Bombay High Court
Ashok Tukaram Patare vs The State Of Maharashtra And Anr on 27 February, 2017
Bench: V.K. Jadhav
1 FA NO.1139/2008group
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO. 1139 OF 2008
1. Saw. Latabai Ambadas Patare,
Age 49 years, Occu: Agril.,
R/o. Wakati, Tq. Vaijapur,
Dist. Aurangabad.
2. Manisha Ambadas Patare,
Since deceased through:
2-A) Latabai Ambadas Patare,
Age Major,Occu: Agril.,
2-B) Sainath Ambadas Patare,
Age: Major, Occu: Agril.,
2-C) Gorakhnath Ambadas Patare,
Age: Major, Occu: Agril.,
2-D) Sow. Ashabai Kailash Kale,
Age: Major, Occu: Agril.,
All R/o. Wakti, Tq. Vaijapur,
Dist. Aurangabad.
(LRs brought on record as per
Courts order in C.A.No.9615/2014)
3. Ashabai Ambadas Patare,
Age 30 years, Occu: Agril.,
R/o. Wakati, Tq. Vaijapur,
Dist. Aurangabad.
...APPELLANTS
(Ori.Claimants)
VERSUS
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2 FA NO.1139/2008group
1. The State of Maharashtra,
Through the Special Land Acquisition Officer,
Jaikwadi Project No.2,
Collector Office at Aurangabad.
2. The Executive Engineer,
Nandur Madhmeshwar Canal,
Division Vaijapur, Tq. Vaijapur,
Dist. Aurangabad.
...RESPONDENTS
...
Mr. N.J.Pahune Patil, Advocate for the appellants.
Mr. S.P.Sonpawale, A.G.P., for respondent State.
Mrs.Kalpalata Patil Bharaswadkar, Advocate for respondent
no.2.
...
WITH
FIRST APPEAL NO.1140 OF 2008
Ashok Tukaram Patare,
Age 35 years, Occu: Agril.,
R/o. Wakti, Tq. Vaijapur,
Dist. Aurangabad.
...APPELLANT
(Ori.Claimant)
VERSUS
1. The State of Maharashtra,
Through the Special Land Acquisition Officer,
Jaikwadi Project No.2,
Collector Offfice at Aurangabad.
2. The Executive Engineer,
Nandur Madhmeshwar Canal,
Division Vaijapur, Tq. Vaijapur,
Dist. Aurangabad.
...RESPONDENTS
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Mr. N.J.Pahune Patil, Advocate for the appellants.
Mr. S.P.Sonpawale, A.G.P., for respondent State.
Mrs.Kalpalata Patil Bharaswadkar, Advocate for respondent
no.2.
...
WITH
FIRST APPEAL NO.2738 OF 2010
1. The Executive Engineer,
N.M.C. Division Vaijapur,
Dist. Aurangabad.
...APPLICANT/APPELLANT
VERSUS
1. Latabai Ambadas Patare,
Age 45 years, Occ. Agril.,
R/o Wakti, Tq. Vaijapur,
Dist. Aurangabad.
2. Manisha Ambadas Patare,
Age 22 years, Occ. And R/o
As above.
3. Ashabai Ambadas Patare,
Age 22 years, Occ. And R/o.
As above.
4. The State of Maharashtra,
Through Special Land Acquisition
Officer, Jaikwadi Project No.II
Collector Office, Aurangabad.
...RESPONDENTS
...
Mrs.Kalpalata Patil Bharaswadkar, Advocate for appellant.
Mr.S.P.Sonpawale, AGP for respondent State.
Mr. N.J.Pahune Patil, Advocate for respondent nos. 1 to 3.
...
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WITH
FIRST APPEAL NO.2739 OF 2010
1. The Executive Engineer,
N.M.C. Division Vaijapur,
Dist. Aurangabad.
...APPLICANT/APPELLANT
VERSUS
1. Ashok s/o Tukaram Patare,
Age 40 years, Occ. Agril.,
R/o Wakti, Tq. Vaijapur,
Dist. Aurangabad.
