Bombay High Court
Prahlad Vithalrao Zungure And Anr vs The State Of Maharashtra And Ors on 7 August, 2017
Bench: P.R. Bora
1 FA NO.3694 OF 2016
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO.3694 OF 2016
1. Prahlad s/o Vithalrao Zungure,
Age 60 years, Occ: Agriculture
R/o Ukhanda, Tq. Patoda,
Dist.Beed.
2. Kalabai d/o Namdeo Thosar,
Age 70 years, Occ: Agri. & Household,
R/o Ukhanda, Tq. Patoda,
Dist.Beed.
...APPELLANTS
VERSUS
1. The State of Maharashtra,
Through: Its Secretary,
Revenue & Forest Department,
Mantralaya, Mumbai 32
2. The Collector, Beed.
3. The Special Land Acquisition Officer
(M.I.), at Beed, Dist. Beed.
4. Godavari Khore Development Corporation,
Through: The Executive Engineer,
JRR Division, Beed,
Dist. Beed.
...RESPONDENTS
...
Mr. R.R.Mantri, Advocate, h/f Mr. C.V.Thombre, Advocate,
for appellant.
Mr. S.P.Sonpawale, AGP for respondent nos. 1 to 3.
Mr. B.R.Surwase, Advocate, for respondent no.4.
...
CORAM: P.R. BORA, J.
DATE : August 7th, 2017
::: Uploaded on - 10/08/2017 ::: Downloaded on - 12/08/2017 01:56:08 :::
2 FA NO.3694 OF 2016
***
Date of reserving the judgment:13/06/2017
Date of pronouncing the judgment:07/08/2017
***
JUDGMENT:
1. The appellants have filed the present appeal
seeking enhancement in the amount of compensation as
awarded by the Court of Civil Judge, Senior Division, at
Beed, hereinafter referred to as the Reference Court in LAR
No.448/1994 decided by the said Court on 27th of June,
2016.
2. The lands which are subject matter of the
present appeal were acquired for for the purpose of Domri
Irrigation Project, at village Ukhanda, taluka Patoda,
district Beed. Notification under Section 4 of the Land
Acquisition Act, 1894, hereinafter referred to as the said
Act, in that regard was published in the official gazette on
23rd February, 1989. The possession of the acquired
land was taken prior to that on 1.5.1987. The award
under Section 11 was passed on 23rd of August, 1992.
The Special Land Acquisition Officer had offered the
compensation for the acquired lands at the rate of
3 FA NO.3694 OF 2016
Rs.130/- to Rs.210/- per Are as per the categorization
made of the lands by the said Special Land Acquisition
Officer. Dissatisfied with the amount of compensation so
offered, the claimants preferred an application under
Section 18 of the Act which was adjudicated by the
Reference Court and the judgment and award was initially
passed by the Reference Court on 20th of August, 2005.
The Reference Court determined the market value of the
acquired lands at the rate of Rs.540/- per Are for Jirayat
land and Rs.1078/- per Are for Bagayat lands and
accordingly, enhanced the amount of compensation.
3. The present appellants, who are hereinafter
referred to as the claimants, did not prefer any appeal
against the judgment and award so passed by the
Reference Court on 20th of August, 2005. However, in
the year 2012, the acquiring body preferred appeal
bearing First Appeal Stamp No.2324/2012 before the High
Court, challenging the said judgment and award dated
20th of August, 2005 which came to be allowed along with
other three appeals by this Court (Coram:
S.V.Gangapurwala, J.), vide order passed on 23rd of
4 FA NO.3694 OF 2016
October, 2015. This Court remitted the matters back to
the Reference Court since the acquiring body was not
made party to the original Reference Application with a
direction that the acquiring body shall be added as party
respondent and be given an opportunity of filing written
statement and resisting the application.
4. After remand of the matter, the acquiring body
filed its written statement denying the claim of the
claimants. The claimants then adduced evidence in
support of their claim. The acquiring body or the State
did not adduce any oral or documentary evidence.
Learned Reference Court, vide the judgment and order
passed on 27th of June, 2016, party allowed the
application. The Reference Court has held the claimants
entitled for the enhanced compensation at the rate of
Rs.540/- per Are for the Jirayat lands and Rs.1078/- per
Are for Bagayat lands The Reference Court has also
awarded a sum of Rs.31,410/- towards the enhanced
compensation for acquisition of wells as well as for the
trees. Dissatisfied with the amount of compensation so
awarded, the original claimants have preferred the present
5 FA NO.3694 OF 2016
appeal.
