Bombay High Court
The State Of Maharashtra vs Dharma Kana Katekar on 3 May, 2016
Bench: Mridula Bhatkar
FA414_2005.doc
Vidya Amin IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO. 414 OF 2005
WITH
CROSS-OBJECTION (St.)NO. 1116 OF 2006
The State of Maharashtra
through Special Land Acquisition Officer,
Metro Centre No.3, Panvel ... Appellant
Vs.
Dharma Kana Katekar ... Respondent/
Cross-objector
Mr. A.R. Patil, AGP for the appellant/State.
Mr. A.A. Kumbhakoni a/w. Mr. R.S. Datar, Advocate for the respondent.
CORAM :
ig MRS.MRIDULA BHATKAR, J.
RESERVED ON : 29th April, 2016.
PRONOUNCED ON : 3rd May, 2016.
JUDGMENT
The appellant/State of Maharashtra has filed this Appeal challenging
the judgment and order dated 29th July, 2004 in Land Reference No. 36 of
2003 (Old Land Reference No. 51 of 1999) passed by Joint Civil Judge
Senior Division, Raigad-Alibag thereby giving compensation of
Rs.62,13,914/- with interest. The respondent/original claimant also filed
the cross-objection and prayed for enhancement in the said amount of
compensation, as he is not satisfied with the said amount. The original
claimant is the owner of the land bearing Survey No. 57/1-C, 116/2-A,
113/13, 19/3-A, 70/3, 66/4B situated at Village Dapoli, Taluka Panvel,
District Raigad. The State, by a notification under section 4 of the Land
Acquisition Act dated 3rd February, 1970, acquired these lands and after 16
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years, the Special Land Acquisition Officer passed an award under section
11 of the Land Acquisition Act on 4th July, 1986. The claimant did not
made reference under section 18 of the Land Acquisition Act but filed
reference under section 28-A of the Land Acquisition Act before the Special
Land Acquisition Officer and on 7th March, 1998 the said reference was
disposed of and hence this reference challenging the said order.
2. The Special Land Acquisition Officer has valued the land at Rs.60/-
per sq. mtr. and claimant demanded the rate to be fixed at Rs.200/- per sq
mtr. According to the claimant, the land was agricultural paddy land and
fertility and quality of land was high , which was not considered by Special
Land Acquisition Officer. The electricity and water is easily available near
the land and the land is situated near Panvel Uran Road, i.e., near the
industrial zone in Panvel so also Belapur industrial area is approximately 6
to 7 kms. away from the lands. The land situated near Navasheva Port is
approximately 10 to 12 kms. away and thus, for adjacent lands much
higher rate was given. Before the Special Land Acquisition Officer, while
applying under section 28A(3), he has applied the rate of Rs.25/- per sq.
mtr. Before the Reference Court, the respondent/State appeared and
contested the application and denied all the contentions of the
appellant/original claimant. The claimant has also pleaded that in all there
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are 376 trees standing in the land and most of them are fruit bearing trees
and therefore, he claimed compensation to the extent of Rs163 crores to
the trees standing on the land. It was submitted that the demand of
enhancement of compensation is excessive, not maintainable and is to be
rejected. The original claimant stepped in the box and gave evidence on
the point of enhancement of compensation. He also adduced evidence of
Dharam Kana Katekar witness himself, Civil Engineer & Valuer Vikrant
Manohar Vaidya, Valuer Shrinivas Vishwanath Godbole. The trial Court
considered the oral as well as documentary evidence and partly allowed
the reference. He fixed the rate of land at Rs.16/- per sq. mtr. He also
gave compensation separately for growing trees, i.e., Alphonso mango
trees, Raiwal mango trees and Jamun trees. The bifurcation of the
compensation awarded for the trees by Reference Court is as follows:
91 Alphonso mango trees
(Income of each Tree is Rs.2,500/- p.a.)
Hence, 2,500 X 91 X 15 years life Rs.34,12,500/-
26 Rival mango trees
(Income for each tree is Rs.1,500/- p.a.)
Hence, 1,500 X 26 X 15 years life Rs.5,85,000/-
61 Jamun trees
(Income of each tree Rs.500/- p.a.)
