Bombay High Court
Waghambar Devrao More And Anr vs The State Of Maharashtra And ... on 21 August, 2017
Bench: P.R. Bora
1 FA NO.3731 OF 2016gr
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO. 3731 OF 2016
1. Dhiraj s/o Dattatraya Bagdure,
Age 12 years, Minor,
2. Suraj s/o Dattatraya Bagdure,
Age 14 years, Minor,
3. Deepa d/o Dattraya Bagdure,
Age 17 years, Minor,
All are minors U/g father
Dattatraya s/o Madhavrao Bagdure,
Age 42 years, Occu : Agriculture,
All R/o Hosur, Tq. Nilanga
Dist. Latur. ...APPELLANTS
(Orig. Claimants)
VERSUS
1. The State of Maharashtra,
Through District Collector,
Latur District Latur.
2. The Sub-Divisional Officer,
Nilanga, Tq. Nilanga,
District Latur.
3. The Executive Engineer,
Latur Minor Irrigation Division,
Latur District Latur
...RESPONDENTS
(Orig. Respondents)
...
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AND
FIRST APPEAL NO. 3732 OF 2016
1. Vyankat s/o Madhavrao Patil,
Deceased through his L.Rs.
1-A) Saraswati w/o Vyankatrao Patil,
Age 48 years, Occu : Agriculture,
R/o : Hosur, Tq. Nilanga, Dist. Latur
1-B) Sandip s/o Vyankatrao Patil,
Age 30 years, Occu : Agriculture,
R/o : as above.
1-C) Sachin s/o Vyankatrao Patil,
Age 27 years, Occu : Agriculture,
R/o : as above.
1-D) Pooja d/o Vyankatrao Patil,
Age 21 years, Occu : Agriculture,
R/o : as above.
2. Sulochana w/o Madhavrao Patil,
Age 72 years, Occu : Agriculture,
R/o : as above.
3. Shakuntala w/o Gangadhar Dapkekar,
Age 52 years, Occu : Agriculture,
R/o : as above.
4. Govind s/o Madhavrao Patil,
Age 43 years, Occu : Agriculture,
R/o : as above.
5. Jivan s/o Madhavrao Patil,
Age 41 years, Occu : Agriculture,
R/o : as above. ...APPELLANTS
(Orig. Claimants)
VERSUS
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1. The State of Maharashtra,
Through District Collector,
Latur District Latur.
2. The Sub-Divisional Officer,
Nilanga, Tq. Nilanga,
District Latur.
3. The Executive Engineer,
Latur Minor Irrigation Division,
Latur District Latur
...RESPONDENTS
(Orig. Respondents)
AND
FIRST APPEAL NO. 3733 OF 2016
1. Waghambar s/o Devrao More,
Age 54 years, Occu : Agriculture,
R/o : Botkul, Tq. Nilanga, Dist. Latur
2. Suryabhan s/o Narayan More,
Age 57 years, Occu : Agriculture,
R/o : Botkul, Tq. Nilanga, Dist. Latur
...APPELLANTS
(Orig. Claimants)
VERSUS
1. The State of Maharashtra,
Through District Collector,
Latur District Latur.
2. The Sub-Divisional Officer,
Nilanga, Tq. Nilanga,
District Latur.
3. The Executive Engineer,
Latur Minor Irrigation Division,
Latur District Latur
...RESPONDENTS
(Orig. Respondents)
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4 FA NO.3731 OF 2016gr
Shri S.B. Gastgar, Advocate for Appellants
Shri S. M. Ganachari, AGP for State
Shri S.G. Bhalerao, Advocate for Respondent No.3.
...
CORAM: P.R. BORA, J.
DATE : August 21st, 2017
***
Date of reserving the judgment: 20/06/2017.
Date of pronouncing the judgment: 21/08/2017
***
JUDGMENT:
1. Since these appeals are arising out of the
common judgment and award passed by the Court of Civil
Judge, Senior Division, Nilanga, on 7 th of October, 2015, in
LAR No.2/2014 with LAR No.3/2014 and LAR No.4/2014, I
have heard the common arguments in the matter and I
deem it appropriate to decide these appeals by a common
reasoning.
