Nagpur Bench: Nagpur vs Unknown
2012 Latest Caselaw 394 Bom

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                                       1

               IN THE HIGH COURT OF JUDICATURE AT BOMBAY:




                                                                            
                           NAGPUR BENCH: NAGPUR
                           FIRST APPEAL NO.300 OF 1997




                                                    
             APPELLANT:
                  Sharad s/o Rajaram Takarkhede, aged about 55 years,
                  r/o Warud, Tq. Warud, District : Amravati [original




                                                   
                  petitioner] [through L.Rs.]
             1] Smt.Sharda Sharad Takarkhede, aged about 62 years,
                  occ : household, r/o 16, Bhhayalal Gupta Wadi, Opp
                  Sitanagar, Gomalwadi, Nagpur Tah and district :




                                          
                  Nagpur.
             2] Vinod s/o Sharad Takarkhede, aged about 39 years, occ :
                              
                  service, r/o 16 Bhayyalal Gupta Wadi, Opp : Sitanagar,
                  Somalwada, Nagpur tah and dist : Nagpur
                             
             3] Vivek s/o Sharad Takarkhede, aged about 39 years, occ :
                  service, r/o 16, Bhayyalal Gupta Wadi, Opp: Sitanagar,
                  Somalwada, Nagpur tah and district : Nagpur.
                                       VERSUS
             


             RESPONDENT:
                  State of Maharashtra, through its Special Land
          



                  Acquisition Officer, No.4 Upper Wardha Project
                  Amravati in the capacity of power delegated by
                  Collector, Amravati





             ============================================
             Mr. V.A. Kothale, advocate for appellant/s
             Mr. D.B. Yengal A G P for respondent
             ============================================





                                        WITH
                              FIRST APEAL NO.461/1997
             APPELLANTS:
                  State of Maharashtra, through Special Land Acquisition
                  Officer, No.4, Upper Wardha Project, Amravati in the
                  capacity of Power delegated by Collector, Amravati




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                                         2

                  [original respondent on R.A.
                                       VERSUS




                                                                               
             RESPONDENT:
                  Sharad Rajaram Takarkhede, aged about 55 years, r/o




                                                       
                  Warud, district : Amravati. [original petitioner on R.A.]
             ============================================
             Mr. A.D. Sonak, A G P for appellant




                                                      
             Mr. V.A. Kothale, advocate for respondent
             ============================================
                                    CORAM: M.N. GILANI, J.

DATE: 26.11.2012.

ORAL JUDGMENT:

These two appeals arise from the judgment and award dated 30.11.1996 passed by the Civil Judge, Senior

Division, Amravati in L.A.C. No.92/1992, whereby the quantum of compensation for the land acquired was enhanced

@ Rs.67,500/- P.H. The land bearing survey no.190/1 mouja

Jarud, Taluq Warud, area 1.52 H.R. out of total area of 2.62 H.R. was compulsorily acquired for the public purpose i.e. rehabilitation of the flood affected persons. Notification under

section 4 of the Land acquisition Act was published on 21.10.1991. The award was declared on 10.3.1992.

Questioning adequacy of the amount of compensation the reference was sought by the land owner/ respondent. Few sale instances were relied upon. Considering the same and particularly the factors like situation of the land and purpose

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for which it was found suitable i.e. for rehabilitation, the

reference court fixed the market value of the acquired land @ Rs.67,500/-. Questioning the adequacy of the quantum of

compensation the land owner has filed First Appeal No.300/1997, whereas the State has filed First Appeal

No.461/1997.

2] Mr. Kothale, learned counsel appearing for the land owner contended that the overwhelming evidence placed

on record has been completely ignored by the learned

Reference Court. Various sale instances, which are proximate

from time angle and situation angle have been simply ignored while fixing the market value of the acquired land. This has resulted into miscarriage of justice and therefore, this court

may interfere with the judgment and award impugned.

3] Per contra, learned A G P contended that no evidence, much less sufficient, has been adduced by the land

owner to justify the enhancement to any extent. According to him, whatsoever amount of compensation awarded by the Special Land Acquisition Officer ought not to have been

enhanced by the learned Reference Court. 4] Since Mr. Kothale, restricted his contention to the adequacy of compensation towards the land and well, the point to be considered by me is:

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                     A]       What should be the fair and just




                                                                               

compensation for the land area 1.52 H.R. & well ?

