Bombay High Court
Chief General Manager, W.C.L vs Dhanraj Govindrao Farkade & 2 Ors on 5 May, 2016
Bench: A.S. Chandurkar
fa299.08.odt 1/8
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
FIRST APPEAL NO.299 OF 2008
APPELLANT: Chief General Manager, Western
Coalfields Limited, Jaripatka, Nagpur.
-VERSUS-
RESPONDENTS: 1. Dhanraj S/o Govindrao Farkade, Age
about 35 years, Occ. Agriculturist,
R/o at Gondegaon, Tah. Parshivni,
Dist.- Nagpur.
2. The State of Maharashtra through
ig Collector, Nagpur.
3. The Special Land Acquisition Officer,
Pench Project-1, Nagpur.
Shri C. S. Samudra, Advocate for the appellant.
Shri S. P. Kshirsagar, Advocate for the legal representatives of
respondent No.1.
Shri H. R. Dhumale, Asstt. Government Pleader for respondent Nos.2 &
3.
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CORAM: A.S. CHANDURKAR, J.
DATED: 5
MAY, 2016.
th
ORAL JUDGMENT :
1. This appeal is filed under Section 54 of the Land
Acquisition Act, 1894 (for short, the said Act) takes exception to
the judgment of the Reference Court dated 19-10-2007 in L.A.C.
No.71/1993.
2. The respondent No.1 is the owner of lands
fa299.08.odt 2/8
admeasuring 0.54 R from Survey No.181 and 0.72 R from survey
No.220 which are situated at Gondegaon, Tah. Parshivni, District
Nagpur. The notification under Section 4 of the said Act is dated
25-4-1993 and the Land Acquisition Officer passed his award on
25-6-1996. The respondent No.1 being aggrieved by the amount of
compensation granted by the Land Acquisition Officer filed
reference under Section 18 of the said Act. The Reference Court
enhanced the amount of compensation in so far as various trees
are concerned. Being aggrieved, the present appeal has been filed.
3. Shri C. S. Samudra, the learned Counsel for the
appellant submitted that the enhancement granted by the
Reference Court for the trees in question was without sufficient
evidence on record. It was submitted that in the e-statement
which was prepared after considering the joint measurement
report, a total of 143 orange trees were shown. The respondent
No.1 by relying upon the 7/12 extract at Exhibit-16 claimed that
there were 250 orange trees. The Reference Court accepted the
7/12 extract at Exhibit-16 and granted compensation @ Rs.3000/-
per tree for 250 orange trees. He submitted that merely on the
basis of the 7/12 extract, the figure of 250 orange trees could not
have been accepted. There was no other evidence on record and
the expert who was examined by the respondent No.1 had
fa299.08.odt 3/8
admitted that he had not actually visited the acquired land. In
support of his submissions, the learned Counsel placed reliance on
the judgment of the Division Bench in Narayanlal Bansilal and
others vs. State of Maharashtra 2012(1) Mh.L.J. 642 as well as the
provisions of the Maharashtra Land Revenue Record of Rights and
Registers (Preparation and Maintenance) Rules, 1971. It was then
submitted that the existence of Kadu Nim, Babhul and Bori trees
were not shown in the award. Even in the reference application
there was no mentioned of Babhul and Kadu Nim trees. However,
the Reference Court proceeded to grant compensation for the
same. He submitted that the amounts for various trees as
determined in L. A. C. No.74/1999 deserve to be granted by
modifying the award.
4. Shri S. P. Kshirsagar, the learned Counsel for the
respondent opposed aforesaid submissions. According to him, the
7/12 extracts at Exhibits 16 & 17 clearly indicated the presence of
250 orange trees as well as 14 Babhul trees and 15 Bori trees. He
submitted that though the respondent No.1 examined himself, he
was not cross-examined on these vital aspects. The defence as
raised by the respondent No.1 in its reply to the reference
application was also not proved and, therefore, the Reference
Court was justified in relying upon the 7/12 extracts for
fa299.08.odt 4/8
determining the number of trees. He submitted that the appellant
had not led any evidence and, therefore, adverse inference needs
to be drawn against it.
Ms. N. P. Mehta, the learned Assistant Government
Pleader appeared for the respondent Nos.2 & 3.
5. The following point arises for consideration:
Whether any case has been made out to interfere with
the award of the Reference Court?
ig With the assistance of the learned Counsel for the
parties, I have perused the records of the case and I have
considered their respective submissions. For seeking compensation
for the orange trees, the respondent No.1 placed on record a 7/12
extract at Exhibit-16. The same is for the year 1992-1993 and it
indicates existence of 250 orange trees. In the e-statement which
is annexed to the award, it is stated that there were 143 orange
trees. This figure was arrived at after considering the joint
measurement report. In the award, it has been stated that though
the joint measurement took place in the year 1991 and the
valuation was made on 25-4-1993, some trees ceased to exist
during said intervening period. The respondent No.1 has examined
himself at Exhibit 15 and the evidence of an horticulturist was led
at Exhibit-34. In his cross-examination, the said witness admitted
fa299.08.odt 5/8
that he did not visit the acquired field and his report at Exhibit-25
was prepared on the basis of the e-statement, 7/12 extracts and as
per the say of the respondent No.1.