5. Shri R.R.Mantri, learned Counsel holding
for Shri C.V.Thombre, learned Counsel appearing for the
appellants, assailed the impugned judgment and award on
various grounds. Learned Counsel submitted that the
Reference Court has utterly failed in appreciating the
evidence brought on record by the claimants in the form of
sale instances for determination of the market value of the
acquired lands on the basis of the said sale instances
which, according to the claimants, were of comparable
lands. Learned Counsel submitted that, in fact, the
Reference Court has completely ignored and kept out of
consideration the fresh evidence adduced on record by the
claimants and has mechanically confirmed the market
value as was determined in the previous judgment by the
Reference Court delivered on 20th of August, 2005.
Learned Counsel submitted that the method adopted by
the Reference Court in determining the market value of
the acquired lands was incorrect and wrong and against
the principles laid down by the Honourable Apex Court in
the judgments on the issue. Learned Counsel further
6 FA NO.3694 OF 2016
submitted that the Reference Court has also grossly erred
in not appropriately considering the evidence adduced by
the claimants as about the fruit bearing trees standing in
the acquired lands when the same was taken in possession
by the State for irrigation project at Ukhanda. Learned
Counsel submitted that sufficient evidence was placed on
record by the claimants as about the fruit bearing trees.
Learned Counsel submitted that two experts were
examined by the claimants in order to substantiate the
claim of compensation towards acquisition of fruit bearing
trees as well as the wells and the Bandhs. Learned Counsel
submitted that the entire said evidence has been discarded
by the Reference Court without assigning any cogent and
sufficient reason therefor. Learned Counsel submitted
that whatever compensation has been enhanced by the
Reference Court towards the fruit bearing trees is wholly
unjust and inadequate.
6. Relying on the judgment of the Honourable
Apex Court in the case of Mahesh Tirthankar Vs. State
( 2009 SAR Civil 465), the learned Counsel submitted that
the burden of proving the true market value of the
7 FA NO.3694 OF 2016
acquired property is, in fact, always on the State
Government and that the expert evidence adduced, if any,
by the claimants, based on the physical inspection carried
out by the expert, has to be given credence. Learned
Counsel further relied upon judgment of the Honourable
Apex Court in the case of Meharwal Vs. State ( 2012 SAR
Civil 465) to urge that the sale deed representing highest
value is to be taken as a base for determining the market
value of the acquired land. Referring to another
judgment in the case of Chindha Fakira Vs. Special L.A.O.
(2012 LACC 412), learned Counsel submitted that the
evidence of the expert about the value of the fruit bearing
trees cannot be ordinarily rejected unless there is any
contrary evidence therefor. Referring to and relying
upon the judgment of the Kerala High Court in the case of
Jacob Vs. State of Kerala (1998 (1) LA Laws 292), learned
Counsel submitted that for determination of the market
value of the acquired lands, the sale instances executed in
the post notification period can also be considered and
relied upon. Learned Counsel, therefore, prayed for
appropriate enhancement in the amount of compensation
as awarded by the Reference Court.
8 FA NO.3694 OF 2016
7. Shri Sonpawale, learned A.G.P. appearing for
the State and Shri Surwase, learned Counsel appearing for
the acquiring body i.e. respondent no.4, supported the
impugned judgment and award. Learned Counsel
submitted that the Reference Court has correctly and
validly determined the market value of the acquired land
at the rate of Rs.540/- per Are for Jirayat land and
Rs.1178/- per Are for the Bagayat land. Learned A.G.P.
submitted that, in fact, the earlier judgment delivered by
the Reference Court on 20th August, 2005, was in all
sense, accepted by the claimants and hence no appeal was
filed by the claimants. Learned A.G.P. further submitted
that it was the acquiring body which came in appeal and
the matter was remitted back for the reason that the
acquiring body was not party before the Reference Court
and no opportunity was given to the acquiring body to
resist the claim raised by the claimants.