Hence, 500 X 61 X 15 years life Rs.4,57,000/-
202 non fruit growing trees
Price of timber is considered Rs.1,000/-
Hence, 202 X 1000 Rs.2,02,000/-
Total cost of trees Rs.46,56,500
Market value of the land Rs. 2,98,320
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12% Addl. Under section 23(1-A) Rs. 5,87,918
30% solatium Rs.14,86,446
TOTAL AMOUNT Rs.70,28,864
Less: Amount already paid by SLAO Rs. 8,14,950
NET AMOUNT Rs.62,13,914 + interest
However, this order was challenged in Appeal. It was challenged mainly on
the ground that the rate of Rs.16/- which is fixed is on higher side and it
should have been Rs.10/- per sq. mtr. Secondly, it is challenged on the
ground that the learned Judge ought not to have given the compensation
for the trees and so also the land at a time, but either compensation could
have been given for the trees or for the land.
3. Learned AGP has submitted that the judgment and award passed by
the Reference Court is against justice, equity and good conscience and is
liable to be set aside. Mr. Patil argued that the Reference Court has applied
a wrong method of valuation of land having trees on it. He submitted that
the trial Court should have applied the method either accepting the market
value of the land including value of the trees treating them as timber or
annual net income of the fruit bearing trees which is multiplied by 8 years,
however, the trial Court has erred in applying both the methods and gave
excessive award. In support of his submissions, he relied on the following
judgments:
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(i) Koyappathodi M. Ayisha Umma vs. State of Kerala, reported in
(1991) 4 SCC 8.
(ii) State of Haryana vs. Gurcharan Singh & Anr., reported in 1995-
Supp(2) SCC 637.
(iii) State of Maharashtra vs. Tulshiram Krishna Mungaji & Ors. in
F.A. No. 462 of 1990 with other connected matters passed by
Division Bench of this Court by an order dated 18 th July, 2001
on the point of fixing the market value of land from village
Dapoli.
(iv) Ramgonda Layappa Birajdar & Ors. vs. Special Land
Acquisition Officer No. 6, Sangli & Ors., reported in (2006) 2
MH. L.J. 436.
(v) Special Land Acquisition Officer M.I.W., Jalgaon vs. Chindha
Fakira Patil (Decd.) & Ors., reported in (2007) 2 MH. L.J. 130.
(vi) Ambya Kalya Mhatre (Decd.) & Ors. vs. State of Maharashtra,
reported in (2011) 9 SCC 325.
The learned AGP Mr. Patil referred the cross-examination of the claimant
and expert Mr. Godbole and has submitted that the evidence of valuer Mr.
Godbole is of no value, as he is neither a Government valuer nor he has
special training in the field. He denied the contentions raised in the cross-
examination. On the point of experts evidence, he relied on following
judgments of the Hon'ble Supreme Court:
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(i) State of H.P. vs. Jai Lal & Ors., reported in (1999) 7 SCC 280.
(ii) Chatt Ram vs. State of Haryana, reported in (1980) 1 SCC
(iii) Nelson Fernandes & Ors. vs. Special Land Acquisition Officer,
South Goa 7 Ors., reported in (2007) 9 SCC 447.
4. The learned senior counsel Mr. Kumbhakoni submitted that Special
Land Acquisition Officer had passed two awards under section 11 of the
Act on 4th July, 1986. He gave additional compensation of the trees on 21 st
October, 1986. He conceded that as per the judgment of the Division
Bench in the case of State of Maharashtra vs. Tulshiram Krishna
Mungaji & Ors. dated 18th July, 2001, the Division Bench of Bombay High
Court has valued the land from Village Dapholi at Rs.10/- per sq. mtr. and
he fairly conceded to it. However, he submitted that for trees, the trial
Judge did not gave adequate compensation. He submitted that in all 376
trees were standing in the land and most of them were fruit bearing trees.