2. The lands which are the subject matter of the
present appeals were acquired for construction of
additional road of Halgara to Hosur for Hanumantwadi
Storage Tank at village Hosur and village Botkul. The
notification under Section 4 of the Land Acquisition Act,
5 FA NO.3731 OF 2016gr
1894, hereinafter referred to as the Act, was published on
20th of September, 2011 and the award under Section 11
came to be passed on 12th of June, 2013. The Special
Land Acquisition Officer had offered the compensation for
the acquired lands at the rate ranging in between
Rs.92,600/- to Rs.2,18,800/- per acre. Dissatisfied with
the amount of compensation so offered, the appellants,
who are hereinafter referred to as the claimants, preferred
applications under Section 18 of the Act which were
adjudicated by the Court of Civil Judge, Senior Division,
Nilanga, District Latur ( hereinafter referred to as `the
Reference Court'). The Reference Court, vide the
impugned judgment has determined the market value of
the acquired lands at the rate of Rs.8,000/- per Are for dry
land and Rs.16,000/- per Are for the irrigated land and has
accordingly enhanced the amount of compensation.
According to the appellants, the amount of compensation
so enhanced by the Reference Court is also inadequate and
they have, therefore, preferred the present appeals
seeking enhancement in the amount of compensation as
awarded by the Reference Court.
6 FA NO.3731 OF 2016gr
3. The LAR No.2/2014 was pertaining to two lands
Gat No.317 admeasuring 22 Are and Gat No.316
admeasuring 24 Are. In LAR No.3/2014, the land involved
was Gat No.375 admeasuring 5 Are whereas Gat No.2
admeasuring 8 Are and Gat No.6 admeasuring 11 Are were
the subject matter of LAR No.4/2014. The land Gat
No.316 admeasuring 24 Are is only held to be irrigated
land by the Reference Court.
4. Shri Gastgar, learned counsel appearing for the
appellants i.e. original claimants, criticized the impugned
judgment and award on various grounds. Learned Counsel
submitted that the Reference Court has failed in
appreciating the sale instances placed on record by way of
comparable sale instances. Learned counsel submitted
that the sale instances in which highest price is received
must have been considered by the Reference Court for
determining the market value of the acquired lands but the
Reference court has considered the sale instance wherein
lowest price was received to the land involved in the said
sale instance. Learned counsel further submitted that
the Reference court has further grossly erred in holding
7 FA NO.3731 OF 2016gr
the lands survey No.317, Survey No.375, Survey No.2
and Survey No.6 to be non irrigated lands. Learned
counsel submitted that ample evidence was placed on
record by the claimants in order to prove that the
aforesaid lands were having irrigation facility and the crops
like sugarcane were being taken in the said lands.
Learned counsel submitted that the evidence in that regard
has not been properly appreciated by the learned
Reference Court. Learned counsel submitted that great
injustice has been caused to the appellants. He,
therefore, prayed for allowing the present appeals by
appropriately enhancing the amount of compensation.
5. Shri Bhalerao, learned Counsel appearing for
the acquiring body, supported the impugned judgment and
award. The learned counsel submitted that the
Reference Court has determined the market value of the
acquired lands on the basis of the sale instances brought
on record by the claimants and, as such, in fact, the
appellants are now estopped from raising any objection in
that regard. The learned Counsel further submitted that
the Reference Court has correctly analyzed the evidence
8 FA NO.3731 OF 2016gr
brought on record. Learned counsel submitted that, as
has been observed by the Reference court, the claimants
failed in bringing on record any cogent and sufficient
evidence to substantiate their contention that their lands
were irrigated lands and that they were taking cash crops
in the said lands. Learned counsel submitted that the
Reference Court has awarded the just and fair
compensation to the claimants and no interference is,
therefore, required in the impugned judgment and award.
He, therefore, prayed for dismissal of the appeals.
6. I have carefully considered the submissions
made on behalf of the appellants as well as the
respondents. I have also perused the impugned
judgment and award and the oral and documentary
evidence existing on record.
7. The claimants had claimed compensation for
their acquired lands at the rate of Rs.16,00,000/- ( Rs.
Sixteen lakh) per acre. In order to substantiate the
claim so raised by them, one of the claimants, namely,
Govind Madhavrao Patil testified before the Reference
9 FA NO.3731 OF 2016gr
Court for and on behalf of the claimants. In addition to
the oral evidence of said Govind Madhavrao Patil, the
claimants placed on record five sale instances ( Exh.19 to
Exh.24). The land which was the subject matter of Exh.19
was admeasuring 41 Are situate at village Botkul and was
sold vide the registered sale deed executed on 18 th of
December, 2000 for consideration of Rs.3,05,000/- ( Rs.
Three lakhs, five thousand) i.e. at the rate of Rs.7,439/-
per Are. According to the claimants, it was the dry land.