8. Learned A.G.P. further submitted that the
judgment and award dated 20th August, 2005 was passed
by the Reference Court relying on the market value
determined in LAR No.272/1996 which was relied upon by
9 FA NO.3694 OF 2016
the claimants themselves. Learned Counsel submitted
that when the claimants themselves had relied upon the
judgment in LAR No. 272/1996 and when the market value
was determined and the amount of compensation was
accordingly enhanced, the claimants were estopped from
raising any objection to the said judgment and award.
9. Learned A.G.P. submitted that though the
claimants have claimed huge enhancement in the amount
of compensation for acquisition of the trees, the claimants
have failed in bringing on record any clinching evidence
showing existence of the fruit bearing trees in the acquired
lands at the time of its acquisition. Learned A.G.P.
further submitted that the evidence was adduced by the
claimants of the private valuers who have prepared the
said valuation without giving any due notice to the
concerned Government authorities. Learned A.G.P.
therefore, prayed for dismissal of the appeal.
10. I have carefully considered the submissions
advanced by the learned Counsel appearing for the parties.
I have perused the impugned judgment, the earlier
10 FA NO.3694 OF 2016
judgment dated 20th of August, 2005, the judgment in
LAR No.272/1996 and the evidence adduced before the
Reference Court in the matter.
11. It is undisputed that the claimants did not
challenge the judgment and award passed on 20th of
August, 2005, by filing any appeal before this Court.
The material on record reveals that in 2012 i.e. after long
lapse of about seven years, the acquiring body preferred
appeal against the said judgment and award on the ground
that it was not made party in the Reference application
and on the said sole ground the matter was remitted back
to the Reference Court for deciding it afresh, by giving due
opportunity of filing written statement and hearing to the
acquiring body. Non filing of any appeal against the
judgment and award dated 20th of August, 2005, by the
claimants leads to the reasonable inference that the
claimants had accepted the said judgment and award.
Nothing has been brought on record and no such case is
even made out by the claimants that they were intending
to file an appeal against the said judgment and award but
were prevented from filing the same for certain reasons
11 FA NO.3694 OF 2016
beyond their control. There is, therefore, substance in
the argument advanced by the learned A.G.P. that had the
acquiring body not filed the appeal, the judgment dated
20th August, 2005, had attained finality.
12. It, however cannot be ignored that this Court
(Coram: S.V.Gangapurwala, J.) in an order passed on 23rd
of October, 2015, in First Appeal Stamp No.23248/2012
with connected other appeals, while remanding the matter
to the Reference Court, has categorically said that the
Reference Court shall give opportunity to all the parties to
adduce the evidence. As such, the evidence adduced by
the claimants after remand has to be simultaneously
considered along with the evidence adduced by them
previously.
13. In the earlier round the claimants had relied
upon two sale instances; one, dated 21.11.1989 and
another dated 4th of August, 1988, respectively, marked
at Exh. 27 and Exh. 39. The land which was the subject
matter of Exh.27 was admeasuring 10 Are situate at
village Shirapur Dhumal, taluka Patoda, district Beed, and
12 FA NO.3694 OF 2016
was sold by registered sale deed executed on 21st of
November, 1989, for consideration of Rs.15,000/- i.e. at
the rate of Rs.1500/- per Are. The land which was
involved in the sale deed at Exh.39 was admeasuring 9 Are
from village Charhata and was sold by registered sale deed
executed on 4th of August, 1988 for consideration of
Rs.10,000/- i.e. at the rate of Rs.1111/- per Are. The
material on record reveals that the petitioners had also
filed on record the certified copy of the judgment delivered
in Land Acquisition Reference No.272/1996 with the
connected Land Acquisition References decided on 4th of
December, 2004 by the Ad hoc Additional District Judge,
Beed.
14. The discussion made by the Reference Court in
the judgment dated 20th of August, 2005, reveals that it
has given due consideration to the sale deeds at Exh.27
and Exh.39 but has ultimately preferred to rely upon the
market value as determined by the Reference Court in the
judgment delivered in the matter of LAR No.272/1996
observing that the lands which were the subject matter in
Land Acquisition Reference No.272/1996 with the other
13 FA NO.3694 OF 2016
Reference Applications were also acquired for the irrigation
project at village Ukhanda vide the same notification
issued on 23rd February, 1989, and the said lands were
also acquired from village Ukhanda. The judgment in
LAR No.272/1996 reveals that in the said matter also, the
sale deed in respect of the land situate at village Charhata
admeasuring 9 Are sold for consideration of Rs.10,000/-
on 4.8.1988 was considered by the said Court along with
other sale instances. While deciding LAR No.448/1994
thus there were two sale instances and one earlier
judgment delivered in LAR No.272/1996 available for
consideration of the Reference Court before passing the
judgment dated 20th of August, 2005.
