Vidarbha Irrigation Development ... vs Jayant Umakant Kariddeo & Ors
2017 Latest Caselaw 3897 Bom

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          IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

                               NAGPUR BENCH, NAGPUR


                         FIRST APPEAL NO. 74 OF 2006

      Vidarbha Irrigation Development 
      Corporation, through Executive Engineer, 
      Medium project Division, Pusad, 
      Dist. Dist. Yavatmal                      ... APPELLANT

                ..... VERSUS
                           .....

      1        Jayant Umakant Karideo,
               Aged about 30 years, 
               Occ. Agriculturust,
               R/o. Darwha, 
               Tq. Darwha, Dist. Yavatmal

      2        The State of Maharashtra
               through Collector, Yavatmal,

      3    The Executive Engineer,
           Lower Pus Project, Pusad,
           Dist. Yavatmal                    ...RESPONDENTS
      -=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
                  Mr.Amit Chutke, AGP for Appellant
          Mr. Abhay Sambre, Advocate for Respondent No. 1
       -=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-

               CORAM    :DR.SMT. SHALINI PHANSALKAR-JOSHI,  J.

               DATE       : JULY 3, 2017. 





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      ORAL JUDGMENT    :


      1        The judgment and decree dated 2.4.2005 passed by

Civil Judge Senior Division, Darwha in L.A.C. No. 1268 of

2004 is the subject matter of this appeal. By the said

judgment and decree, the Reference Court has awarded

enhanced compensation of Rs. 3,28,000/- to the respondent

claimant. Being aggrieved by this enhancement awarded

by the Reference Court, this appeal is preferred by the

acquiring body - Vidarbha Irrigation Development

Corporation.

2 Brief facts of the case can be stated as follows:

The land belonging to the respondent no.1, bearing

Gut No. 155, admeasuring 3H situate at village

Kumbharkinhi came to be acquired by the Government for

Kumbharkinhi dam, in pursuance of the notification issued

under Section 4 of the Land Acquisition Act, 1894. As per

the Award declared by LAO on 30.6.1999, the amount of

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compensation granted to respondent no. 1 was @

Rs.28,000/- per hector. No separate compensation was

awarded towards trees standing in the said land.

3 Being aggrieved by the meager amount of

compensation awarded by Land Acquisition Officer,

respondent no.1 approached the Reference Court u/s 18 of

the Land Acquisition Act contending inter-alia that his land

was fertile and having high crop yielding potentiality; he

was fetching income of Rs. 20,000/- per hector; despite

that LAO has recorded compensation at a very low rate

ignoring the sale instances of similar lands situate in

adjacent villages. It was further submitted that his land was

situated on Darwha to Kurhad road and nearer to the

residential area of village Kumbharkinhi. The facilities of

electricity, water supply, school, Gram Panchayat etc were

available in that area which has resulted in rising the prices

of the lands. LAO has not considered these factors and

awarded the compensation at highly inadequate rate.

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      4        It was further submitted that there were four mango

trees which were about 25 years old and fetching income of

Rs. 1,000/- per year per tree. There were also 48 ber trees

fetching the income of Rs. 400/- per year per tree. It was

urged that LAO has awarded compensation for the trees

also at very low rate and hence, compensation @ Rs.

2000/- per tree be awarded.

5 Respondent nos. 2 & 3 herein resisted the said

reference vide written statement at exh. 10, denying

fertility and income fetching potentiality of the acquired

land. It was submitted that LAO has considered all the

important factors and awarded compensation at proper rate

prevailing at the time of notification and therefore, no

interference is warranted in the award passed by LAO.

6 The present Appellant by filing separate written

statement at exh. 19 adopted the same contentions which

were raised by respondent nos. 2 & 3 herein. It was

submitted that LAO has given proper opportunity to the

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claimant to establish his claim and after considering all the

submissions and the material produced before it, awarded

just amount of compensation, therefore, reference has no

merits.

7 On these respective pleadings of the parties, the

Reference Court framed necessary issues for its

consideration. In support of his claim, the cliamant has

examined himself and three more witnesses namely, the

valuer Vishnu Shakar Paradkar and Namdeo Dive to prove

the sale instances. All these witnesses were cross examined

on behalf of the appellant and other respondents. Now

even they have not preferred to lead any documentary

evidence.

8 In the light of this evidence on record, the Reference

court considered the sale instances and also the report of

valuer and fixed market value of the land @ Rs. 90,000/-

per hector and the value of mango tree @ Rs. 9000/-

whereas of berry trees @ Rs. 1000/- per tree.

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      9        While   challenging   the   impugned   judgment   and

award of the learned Reference Court, the submission of

learned counsel for the appellant is that the Reference

Court has not considered the sale instances of the lands

having similar potentiality or the similar quality. It is urged

that the Reference Court ought to have considered that the

lands covered under the sale instances of Ehx. 30 and 31

were situate away, at the far distance of 5 to 6 kilometer

from the acquired land whereas sale instance at Exh. 32

was not of the same village. It is urged that Reference

Court has given undue importance to the evidence of expert

valuer and relying solely on his testimony, has enhanced

the valuation of the trees and hence, the said valuation is

not justified, therefore, needs to be interfered with.

