Bombay High Court
Madhukar Dhondibapu Hambarde vs The State Of Maharashtra And ... on 26 August, 2016
Bench: P.R. Bora
1
FIRST APPEAL 2182 OF 2014.odt
THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD.
APPELLATE SIDE JURISDICTION
FIRST APPEAL NO. 2182 OF 2014
Madhukar s/o Dhondibapu Hambarde,
Age 54 yrs., Occu. Agri.,
R/o Ashti, Tq. Ashti, Dist. Beed. ... APPELLANT
(Orig. Claimant)
VERSUS
1. The State of Maharashtra,
Through Collector, Beed.
(Copy to be served on G.P.
High Court at Aurangabad)
2. The Executive Engineer,
Beed Minor Irrigation, Division, Beed
Zilla Parishad, Beed. ... RESPONDENTS
(Orig. Opponents)
...
Mr. S. L. Bhapkar, Advocate for Appellant.
Mr. G. O. Wattamwar, AGP for Respondent No.1.
Mr. A. R. Tapse, h/f Mr. P. D. Suryawanshi, Advocate for Respondent No.2.
...
CORAM : P. R. BORA, J.
Reserved on : 22nd August, 2016.
Pronounced on : 26th August, 2016.
JUDGMENT:
. Heard.
2 Admit.
FIRST APPEAL 2182 OF 2014.odt
3 By consent of the learned counsel appearing for the
respective parties, the appeal is taken up for final disposal.
4 The Appellant has filed the present appeal seeking
enhancement in the amount of compensation awarded by the learned
Civil Judge Senior Division, Beed, in LAR No.690 of 2010, decided on
2nd July, 2014.
The land of the Appellant, admeasuring 4 Hectare 28 Ares
out of Survey No.488 situated at Ashti town, Taluka Ashti was
acquired for the purpose of Village Tank No.5, at Ashti. Notification
under Section 4 of the Land Acquisition Act (hereinafter referred to as
"the Act") was issued on 24th July, 2003. Award under Section 11 of
the Act came to be passed on 25th August, 2005. The Special Land
Acquisition Officer assessed the compensation of the acquired land at
the rate of Rs.1,625/- per Are. Dissatisfied with the compensation so
offered, the Appellant preferred reference under Section 18 of the Act
to the Collector, Beed, who in turn, forwarded it for adjudication to the
Civil Court, Beed, and was registered as LAR No.690 of 2010.
6 The Appellant had claimed the compensation of his
acquired land at the rate of Rs.4,000/- per Are. In order to
FIRST APPEAL 2182 OF 2014.odt
substantiate the claim so made by him, the Appellant had adduced
the necessary oral and documentary evidence before the Reference
Court. The Appellant himself had entered the witness box and had
deposed in support of his claim. The Appellant had also placed on
record about four sale instances. The learned Reference Court after
having assessed the oral and documentary evidence brought on
record before it, determined the market value of the acquired land at
the rate of Rs.3,000/- per Are and accordingly enhanced the amount
of compensation. In the present appeal, it is the contention of the
Appellant that the Reference Court has not awarded adequate
compensation.
7 Shri Bhapkar, the learned counsel for the Appellant
submitted that total four sale instances were placed on record by the
Appellant at Exhibits - 16, 17, 18 and 19. The learned counsel
submitted that all the four sale instances were of the lands situated at
Ashti town in the vicinity of the land acquired of the Appellant. The
learned counsel submitted that certified copies of all the aforesaid
sale-deeds are placed on record before the Trial Court. The learned
counsel submitted that by bringing on record the aforesaid sale
instances, the Appellant has sufficiently proved that the market value
of his acquired land was more than 10,000/- per Are, however, the
FIRST APPEAL 2182 OF 2014.odt
learned Reference Court has erroneously determined the market
value of the acquired land at the rate of Rs.3,000/- per Are. The
learned counsel, therefore, prayed for adequate enhancement in the
amount of compensation and consequent modification in the
impugned award. The learned counsel placing reliance on the
judgment of the Honourable Apex Court in the case of Chindha
Fakira (dead) Through LRs Vs. Special Land Acquisition Officer,
Jalgaon, reported in, [ (2011) 10 Supreme Court Cases 787]
submitted that out of the sale instances brought on record, the sale
instance wherein highest value is received to the land, needs to be
preferred for determining the amount of compensation.
8 Shri A. R. Tapse, learned counsel holding for Shri
P.D.Suryawanshi, learned counsel for Respondent No.2 supported
the impugned judgment. The learned counsel submitted that the sale
instances, which are relied upon by the Appellant / Claimant, cannot
be held to be comparable sale instances, and as such, the Reference
Court has rightly not accepted the market price as has been received
to the lands, which were subject matter of the said sale instances
while determining the amount of compensation in the present matter.
The learned counsel has relied upon the judgment of the Division
Bench of this Court in the case of Gracinda Braganza & ors. Vs.
FIRST APPEAL 2182 OF 2014.odt
Special Land Acquisition Officer (N) & anr., reported in, [ 2010 (6)
MAH.L.J. 944]. The learned counsel also relied upon the judgment of
the learned Single Judge of this Court in the case of Deputy
Collector and S.D.O. & L.A.O. & anr. Vs. Mrs. Filomena da
Fransco Barreto & ors., reported in, [ 2014 (1) AIR BOM R 239 ],
and one more judgment in the case of State of Maharashtra Vs.
Parubai Vithal Gawade, reported in, [ 2011 (3) ALL MR 47 ].
Shri G. O. Wattamwar, learned AGP adopted the
argument advanced on behalf of the learned counsel appearing for
the acquiring body and prayed for dismissal of the appeal.
