Addl.Spl.Land Acquisition ... vs Shri Bhaurao S/O Parasram Thaware
2017 Latest Caselaw 6477 Bom

        J-fa372.03.odt                                                                                                     1/9 


                     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                           NAGPUR BENCH, NAGPUR


                                      FIRST APPEAL No.372 OF 2003


        1.    Additional Special Land Acquisition Officer
               (Pench Project),  Nagpur.

        2.    The Executive Engineer,
               Lower Wanna Project, Wardha.                                          :      APPELLANTS

                           ...VERSUS...

        Shri Bhaurao s/o. Parasram Thaware,
        agd 47 years, Occu. Agriculturist,
        R/o. Kanhalgaon, Tah. Nagpur,
        (Rural), Distt. Nagpur.                                                       :      RESPONDENT


        =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
        Shri A.M. Kadukar, Asstt. Government Pleader for the Appellant No.1.
        Shri M.A. Kadu, Advocate for Appellant No.2.
        None for the Respondent.
        =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-


                                                      CORAM  :   S.B. SHUKRE, J.

rd DATE : 23 AUGUST, 2017.

ORAL JUDGMENT :

1. This is an appeal preferred against the common judgment

dated 18.4.2001, delivered by Joint Civil Judge, Senior Division, Nagpur

in number of land acquisition cases, one of them being Land Acquisition

Case No. 92/1998, with which we are concerned in the present appeal.

The Land Acquisition Case No.92/1998 was initiated on a reference filed

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by the claimant i.e. respondent whose land was acquired for Pench

Project vide Section 4 Notification published on 20 th May 1994. The area

of the acquired land was of 0.70 hectare. The award was passed by the

Special Acquisition Officer on 13.12.1996. He determined market value

of the land to be at Rs.32,157/- per hectare. He also assessed the

existence of the fruit bearing and non-fruit bearing trees and determined

their valuation. Accordingly, he granted compensation to the

respondent.

2. The claimants being not satisfied with the same, filed

reference application under Section 18 of the Land Acquisition Act. On

merits of the case, by the impugned award, the Reference Court

determined the market value of a part of acquired land admeasuring

0.20 hectare to be at Rs.1,50,000/- per hectare and confirmed the

valuation of the remaining portion of the acquired land carried out by

the Special Land Acquisition Officer. The Reference Court, by the

impugned award also granted enhanced compensation for the orange

trees and teak trees. This time, the appellants were felt aggrieved and,

therefore, they are before this Court in the present appeal.

3. I have heard Shri A.M. Kadukar, learned Assistant

Government Pleader of the appellant No.1 and Shri M.A. Kadu, learned

counsel for appellant No.2. None appears for the respondent though

duly served on merits.

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4. At this stage, Shri S.U. Kashyap, Junior Advocate for

Ms. Rajkumari Rai appears and submits that learned counsel is busy in

another Court and prays for grant of time. This prayer cannot be granted

as I have already started pronouncing judgment in the open Court and

the request has been made at the stage of hearing which has reached a

point of no return. That apart, sufficient notice of the final hearing of

this appeal was granted to the learned counsel for the rival parties long

ago. This appeal being is of the year 2003. This appeal has also been

heard for the last two weeks. These facts compel me to not entertain the

request made at such a belated stage for grant of adjournment and,

therefore, it is rejected.

5. I have also gone through the record of the case including the

impugned award. Now, the only point which arises for my

determination :

Whether the compensation granted by the Reference Court is just and proper ?

6. So far as the market value of 0.20 hectare of the acquired

land assessed by the reference Court to be at Rs.1,50,000/- per hectare is

concerned, learned A.G.P. and learned counsel for the appellants, having

regard to the fact that such valuation has been confirmed by this Court in

other connected appeals now do not dispute the same. Therefore, the

valuation of 0.20 hectare of acquired land carried out by the Reference

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Court to be at the rate of Rs.1,50,000/- per hectare is hereby confirmed.

7. There is, however, a serious dispute raised by the appellants

on the number of trees which existed on the acquired land on the date of

possession and the valuation of the trees, carried out by the Reference

Court. Upon consideration of the evidence available on record, I find

that there is substance in the challenge so raised by the appellants.

8. The Reference Court in paragraph 24 of the impugned award

has dealt with the aspect of existence of particular number of trees, types

of trees and valuation of each kind of the trees. It has found that the

claimant-respondent successfully established his claim that there existed

at the relevant time, 256 number of orange trees and 13 number of teak

trees and accordingly, it recorded a finding and then the Reference Court

proceeded to determine the valuation of these trees by adopting the

valuation done by it in connected matters of the orange and teak trees.

This way, the Reference Court determined the value of each orange tree

to be at Rs.2,500/- and each teak tree to be at Rs.5,000/-. The approach

adopted by the Reference Court, I must say, is neither based upon the

evidence tendered by the claimant in the present case, nor logically arises

from the facts established by the claimant in the present case. There is

no evidence whatsoever tendered by the claimant that the health of the

trees in the instant case, orange and teak trees, was just the same as the

health of the trees in other connected matters and, therefore, valuation

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of the trees in the other connected matters could not have been adopted

for the purpose of adjudicating the claim of the respondent as regards

the enhancement in compensation for the orange and teak trees.

