Bombay High Court
The Special Land Acquisition ... vs Bhagwat Vithal Sonwane on 5 January, 2009
Bench: P.V. Hardas, K. K. Tated
(1)
FIRST APPEAL NO.729 OF 2003 WITH
FIRST APPEAL NO.783 OF 2003 WITH
FIRST APPEAL NO.784 OF 2003
Date of decision: 5TH JANUARY, 2009
For approval and signature.
THE HONOURABLE SHRI JUSTICE P.V. HARDAS
THE HONOURABLE SHRI JUSTICE K.K. TATED
1. Whether Reporters of Local Papers } Yes
may be allowed to see the Judgment? }
2.
To be referred to the Reporter or not } Yes/No
3. Whether Their Lordships wish to see } No
the fair copy of the Judgment? }
4. Whether this case involves a substantial }
question of law as to the interpretation } No
of the Constitution of India, 1950 or }
any Order made thereunder? }
5. Whether it is to be circulated to the } No
Civil Judges? }
6. Whether the case involves an important }
question of law and whether a copy of } No
the Judgment should be sent to Mumbai, }
Nagpur and Panaji offices? }
[A.S. Bhagwat)
Personal Assistant to
the Honourable Judge.
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD.
FIRST APPEAL NO.729 OF 2003
IN
LAND ACQUISITION REFERENCE NO.329 OF 2001
1) The Special Land Acquisition Officer (III),
U.T.P. (Hatnur), Jalgaon,
2) The Executive Engineer,
Waghur Project, Jalgaon.
.... APPELLANTS.
VERSUS
Bhagwat Vithal Sonwane,
Age-Major, Occu: Agri.,
R/o-Shingayat, Tq-Jamner,
District-Jalgaon.
.... RESPONDENT.
WITH
FIRST APPEAL NO.783 OF 2003
IN
LAND ACQUISITION REFERENCE NO.326 OF 2001
1) The Special Land Acquisition Officer (III),
U.T.P. (Hatnur), Jalgaon.
2) The Executive Engineer,
Waghur Project, Jalgaon.
....APPELLANTS.
VERSUS
1) Shivaji Tulshiram Kale,
Age-40 years, Occu:Agri.,
2) Ahilyabai Tulshiram Kale,
Age-65 years, Occu:Agri.,
(Through Special Power of
Attorney Appellant No.1)
Both R/o-Khatgaon, Tq-Jamner,
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2
Dist-Jalgaon.
....RESPONDENTS.
WITH
FIRST APPEAL NO.784 OF 2003
IN
LAND ACQUISITION REFERENCE NO.327 OF 2001
1) Special Land Acquisition Officer (III),
U.T.P. (Hatnur), Jalgaon.
2) The Executive Engineer,
Waghur Project, Jalgaon.
....APPELLANTS.
VERSUS
Dashrath Zipru Chaudhari,
Age-54 years, Occu:Agri.,
R/o-Khatgaon, Tq-Jamner,
Dist-Jalgaon.
....RESPONDENT.
...
Mr.S.K. Tambe, A.G.P. for the Appellants in
all these Appeals.
Mr.A.B. Kale Advocate for Respondents in all
these Appeals.
...
CORAM: P.V. HARDAS
AND
K.K. TATED, JJ.
DATE :5TH JANUARY, 2009.
COMMON JUDGMENT: (PER K.K. TATED, J.)
1. All the above First Appeals are directed
against the common Judgment and award dated 18th
December, 2001 passed by the Additional District
Judge, Jalgaon. As identical question of facts
and law arise in these Appeals, it will be
appropriate to dispose of all these Appeals by
common Judgment.
2. The relevant facts in the present case are
that the Special Land Acquisition Officer (for
short 'S.L.A.O.') issued notification under
Section 4 of the Land Acquisition Act, 1894 (for
short 'the Act of 1894') dated 21st August, 1997
for Respondents/
igoriginal claimants land from
village Singayat, Taluka-Jamner, District-Jalgaon
for Waghur Project. After following due process
of law S.L.A.O. issued notification under Section
6 of the Act of 1894 on 26th February, 1998.
After considering the objections raised by
Respondents/ original claimants, the S.L.A.O.
declared the award under Section 11 of the Act of
1894 dated 18th August, 2000 and awarded
compensation in respect of acquired lands as
follows;
GROUP RATE PER HECTOR (Rs.)
2 25,875/-
3 32,200/-
4 34,500/-
5 39,100/-
6 43,700/-
7 43,700/-
8 43,700/-
--------------------------------------------------
3. Being aggrieved by the said award,
Respondents/ original claimants preferred
Reference under Section 18 of the Act of 1894 for
enhancement of compensation. In the said
Reference, the Reference Court awarded
compensation in respect of Bagayat land at the
rate of Rs.4,00,000/- per Hector, in respect of
Jirayat land Rs.2,00,000/- and in respect of Pot
kharab land Rs.1,00,000/- per Hector. The
Reference Court also enhanced marginal
compensation in respect of fruit bearing trees.