15. As has been observed by the Reference Court in
paragraph nos. 31 and 32, of the judgment in LAR No.
272/1996, the claimants in the said matter had relied upon
the earlier judgment delivered in LAR No.127/1995 with
five connected matters on 1.12.2004 arising out of the
same acquisition proceedings wherein the market value
was determined at the rate of Rs.1078/- per Are for
Bagayat land and Rs.540/- per Are for Jirayat land.
14 FA NO.3694 OF 2016
Thus, while passing the award dated 20th of August, 2005,
two judgments; one, in LAR No.272/1996 and in LAR
No.127/1995 were available for the said Court arising out
of the same acquisition proceedings. It seems that the
Reference Court preferred to take the same view and
accordingly determined the market value of the subject
lands on the similar lines as was determined in said LARs.
It, therefore, does not appear to me that the Reference
Court which decided the Reference Applications earlier vide
judgment dated 20th August, 2005, had committed any
error in determining the market value of the acquired
lands; however, as I noted earlier, since this Court has
given an opportunity to all the parties to adduce evidence
in the matter after remand and availing the said
opportunity when the claimants did place on record the
sale instances at Exh.85 to Exh.90, i.e. total 6 sale
instances in number, the same will have to be given due
consideration. The learned Reference Court in the
impugned judgment, however, has declined to rely upon
the fresh sale instances brought on record by the
claimants and has preferred to hold the market value as
determined in LAR No.272/1996 to be the real market
15 FA NO.3694 OF 2016
value of the acquired lands.
16. I have perused the sale instances at Exh.85 to
Exh.90. The sale deeds which are at Exh.85,86,87 and 90
all are executed on one and the same date i.e. 22nd of
September, 1989 whereas the sale deed at Exh.88 is of
the date 2nd of May, 1989 and the sale deed at Exh.89 is
dated 21.11.1989. It is, thus, evident that all the aforesaid
sale instances are of the post notification period. As
noted earlier, the subject lands were acquired vide
notification under Section 4 issued on 23rd February,
1989. It, therefore, does not appear to me that the
Reference Court has committed any error in not relying
upon the said sale instances. Though it was sought to
be canvassed by the learned Counsel for the claimants,
relying upon the judgment of the Honourable Kerala High
Court, that for determination of the market value the sale
instances post notification period also can be considered,
after having gone through the text of the said judgment, it
does not appear to me that the view as has been taken by
the Kerala High Court would have any application in the
facts of the present case. As has come on record, for
16 FA NO.3694 OF 2016
the other lands acquired for the same project, vide the
same notification, in Reference Application No.272/1996
and prior to that in LAR No.127/1995, the market value
was determined at the rate of Rs.540/- per Are for Jirayat
land and Rs.1178/- for Bagayat land. Nothing has been
brought on record by the claimants to show that in any of
the said matter, the market value has been increased by
any higher Court. It is also matter of record that even
the claimants did not prefer any appeal at least till 2012
though the Reference Court has decided the Reference
Application in 2005, challenging the market value as was
determined by the Reference Court at the rate of Rs.540/-
per Are for Jirayat and Rs.1178/- per Are for Bagayat land.
After having considered the aforesaid circumstances, it
does not appear to me that the Reference Court has
committed any error in determining the market value of
the acquired lands at the rate of Rs.540/- per Are for
Jirayat land and Rs.1178/- per Are for Bagayat land.
Thus, in so far as the objection raised by the appellants
claimants as about the market value of the acquired lands
determined by the Reference Court, I do not see any
reason to cause any interference.