9. Then, there is also a serious error committed by the

Reference Court in ascertaining number of orange and teak trees on the

acquired land on the date of possession. As per the findings recorded by

the Reference Court, there were 256 and 13 orange and teak trees

respectively. This finding is based upon the evidence of the second

witness of the claimant, PW 2, who has stated on oath before the Court

that he planted more than 200 orange trees in the year 1987 on the

acquired land and that his evidence went completely unchallenged.

While it is true that this witness, PW 2, was not subjected to any cross-

examination by the appellant as the learned counsel for the appellants

were absent. But the question would arise whether such evidence would

require some corroboration or not and I think, if one considers the

reasons stated in the award passed by the Special Land Acquisition

Officer, the question would have to be answered by finding that some

corroboration to the evidence of PW 2 was required. The Special Land

Acquisition Officer has specifically mentioned that there was a joint

measurement report and the result of the joint measurement report

shows that only 7 orange trees were mature or adult while remaining

orange trees were either of the age of 3 years or less than that and

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accordingly, for the mature orange trees, he gave the compensation at

the rate of Rs.1570/- per orange tree and for the tender orange trees, he

gave the compensation at different rates ranging from Rs.59 to Rs.15/-,

as categorized in his award, which made the total compensation awarded

by him for all the trees to be at Rs.21,937/-. This report spoke of no teak

trees in a specific manner. When reliance has been placed upon joint

measurement report, in the award of Land Acquisition Officer, which

disclosed an all together different picture, it was absolutely essential on

the part of the claimant to have shown that there was a serious error in

the joint measurement report and, therefore, joint measurement report

could not have been relied upon by the Land Acquisition Officer, but he

did not. After all, it is settled law that onus to prove entitlement to

enhanced compensation lies upon one who claims it and in the instant

case, it was claimed by the respondent and, therefore, the burden was

entirely upon the respondent to prove his entitlement to enhancement in

compensation. There was, on one hand, joint measurement report and

on the other hand, evidence of PW 2, second witness of the claimant.

The 7/12 extract was certainly there, which was at Exh.-15. But, the

7/12 extract did not show the actual number of trees present at the

relevant time on the acquired land. It also did not show anything about

the age of various trees mentioned therein. Therefore, the evidence in

the nature of 7/12 extract vide Exh.-15 was of no assistance in the

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present case. I must also state here that the respondent, who examined

himself as PW 1 also admitted that he was not in possession any receipt

for sale of the fruits that he harvested from the trees existing on the

acquired land at the relevant time. He also did not make any effort to

point out fundamental flaws in the joint measurement report. With such

kind of evidence having been adduced by the respondent, the Reference

Court ought not to have discarded the findings of the Special Land

Acquisition Officer based upon the joint measurement report, on the

number of trees as well as their valuation done by him.

10. Learned counsel for the appellant No.2 has pointed out to me

that there was another land bearing Survey No.92, adjoining to the land

acquired in the present case which was also acquired under same

Notification and same award in which the orange trees were evaluated

by the Special Land acquisition Officer to be at Rs.1570/- per tree, the

same valuation carried out by the Land Acquisition Officer in the instant

case for 7 orange trees. He submits that such valuation carried out by

the Land Acquisition Officer in respect of orange trees on the

respondent's another land bearing Survey No.92 has been accepted by

the respondent and as there is no evidence to justify the valuation of the

orange trees at Rs.2,500/- in the present case also, the valuation of the 7

orange trees done at the rate of 1,570/- per tree should be confirmed.

There being no dispute about the fact that the valuation of the orange

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trees existing in another land bearing Survey No.92 of the respondent

done by the Land Acquisition Officer has been accepted by the

respondent and there being no evidence available on record to take a

different view in respect of such valuation, I think the same rate of

valuation needs to be applied even to the mature orange trees in the

present case. As stated earlier these mature trees were 7 in number. As

regards other orange trees, I do not see any reason to take a different

view from the one taken by the Land Acquisition Officer, there being

absolutely no evidence available on record to enable this Court to adopt

such a course. About teak trees also, there being no reliable evidence

brought on record by the respondent, no compensation could have been

granted.

11. For all these reasons, I find that the findings of the Special

Land Acquisition Officer in respect of number of trees existing on the

acquired land on the date of possession and also valuation of each of

these trees in terms of their respective age, needs to be confirmed by this

Court by quashing and setting aside the findings recorded in this regard

by the Reference Court.

12. In the result, the appeal is partly allowed.

13. The rate of the portion of the acquired land admeasuring

0.20 hectare determined by the Reference Court to be at Rs.1,50,000/-

per hectare is hereby confirmed.

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14. The findings of the Reference Court as regards number of

orange trees and teak trees and their respective valuation are hereby

quashed and set aside and the findings of the Special Land Acquisition

Officer in respect of various categories of orange trees and other trees

and the compensation given for all of them at Rs.21,937/- by the Special

Land Acquisition Officer are hereby confirmed.

15. The award of the Reference Court stands modified in the

above terms and the other benefits granted by the Reference Court shall

also apply to the compensation awarded by this Court in the above

terms, except for the rate of interest granted for one year at the rate of

9% p.a. from the date of Section 4 Land Acquisition Act Notification.

This interest at the rate of 9% p.a. for one year is now granted not from

the date of Notification issued under Section 4 of the Land Acquisition

Act but from the date of award dated 13.12.1996.

16. The impugned award is thus modified and the appeal is

disposed of in these terms.

17. The parties to bear their own costs.

JUDGE okMksns