2. The State of Maharashtra
Through: Special land Acquisition
Officer, Jaikwadi Project No.II,
Collector Office, Aurangabad.
...RESPONDENTS
...
Mrs.Kalpalata Patil Bharaswadkar, Advocate for appellant.
Mr. N.J.Pahune Patil, Advocate for respondent no. 1.
Mr.S.P.Sonpawale, AGP for respondent State.
...
CORAM : V.K. JADHAV, J.
Dated: February 27, 2017
...
ORAL JUDGMENT:
1. Heard learned Counsel appearing for the
respective parties and learned A.G.P. for respondent
State.
5 FA NO.1139/2008group
2. Being aggrieved by the common judgment and
award passed by the 5th Joint Civil Judge, Senior Division,
Aurangabad, dated 7th August, 2007, in LAR No.25/2003,
and one another one i.e. LAR No.30/2003, the original
claimants have preferred First Appeal Nos.1139/2008 and
1140/2008, respectively, to the extent of the quantum
whereas, the respondent acquiring body has preferred two
separate appeals bearing First Appeal Nos.2738/2010 and
2739/2010, respectively.
3. Brief facts giving rise to the present appeals are
as follows:
According to the appellants / claimants, their land
has been acquired by the Government vide notification
under Section 4 of the Land Acquisition Act, 1894,
(hereinafter referred to as "the Act"), published in the
Government Gazette on 10th May, 2001, for Nandur
Madhyameshwar Canal Project and the final award has
been passed by the Special Land Acquisition Officer on 3rd
April, 2002. Being aggrieved by the inadequate amount
of compensation awarded by the Special Land Acquisition
6 FA NO.1139/2008group
Officer, the appellants / original claimants preferred the
Reference petitions. In the said petitions, it has been
contended that the Special Land Acquisition Officer has not
properly valued the acquired land and has also not
considered the sale instances in the vicinity. The acquired
lands are Bagayat lands and the same has not been
considered by the Special Land Acquisition Officer while
awarding the compensation. Even though the market
value of the acquired land, as on the date of notification,
was not less one lac rupees per acre; still, the Special
Land Acquisition Officer has awarded compensation at the
rate of Rs.530/- per Are.
4. The respondent State and acquiring body
strongly resisted the said claim by filing their written
statement. It has been contended that the Special
Acquisition Officer has considered all the relevant factors
such as potentiality, fertility and other relevant factors for
determining the market value of the said land. It has also
been contended that the acquired lands are Jirayat lands
and, therefore, the Special Land Acquisition Officer has
awarded just and reasonable compensation. Since
7 FA NO.1139/2008group
common questions of law and facts are involved in both
the matters, the Reference Court has decided both the
Land Acquisition References by common judgment after
recording common evidence.
5. The claimants have adduced the oral and
documentary evidence in support of their contentions,
however, the respondent State and the acquiring body
have not adduced any evidence.
6. Learned 5th Joint Civil Judge, Senior Division,
Aurangabad, by the impugned judgment and award dated
7th August, 2008, partly allowed the said Reference
Petitions and awarded the compensation at the rate of
Rs.1200/- per Are for perennially irrigated land and
Rs.900/- per Are for seasonally irrigated land. Being
aggrieved by the same, the original claimants have
preferred the appeals, as aforesaid, to the extent of
quantum, and the respondent acquiring body has also
preferred the appeals, as aforesaid, against the said
common judgment passed by the Reference Court.
8 FA NO.1139/2008group
7. Learned Counsel for the appellants / original
claimants submits that the Reference Court has discarded
the sale instances Exh.15, Exh.16 and Exh.24,
respectively, on the ground that those sale instances
appear to have been executed deliberately after
possession of the acquired lands was taken by private
negotiations. The Reference Court has erroneously drawn
a conclusion that those sale deeds have been executed at
higher rates only to get the benefits of those sale deeds
for claiming compensation in respect of the acquired lands
and those sale deeds are not genuine transactions.