17 FA NO.3694 OF 2016
17. The next question which falls for my
consideration is whether the compensation as has been
enhanced by the Reference Court for fruit bearing trees,
wells and BANDHS is unjust and inadequate as has been
alleged by the appellants claimants. As was argued by
the learned Counsel for the appellants, the Reference
Court has completely ignored the evidence of the experts
adduced on behalf of the claimants as about valuation of
the fruit bearing trees, wells and the stone Bandhs. Per
contra, it has been argued by the learned A.G.P. and the
learned Counsel appearing for the acquiring body, the
compensation as has been enhanced by the Reference
Court for acquisition of fruit bearing trees, wells and
Bandhs is just and appropriate and no interference is
required in the compensation so awaited by the Reference
Court.
18. The claimants had examined one Vyankat
Manikrao Ghogare to substantiate their claim as about the
compensation for fruit bearing trees in the acquired lands.
Earlier also the evidence of the said witness was recorded.
One Balbhim Laxman Jaher Patil was also examined by the
18 FA NO.3694 OF 2016
claimants to prove their claim as about the wells and
Bandhs in the acquired lands. In his testimony before
the Court, PW 2 Vyankat Manikrao Ghogare has deposed
that he had inspected the fruit bearing trees in Gat No.3,
6, 9 and 181 belonging to the claimants and, at the
relevant time, in Gat No.3 there was 1 Mango, 5 Bor, 20
Sitaphal, 20 Coconut and 75 Mosambi trees were existing
whereas in Gat No.6, there was 1 Mango, 15 Bor, 20
Sitaphal, 24 Coconut and 60 Orange trees were standing;
in Gat no.9, there were 1 Mango, 15 Bor, 28 Sitaphal, 21
Coconut and 81 Mosambi trees and in Gat No.181, 15 Bor,
25 Sitaphal, 61 Coconut and 90 Mosambi trees were
standing and he has carried out panchnama in that regard
on 17th of May, 1989. In his evidence before the Court,
PW No.3 Balbhim Jaher Patil has elaborately deposed
about the wells and Bandhs existing in the acquired lands.
19. In the light of the evidence of the aforesaid two
witnesses coupled with the testimony of the claimants who
deposed before the Court, when I perused the discussion
made by the Reference Court in regard to the said
evidence, in para nos. 23 to 26 of the impugned judgment,
19 FA NO.3694 OF 2016
it is apparently revealed that the discussion made by the
Reference Court is too cryptic. As has been stated in
para no.26 of the impugned judgment, the valuation
report as about the fruit bearing trees are at Exh.43 and
Exh.45 whereas the report as about the wells and BANDHS
are at Exh.102 to Exh.114. I deem it appropriate to
reproduce the entire said discussion made by the
Reference Court in paragraph no.26 of the impugned
judgment which reads thus:
"26. Hence, considering the rival
pleadings about compensation of fruit bearing trees,
pipelines, stone-bunds and Wells, it is necessary to
decide whether the compensation awarded by the
respondents to the acquired properties other than the
landed properties, is meager and inadequate as well
as whether the petitioners are entitled to get enhance
compensation of that properties. In this case expert
valuer adduced their oral evidence in support of their
report and panchnama vide Exhs.43, 45 and 102 to
114 respectively. It is well settled principle of law
that, evidence of an expert witnesses to fix market
value of fruit bearing trees, pipelines, stone-bunds
and Wells be considered by the Court. Thus, I have
relied upon the same and partly accepted report of
expert valuers, on the basis of guess and enhance
compensation in respect of fruit bearing trees,
pipelines, stone-bunds and Wells accordingly:
following details in tabular form will suggest the
entitlement of petitioners in this reference petition in
respect of acquired fruit bearing trees, Wells,
pipelines and stone-bunds:
20 FA NO.3694 OF 2016
I) IN L.A.R.NO.448/1994
Sur./Gut Acquired Rate Relief Diff.Comp.
No. property awarded granted by Rs.
by LAO the Court
3 Well-01 2,048/- 4,048/- 2,000/-
6 Well-01 577/- 1,577/- 1,000/-
181 Well-02 6,481/- 7,481/- 1,000/-
181 Bund-01 4,032/- 5,032/- 1,000/-
181 Bund-01 1,528/- 1628 100/-
181 Bund-01 9,660/- 9,770/- 110/-
3 Lemon 1,192/- 1,292/- 100/-
tree-1
Mango 1,470/- 2470 1,000/-
Bore 11,586/- 13,586/- 2,000/-
Sitaphal 2,856/- 2,956/- 100/-
Coconut 5,040/- 7,040/- 2,000/-
Mosambi 1,45,879/- 1,65,879/- 20,000/-
Orange 1,902/- 2,902/- 1,000/-
Total 31,410/-
... ... ..."
