Rajanna Son Of Durguyya Aguwar vs The State Of Maharashtra
2013 Latest Caselaw 394 Bom

                                       1                         fa681.94.odt




         IN THE HIGH COURT OF JUDICATURE AT BOMBAY,




                                                                       
                     NAGPUR BENCH, NAGPUR.




                                               
                     First Appeal No.681 of 1994

    Rajanna son of Durguyya Aguwar,




                                              
    Aged about 73 years, Cultivator,
    Resident of Chalbardi, Tahsil Kelapur,
    District Yavatmal.                         ..... Appellant.

                              :: versus ::




                                    
    The State of Maharashtra,
                       
    Through the Collector,
    Yavatmal, District Yavatmal.             ..... Respondent.

    ==========================================
                      
           Ms. S.H.Batiya, Adv. h/f Shri R.R.Srivastava, Counsel
           for the Appellant.
           Shri S.M.Bhagade, AGP for the Respondent-State.
    ==========================================
      
   



                        CORAM      : A. P. BHANGALE, J.

                        DATE       : 20th DECEMBER, 2013





    ORAL JUDGMENT.

1. This appeal is preferred, against judgment and award

dated 31.1.1994, passed by the learned Civil Judge Senior

Division, Yavatmal (for short "Reference Court"), in Land

Acquisition Case No.6 of 1989, by appellant - Rajanna

Aguwar, whereby the learned Civil Judge Senior Division,

.....2/-

2 fa681.94.odt

Yavatmal, by its impugned judgment and award, directed the

State of Maharashtra to pay enhanced amount of

compensation for the acquired land bearing Survey No.18/2

admeasuring 3.50 HR from village Sakhara.

The land was acquired for the purpose of viz.

"Construction of Percolation Tank" of Sakhara. The

notification under Section 4 of the Land Acquisition Act (for

short, "the Act"), was published on 4.2.1983 and the owner

of land had claimed the compensation in the sum of

Rs.12,000/- per acre i.e. Rs.30,000/- per hectare. Apart from

the compensation, the owner of the land had claimed

Rs.10,000/- for 4 stone bandhis and 50 teak trees at the rate

of Rs.10,000/- per teak tree.

2. It is not in dispute, that during cross examination, the

land owner admitted having cut and fell 50 tick trees and

carried away, therefore, there was no claim for compensation

in respect of the tick trees, and it was limited to acquire the

land. It was claimed that in the year 1982-83 some sale

instances occurred at village Sakhara and in Kelapur about

two kilometers away from Sakhara. The land admeasuring

1.20 HR was sold for Rs.30,000/-. The claimant had also

.....3/-

3 fa681.94.odt

relied upon subsequent sale transaction which occurred in

the year 1985-86 in order to claim enhanced amount of

compensation for the land acquired.

3. The learned counsel for the claimant submitted with

reference to subsequent sale transaction namely Exhs.64

and 60 to argue that the compensation ought to have been

awarded at rate of Rs.30,000/- per hectare for the acquired

land considering the subsequent transaction.

4. The learned counsel for the further submitted that for

grant of compensation, Section 23 of the Act, mentions about

the matter to be considered and he prayed for enhancement

of the compensation at least in the sum of Rs.18,000/- to Rs.

20,000/- per hectare on the basis of the average of the said

transaction in evidence at Exhs.60 and 64. Under Section 23

of the Act, as applicable to the State of Maharashtra, the

market value of the land as on the date of the notification

under Section 4 and the use of the land to which it was put

on the date of the declaration damage sustained by the

person interested when position of the land was taken from

him and in consequence of the acquisition of the land needs

consideration. The Court determining the amount of

.....4/-

4 fa681.94.odt

compensation to be awarded is obliged to consider the

market value of the land on the date of the notification.

5. In the present case, the claimant had placed reliance

upon the sale transaction of the year 1981 which was much

prior to the notification under Section 4 in the year 1983 in

the present case and 2.40 HR of land (6 acres) was sold for

Rs.31,000/-. Thus, the rate comes approximately Rs.12,916/-

per acre.

6. According to the learned Assistant Government Pleader,

the Reference Court considered Exh.64 in paragraph No.11 in

the impugned judgment and award. The Reference Court

while referring to Exh.64 observed that the sale transaction

Exh.64 is from village Chalbardi. This was proved by the

claimant by examining Vyankati Narsimlu Erpanwar, who

deposed at Exh.62 to prove that 6 acres of land was

purchased in the year 1981 for Rs.31,000/-, although

according to the said witness village Chalbardi is close to

Pandharkawada in comparison with village Sakhara. The

witness admitted that his land was Gaonkari with revenue

assessment of Rs.6.55.

.....5/-

5 fa681.94.odt

According to the Reference Court, therefore, the land

belonging to witness Vyankati Erpanwar had higher rate.

According to the he reference Court the land of the claimant

had drawback such as the fact that the situtation between

two hills with water stream by the land of the claimant than

the land of the Vyankati Erpanwar which was close to Kelapur

to Pandharkawada.

However, to my mind the fact that the land was situated

by the side of the water stream and between two hills would

not be really a drawback although it has to be borne in mind

that the land was away from village of Pandharkawada and

the claimant's land was not Gaonkari land. This fact needs to

be considered not against the claimant but in respect of his

contention for enhancement of the compensation as it was

possible to get the land irrigated with natural source of water

readily available.

7. Having considered the pros and cons of the claim,

particularly bearing in mind that the sale transaction Exh.64

was couple of years prior to the date of notification under

Section 4; hence, assuming for the sake of argument that

according to the learned Assistant Government Pleader the

.....6/-

6 fa681.94.odt

land was away from village Pandharkawada. The strong plus

factor is that there was a water stream by the side of the

claimant's land acquired and it was also situated between

two hills. It cannot be considered as minus factor as the fact

was not positively considered by the Reference Court. In my

opinion at least Rs.1,000/- per acre need to be enhanced.

Hence, the claimant would be entitled to claim sum of Rs.

11,000/- per hectare in stead of Rs.10,000/- per hectare as

ordered by the Reference Court.

8. In the result, the appeal is, therefore, partly allowed. The

impugned judgment and award is modified as under :

The reference shall stand allowed with costs with a

direction that the respondent - State of Maharashtra, through

the Collector, Yavatmal, District Yavatmal, shall pay

enhanced amount to the claimant for the acquired land 3.50

HR at the rate of Rs.11,000/- per hectare instead of Rs.

10,000/- per hectare granted along with all benefits, 30%

solatium and additional components statutorily payable at

rate of 12% per annum on the enhanced compensation

amount from the date of notification under Section 4 i.e.

4.2.1983 till the date of award.

.....7/-

7 fa681.94.odt

The compensation already paid and received by the

claimant shall be deducted and adjusted from the enhanced

amount of the modified award. No order as to costs.

9. The appeal thus partly allowed and disposed of

accordingly.

                          ig                          JUDGE
                        
         !! BRW !!
      
   






                                                                                ...../-