Learned Counsel submits that it is not the case of the
State, or the acquiring body that, those sale deeds came
to be executed at higher rates with some ulterior motive
after possession of the acquired lands was taken. The
Reference Court has concluded to that effect without any
basis. Learned Counsel submits that the Reference Court
has thereafter considered the statistics of the sale
instances considered by the Special Land Acquisition
Officer and those sales are from the same village during
the period from 1996 to 2000. There are in all 19 sale
instances mentioned in the said sales statistics. Even
9 FA NO.1139/2008group
though most of the sale instances from that sales
statistics came to be executed in the years 1996, 1997 and
1998, respectively, the Reference Court has erroneously
considered the average of the same along with the sale
instances of the year 1999 and awarded the enhanced
compensation at the rate of Rs.1200/- per Are instead of
Rs.1500/- per Are, as claimed by the claimants. Learned
Counsel submits that the award and the copy of the spot
inspection report which was carried out by the Special
Land Acquisition Officer along with the Executive Engineer,
was placed before the Reference Court and those are
exhibited. The award is marked at Exh.17-C in the
Reference filed by the claimant Latabai; whereas,
inspection report dated 11.1.2000 is filed in the Reference
Petition preferred by Ashok, which is marked at Exh.23.
The Special Land Acquisition Officer has observed that the
acquired lands are irrigated lands and further the said
inspection report (Exh.23), unmistakably, points out that
the acquired lands are perennially irrigated lands. The
same is also reflected from the 7/12 extract produced on
record and the claimants have also deposed before the
Reference Court that they are taking Bagayat crops in the
10 FA NO.1139/2008group
acquired lands. Learned Counsel submits that the
Reference Court ought to have awarded compensation at
the enhanced rate of Rs.1500/- per Are.
8. Learned counsel appearing for the respondent
acquiring body submits that the Reference Court has
rightly discarded the sale instances at Exhs. 15, 16 and 24
respectively. The Government has taken the possession
by private negotiation on 28.12.1999. The sale instances
at Exhs. 15, 16 and 24 came to be executed at later dates
i.e. sale instance Exh.15 came to be executed in March,
2001, Exh.16 came to be executed on 16th April, 2001,
and sale instance Exh.24 came to be executed on
26.9.2000. The Reference Court has, therefore, rightly
observed that those sale deeds came to be executed with
some ulterior motive and at higher rates and the same is
also reflecting from the contents of the sale deed. It
appears from the contents of the sale deeds that the close
relatives like mother, son, uncle and nephew executed the
sale deeds in respect of certain portion of the land in
favour of each other. Learned Counsel submits that the
Reference Court has, therefore, rightly considered the 19
11 FA NO.1139/2008group
sale instances of the sales statistics collected by the
Special Land Acquisition Officer. The Reference court has
rightly considered that upto the year 1999, the lands of
the village Wakati were averagely sold at Rs.600/- per Are
and, after 1999, there is a sudden rise and all the lands
were sold at the rate of Rs.900/- per Are, and above it.
Learned Counsel submits that, however, the Reference
Court has awarded the compensation at the rate of
Rs.1200/- per Are, at higher rate. Learned Counsel
submits that the acquired lands are the Jirayat lands and
the Reference Court has awarded the compensation
treating the said lands as perennially or seasonally
irrigated lands.
9. On careful perusal of the pleadings, the
evidence adduced by the claimants, and the judgment and
award passed by the Reference Court, I do not find fault in
the observations made by the Reference Court while
discarding the sale instances Exhs. 15, 16, and 24,
respectively. The Reference Court has rightly observed
that on 28.12.1999 when the acquired lands were taken
into possession by private negotiations, the villagers came
12 FA NO.1139/2008group
to know about the acquisition prior to the publication of
Section 4 notification, and in that event, the possibility
cannot be ruled out that the subsequent sale deeds like
Exhs. 15, 16 and 24 came to be executed deliberately at
higher rates to claim the benefits of the said sale deed for
compensation in respect of the acquired lands. Same is
also reflected from the contents of those sale instances
that the close relatives have sold the land under the sale
instances to each other.