4. Being aggrieved by the Judgment and award
passed by the Reference Court, the S.L.A.O.
preferred above mentioned First Appeals
challenging the Judgment and award passed by the
Reference Court dated 18th December, 2001. It is
the case of the Appellants that the learned
Reference Court has not considered the exact
market
rate of the lands under acquisition on the
date of notification under Section 4 of the Act of
1894 and without considering the record of the
S.L.A.O., Jalgaon the exorbitant amount of
compensation is granted in favour of the
Respondents/ original claimants. The Appellants
further contended that the Reference Court has not
considered the evidence adduced by the State
Government by examining the Awwal Karkun from the
office of the S.L.A.O., Jalgaon, who has
categorically stated that the compensation granted
by the S.L.A.O. was proper and in accordance with
the provisions of law. They further contended
that they produced the valuation report of the
fruit bearing trees and on the basis of the same,
the Reference Court should have awarded
compensation in respect of fruit bearing trees.
It is the case of the Appellants that the
Reference Court has considered the sale instance
dated 16th January, 1996 in respect of 50 Rs land
from village Shingayat for consideration of
Rs.1,25,000/- and another sale instance dated 13th
August, 1997 for 40 Rs from village Hingane for
the consideration of Rs.1,02,000/- which are not
comparable sale instances for considering the
market value of acquired land.
5. The learned A.G.P. appearing on behalf of
the Appellants contended that the Reference Court
erred in coming to the conclusion that the market
value of Bagayat land is to be calculated double
the market rate of Jirayat land and market value
in respect of Pot Kharab land to be calculated
half of the market value of Jirayat land. On the
basis of these submissions, learned A.G.P.
appearing on behalf of the Appellants prayed that
the Judgment and award passed by the Reference
Court dated 18th December, 2001 to be set aside.
6. Learned A.G.P. appearing on behalf of the
Appellants submitted that witness No.1 for the
original Respondent - State Shri S.S. Beldar
specifically stated that the S.L.A.O. awarded the
proper price in respect of the acquired land.
7. It is to be noted here that DW No.1 Beldar
was working as Awwal Karkun in the office of the
S.L.A.O., Jalgaon. The award dated 18th August,
2000 under Section 11 of the Act of 1894 was
passed by the S.L.A.O. and not by Awwal Karkun,
therefore,
the evidence given by the Awwal Karkun
cannot support the case of the Appellants at all.
Reference under Section 18 of the Act of 1894 is
not an Appeal against the award and the Court
cannot take into account the material relied upon
by the S.L.A.O. in his award unless the said
material is produced and proved before the Court
in accordance with the Evidence Act. The
Appellants failed to lead any cogent evidence to
show that the market value awarded by S.L.A.O.
was according to the prevailing market rate as on
the date of issuance of notification under Section
4 of the Act of 1894 dated 21st August, 1997.
8. Learned A.G.P. appearing on behalf of the
Appellants submitted that the Reference Court
erred in relying on sale instance dated 16th
January, 1996 in respect of 50 Rs land and sale
instance dated 13th January, 1997 in respect of 40
Rs land for deciding the market value of the
acquired lands.
9. On the other hand learned counsel appearing
on behalf of the Respondents pointed out that only
these two sale instances are comparable sale
instances
for determining the market value of the
acquired land. The notification under Section 4
of the Act of 1894 issued on 21st August, 1997,
whereas both the sale instances are from the same
period i.e. of the years 1996 and 1997.
10. It is pertinent to note that amount of
compensation cannot be ascertained with
mathematical accuracy. The comparable instances
have to be identified having regard to the
proximity from time angle as well as proximity
from situation angle. For determining the market
value of the land under acquisition, a suitable
adjustment has to be made having regard to various
positive and negative factors vis-a-vis the land
under acquisition by placing the two in
juxtaposition. For this purpose we can rely on
the Apex Court Judgment in the matter of Viluben
Jhalejar Contractor vs. State of Gujarat,
reported in (2005) 4 Supreme Court Cases, 789.
Para 18, 19 and 20 of the said Judgment reads as
under:
"18) One of the principles for
determination of the amount of compensation
for acquisition of land would be the
willingness of an informed buyer to offer
the price therefor. It is beyond any cavil
that the price of the land which a willing
and informed buyer would offer would be
different in the cases where the owner is
in possession and enjoyment of the property
and in the cases where he is not.
19) Market value is ordinarily the
price the property may fetch in the open
market if sold by a willing seller
unaffected by the special needs of a
particular purchase. Where definite
material is not forthcoming either in the
shape of sales of similar lands in the
neighbourhood at or about the date of
notification under Section 4(1) or
otherwise, other sale instances as well as
other evidences have to be considered.
20) The amount of compensation cannot
be ascertained with mathematical accuracy.
A comparable instance has to be identified
having regard to the proximity from time
angle as well as proximity from situation
angle. For determining the market value of
the land under acquisition, suitable
adjustment has to be made having regard to
various positive and negative factors
vis-a-vis the land under acquisition by
placing the two in juxtaposition......."