10 The perusal of the judgment of the Reference Court

and the evidence adduced before it, reveals that the

Reference Court has considered all the sale instances, the

certified copies of which were produced before it. It has

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considered that the sale instance produced at exh. 28

which was pertaining to the land situated in the same

village. Under the said sale instance, Shri Vilas Kale had

purchased the land @ Rs. 45,000/- per acre on 8.12.1994.

It was also noticed by the Reference Court that the said

land was only at the distance of ½ kilometer from the

acquired land and quality of both the lands was more or

less similar. The reference Court has mainly relied on this

sale instance.

11 No doubt, Reference Court has also taken into

consideration the other sale instances, one of them pertains

to the land situate at village Mankinhi which was only at

the distance of 1 kilometer from the acquired land and

under the said sale instance exh. 29 also the land at village

Kankhini was sold for consideration of Rs. 40,000/- per

acre on 6.12.1994. The Reference Court has in this respect

also considered evidence on record showing that both the

lands were of the similar quality.

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      12       Then,   Reference   Court   has   considered   the   sale

instance of village Mahuli exh. 30. Under the said sale

instance one Shri Premkuwar Kothar has purchased land on

30.3.1998 @ Rs. 1,23,000/- per hector. The Reference

Court found that the distance between village Mahuli and

Kumbharkinhi was about 3 to 4 kilometer. Further,

Reference Court considered one more sale instance of

Darwha which was for consideration of Rs. 1,06,600/- per

hector vide saledeed executed on 22.5.1995. The said land

was at the distance of 7 to 8 kilometer from the acquired

land.

13 Reference Court has also relied upon certified copy of

the judgment in another Land Reference Case produced at

Ehx. 34, in respect of the land situated in the same village

Kumbharkinhi and acquired for the same project of

Kumbharkinhi dam. It was land of Smt. Undaribai Rathod

for which the learned court has awarded compensation at

the rate of Rs. 90,000/- per hector. The Reference Court

found that the said land was having similar potentiality.

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      14       In para no. 19 of judgment learned Reference Court

has considered the submissions advanced before it and

found that though the sale instances produced at Exhs. 29

to 31 where of the lands situate in different villages but

they was adjacent to the land acquired and except for sale

instance ehx. 28, no other sale instance were available from

the same village Kumbharkinhi. The learned Reference

Court has also considered that these sale instances were

prior to the date of notification within the range of 1 to 4

years and the lands covered under the said instances are

more or less same quality and adjacent to the acquired

land.

15 The learned Reference Court also considered the

evidence of the expert Shri Paradkar who has stated that

having regard to the quality, fertility and location the land

of the claimant and also having regard to the sale instances

of the adjacant lands, the market value of the acquired land

can be in the range of Rs. 1 lac per hector.

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      16       After considering the detailed reasoning given by the

learned Reference Court and also the grounds which it has

taken into consideration incluidng the sale instance of even

adjacent land, no fault can be found in the impugned

judgment and order of the learned Reference fixing the

market value of the respondent's land @ Rs. 90,000/- per

hector. Even for the sake of argument only, the sale

instance of the same village in which acquired land is

situated that of Kumbharkinhi is taken into consideration

which is at Exh. 28, it can be seen that in the year 1994, the

land in the same village was sold for Rs. 1,12,500/- per

hector. The notification us/ 4 of the Land Acquisition Act

was issued in this case in the year 1996 and therefore, even

if said sale instance and the compensation awarded by the

Reference Court for the land acquired for the same purpose

and from the same village is considered, which was Rs.

90,000/- per hector, then the Reference Court has rightly

held that in respect of the acquired land of claimant also,

the same rate of compensation needs to be awarded.

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Therefore, the compensation awarded by the Reference

Court to the acquired land @ Rs. 90,000/- per hector being

just, reasonable, fair and adequate, no interference is

warranted therein in this appeal.

17 Even as regards the compensation for the mango and

berry trees, the Reference Court has considered the

evidence of the claimant, that those mango trees were of 25

year old and each tree was giving income of Rs. 1000/- per

year. Having regard, thereafter to the evidence of the

Expert Shri Karadkar, the Reference Court has fixed

compensation for four mango trees @ Rs. 9000/- per tree

and for 22 berry tree Rs. 1000/- per tree. Thus, after

properly considering the evidence adduced on record as the

Reference Court has fixed market value of the mango and

berry trees, no interference is warranted in the finding of

the Reference Court in that aspect also. The total amount

of compensation awarded by the Reference Court to the

claimant @ Rs 3,28,000/- as enhanced compensation, being

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thus just and correct, the appeal holds no merits, hence,

stands dismissed.

JUDGE

belkhede, PA