25 Are land situate at village Hosur was the subject matter
of Exh.20 which was sold for consideration of
Rs.1,40,000/- i.e. at the rate of Rs.5,600/- per Are. In the
sale deed at Exh.21, the land involved was admeasuring
22 Ares situate at village Hosur and was sold by registered
sale deed executed on 28.11.2000 for value of
Rs.2,37,000/- i.e. at the rate of Rs.10,773/- per Are.
The sale deed at Exh.22 pertains to 11 Are land situate at
village Hosur and the same was sold for price of
Rs.1,10,000/-vide registered sale deed executed on
1.9.2005. The said land was thus sold at the rate of
Rs.10,000/- per Are. The sale deed at Exh.23 was in
respect of 82 Are land situate at village Hosur and the
10 FA NO.3731 OF 2016gr
same was sold on 1.9.2005 for consideration of
Rs.6,50,000/- i.e. at the rate of Rs.7,927/- per Are. The
sale instance at Exh.24 was of 21 Are land situated at
village Hosur and the price received to the said land sold
on 2.9.2005 was Rs.2,10,000/- i.e. at the rate of
Rs.10,000/- per Are. According to the claimants, except
the land involved in sale deed at Exh.21, all other lands
were Jirayat lands. Learned Counsel submitted that all
the sale instances were of the period prior to about six
years of the notification under Section 4 by which the
subject lands were acquired. Learned Counsel submitted
that by giving adequate notional enhancement in the
market value received to the said lands, the Reference
Court must have determined the market value which could
have been much more than the market value as has been
determined by the Reference Court.
8. As against it, it was the argument of the learned
Counsel appearing for the acquiring body that the
Reference Court has shown all fairness in determining the
market value on the basis of the evidence brought before
it and has correctly determined the same.
11 FA NO.3731 OF 2016gr
9. Now, it would be useful to see the reasons
which are assigned by the Reference court while
determining the market value of the acquired lands on the
basis of sale instances brought on record by the claimants.
In paragraph no.13 of the impugned judgment, such
discussion is made by the learned Reference Court. I
deem it appropriate to reproduce the said paragraph
hereinbelow:
''13. On careful perusal of sale instances
brought by the claimants, it reveals that the sale
instances filed at Exh. 19 to 21 are of the year 2000.
The notification under Section 4 is published on
20.09.2011. The said sale instances are above 10
years old from the notification. I am of the view that
the sale instances more than 5 years old are not safe
for reliance and cannot be considered to determine
the market value of acquired land. The land of sale
instances filed at Exh. 22 and 24 is nearest to the
acquired land and of the same zone. Those sale
instances are of dated 1.09.2015 and 2.09.2005
respectively and in those sale instances the land of
Gat No. 317 and 384 is sold at the rate of Rs.
10,00,000/- per hector. It appears that the land of
those sale instances is irrigated land. In sale
instance filed at Exh.24 it is mentioned that it is
Jirayat land but it appears that there is a correction
in the word Jirayat and said sale instance seems to
be doubtful. Therefore, in my view the sale instance
filed at Exh. 22 can be considered to determine the
market value of acquired land as on the date of
publication of notification under Section 4 of the Land
12 FA NO.3731 OF 2016gr
Acquisition Act. In the present references'
notification is of dated 06.08.2010 and the sale
instance is of dated 01.09.2005. Therefore, it 10 %
increase is given then the market value of acquired
land as on 20.09.2011 will come to the tune of
Rs.16,00,000/- per hector for irrigated land and
Rs.8,00,000/- for dry land. The Land Acquisition
Officer has awarded compensation at the rate of
Rs.2,31,500/-, 2,73,500/- per hector to dry land and
Rs.5,47,000/- for irrigated land. In view of above
discussion and considering the evidence on record, I
am inclined to hold that the Land Acquisition Officer
awarded meager amount of compensation to the
claimants and the market value of the acquired land
is Rs. 8,000/- per R. i.e. Rs. 8,00,000/- per hector
for Jirayat land and Rs. 16,000/- per R. i.e.
Rs.16,00,000/- per hector for irrigated land as on
20.09.2011. In the result, I answered issues No.1
and 2 accordingly.''
10. From the discussion made by the Reference
Court, it is quite clear that it has given weightage to the
evidence which was favouring the case of the claimants.