7. Rule 29 of the Rules of 1971 stipulates maintaining a
register of crops that are grown in the land as well as the area on
which they are grown up. A separate card in Form XIII is
maintained for each survey number. Perusal of Form-XIII does not
indicate that there is any separate column wherein the number of
trees grown on the land are required to be mentioned.
In the present case, while the e-statement indicates
existence of 143 trees, the 7/12 extract at Exhibit-16 mentions 250
Orange trees. The decision of the Hon'ble Supreme Court in
P. Ram Reddy and others Vs. Land Acquisition Officer (1995) 2 SCC
305 with regard to the weightage to be given to the evidence on
record in land acquisition reference cases needs to be referred to.
In paras 15 & 16 of aforesaid decision, it has been observed thus:
"15......................................................................
But, in land acquisition references before civil
courts, when witnesses give oral evidence in
support of the claims of claimants for higher
compensation the effective cross-examination of
such witnesses, is not an uncommon feature if
regard is had to the manner in which claims for
enhanced compensation in land acquisition cases
are defended in courts on behalf of the State.
Indeed, when a question arose before this Court
whether the court is bound to accept the
fa299.08.odt 6/8
statements of witnesses only because they have
not been effectiverly cross-examined or evidence
in rebuttal has not been adduced, it was
observed by this Court in Chaturbhuj Pande v.
Collector thus:
"It is true that the witnesses
examined on behalf of the appellants have not
been effectively cross-examined. It is also true
that the Collector had not adduced any evidence
in rebuttal; but that does not mean that the court
is bound to accept their evidence. The Judges
are not computers..... they are bound to call into
aid their experience of life and test the evidence
on the basis of probabilities."
ig "16.......................................................................
If the courts were to accept such statements of
witnesses as true merely because they are not
subjected to cross-examination or effective cross-
examination or because evidence in rebuttal
thereof has not been adduced, it would amount
to doling out public money to the claimants far
in excess of their legitimate entitlement for just
compensation payable for their lands."
This decision has been referred to by the Division Bench in
Narayanlal (supra). From the aforesaid, it is clear that absence of
effective cross-examination by itself cannot be the reason to accept
the 7/12 extract at its face value. When it was the specific case of
the appellant that there were 143 orange trees which case was
based on the joint measurement report as well as e-statement in
the award, it was necessary for the respondent No.1 to have
brought some more cogent evidence on record. Except mere
fa299.08.odt 7/8
statement that there were 250 orange trees, the same cannot be
accepted especially when the defence of the appellant is based on
e-statement. It is necessary to note that the 7/12 extract is for the
year 1992-93 while the notification under Section 4 of the said Act
is dated 25-4-1993. Thus, merely because the appellant did not
examine any witness to substantiate its defence, the case of the
respondent No.1 merely on the basis of a solitary 7/12 extract
cannot be accepted in view of the legal position referred to herein
above. There is no question of drawing any adverse inference.
It will have, therefore, to be held that the respondent No.1 would
be entitled for compensation for 143 orange trees. The finding
recorded by the Reference Court in para 25 of its judgment to that
effect is required to be interfered with.
8. In so far as the Kadu Nim, Babhul and Bori trees are
concerned, the same are not referred to in the award. The
application for compensation is also silent in respect of Babhul and
Kadu Nim trees. The Reference Court has granted compensation
for Babhul and Bori trees by relying upon the document at
Exhibit-17. Considering the aforesaid reasons, the respondent No.1
would not be entitled for compensation for the trees for which
there was no prayer.
In so far as the rate for orange trees is concerned, the
fa299.08.odt 8/8
same can be granted as per the amounts awarded in L.A.C.
No.74/1999 as First Appeal No.786/2006 filed by the appellant
has been dismissed on 2-5-2016 and the rates granted therein have
been maintained. The point as framed is answered by holding that
the award of the Reference Court is required to be interfered with.
9. In view of aforesaid, the following amounts are
granted for the various trees:
1. (a) for the orange trees, an amount of Rs.2000/- per tree
for 143 orange trees; (b) for Lemon trees, an amount of Rs.1000/-
per tree for four trees; (c) for Sweet Lime trees, an amount of
Rs.1000/- per tree for two Sweet Lime trees; (d) no compensation
is granted for Kadu Nim, Babhul and Bori trees; (e) the amount of
compensation granted for the well is maintained;
2. The award dated 19-10-2007 in L.A.C. No.17/1998 is
modified in aforesaid terms. Rest of the award stands confirmed.
The first appeal is partly allowed in aforesaid terms
with no order as to costs.
JUDGE
//MULEY//
