The State Of Maharashtra And ... vs Asaraji Aba Takhik And Another
2016 Latest Caselaw 6479 Bom

                                           1                          13 fa 2236.16.odt



             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                   BENCH AT AURANGABAD




                                                                        
                              FIRST APPEAL NO. 2236 OF 2016




                                                
    1.      The State of Maharashtra,
            Through the Collector, Beed.

    2.      The Executive Engineer,




                                               
            M.I.L.S. Division, Beed.                    ...       Appellants
                  Vs.
    1.      Ambadas s/o Dagdu Kumkar,
            Age: Major, Occ. Agril.,




                                        
    2.      Uttam s/o Dagdu Kumkar,


            District Beed.
                             
            Age: Major, Occ. Agril.,
            Both R/o Takalsing, Tq. Ashti,
                                                        ...       Respondents
                            
                                         with
                              FIRST APPEAL NO. 2237 OF 2016

    1.      The State of Maharashtra,
      

            Through the Collector, Beed.
   



    2.      The Executive Engineer,
            M.I.L.S. Division, Beed.                    ...       Appellants
                  Vs.
    1.      Asaraji s/o Aba Takhik,
            Age: Major, Occ. Agril.,





    2.      Uttam s/o Dagdu Kumkar,
            Age: Major, Occ. Agril.,
            Both R/o Takalsing, Tq. Ashti,
            District Beed.                              ...       Respondents





                                         with
                              FIRST APPEAL NO. 2238 OF 2016

    1.      The State of Maharashtra,
            Through the Collector, Beed.

    2.      The Executive Engineer,
            M.I.L.S. Division, Beed.                    ...       Appellants
                  Vs.
    1.      Badrinath Dushrath Jagtap,
            Age: Major, Occ. Agril.,


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                                                 2                               13 fa 2236.16.odt



    2.      Ramdas Dushrath Jagtap,
            Age: Major, Occ. Agril.,




                                                                                  
    3.    Arjun Dushrath Jagtap,
          Age: Major, Occ. Agril.,




                                                          
          All R/o Takalsing, Tq. Ashti,
          District Beed.                          ...    Respondents
                                      ----
    Mr. S.N. Morampalle, AGP for the Appellants.
    Mr. C.K. Shinde, Advocate for the respondents.




                                                         
                                      ----
                                         CORAM : P.R. BORA, J.

DATE : 16-11-2016.

ORAL JUDGMENT :

1. With consent of the learned counsel appearing for the

parties the matter is finally heard at the admission stage. The

present appeals are filed against the common judgment and award

passed by District Judge-3, Beed on 29.03.2010 in Land Acquisition

Reference No. 546 of 2006 with L.A.R. NoS. 525 of 2006 to 527 of

2006.

2. The lands which are the subject matter of the present

appeals were acquired for construction of village tank at Takalsing,

Taluka Ashti, District Beed. Notification under Section 4 of the Land

Acquisition Act, 1894 (hereinafter referred to as the 'the Act') in

that regard was published in the government gazette on

08.11.2011, whereas, the award under Section 11 of the Act came

to be passed on 28.07.2013. The Special Land Acquisition Officer

had determined the market value of the acquired lands @ Rs.700/-

per R and has, accordingly, offered the amount of compensation to

the respective land holders. Dissatisfied with the amount of

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compensation so offered the respondents (hereinafter referred to as

the 'claimants') presented applications under Section 18 of the Act

seeking enhancement in the amount of compensation to Collector,

Beed. Collector Beed in turn forwarded the reference applications

for adjudication to the District Court at Beed (hereinafter referred

to as 'the Reference Court'). The claimants had claimed the

compensation @ of Rs. 2,000/- per R in the reference applications.

In order to substantiate the claims so raised, the claimants in

from the same village.

addition to their own evidence placed on record two sale instances

The learned reference court, after having

considered oral and documentary evidence brought before it fixed

the market value of the acquired lands @ Rs. 1500/- per R and,

accordingly, enhanced the amount of compensation. The reference

court also awarded to the claimants the amount of solatium and the

interest as provided under Section 28 and 34 of the Act. Aggrieved

by, the state has preferred present appeals.

3. Shri S.N. Morampalle, the learned A.G.P. appearing for

the appellant-state criticised the impugned judgment on various

grounds. The learned A.G.P. submitted that, the reference court

failed in appreciating that, the sale instances which were relied

upon by the claimants cannot be held to be comparable sale

instances and the compensation for acquired lands would not have

been determined on the basis of the said sale instances. The

learned A.G.P. further submitted that, the tribunal has also erred in

4 13 fa 2236.16.odt

awarding interest under section 34 of the Act from the date of

possession. The learned A.G.P. further submitted that, despite

there being any cogent and sufficient evidence on record the

reference court has determined the market value of the acquired

lands holding the said lands to be seasonally irrigated lands. The

learned A.G.P., therefore, prayed for setting aside the impugned

judgment and award.