He claimed that the compensation nearly to the extent of Rs.163 crores and
odd should have been given, as all the trees were grown up trees. He
relied on the evidence of valuer Shrinivas Godbole. The total area acquired
was 21080 sq. mtrs., out of which 16200 sq. mtrs. is a land and other lands
which are separate is of 4880 sq. mtrs. is with all standing trees. It is a
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kind of forest and a good amount of income was yielded by this fruit
bearing trees annually. He submitted that the view taken by Reference
Court that separate valuation of one unit of land and separate valuation on
the other land is permissible. Though the land is acquired for one project
and under one notification under section 4, different valuation in respect of
portion of land is permissible. Eg. If a particular valuation of land from
total acquired land is arable land, a separate valuation is given and if some
portion is dry land, then it is valued at lesser rate. Same analogy is
applicable to a particular unit of land where only trees are standing and
other portion of land which is vacant. So, these two units can be separately
valued. However, these two units cannot be valued doubly, i.e., valuation
which is fixed for vacant land and also for the trees. The portion where
trees are standing if separable, then the compensation can be fixed on the
basis of valuation of fruit bearing trees and not the land for that particular
portion of land. In the present case, the award is given separately for the
area of land admeasuring 4880 sq. mtrs. on the basis of valuation of fruit
bearing trees. He has fixed the valuation for trees at Rs.3,52,58,530/-,
however, the trial Court has erred in fixing the valuation of trees
for Rs.46,56,500/-. He said that this valuation is incorrect. He
argued that State of Maharashtra/respondent did not tender any evidence
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to dislodge the evidence of valuer Godbole. The learned senior counsel Mr.
Kumbhakoni has relied on the ratio laid down by the Hon'ble Supreme
Court in the case of Ramanlal Deochand Shah vs. State of Maharashtra
& Anr., reported in (2013) 14 SCC 50. He submitted that in the year
1970 Alphonso mango was sold for Rs.200/- per dozen and approximately
as per the valuer, each mango tree gives about 4000 fruit per year, i.e.,
approximately 300 dozen and the Court fixed the rate at Rs.200/- per
dozen, therefore, it is equal to Rs.60,000/- per year. But the trial Court
fixed the rate and brought down the earning from 60,000/- to Rs.2,500/-
from each Alphonso mango tree without any reason. He submitted that for
raiwal mangoes, valuation given is Rs.4,500/- per year which is brought
down as Rs.1,500/- per year. For Jamun tree, valuation is given as
Rs.4,500/- per year, which is also brought down to Rs.500/- per year. The
income from other trees are considered for timber which is fixed at
Rs.1,500/-, however, Rs.500/- is considered as salvation charges for each
cutting and so compensation for 202 trees was fixed at Rs.1,000/-. He
submitted that this calculation is entirely wrong and ought to have given
the compensation of Rs.3 crores as demanded. Thus, cross-objection
required to be allowed.
5. Before dealing with the main issue whether the valuation of the
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agricultural land or barren land and the land where the trees are standing
can be valued separately or not, it is necessary to fix the value of the
agricultural land which is admittedly a large portion of the acquired land.
The land is from village Dapholi, Tal. Panvel, District Raigad and earlier
instances of the acquisition from the same village were decided by the
Division Bench of this Court.
6. In the case of Tulshiram Krishna Mungaji & Ors. in FA No. 462 of
1990 and in other connected matters, the land was located in Village
Dapholi, Taluka Panvel, District Raigad and the lands were acquired for the
New Mumbai Project by notification under section 4 of Land Acquisition
Act dated 3rd February, 1970. The Division Bench had discussed the
placement and vicinity of the lands from Village Dapholi and held that
market value of these lands should be Rs.10/- per sq. mtr.
7. The learned senior counsel for the original claimant did not
challenge the said judgment by producing any other judgment of this Court
showing that the lands of Dapholi were valued at higher rate and,
therefore, he also fairly accepted the market value fixed for the suit lands
at Rs.16/- per sq. mtr. is on higher side and it should have been granted for
Rs.10/- per sq. mtr.
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8. While adverting to the issue of fixing valuation of the trees and the
land, it is useful to refer the law laid down in the rulings of the Hon'ble
Supreme Court and High Courts on this issue.
