Bombay High Court
Bandappa Shantappa Jalkote vs The State Of Mah And Ors on 6 October, 2016
Bench: P.R. Bora
1 909 fa 1250.09.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO. 1250 OF 2009
1. Bandappa s/o Shantappa Jalkote
died thr LRS
1-A) Smt. Sushilabai w/o Bandappa Jalkote
Age: 57 years. Died
1-B) Gangadhar s/o Bandappa Jalkote,
Age: 56 years, Occ: Agril.
R/o Marajwadi, Ta. Mukhed, Dist. Nanded.
1-C) Sou Shanta w/o Umesh Shirure,
Age: 37 years, Occ: Household,
R/o Halsur, Tq. Aurad, Dist. Bidar,
(Karnataka State)
Presently resident at Udgir, Tq. Udgir,
Dist. Latur. ... APPELLANT
VERSUS
1. The State of Maharashtra,
Through the District Collector,
Nanded.
2. The Special Land Acquisition Officer,
Krishna Khore, Nanded.
3. The Executive Engineer,
Vishnupuri Project Division No.1,
Nanded. ... RESPONDENTS
...
Advocate for Appellants : G N Chincholkar
AGP for Respondents: A.M. Phule
...
CORAM : P.R. BORA, J.
DATE : 06-10-2016.
ORAL JUDGMENT :
1. Leave to amend forthwith.
2 909 fa 1250.09.odt
2. The appellant has filed the present appeal seeking
enhancement in the amount of compensation as awarded by the
Civil Judge Senior Division, Kandhar in Land Acquisition Reference
No. 13 of 2005 (New) (L.A.R. 12 of 2005 old) decided on
02.02.2009. A house property was acquired of the present
appellant for the submergence of Lendi project at Village Marajwadi,
Taluka Mukhed, District Nanded. The acquired house was having
construction of 26 sq.mtrs, Section 4 notification in that regard was
published on 23.12.1997 and the award under section 11 came to
be passed on 23.03.2002. The Special Land Acquisition officer had
determined the compensation to be offered to the appellant to the
tune of Rs. 34,027/-. Dissatisfied with the amount of compensation
so offered, the appellant filed an application under Section 18 of the
Act to the Collector, Nanded which in turn was forwarded for
adjudication to the Civil Court at Nanded.
3. Before the reference court, the appellant had claimed
the compensation of Rs.1,35,000/-. In order to substantiate his
claim, the claimant himself has deposed before the reference court
and has also examined the approved valuer whose valuation report
was placed on record by the appellant. The learned reference
court, however, enhanced the compensation only to Rs.42,534/-
aggrieved by the appellant has filed the present appeal.
4. Mr. Chincholkar, the learned counsel appearing for the
3 909 fa 1250.09.odt
appellant submitted that, the appellant has sufficiently proved the
value of his constructed house by examining the approved
Government valuer and there was no reason for the reference court
to disagree with the evidence of the said valuer. The learned
counsel further submitted that, no sufficient reasons are assigned
by the reference court for not accepting the evidence of the valuer.
The learned counsel submitted that, in his testimony before the
court, the valuer has elaborately narrated the method adopted by
him for preparing the valuation of the house property along with
the land on which the house was constructed. Learned counsel
submitted that, in the cross-examination nothing contrary has come
on record. The learned counsel submitted that, in the
circumstances, the reference court ought to have accepted the
valuers report and accordingly must have awarded the
compensation to that extent. The learned counsel, therefore,
prayed for allowing his appeal and consequently to enhance the
amount of compensation as per the report of valuer.
5. The learned counsel has also tendered across the bar a
copy of an unreported judgment delivered by this court (Coram:
A.V. Nirgude, J.) on 24.08.2016 in First Appeal No. 999 of 2015.
The learned counsel submitted that, in the aforesaid appeal also the
house property was acquired for the same project for which the the
subject house in the present matter was acquired. The learned
counsel pointed out that, in the above referred judgment this court
4 909 fa 1250.09.odt
has accepted the valuer's report and accordingly enhanced the
amount of compensation.
6. Mr. Phule, learned counsel appearing for the
respondent-state submitted that, the reference court has
considered the entire evidence on record and has correctly
determined the market value of the acquired property and has
accordingly awarded compensation. The learned A.G.P. submitted
that, a well reasoned order is passed by the reference court which
require no interference.
7. I have carefully perused the impugned judgment and
the evidence which was adduced before the reference court. The
valuer's evidence is more material in the present matter. One
Shrisanth Barbade, the approved government valuer was examined
by the appellant before the reference court. I have gone through
the evidence of the said witness and also the cross-examination of
the said witness. It is revealed that, nothing has come in the cross-
examination of the said witness, so as to disbelieve the evidence
adduced by the said witness. The learned reference court has not
assigned any good reason for not accepting the evidence of the
valuer. It is further not understood as to what was the basis for the
reference court to determine the amount of compensation. It
appears that, the reference court has erred in not relying upon the
expert's evidence which was the only evidence available on record,
5 909 fa 1250.09.odt
admittedly, no evidence was adduced on behalf of the state.
8. The learned reference court has observed in para 16of
the impugned judgment that the evidence of the claimant and his
witness i.e. approved valuer has remained un-shattered, in the
cross-examination. The learned tribunal has also observed that for
determining the market value of the acquired land or house one of
the tested method is to get valued the property in question by the
approved valuer. In the instant matter as has been observed by the
reference court PW3 Shrisanth Barbade, the witness examined by
the claimant is qualified engineer and approved government valuer.
The reference court has also observed that the evidence so brought
on record by the claimant and the government valuer is worth
considering, however, though all such observation are made by the
reference court, surprisingly, it has not accepted the report and has
also not stated any cogent reason for not accepting the same.
9. I have carefully perused the said valuation report which
reveals that the government valuer namely Shrisanth Barbade has
prepared valuation of the acquired house in a scientific method.
Noting has come on record so as to discard the valuation so made
by the said valuer. A mere observation by the reference court that,
the value estimated by the valuer is on higher side without
assigning any reason cannot be sustained. After having considered
the entire material on record, it appears to me, that the tribunal
6 909 fa 1250.09.odt
must have accepted the report of the valuer and enhanced the
amount of compensation accordingly. I am therefore inclined to
allow the present appeal. Hence the following order:
ORDER
i) The appeal is allowed.
ii) The amount of compensation is enhanced to Rs.
1,35,000/-.
benefits
iii) The appellant is entitled to receive the statutory
and the interest as provided under the
provisions of the Land Acquisition Act on the enhanced
amount of compensation.
iv) Award be modified accordingly.
(P.R. BORA)
JUDGE
mub
