Shamlal Shaligram Chandak vs State Of Maharashtra
2016 Latest Caselaw 1990 Bom

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                                                                            fa562.04.odt

            IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                                     
                      NAGPUR BENCH, NAGPUR




                                                             
                          First Appeal No.562 of 2004

      Shamlal s/o Shaligram Chandak,
      Aged about 45 years,
      Occupation - Cultivator




                                                            
      and Business, 
      R/o Danapur, Tq. Telhara,
      Distt. Akola.                                             ... Appellant/
                                                                     Ori. Claimant




                                              
            Versus           
      State of Maharashtra,
                            
      Through the Collector,
      Akola, 
      Represented by Special
      Land Acquisition Officer,
      Akola, Tq. and Distt. Akola.                              ...  Respondent/
      


                                                                     Ori. Respondent
   



      Shri C.A. Joshi, Advocate for Appellant.
      Shri M.A. Kadu, Assistant Government Pleader for Respondent.





                    Coram : R.K. Deshpande, J.

                    Dated  : 28    April, 2016
                                th
                                               


       Oral Judgment :

1. The land admeasuring 89 R out of Gat No.142 of Village

Saundala, Tahsil Telhara, District Akola was acquired by issuing the

notification under Section 4 of the Land Acquisition Act, 1894 on

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14-6-1990 for the purposes of construction of canal of the Irrigation

Department. The notification under Section 6 of the said Act was

published on 16-5-1991 and the Land Acquisition Officer passed an

award on 2-5-1992 determining the market value of the land acquired

at the rate of Rs.17,900/- per hectare and the total compensation of

Rs.15,775/- was made payable to the appellant-claimant, and in

addition to it, all statutory benefits were also made available. In this

appeal, the claimant is before this Court seeking enhancement of

compensation at the rate of Rs.1,00,000/- per hectare.

2. Before the Reference Court under Section 18 of the Land

Acquisition Act, claimant-Shamlal Shaligram Chandak entered the

witness-box and examined himself. He was cross-examined on behalf

of the Collector. The claimant also examined witness-Narendra

Wasudeo Patil, said to be the expert, who prepared the report at

Exhibit 33, indicating the net income at the rate of Rs.8,000/- per

hectare per annum from the land in question, in which the crops like

cotton, tur, wheat, etc., were taken. There was no cross-examination

of this witness on behalf of the claimant.

3. The Reference Court has held that the evidence adduced by

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the claimant in respect of the income capitalization method is far from

satisfactory. The claimant has not brought on record the quality of

agricultural land, market value of the produce, cost of production, net

profit, etc., and, therefore, it is not possible to assess the net income

from the acquired land in order to apply proper multiplier for

capitalizing the same. It has further held that the income

capitalization method was required to be applied in case of non-

availability of comparable sale instances, in view of the decision of the

Apex Court in the case of Executive Director v. Sarat Chandra Bisoi and

another, reported in (2000) 6 SCC 326. The Reference Court has also

relied upon the decision of the Apex Court in the case of Dilawarsab

Babusab Mullasab and others v. Special Land Acquisition Officer,

reported in AIR 1974 SC 2333, to hold that too much reliance cannot

be placed on the oral evidence of the claimant in respect of his income

from the lands without support from documentary evidence at the

time of issuance of the notification under Section 4 of the Land

Acquisition Act.

4. The Reference Court has rejected the evidence of the expert,

holding that it is merely based on the guess work and there is no iota

of evidence on record in support of it. There is no evidence of sale

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and purchase of the nearby lands brought on record, and though

witness-Narendra Wasudeo Patil has referred to sale instances in

respect of the lands in the vicinity, it is held that there is variance in

price and hence those sale instances cannot be taken into

consideration. The Reference Court has held that in fact the claimant

ought to have brought on record the evidence in respect of these sale

instances. It has further held that despite availability of best evidence

regarding sale of similar lands, the claimant has kept it away from the

Court.

5. In respect of the certified copy of the judgment

dated 20-7-2002 delivered in L.A. Case No.79/2003 at Exhibit 39, the

Reference Court has held that the notification under Section 4 of the

Land Acquisition Act was issued on 26-4-1989 and it has fixed the

market value of the land at Rs.25,000/- per hectare. The Reference

Court has further held that the judgment of the Court can be made the

basis for assessment of market value of the acquired land subject to

party relying upon such judgment to adduce evidence for showing that

due regard being given to all attendant facts, then only it can form the

basis for fixing the market value of the land. It has further held that

there is no evidence brought on record about the attendant facts.

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6. The point for determination is as under :

Whether the claimant is entitled to further enhancement of

compensation?

7. With the assistance of the learned counsels appearing for the

parties, I have gone through the oral evidence of appellant/claimant-

Shamlal Shaligram Chandak as well as expert witness-Narendra

Wasudeo Patil. I have also gone through the certified copy of the

judgment at Exhibit 39 delivered in L.A. Case No.79/2003.

Shri Joshi, the learned counsel for the appellant-claimant, submits that

the Reference Court ought to have at least fixed the market value of

the land at the rate of Rs.25,000/- per hectare on the basis of its

decision at Exhibit 39. He further submits that under Order XLI,

Rule 27 of the Code of Civil Procedure, the Court can take into

consideration this judgment to fix the market value at the rate of

Rs.25,000/- per hectare. Shri Joshi seeks remand of the matter back

to the Reference Court to provide an opportunity to the claimant to

adduce further additional evidence.

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8. The Reference Court has considered all the arguments

advanced by the learned counsel for the appellant-claimant before this

Court, except the argument under Order XLI, Rule 27 of the Code of

Civil Procedure Code. The copy of the judgment at Exhibit 39 has also

been considered. Upon going through the oral evidence of the

claimant, I do not find therein any reference to the judgment at

Exhibit 39 or the sale instances considered in the said judgment. The

claimant himself does not want to rely upon the method of valuation

on the basis of the sale instances, and, therefore, he has examined the

expert to assess the total annual income from the land in question.

9. The Reference Court was right in holding that neither the

oral evidence of the claimant nor of the expert witness-Narendra

Wasudeo Patil is satisfactory and trustworthy in the absence of

necessary documents and other evidence available on record. The

claimant has already lost the opportunity to bring on record the

evidence in support of the claimant at the rate of Rs.1,00,000/- per

hectare. It is, therefore, not possible for this Court to remand the

matter back to the Reference Court to provide the claimant an

opportunity to lead further additional evidence. In the absence of any

such case being made out under Order XLI, Rule 27 of the Code of

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Civil Procedure, which is also not the application made before this

Court, the judgment delivered by the Reference Court is well

considered and does not call for any interference.

10. The appeal is, therefore, dismissed. No order as to costs.

                              ig                                JUDGE.

       Lanjewar