9. In the case of Koyappathodi M. Ayisha Umma (supra), the Hon'ble
Supreme Court has held that "It is thus settled law that in evaluating the
market value of the acquired property, namely, land and the building or the
lands with fruit bearing trees standing thereon, value of both would not
constitute one unit; but separate units; it would be open to the Land
Acquisition Officer or the Court either to assess the lands with all its
advantages as potential value and fix the market value thereof or where
there is reliable and acceptable evidence available on record of the annual
income of the fruit bearing trees, the annual net income multiplied by
appropriate capitalisation of 15 years would be the proper and fair method
to determine the market value but not both. The determination of the
compensation of the land as well as the trees is illegal"
10. In the case of State of Haryana vs. Gurcharan Singh (supra), the
Hon'ble Supreme Court again held that under no circumstances, the Court
should allow the compensation on the basis of the nature of the land as
well as fruit bearing trees.
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11. In Ramgonda Layappa Birajdar (supra), the Division Bench of this
Court has also accepted the view taken by the Hon'ble Supreme Court in
the case of Koyappathodi that under no circumstances, the Court should
allow the compensation on the basis of nature of the land as well as fruit
bearing trees.
12. In the case of Special Land Acquisition Officer M.I.W., Jalgaon
(supra), the dual calculation by market price and income yielded from fruit
bearing trees is not permissible. The Special Land Acquisition Officer and
Reference Court have granted the compensation to Shankar for 73 Ares
and 49 Ares are considered to be under fruit garden of pomegranate for
which separate compensation was awarded. The Division Bench has
considered the evidence of land owner and held that from the entries of
cultivation, it appears that the entire area of 122 R is shown under
pomegranate garden and the view was taken that Shankar will have to be
paid higher out of the two methods of calculation of compensation, i.e.,
either compensation of the land or compensation of fruit bearing trees.
Keeping this on background, this situation if compared with the present
case, there is a difference as to a major portion of the land was cultivated
for paddy crops and vegetable , i.e., 1600 sq. mtrs. and some portion was
occupied by 376 trees and therefore, the entire area was not under the fruit
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bearing trees.
13. In the case of Ambya Kalya Mhatre (supra) while dealing with the
similar issue of separate compensation, the Supreme Court held that:
"if the land value had been determined with reference to the sale
statistics or compensation awarded for a nearby vacant land, then
necessarily, the trees will have to be valued separately. But if the
value of the land has been determined on the basis of the sale
statistics or compensation awarded for an orchard, that is land
with fruit-bearing trees, then there is no question of again adding
the value of the trees. Further, if the market value has been
determined by capitalizing the income with reference to yield,
then also the question of making any addition either for the land
or for the trees separately does not arise. In this case, the
determination of market value was not with reference to the
yield. Nor was the determination of market value in regard to the
land with reference to the value of any orchard but was with
reference to vacant agricultural land. In the circumstances, the
value of the trees could be added to the value of the land."
14. The decision of the Reference Court fixing the valuation of the entire
land @ Rs.16/- per sq. mtr. is on the higher side in view of the ratio laid
down in State of Maharashtra vs. Tulshiram Krishna Mungaji & Ors. dated
18th July, 2001. The land in the Appeal is situated in Village Dapholi,
Taluka Panvel, District Raigad and the Division Bench of Bombay High
Court in the case of Tulshiram Mungaji has valued the land from village
Dapholi @Rs.10/- per sq. mtr. Therefore, the judgment of the Reference
Court requires modification to that extent and thus, instead of Rs.16/- per
sq.m. the rate is to be reduced to Rs.10/- per sq. mtr.
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15. The classification of the fruit bearing trees is mentioned above.
Learned AGP has opposed to value fruit bearing trees separately when the
valuation of the land is fixed. The submissions of learned AGP Mr. Patil is
acceptable only to the extent that there should not be double valuation of
the same land, however, when the acquired land can be classified in two
categories according to the quality of the soil, then the classification on the
basis of the land where only fruit bearing trees are standing also can be
separately valued by using a different criteria. If the land acquired is
divided into arable land and dry land, then higher valuation can be given
to arable land and lesser valuation is given to the portion of dry land.
Same analogy is applicable to a particular unit of land where only trees are
standing and other portion of the land which is either vacant or which is
used for cultivation of other crop. Only a double valuation of the same
land is not permissible.