20. The valuation report in respect of the open well
in Gat No.3 demonstrates that the valuer has valued the
said well to be worth Rs.42,684/- and share of the
appellant namely, Pralhad Vitthalrao Zingure is shown to
the extent of Rs.7114/-. The Reference Court has
determined the value of the said well to the extent of the
share of claimant Pralhad Vithalrao Zingure at Rs.4,048/-.
21 FA NO.3694 OF 2016
Similarly, though the valuer has valued the share of the
claimant in the well in Gat No.6 to the tune of Rs.4,326/-,
the Reference Court has determined the same to
Rs.1577/-. Similarly, for the well in Gat No.181, the
valuer has valued the share of the claimant at the rate of
Rs.9056/- and the Reference Court has determined the
same to the tune of Rs.7481/-. What was the criteria
applied by the Reference Court in determining the
compensation to be paid towards the wells in the aforesaid
lands has not at all been discussed by the Reference Court.
21. Same is the scenario in so far as the
compensation determined by the Reference Court for the
Bandhs and the trees allegedly existing in the acquired
lands. From the particulars given by the Reference Court
in tabular format below paragraph no.26, it is revealed
that it has enhanced the compensation for the lemon tree
from Rs.1192/- to Rs.1292/-, for Mango trees from
Rs.1470/- to Rs.2470/-, for Bor trees from Rs.11586/- to
Rs.13586/-, for Sitaphal trees, from Rs.2856/- to
Rs.2956/-,for Coconut trees, from Rs.5040/- to Rs.7040/-,
for Mosambi trees, from Rs.1,45,879/- to Rs.1,65,879/-,
22 FA NO.3694 OF 2016
for orange trees, from Rs.1902/- to Rs.2902/-.
22. As has been testified by PW 2, Vyankat
Ghogare, the trees which were existing at the relevant
time in Gat No.3,6,9 and 181 were as below:
Sitaphal 93
Coconut 126
Mosambi 246
---------
Total - 578
23. In the impugned judgment, the Reference Court
has not made any discussion whether it accepts the
evidence of the said witness as about existence of the
aforesaid number of trees as has been deposed by him and
certified in the report submitted by him. If the Reference
Court was to reject or disagree with the number of the
trees as are mentioned in the valuation report submitted
by Shri Ghogare and accordingly the facts testified by him
in the evidence before the Reference Court, the Reference
Court must have assigned cogent and sufficient reasons
therefor. The impugned judgment is totally silent on this
aspect.
23 FA NO.3694 OF 2016
24. From the particulars as are provided by the
Reference Court in the tabular format below para 26 of the
impugned judgment, nothing can be gathered as to the
amount which has been mentioned in column no.3 of the
said table, whether it pertains to one tree or more than
one tree. Similarly, the said table does not provide any
information as regards to the quantity of Mango, Bor,
Sitaphal, Coconut and Orange trees. Though in column
no.3 the compensation awarded by the Land Acquisition
Officer for Bor trees is stated to be Rs.11,586/- and same
is stated to have been enhanced to Rs.13,586/-, it is not
understood as to the value of Rs.11,586/- or Rs.13,586/-
is determined for how many Bor trees. According to the
report of the valuer there were 50 Bor trees.
25. The Valuer has valued the Bor tree at the rate
of Rs.3200/- each and, accordingly certified the market
value of the 50 Bor trees to the tune of Rs.1,60,000/-.
As against it, as noted hereinabove, the Reference court
had awarded compensation to the tune of Rs.13,586/- by
way of enhancement. The Reference Court has nowhere
discussed whether it has accepted the contention of the
24 FA NO.3694 OF 2016
claimant that there were 50 Bor trees in the acquired
lands. If it is to be assumed that the amount of
Rs.13,586/- as has been awarded by the Reference Court
is for acquisition of 50 Bor trees, it would lead to an
inference that the Reference Court has determined the
market value of each Bor tree at Rs.271.72, which cannot
be accepted. Moreover, then the Reference Court must
have made some discussion as to when the Valuer has
valued the Bor tree at Rs.3200/- each, for what reasons
the said valuation has not been accepted by it and then on
what basis it has determined the market value of the Bor
tree at the rate of Rs.271.72 each.