5] Before I proceed to dwell into the evidence brought on record, it is necessary to comment about the

approach adopted by the learned Reference Court. In paragraph 13 it was observed that the compensation awarded by the Special Land Acquisition Officer is low and

inadequate, as compared to the the existing market price on

the relevant date. However, at what rate the land owner is

entitled to receive the compensation, the reference court observed thus:

"It can be fixed at least at one and half time of

price already fixed by the Land Acquisition

Officer. Thus, I find that market price of the acquired land was not less than Rs.67,500/-

per hect."

Although, while fixing the compensation in land acquisition references, some guess work is permissible, but it must have

some foundation. When the material is placed on the record, fixing the market value merely on guess work is an incorrect approach.

6] The land owner relied upon 4 sale instances,

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details of which are thus:

Exhibit 38 - dated 13.9.1991, the plot area 1089 sq.ft. in ward no.1 Warud fetched value of Rs.2000/-

Exhibit 39 - dated 21.1.1988, the land area 30 R of village Jarud fetched value of Rs.17,000/-

Exhibit 40 - dated 30.1.1987, the land area 31 R at village Warud fetched value of Rs.1,15,501/- including well.

Exhibit 41 - dated 30.12.1986 the land area 19.99 ½ at

village Warud fetched value of Rs.41,000/-

Exhibit 42 - dated 23.10.1986, the land area 40 R situated at Warud, fetched value of Rs.80,000/- with well.

7] In the sale instance exhibit 39 there is overwriting over

the figure of the price of the land as well as the area of the

land. Same is the case with Exhibit 40, 41 & 42. Only instance which can be considered is Exhibit 38. This shows

that value of the plot of 1089 sq. ft. situated in the village Warud fetched Rs.2000/- i. e. approximately Rs.2/- per sq.ft. There are some minus factors which will have to be

considered like: sale was of smaller area, as compared to the area acquired, it is after one year of the date of notification in question and it is situated in the ward no.1 of the village. Therefore, for the reason that this is the post notification sale

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instance the deduction to the extent of 25% and it being

situated within village further deduction of 25% will have to be made. Thus the value would come to 1.50 per sq.ft. The

area per hectare in terms of square foot comes to 1,07,639. 30% will have to be reduced towards development. Thus the

usable area comes to 71,760 x Rs.1.50 per sq.ft. = 1,07, 640, which can be rounded to Rs. 1,10,000/- per hectare. 8] Besides this, there are advantageous factors like

the land was irrigated and it was adjoining the state highway

and particularly to the developed locality. Evidence (P.W.5

Narendra) has also been led to the effect that one petrol pump was near the land acquired. Thus it would be just and fair to fix the compensation @ Rs.1,10,000/- per hectare instead of

Rs.67,500/- awarded by the reference court. In addition to the

enhanced amount of compensation calculated on the basis of aforesaid rate, land owner shall be entitled to all statutory

benefits / increase.

9] As regards well, it has come in the evidence of the land owner (P.W.1 Sharad) that he received compensation of

Rs.9337/- towards well. He admitted in his cross examination that he did not give details of the expenditure made towards construction of the well. However, he denied the suggestion that he had only spent Rs.5,000/- towards construction of the

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well. He stated that there is cement plastering to the upper

portion of the well. Some photographs at Exhibit 48 to 55 are produced, including photograph of the well. Ex-facie, the

amount less than Rs.10,000/for well appears to be too meager. There is evidence of P.W. 2 Sanjay about bore work

done by him in the year 1986-87. P.W. 8 Gopal is a civil engineer who deposed about the depth of the well and the quality of the construction. Even if the evidence of this

witness is not attached much importance, the fact remains that

even the Special Land Acquisition Officer thought it fit to

award Rs.9,337/- towards well. Photographs taken by P.W. 3 Ramchandra reference of which I have already made shows that well was having a considerable depth and was having

source of water. Although, P.W.8 estimated the cost more than

Rs.2,00,000/-, however, by applying guess work, same cannot be more than Rs.50,000/-. Thus on account of well, the

claimant would be entitled to compensation of Rs.50,000/- less received. There was a farm house in the land. The learned reference court discarded the evidence on this point and rightly so.

10] In the result the appeal No.461/1997 is dismissed with no order as to costs.

11] First Appeal No.300/1997 is allowed partly. Land owner shall be entitled to claim compensation @

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Rs.1,10,000/- per hectare for the land acquired. He shall be

entitled to all statutory benefits on the enhanced amount of compensation. He shall further be entitled to enhanced

amount of Rs.40,000/- towards well with other statutory benefits.

There shall be no order as to costs.

JUDGE

SMP.