10. The Reference Court has considered the 19 sale
instances mentioned in the sales statistics. On careful
perusal of the award ( Exh.17), it appears that most of
those sale instances of Group II have been referred in
column No.12 of the award. The Reference Court has
drawn the average of the consideration amount of those
sale instances which came to be executed in the years
1996, 1997 and 1999, respectively. Even if the date of
taking over possession i.e. 28.12.1999 by private
negotiations is considered as a basis; still, I do not find
any justification for considering the average of the sale
instances of the years 1996, 1997 and 1999, respectively.
13 FA NO.1139/2008group
It is well settled that if the sale instances prior to the
notification are considered and if those are beyond the
period of one year then, certain rise in the price is required
to be considered while awarding the compensation at the
enhanced rate. Thus, without considering the rise of 10
per cent per year, if the average of those sale instances
are considered right from the year 1996, I do not think
that the approach of the Reference Court is proper, correct
and legal. There are two sale instances of the year 1999
in those sales statistics mentioned in the award ( Exh.17).
Out of that, one sale deed is of 22.2.1999 for consideration
of Rs.600/- per Are and, another one is dated 24.11.1999
for a consideration of Rs.916/- per Are. Those two sale
instances are close to the date of taking possession of the
acquired lands i.e. 28.12.1999. If the average of those
two sale instances are considered, that comes to Rs.758/-
per Are. The appellants / original claimants have claimed
compensation at the enhanced rate of Rs.1500/- per Are.
The Reference Court ought to have awarded the said
compensation at the enhanced rate.
11. In the instant case, there is sufficient evidence
14 FA NO.1139/2008group
on record to indicate that the acquired lands are
perennially irrigated lands; the same is also reflecting from
the contents of the inspection report ( Exh.23), the award
( Exh.17), the 7/12 extract of the acquired lands and from
the various documents placed on record including
documents in respect of supply of sugarcane to the sugar
factories and the electricity bill. The Reference Court
ought to have awarded the compensation at the rate of
Rs.1500/- per Are instead of Rs.1200/- per Are for the
acquired lands.
12. In view of the above discussion, the impugned
judgment and award passed by the Reference Court
requires modification but, at the same time, the appeals
preferred by the acquiring body are liable to be dismissed.
Hence, I pass following order:
ORDER
1. First Appeal No.1139/2008 (Saw.Latabai
Ambadas Patare and others Vs. The State of Maharashtra)
and First Appeal No.1140/2008 (Ashok Tukaram Patare Vs.
The State of Maharashtra, and another) are hereby partly
15 FA NO.1139/2008group
allowed with proportionate costs. The common judgment
and award passed by the 5th Joint Civil Judge, Senior
Division, Aurangabad, dated 7th August, 2007, in LAR
No.25/2003 and LAR No.30/2003 is hereby modified in the
following manner.
(i) The respondents shall pay the enhanced
compensation to the claimants at the rate of Rs.1500/- per
Are for the acquired lands.
(ii) Rest of the judgment and award granting
statutory benefits stands confirmed subject to the
modification of the enhanced rate of compensation as
above.
(iii) The award be drawn up as per the above
modification.
2. First Appeal No.2738/2010 ( The Executive
Engineer, NMC Vaijapur, Aurangabad. Vs. Latabai
Ambadas Patare and others) and First Appeal
No.2739/2010 ( The Executive Engineer, NMC Vaijapur,
16 FA NO.1139/2008group
Aurangabad Vs. Ashok Tukaram Patare and another) are
dismissed with costs.
All the First Appeals are accordingly disposed of.
( V.K. JADHAV )
JUDGE
...
AGP/1139-08fagr