26. Towards Mango trees, the Reference Court has
awarded compensation to the tune of Rs.2470.00. As per
the report of the Valuer, there were three Mango trees in
the acquired lands. The amount of compensation as
offered by the Reference Court if is, therefore, divided by
three, the value of each Mango tree comes to Rs.823.33.
It, in no case, can be accepted. The valuer has valued
each Mango tree at the rate of Rs.36,000/-. In this
regard also, there is absolutely no discussion in the
25 FA NO.3694 OF 2016
impugned judgment. As I noted hereinabove, the same
scenario exists so far as Sitaphal, Coconut and Orange
trees are concerned. As per the Valuer's report, there
were total 126 Coconut trees. The Reference Court has
awarded compensation of Rs.7,040/- for the Coconut trees
i.e. Rs.55.87 for each Coconut tree. This is also wholly
unacceptable. The Valuer has valued the Coconut trees
at the rate of Rs.8,550/- each.
27. I reiterate that from the impugned judgment, it
is too difficult to understand as to for how many trees, the
Reference Court has awarded the enhanced compensation
and at what rate. It has to be stated that a huge amount
more than Rs.26,00,000/- ( Rs. Twenty Six Lakh) is
claimed by the appellants towards the acquisition of the
trees. As per the particulars provided by the appellants,
there were 575 trees in the acquired lands. As against it,
as has been argued by the learned A.G.P., there were no
such number of trees in the acquired lands and, according
to him, that was the reason that the appellants did not file
any appeal even after lapse of seven years against the
award initially passed in LAR No.448/1994 on 20 th of
26 FA NO.3694 OF 2016
August, 2005.
28. After having considered the facts as aforesaid, it
is evident that the Reference Court has not appropriately
dealt with the claim raised by the claimants in regard to
the acquisition of fruit bearing trees, wells and Bandhs.
The Reference Court though has enhanced the amount of
compensation to the tune of Rs.31,410/- towards wells,
Bandhs and fruit bearing trees, as elaborately discussed by
me hereinabove, the Reference Court has not provided the
very basic and material particulars thereof. The
evidence in this regard has also not been properly
appreciated by the Reference Court. In view of the
contention of the State and the acquiring body that no
such number of trees as are claimed by the claimants were
in existence, the Reference Court was expected to record a
clear finding on the issue. The same has not been
recorded. The Reference Court also has not recorded any
finding as about the quantity of the fruit bearing trees
which could be held to be in existence on the basis of
evidence on record. Which method has been used or
what was the criteria applied by the Reference Court in
27 FA NO.3694 OF 2016
assessing the compensation to be paid for the trees, wells
and Bandhs also cannot be gathered from the impugned
judgment since no such discussion is made by the
Reference Court.
29. For the aforesaid reasons, I am constrained to
observe that the Reference Court has failed in proper
adjudication of the claim in respect of the wells, Bandhs
and fruit bearing trees allegedly acquired by the State.
30. In the circumstances, there is no other option
except to remit back the matter to the Reference Court for
re-consideration of the aforesaid claims on the basis of the
available evidence on record.
31. As I have held hereinabove, the impugned
award so far as it relates to determination of the market
value of the of the acquired lands and enhancement in the
amount of compensation accordingly awarded by the
Reference Court does not require any interference.
32. For the reasons stated above, the following
28 FA NO.3694 OF 2016
order is passed:
ORDER
1. The impugned judgment and award, so far as it
relates to the compensation as awarded by the Reference
Court for the wells, trees and Bandhs stands set aside and
the matter is remitted back to the Reference Court for
reconsideration of the claim in that regard. It is clarified
that the evidence recorded during the original trial shall,
subject to all just exceptions, be the evidence during the
trial after remand.
2. The impugned judgment and award so far as it
relates to determination of the market value of the
acquired lands and the enhancement in the amount of
compensation accordingly awarded by the Reference Court
stands confirmed.
3. The Appeal is partly allowed in above terms.
(P.R.BORA)
JUDGE
...
AGP/3694-16fa