4. Shri C.K. Shinde, the learned counsel appearing for the

respondents i.e. ig original claimants supported the impugned

judgment. The learned counsel submitted that, two sale instances

were relied upon by the claimants in order to substantiate the claim

so raised by them and the tribunal has rightly relied upon the said

sale instances for determining the market value of the acquired

lands. The learned counsel further submitted that, the tribunal has

moderately enhanced the amount of compensation which in fact

could have been more than as awarded by the reference court. The

learned counsel, however, conceded that the interest as awarded

under section 34 of the Act from the date of possession is

apparently unsustainable in view of the full bench judgment of this

court in the case of State of Maharashtra V/s. Kailash Shiva

Rangari reported in 2016(3) Mh.L.J. 457. The learned counsel,

therefore, prayed for passing appropriate orders to that extent by

maintaining the market value of the acquired lands as determined

by the reference court.

5 13 fa 2236.16.odt

5. I have carefully considered the submissions advanced

by the learned A.G.P. and the learned counsel appearing for the

claimants. I have also perused the impugned judgment and

evidence on record. In so far as factual aspects are concerned

there seems no dispute. Though, the learned A.G.P. sought to

canvass that the acquired lands were not semi-irrigated lands but

were jirayat lands the evidence on record reveal that the acquired

lands were seasonally irrigated lands.

6.

The learned tribunal has relied upon two sale instances

brought on record by the claimants which are at exhibits-12 and 13

respectively in the record of the trial court. From the discussion

made by the reference court in para nos. 19 and 20 of the

judgment reveal that the tribunal has objectively assessed the

evidence placed before it. The sale deed at exhibit-12 pertains to

land ad-measuring 1 hectare jirayat land bearing gut no. 69

situated at village Takalsing and it was sold by the registered sale

deed executed on 03.11.2000 for the consideration of Rs.

1,60,000/- i.e. @ Rs. 1600/- per R. The land which was the subject

matter of exhibit-13 was ad-measuring 40 R and it was a seasonally

irrigated land from gut no. 621 situated at village Takalsing. The

said land was sold by registered sale deed executed on 09.02.2001

for the value of Rs. 70,000/- i.e. @ Rs. 1750/- per R. Both the sale

deeds were executed prior to the issuance of Section 4 notification

i.e. prior to 08.11.2001.

6 13 fa 2236.16.odt

7. In the above circumstances, the learned reference court

has held the aforesaid sale instances as comparable sale instances

and on the basis of the same has determined the amount of

compensation. The discussion made by the reference court in para

19 of the impugned judgment reveal that, amongst the aforesaid

two sale instances at exhibits-12 and 13 respectively the tribunal

has held the sale instance at exhibit-13 more comparable since it

was pertaining to seasonally irrigated lands. Relying on the said

sale instance and having considered the plus and minus factors

attached to the acquired lands the tribunal has determined the

market value of the acquired lands @ Rs. 1500/- per R and,

accordingly, enhanced the amount of compensation. Admittedly, no

oral or documentary evidence was adduced by the respondents i.e.

the appellant state.

8. After having considered material on record and on

perusal of the impugned judgment, it does not appear to me that,

the reference court has committed any error in determining the

market value of the acquired lands. Admittedly, the sale instances

were pertaining to lands from the same village and were executed

prior to about one year of issuance of Section 4 notification. As

noted earlier out of these two sale instances the reference court has

preferred to consider the sale instance at exhibit-13 for the reason

that it was pertaining to seasonally irrigated lands since all the

acquired lands were seasonally irrigated lands. The tribunal, has,

7 13 fa 2236.16.odt

thus, correctly determined the market value of the acquired lands

and accordingly enhanced the amount of compensation. I do not

see any reason to cause interference in the amount of

compensation so enhanced.

9. Order of the reference court, granting interest under

Section 34 of the Act from the date of possession, however, cannot

be sustained in view of the full bench judgment of this court in the

case of State of Maharashtra V/s. Kailash Shiva Rangari

reported in 2016(3) Mh.L.J. 457. As noted earlier Shri C.K.

Shinde, the the learned counsel for the claimants has conceded that

order of the reference court to the aforesaid extent is

unsustainable. It is thus evident that, the impugned judgment and

award needs modification only to the aforesaid extent. In the result

the following order is passed.

ORDER

i) The impugned order so far as it relates to grant of

interest under Section 34 of the Act from the date

of possession, stands quashed and set aside.

ii) The remaining part of the order is maintained as

it is.

iii) The appeals stand partly allowed in the aforesaid

term.

(P.R. BORA) JUDGE mub