16. I place reliance on Ambya Kalya Mhatre where it is mentioned that
if the sale statistics or compensation is award on the basis of nearby vacant
land, then necessarily, the trees will have to be valued separately. In the
present case, as per the decision of the Division Bench, the valuation of the
entire land is fixed @Rs.10/- per sq.mtr. It is pointed out that the land
admeasuring 4880 sq. mtrs. is a different portion of the land and that is not
to be valued at Rs.10/- per sq. mtr. The area of 4880 sq. mtrs. is not to be
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included while valuing the land @ Rs.10/- per sq. mtr. So, the double
valuation of the same land is avoided. The valuation of this portion of land
can be done on the basis of valuation of trees. The chart mentioned above
gives the details of number of trees standing on this portion of land. Out of
these trees, only fruit bearing trees can be given higher valuation and other
trees can be given less valuation which can be used only for the purpose of
fuel and timber.
17. In the case of Ramanlal Deochand Shah (supra), the Hon'ble
Supreme Court held that 'A reference under section 18 of the Land
Acquisition Act is not an Appeal against the award and the Court cannot
take into account the material relied upon by the Land Acquisition Officer
in his award unless the same material is produced and proved before the
Court. The award is merely an offer made by the Land Acquisition officer.
The Court has to treat the Reference as an original proceeding before it and
determine the market value afresh on the basis of the material produced
before it". Therefore if the initial burden of proving that amount of
compensation allowed in the award of Collector was inadequate, is not
discharged, the award of the Collector which is made final and conclusive
evidence under section 12 as regards matters contained therein will stand
unaffected.
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18. Though the Government has not examined an independent witnesses
on the point of valuation of the trees to discard the evidence of Mr.
Godbole, it is not necessary for the Court to accept the entire evidence of
Mr. Godbole. The Court has to independently assess the credence of the
witness on scrutiny of his examination-in-chief and the admissions elicited
from him in the cross-examination. After going through the evidence of
Mr. Godbole, it appears that the evidence tendered by him is one-sided.
Though he has deposed that he is working as agricultural officer, he does
not hold any degree in Science of Agriculture, so also, he is not a
Government approved valuer, therefore, though the Government has not
examined any other witnesses, I am not inclined to accept the valuation in
the report (Exhibit 26) made by Mr. Godbole as a gospel truth. The
valuation appears to be on a higher side. Under such circumstances, the
valuation of mango and jamun trees can be decided by taking practical
approach which is based on guess work, i.e., by taking the judicial note of
the erstwhile market rate of mangoes and jamun. Mr. Patil has also pointed
out that though the notification is of the year 1970, the possession was
taken by the Government in the year 1986, thus for 16 years, the land and
trees remained in possession of the claimant. However, the life of the
mango and jamun trees is as an average 60 years, so the compensation for
15 years is to be given.
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19. Mr. Kumbhakoni provided a chart for compensation of trees as per
the demand of the appellant, which reproduced as follows:
COMPARATIVE CHART FOR COMPENSATION FOR TREES
(I) ALPHONSO MANGO TREES
Trees Reference Ct.
No. of Rate Amt. Of Claim for Amt. Of
trees awarded by compensation by enhancement (rate compensation
reference Ref. Court (rate X increase at every 5 claimed
Court 15 yrs.) years)
91 2500 34,12,500.00 91 X 4000 X 2 X 5 36,40,000.00
91 X 4000 X 4 X 5 72,80,000.00
91 X 4000 X 8 X 5 1,45,60,000.00
ig Total 2,54,80,000.00
(II) RAYWAL MANGO TREES
Trees Reference Ct.
Number Rate Amt. Of Claim for Amt. Of
of trees awarded by compensation by enhancement (rate compensation
reference Ref. Court (rate increase at every 5 claimed
Court X 15 yrs.) years)
26 1500 5,85,000.00 26 X 6000 X 0.75 X 5 5,85,000.00
26 X 6000 X 1.50 X 5 11,70,000.00
26 X 6000 X 3.00 X 5 23,40,000.00
Total 40,95,000.00
(III) JAMUN TREES
Trees Reference Ct.
