the reference petition. This Court has rejected the amendment being barred by law of limitation (paragraph 7). While disagreeing with the said reasoning Hon'ble Supreme Court observed thus:
"The assumption made by the High Court that when a reference is sought objecting to the amount of compensation, the claim for increase will have to be frozen with reference to the amount claimed in the application under Section 18 of the Act and therefore the quantum of the claim cannot subsequently be revised or increased is misconceived".
It has been further observed thus:
"13. Similarly, the assumption that if the claim for increase in an application for reference (relating to an acquisition involving a property consisting of land, building and trees), was only in regard to the compensation for the land, the landowner cannot thereafter make a grievance seeking increase in regard to the building or trees in the pleadings before the Reference Court and that in such a case, the Reference Court gets the jurisdiction to determine only the market value in regard to the land and not in regard to the building and trees, is also not correct."
Finally Hon'ble Supreme Court on the point of limitation observed thus:
"We, therefore, hold that the time limit under section 18 of the Act is only for seeking the reference by raising the objection to the amount of compensation or any of ::: Uploaded on - 16/03/2021 ::: Downloaded on - 01/09/2021 02:07:23 ::: fa.196.06.jud 6/11 the other three objections".
10. The above said observations are perfectly applicable to the facts before us. Even though the claimant has not sought for compensation for orange trees initially, he can certainly ask before the Reference Court by way of amendment. The said observations of the Reference Court contrary to the interpretation of law by Hon'ble Supreme Court needs to be set aside. Now the evidence adduced and fndings thereon need to be assessed.
Evidence Adduced
11. There was oral and documentary evidence adduced before the reference Court. Basic issue was about existence of orange trees and the day material for that (that is to say date of taking possession: 06.03.1995 or date of Section 4 notifcation: 16.02.1998). The Reference Court considered the position existing as on 16.02.1998 i.e. date of Section 4 notifcation. While interpreting the documents, reference Court opined that there was no evidence of existence of orange trees as on 16.02.1998. The reference Court considered following documents:-
a) Panchanama prepared at the time of taking possession dt.06.03.1995, Exhibit 16.
b) Request letter by special land acquisition ofcer Exhibit 34 addressed to Deputy Director of Horticulture dt.03.03.1998 and report given thereon at Exhibit 37.
There is no dispute about the reference of 200 orange trees existing on ::: Uploaded on - 16/03/2021 ::: Downloaded on - 01/09/2021 02:07:23 ::: fa.196.06.jud 7/11 the land acquired in the panchnama Exhibit 16. It is admitted fact that it was prepared on 06.03.1995 prior to notifcation. It is important to note that it was signed by all the concerned including government representative. The reference Court compared this Exhibit 16 with the request letter at Exhibit 34 and Report at Exhibit 37. The observation about report at Exhibit 37 about valuation of orange trees is 'NIL'.
12. The observations (on reading Exhibit 37) of the reference Court are not correct. It is true that the report at Exhibit 37 is a photocopy and it is not clearly legible. But when this Court has read it with the assistance of both the learned advocates, what emerges is "there is reference of 100 orange trees" in the said report. The reference Court ought to have taken that much pain. So we are inclined to observe that Deputy Director has referred 100 orange trees in Exhibit 37.
13. There is one more reason for us to opine as referred above. In the request letter at Exhibit 34, special land acquisition ofcer has referred above existence of 100 orange trees on acquired land. By that letter request was made to Dy. Director to give opinion. It may be true that at time of visit, Dy. Director may not notice any tree. Let this possibility remain as it is. But the reference Court has not expressed any opinion by reading Exhibit 34 and Exhibit 37 together. Merely giving reference of Exhibit 34 is not sufcient. We need to give reasoning for accepting ::: Uploaded on - 16/03/2021 ::: Downloaded on - 01/09/2021 02:07:23 ::: fa.196.06.jud 8/11 Exhibit 37 (by keeping aside Exhibit 34). This has not been done by the Reference Court. So the factual observations cannot be said to be correct. I fnd them to be perverse.
Position as on 06.03.1995
14. It is a matter of record that Panchanama was prepared at the time of taking possession on 06.03.1995 (Exhibit 16). The attention of special land acquisition ofcer was brought to Exhibit 16 during cross- examination. It was prepared by the acquiring body. The contents of Exhibit 16 are as clear as that of rays of the sun. There is a reference of 200 orange trees existing on the acquired land on that date.
