Prakash Pandurang Kadam Yvt vs The State Of Mah & 2 Others
2016 Latest Caselaw 1259 Bom

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       IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH 




                                                                                        
                               NAGPUR.

                       FIRST   APPEAL     NO.   119     OF     2007




                                                                
                                          AND
                     CIVIL APPLICATION (CAF)  NO.  1387  OF 2016




                                                               
    Prakash Pandurang Kadam,
    aged 47 yrs. Occu. Agriculturist,
    R/o Sirasgain, Tq. Ner-Parsopant,
    Distt. Yavatmal.                                                         APPELLANT.




                                                
                               ig               VERSUS
                             
    1] The State of Maharashtra,
    through Collector, Yavatmal.

    2] The Special Land Acquisition
    Officer, Lower Pus Project, 
      


    Pusad. 
   



    3] Executive Engineer,
    Minor Irrigation Division,
    Vidarbha Irrigation Development
    Corporation Division Pusad,





    Tq. Pusad, Distt. Yavatmal                                               RESPONDENTS.

Shri S. U. Nemade, Advocate for the appellant.

Shri H. R. Dhumale, Assistant Government Pleader for respondents.

                              CORAM:     A. S. CHANDURKAR  J.
                               
                                      Dated    :   APRIL  06, 2016.

    ORAL JUDGMENT: 

Civil Application No. 1387 of 2016: Notice on the application is

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made returnable forthwith. Shri H. R. Dhumale, learned Assistant

Government Pleader waives notice for the respondents.

3] This application has been filed under provisions of Order 41 Rule

27 of the Code of Civil Procedure for placing on record two maps to indicate

the location of the acquired land and the location of the lands relating to the

sale instances already on record. In the application it is stated that the map

at Sr. No. 1 is a Tahsil map while the map at Sr. No. 2 is a village map. These

documents being public documents would assist the Court in deciding the

appeal.

4] The application is opposed by Shri H. R. Dhumale, the learned

Assistant Government Pleader on the ground that the maps could have been

produced before the Reference Court. Similarly the contents of said map

cannot be taken to be duly proved.

5] The appeal arises out of the judgment of the Reference Court

under Section 18 of the Land Acquisition Act, 1894. Two sale instances are

placed on record for seeking enhancement of the amount of compensation.

Considering the fact that it is necessary to take into account the location of

the acquired land in comparison with the lands mentioned in the sale

instances, both the maps would assist the Court in deciding the appeal.

Hence, for the purposes of gathering the location of the acquired land and

the land mentioned in the sale instances, the application is allowed. The

maps placed along with the application shall be considered while deciding

the appeal. Application is disposed of.

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FIRST APPEAL NO. 119 OF 2007

This appeal filed under Section 54 of the Land Acquisition Act,

1894 (for short, the said Act) has been filed by the land owner seeking

enhancement in the amount of compensation as awarded by the Reference

Court. Land admeasuring 3 H 55 R situated at village Sirasgaon which was

owned by the appellant was acquired for minor irrigation tank project. The

Notification under Section 4 of the said Act is dated 14.08.1997. The Land

Acquisition Officer passed his award on 15.05.1999 and granted

compensation at the rate of Rs. 27,000/- per hectare for cultivable land and

Rs. 1500/- per hectare for potkharab land. Being aggrieved the appellant

filed reference under Section 18 of the said Act. The Reference Court duly

enhanced the amount for compensation at Rs. 37,500/- per hectare.

2] Shri S. U. Nemade, the learned counsel for the appellant

submitted that the Reference Court sought to have granted compensation for

the acquired land at the rate of Rs. 1,25,000/- per hectare. He submitted

that two sale instances at Ex. 27 and 28 were placed on record. Though

these sale instances were after the issuance of the Section 4 notification,

same could have been taken into consideration after making necessary

deductions. It was submitted that the sale instance at Ex. 27 was from village

Tembhi which was about 1 ½ kms from the acquired land. The sale instance

at Ex. 28 was from village Sirasgaon and therefore said sale instance also

ought to have been taken into consideration. He submitted that the

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Reference Court was not justified in discarding the said sale instances. He

therefore sought for enhancement in the compensation.

3] Shri H. R. Dhumale, the learned Assistant Government Pleader

for the respondents supported the judgment. He submitted that as the sale

instances were after issuance of the Notification under Section 4 of the said

Act, the Reference Court had rightly discarded the same. According to him

the value mentioned in the sale transaction was exaggerated and therefore

same did not deserve to be taken into consideration. It was then submitted

that the distance of the acquired land from the land mentioned in sale

instances was another factor for discarding the said evidence. As the land of

the appellant was dry crop land, the Reference Court had rightly granted an

amount of Rs. 37,500/-.

4] With assistance of the learned counsel for the parties I have gone

through the records and I have perused the impugned judgment. The point

that arises for determination is, "Whether a case has been made out for

enhancement of compensation?"

5] In support of the claim for enhancement the appellant examined

himself at Ex. 24. He admitted that his land was dry crop land and that he

had not placed on record the amounts earned by him through the sale of the

crops sown therein. He referred to the sale transaction dated 27.04.1998

pertaining to village Tembhi which was about 1 ½ kms away from the

acquired land. He also referred to the sale deed dated 03.05.1999 pertaining

to the same village.

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Another witness examined was the vendor of the sale deed dated

27.04.1998. According to him village Tembhi was situated about 1 ½ kms.

away from Sirasgaon. He denied the suggestion that it was situated 8 kms.

away from Sirasgaon.

6] There is no sale instance placed on record which has been

executed prior to 18.08.1997 when the Notification under Section 4 of the

Act came to be issued. Ex. 27 is the sale instance dated 27.04.1998 by which

the land admeasuring 2 H 2 R was sold for Rs. 1,50,000/-. The land was

situated at village Tembhi. The rate would therefore be approximately Rs.

75,000/- per hectare. The other sale instance at Ex. 28 is dated 05.05.1999

which indicates sale of 1 H. 21 R land from village Sirasgaon for a

consideration of Rs. 1,20,000/-.

7] In Chimanlal Hargovinddas Vs. Special Land Acquisition

Officer, Poona and another (1988) 3 SCC 751 the Hon'ble Supreme Court

has held that a post notification sale instance can be taken into account if it is

proximate, genuine and the acquisition itself has not motivated the purchaser

to pay higher price. On aforesaid legal principle, the sale instance at Ex. 27

dated 27.04.1998 is the most proximate post notification sale instance. The

rate mentioned herein is Rs. 75,000/- per hectare. It is however to be noted

that the land thereunder was admeasuring 2 H 2 R from village Tembhi.

Considering the Tahsil map placed on record coupled with the deposition of

P. W. 2 that the distance of the acquired land was about 1 ½ kms from

Sirasgaon and the fact that the acquired land was dry crop land, by making

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necessary provision towards post notification sale instance, area of the

acquired land and its quality, an amount of Rs. 55,000/- per hectare appears

to be fair compensation for the acquired land. The sale instance at Ex. 28 is

almost two years after the Notification dated 14.08.1997 and the same is

therefore discarded. Even otherwise the rate mentioned therein appears to

be slightly on a higher side as observed by the Reference Court.

8] In view of aforesaid the point as framed is answered by holding

that the appellant is entitled for compensation at the rate of Rs. 55,000/- per

hectare for the acquired land. Accordingly judgment dated 25.08.2003 in

Land Acquisition Case No. 195 of 1999 is partly modified. The appellant is

entitled for enhanced compensation at the rate of Rs. 55,000/- per hectare

along with all statutory benefits. The first appeal is partly allowed in

aforesaid terms with no order as to costs.

JUDGE

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