. The Apex Court held that the amount of
compensation cannot be ascertained with
mathematical accuracy. We have to consider plus
and minus factors for that purpose. In the
present case two sale instances produced by the
Respondents/ original claimants of the year 1996
and 1997 which can be considered for fixing the
market
value of the acquired land. The Reference
Court considering these two sale instances, came
to the conclusion that the claimants are entitled
to compensation in respect of acquired Jirayat
land at the rate of Rs.2,00,000/- per Hector.
Both the sale instances were in respect of Jirayat
land only. The rate of land in respect of sale
instance dated 16th January, 1996 comes to
Rs.2,50,000/- per Hector and rate of land in
respect of sale instance dated 13th January, 1997
comes to Rs.2,55,000/- per Hector. Considering
both the sale instances the Reference Court
decided the market value in respect of acquired
Jirayat land at the rate of Rs.2,00,000/- per
Hector. It is to be noted here that out of the
acquired land, some land was Bagayat land, as even
the S.L.A.O. in his award under Section 11 of the
Act of 1894 specifically stated that the claimants
have installed drip irrigation in their respective
fields. The Reference Court decided the market
value of Bagayat land double the value of Jirayat
land. It is pertinent to note here that
previously our High Court also took the same view
that market value of Bagayat land can be double
the value of Jirayat land, in the matter of
Narayan s/o Sambhaji Shelke and another vs. State
of Maharashtra through the Collector, Latur,
reported in 2003 (7) LJSOFT (URC) Page 60. This
Court held that:
"The learned advocate pointed out that the
facts of the case, referred to above, are
mostly similar to the facts of the present
case before us. There is ample evidence on
record, which will indicate that some of
the acquired lands are irrigated lands and
even crops on irrigation are grown in this
fields. Taking into consideration all
these facts and also the view taken by this
Court earlier, referred to above, in the
present case also, the market value of the
irrigated or bagayat land should be double
than the value of dry crop land
(Rs.18,000/- per acre) and it should be
Rs.36,000/- per acre or Rs.90,000/- per
hectare."
11. In similar way in the matter of State of
Maharashtra and another vs. Baliram Girdhar
Patil, reported in 2006 (6) MLJ, 82 this Court
held that:
"The trial court has accepted the sale
deeds Exh.12, Exh.14 and Exh.16. The trial
Court has also accepted market rate of
jirayat land to that of Rs.20,000/- per
acre (Rs.50,000/- per hectare). The trial
court, however, has considered the
suggestion of learned District Government
Pleader that market price of irrigated land
can be one and half times more to that of
the dry crop land. In the first instance,
suggestion given in the evidence of witness
cannot take place of proof. Secondly,
availability of irrigation facility to the
agricultural land is an important factor.
The value and utility of the land in
relation to its productivity depends upon
the facility of irrigation to the land.
Source of irrigation gives assurance for
procurement of a good crop in such
agricultural land. Cash crops give more
and assured yield. Crop pattern can be
scheduled and executed, if irrigation
facility with water source is available.
In the absence of irrigation facility,
owner of such agricultural land i.e. dry
crop land, is left at the mercy of nature.
In this view of the matter, it would not be
proper to consider the market price of
irrigated land by one and half times more
to that of the dry crop land. In my view,
if the market price of dry crop land is
worked out, for working out the market
price of irrigate land, in the absence of
any other evidence on record, double the
market rate of jirayat land has to be
awarded. The objective of the Land
Acquisition Act, 1894, while awarding
amount of compensation, has to be kept in
mind, for determining the market price of
the agricultural land. As noted above, in
the present case, the trial Court has
referred to the suggestion of the learned
District government Pleader and has
determined the market value of bagayat land
to that of one and half times more of the
jirayat land, illegally."
12. In similar way the Reference Court awarded
compensation in respect of Pot Kharab land at the
rate of Rs.1,00,000/- per Hector i.e. 50% of the
market value of the Jirayat land. It is to be
noted
with the Jirayat land.
that the Pot Kharab land cannot be
It may be valued at 50% of
equated
the market value of Jirayat land. Similar view
was taken by our High Court in the matter of State
of Maharashtra vs. Pralhad Bajrang Magar,
reported in 1996 (1) B.C.J., 247, wherein it is
held that:
"Pot kharab land can not be equated with
the jirayat land, it may be valued at fifty
percent of the market value given to
jirayat land."
13. In this group of Appeals, the Reference
Court at the time of granting enhanced
compensation in respect of fruit bearing trees,
have taken into consideration the evidence of PW2.
PW2 visited the acquired land for preparing
valuation and submitted his valuation report. His
occupation was horticulture consultant and valuer.
He has specifically stated that he estimated the
valuation of trees as per his observation and
inspection. On the basis of the said valuation
report the Reference Court awarded marginal
enhancement in respect of fruit bearing trees.
14. Considering the submissions of both the
parties, we
feel that it is not necessary to
interfere the Judgment and award passed by the
Reference Court dated 18th December, 2001 in above
mentioned matters. Therefore all the above
Appeals preferred by the Special Land Acquisition
Officer are dismissed with no order as to the
costs.
[K.K. TATED] [P.V. HARDAS]
JUDGE. JUDGE.
asb/u/fa729.03-