Law
15. It is true that the Court will have to consider the market value of the land as existing on the date of Section 4 notifcation. So also the interest component has to be paid from the date of Section 4 notifcation but it may happen that in a particular case possession may be taken prior to issuance of the notifcation. Similar thing has happened in this case. But as per the law interpreted by Hon'ble SC in various judgments (though interest has to be paid from the date of notifcation) the Court will have to consider 'the damage sustained by the interested person due to taking of crop/tree at the time of taking of possession' (Section
23).
16. Hence, the Reference Court was partially wrong in considering the ::: Uploaded on - 16/03/2021 ::: Downloaded on - 01/09/2021 02:07:23 ::: fa.196.06.jud 9/11 date of Section 4 notifcation as relevant date. The Court has to consider 'the position as existing on the land at the time of taking of possession for considering the damage whereas the date of Section 4 notifcation will be relevant so far as interest component is concerned (when possession is taken earlier).
Quantum
17. We have got the evidence of the Valuer Shri Borkar on this aspect. He admits he has not visited the site prior to giving the opinion but he gave the opinion on the basis of instructions given by claimant and on the basis of the panchanama at Exhibit 16. He had given the explanation for non-visit. The digging work was started by the acquiring body. There is a submission on behalf of the claimant that 200 orange trees were 2 years old in the year 1995 and they had become 5 years old in the year 1998. There is a reason to believe that 200 orange trees were existing when the panchanama was made on 06.03.1995. So the trees would be of 5 years old in the year 1998 when the notifcation was issued in the year 1998. There is a reason to believe that in the year 1998 it is (not the 200 orange trees) 100 oranges trees which were existing. Reference Court has not at all considered existence of any of the number of orange trees.
18. The fact of not producing 7/12 extract by the claimant is considered against the claimant by the Reference Court. No doubt, 7/12 ::: Uploaded on - 16/03/2021 ::: Downloaded on - 01/09/2021 02:07:23 ::: fa.196.06.jud 10/11 extract is one of the material for ascertaining the truth but it does not mean that Court can overlook the material which is already produced before the Court. The reference Court has taken strict and hyper technical approach and has overlooked the fact that matter arising out of social welfare legislation is being looked into. While exercising appellate jurisdiction, it needs to be corrected.
Amount of Compensation
19. Valuer Borkar has given details about total life/productive life of orange trees, the year from which fruits can be fetched per tree production and market rate prevailing. If we read his evidence (as it is), we may fnd that trees started fetching fruits once they become 4 years old (full grown fruits from 7 years). He has considered all relevant factors including 2 seasons, rate per kg, total fruits per tree per year, weight, life of orange trees.
20. But the issue is when possession was taken on 6/3/1995 200 orange trees have not started fetching oranges. They were too young. Trees without fruits does not fetch any amount except value for frewood. So evidence of valuer is not useful to the appellant. This Court has no alternative but to consider valuation of 200 orange trees as that of frewood. There is no material to that effect on record. So Court has to just estimate how much will be the weight of 200 orange trees if they are cut ? How much was the rate per kg of frewood at that time. In absence ::: Uploaded on - 16/03/2021 ::: Downloaded on - 01/09/2021 02:07:23 ::: fa.196.06.jud 11/11 of these materials, Court values the frewood of 200 orange trees to Rs.10,000/- The appellant ought to have receive that amount.
21. So the appeal has to be allowed to that extent. The appellant will get all statutory benefts on that amount. As said earlier, the appellant can get interest on that amount from date of notifcation i.e. 16/2/1998 (and not from 6/3/1995 i.e the date of taking possession). Hence order:
ORDER
1. Appeal is partly allowed.
2. Respondent Nos. 1 to 3 are directed to pay Rs.10,000/- to the appellant (towards valuation of 200 orange trees as frewood) within 2 months from today.
3. The appellant is entitled to get all statutory benefts as per observations made in the body of judgment.
4. The respondents to pay all these amounts within a period of three months from today.
5. Respondents to pay costs to the appellant.
(S.M. MODAK, J.) *sandesh ::: Uploaded on - 16/03/2021 ::: Downloaded on - 01/09/2021 02:07:23 :::