There were three sale instances on record; two executed
on 1.9.2005 and the third on 2.9.2005. In fact, the land
which was involved in Exh.23 had received the
consideration at the rate of Rs.7,927/- per Are. The
Reference Court could have considered the said sale
instance for determining the market value, however, the
Reference Court preferred to consider sale instance at
Exh.22 wherein the price received was Rs.10,000/- per
13 FA NO.3731 OF 2016gr
Are. Further, the evidence was not free from doubt
whether the lands involved in the sale instances placed on
record were irrigated or dry since there were some
corrections appearing in that regard in the respective sale
deeds. After having considered the evidence brought on
record it, however, appears to me that the learned
Reference court has correctly determined the market value
of the acquired land at the rate of Rs.8,000/- per Are for
dry land and Rs.16,000/- per Are for irrigated lands.
The appellants have failed in making out any case for any
enhancement in the amount of compensation as has been
determined by the Reference Court.
11. The next question falls for my consideration is
whether the Reference Court has committed any error in
not holding the land Gat No.317, Gat No.375, Gat No.2
and Gat No.6 to be irrigated lands. It was vehemently
argued by Shri Gastgar, learned counsel appearing for the
appellants that despite there being sufficient evidence on
record showing that the aforesaid lands were irrigated
lands, the Reference court has held the said lands to be
the dry lands. After having perused the entire record I,
14 FA NO.3731 OF 2016gr
however, do not find any substance in the allegations so
made by the appellants. The learned Reference Court in
paragraph no.11 of its judgment has considered the
submissions in this regard. I find it necessary to
reproduce the said discussion which reads thus :
''11. The claimants have pleaded that entire acquired
land is irrigated land and the claimants were raising
sugarcane and other crops in it. On perusal of 7/12
extracts filed on record, it reveals that except the
land of Gat No. 16 area 24 R, there is no entry of
irrigation facility to other land. In some 7/12
extracts the entries of sugarcane is shown but those
entries of the year 2012-13. On perusal of an award
Exh.17, it reveals that in the award it is specifically
mentioned that the land of Gat No. 16 adm. 24 R. is
irrigated land and other land is dry land. The
claimants have filed some electric bills on record but
only on relying on those bills it cannot be held that
entire acquired land is irrigated land. Therefore,
considering above facts, I have no alternative to hold
that the land of Gat No. 16 adm. 24 R. is irrigated
land and other acquired land is dry land.''
12. In view of the submissions made on behalf of
the appellant and in the light of the observations made by
the Reference court in paragraph no.11 of its judgment
reproduced hereinabove, I scrutinized the record. The
7/12 extract pertaining to land Gat No.316 distinctly shows
the existence of a well. The crop statement also shows
15 FA NO.3731 OF 2016gr
that the sugarcane crop was being taken. The 24 Are
land acquired out of the said survey number has,
therefore, been rightly held by the Reference Court to be
irrigated land. The 7/12 extract of the land Gat No.317 is
at Exh.26. It, admittedly, does not show the existence
of any well in the said Gat number. As was deposed by
Govind Madhavrao Patil before the Reference Court, the
claimant used to take water of well situated in land Gat
No.316 for his other acquired land i.e. Gat No.317. It
was also deposed by the said witness that 7/12 extract of
Gat No.317 will also show that for preceding three years of
the notification under Section 4, the cash crops were being
taken in the said land. The crop statement of Gat
No.317, however, shows the sugarcane crop only for the
year 2011-2012 and not prior to that. From 2001-2002
to 2011-2012 sugarcane crop was taken only once i.e. in
the year 2011-2012. The observation by the Reference
Court that the entry of the sugarcane is shown in the year
2012-2013 is incorrect. However, merely because during
the period of ten years only once sugarcane crop was
taken; that too, just few months prior to the issuance of
notification under Section 4, will not be enough to
16 FA NO.3731 OF 2016gr
categorize the said land as the irrigated land. The
ultimate conclusion recorded by the Reference Court,
therefore, does not require any indulgence. If the crop
statement of the land Gat No.375 is perused, it reveals
that since 2006-2007 no sugarcane or any other cash crop
is taken in the said land. Similarly, the claimants have
failed in bringing on record any cogent and sufficient
evidence to show that the land Gat No.2 and land Gat No.6
were irrigated lands and the cash crops were being taken
in the said lands.
13. In the circumstances, it does not appear to me
that the Reference Court has committed any error in not
holding the said lands to be irrigated lands. There is no
merit in the appeals filed. Hence, the following order:
ORDER
All the aforesaid First Appeals are dismissed,
however, without any order as to the costs.
(P.R.BORA)
JUDGE
...
AGP/