Number Rate Amt. Of Claim for Amt. Of
of trees awarded by compensation by enhancement (rate compensation
reference Ref. Court (rate increase at every 5 claimed
Court X 15 yrs.) years)
61 500 4,57,000.00 61 X 4000 X 5 12,20,000.00
61 X 8000 X 5 24,40,000.00
61 X 16000 X 5 48,80,000.00
Total 85,40,000.00
20. The amount of compensation is based on the valuation given by Mr.
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Godbole. Mr. Kumbhakoni, senior counsel has submitted that the life of trees if
taken as 15 years, after every 5 years, the rate of fruits, i.e., mangoes and jamuns
will not remain static but it will increase and therefore, it is to be considered
double the rate then earlier one.
21. It is said that each mango tree will have 4000 fruits per year, i.e.,
approximately 333 dozens. I am not ready to accept that each tree will have
4000 fruits per year, as learned Judge has observed that the fruits depends on
soil, climate, water, care and quality of trees. Thus, it will be appropriate to
consider that each mango tree was giving 2000 fruits per year and price of one
dozen in the year 1970 cannot be Rs.200/- or higher than that.
ALPHONSO MANGO TREES
Each mango tree gives 2000 fruits when
blossom. However, it is to be noted that
mango trees fructify alternate year. (From
1986 to 1991). Hence, 1000 fruits every
year.
Price of one mango is considered Re.1 1000 X 1 = Rs.1,000
Price of 91 mangoes trees 1000 X 91= Rs.91,000
Rs.4,55,000
For 5 years 91,000 X 5
From 1992 to 1997
Price of one mango is considered Rs.5 1000 X 5 = Rs.5,000
Price of 91 mangoes trees 5000 X 91=4,55,000
(for one year)
For 5 years 4,55,000 X 5 Rs.22,75,000
From 1998 to 2003
Price of one mango is considered Rs.10 1000 X 10 = Rs.10,000
Price of 91 mangoes trees 10000 X 91=9,10,000
(for one year)
For 5 years Rs.9,10,000 X 5 Rs.45,50,000
TOTAL Rs.72,80,000
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RAYWAL MANGO TREES
1986-1991
Price of per tree Rs.700/- per year
Price of 26 mangoes trees 700 X 26= Rs.18200
For 5 years Rs.18,200 X 5 Rs.91,000
1992-1997
Price of per tree Rs.1,500/-
Price of 26 mangoes trees 1500 X 26= Rs.39000
For 5 years Rs.39000 X 5 Rs.1,95,000
1998-2003
Price of per tree Rs.2,500/-
Price of 26 mangoes trees 2500 X 26= Rs.65000
For 5 years ig Rs.65,000 X 5 Rs.3,25,000
TOTAL Rs.6,11,000
JAMUN TREES
Price of per tree Rs.500/-
Price of 61 jamun trees 500 X 61= Rs.30500
For 15 years Rs.30500 X15 Rs.4,57,500
TOTAL Rs.5,00,000
Rounding figure
NON-FRUIT GROWING TREES : 202 trees X Rs.1,000 =Rs.2,02,000/-
Alphonso Mango trees 72,80,000
Raywal Mango trees 6,11,000
Jamun trees 5,00,000
Non fruit growing trees 2,02,000
TOTAL Rs.85,93,000
22. The valuation of the land other than the land used for trees is
brought down from Rs.16/- to Rs.10/- as mentioned earlier. Accordingly,
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the calculation is to be made and the amount of compensation is to be
fixed. In respect of grant of solatium, interest and other benefits, the order
passed by the Reference Court is maintained. However, the figures of the
compensation may vary and to be calculated as per the increased valuation
of the fruit bearing trees and the decreased valuation of the remaining
portion of the land by the Reference Court.
23. As it is noted that the valuation of the larger portion of land is
brought down from Rs.16/- to Rs.10/-, the complainant has received more
compensation. However, the valuation of the trees is increased and
therefore, he is entitled to receive more compensation. Therefore, it can be
adjusted while giving the amount to the complainant.
24. First Appeal filed by the appellant/State is dismissed. Cross-
objection filed by original claimant is partly allowed.
(MRIDULA BHATKAR, J.)
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