10 I have carefully considered the submissions advanced on
behalf of the learned counsel appearing for the respective parties. As
well, I have perused the impugned judgment and the evidence on
record. The material on record reveals that the Appellant had
deposed before the Reference Court to substantiate the contention
raised by him in the reference application. In his testimony before the
Reference Court, the Appellant claimed the compensation at the rate
of Rs.4,000/- per Guntha (Are). The Appellant had also placed on
record the certified copies of the four sale-deeds pertaining to the
lands situated at Ashti, which according to him were in the vicinity of
his acquired land. The Respondents, admittedly, did not adduce any
FIRST APPEAL 2182 OF 2014.odt
oral or documentary evidence.
11 In so far as the quality and potentiality of the acquired
land is concerned, the learned Reference Court has observed in para
19 of the impugned judgment that the acquired land appears to be of
good quality and potentiality. The Reference Court has further
observed that 7/12 extract of the acquired land (Exhibit - 22) shows
existence of well and the crop column thereof shows that the crops
like sugarcane, chilly, wheat and gram were used to be taken.
12 The Reference Court had, thereafter, elaborately
discussed the sale instances, as were produced on record by the
Appellant / Claimant, which are at Exhibits - 16 to 19. The land,
which is the subject matter of Exhibit - 16 was admeasuring 1 Acre 3
Ares and was sold by registered sale-deed on 12th December, 2002,
for the consideration of Rs.2,00,000/- i.e at the rate of Rs.4,651/- per
Are. The sale-deed at Exhibit - 17 pertains to the sale of 32 Ares
land executed on 28th January, 2000, and the consideration received
was at the rate of Rs.3,000/- per Are. The another sale-deed
executed on 12th December, 2002, of the land admeasuring 85 Ares is
at Exhibit - 18 wherein the consideration was received to the said
land at the rate of Rs.12,781/- per Are. Sale-deed at Exhibit - 19 is in
respect of transaction done on 12th December, 2002, in respect of 68
FIRST APPEAL 2182 OF 2014.odt
Ares land, which was sold at the rate of Rs.9,947/- per Are.
13 It is not in dispute that all the four sale instances are of
the period before issuance of notification under Section 4 of the Act
for acquisition of the land, which is the subject matter of present
appeal. The learned Reference Court after having discussed the
aforesaid four sale instances, had noted the positive and negative
factors of the acquired land in para 22 of the judgment and has
determined the market price of the acquired land at the rate of
Rs.3,000/- per Guntha (Are) as on the date of notification under
Section 4 of the Act. The Reference Court has observed that the
Appellant in his cross-examination has admitted that the sale
instances are not of the lands exactly adjacent to the acquired land.
The Reference Court has further recorded that since the Appellant did
not produce on record the map, it is difficult to positively conclude that
the lands, sale instances in respect of which are placed on record, are
in the vicinity of the acquired land.
14 I have carefully perused the evidence of the Appellant
before the Reference Court. It is true that the Appellant had admitted
in cross-examination that lands, which were subject matter of sale
instances, do not come within the boundaries of the acquired land.
However, it has not been disputed that all the four sale instances
FIRST APPEAL 2182 OF 2014.odt
placed on record pertain to the lands situated at Ashti town. It is
significant to note that in his examination-in-chief, the Appellant had
specifically deposed that the acquired land is on Ahmednagar-Beed
road and that in the adjacent survey number, the residential houses
are built and there is also a college nearby the acquired land and also
a ginning factory. It was also deposed by him that the acquired land
was at the distance of 0.5 km from Ashti town. The facts so stated by
the Appellant are remained undisturbed in the cross-examination also.
15 Considering the facts as aforesaid, it appears to me that
the Reference Court while determining the amount of compensation
has adopted a more conservative approach, which has resulted in
determining the market price of the acquired land on a lower side.
Even if the sale instances occurred in the year 2002 are kept out of
consideration and the market price of the subject land is decided to be
fixed on the basis of sale-deed executed in the year 2000, it must
have been determined at the rate more than Rs.3,000/- per Are as
has been determined by the Reference Court. Further it does not
appear to me that the other sale instances are to be completely kept
out of consideration. As has come on record the price received to the
lands in the aforesaid sale instances ranges from Rs.4,651/- per Are
to Rs.12,781/- per Are. Even if it is decided to determine the market
FIRST APPEAL 2182 OF 2014.odt
value assuming that the acquired land was not situated at such an
advantageous place as were the lands under sale instances, in my
opinion, the market value of the acquired land could not have been
determined at the rate below Rs.4,000/- per Are. I reiterate that the
land, which was subject matter of Exhibit - 17 and which was sold in
January 2000 i.e. much prior to the issuance of notification under
Section 4 of the Act and also prior to the date of taking possession of
the acquired land, can be held to be a base for determining the
market value of the acquired land and on the basis of it, the market
value of the acquired land can be reasonably determined at
Rs.4,000/- per Are. The sale-deed at Exhibit - 17 pertains to a semi
irrigated land. The acquired land, which is the subject matter of
present appeal also falls in the category of semi irrigated land in view
of the fact that a well was existing in the said land and sugarcane crop
was being taken in the said land. The amount of compensation,
therefore, needs to be enhanced to the aforesaid extent. Hence the
following order:
ORDER
I. The first appeal is partly allowed.
II. The award impugned in the present appeal stands
FIRST APPEAL 2182 OF 2014.odt
modified as under:
The market value of the acquired land is
determined at the rate of Rs.4,000/- per Are.
The Appellant, in addition to the market
value of the land, shall be entitled to the
statutory benefits and the interest as per the
provisions of the Land Acquisition Act.
III. The award of the Reference Court impugned in the
present appeal shall stand modified to the aforesaid
extent.
IV. In the facts and circumstances of the case, no order
as to the costs.
[ P. R. BORA, J. ]
ndm
