The State Of Mah. Thr. Collector, ... vs Sheshrao Laxman Pawar
2017 Latest Caselaw 3912 Bom

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          IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

                               NAGPUR BENCH, NAGPUR


                       FIRST APPEAL NO. 1183 OF 2012

      1        The State of Maharashtra,
               through Collector, Akola

      2        The Executive Engineer,
               Minor Irrigation, Akola            ... APPELLANTS

               .... VERSUS ....

           Sheshrao laxman Pawar,
           Occ. Cultivator,
           R/o. Punoti Kh., Tah. Barshitakli,
           Dist. Akola.                       ...RESPONDENT
      -=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
                  Mr.Amit Chutke, AGP for Appellant
            Mr. V.J. Deshpande, Advocate for Respondent
       -=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-

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

               DATE     :JULY 3,2017. 


      ORAL JUDGMENT    :

      1        The State has preferred this appeal challenging the

judgment and order dated 25.8.2011 passed by 2 nd Joint

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Civil Judge Senior Division, Akola in L.A.C. No.31 of 2002,

being aggrieved by the exorbitant amount of compensation

awarded by the Reference Court.

2 Brief case of the appeal can be stated as under:

The land bearing block No. 19/2A, admeasuring 1H

08R and 19/3 admeasuring 34 R situate at Punaouti, Tq.

Barshi Takli, Dist. Akola was owned by the respondent

claimant. By virtue of notification issued under Section 4 of

the Land Acquisition Act and award of the LAO dated

28.2.2001, the said land came to be acquired by the LAO

for total consideration of Rs. 8,44,211/- including the

market value of the land and the various fruit bearing trees

and teak wood trees standing thereon.

3 Being aggrieved by this meager amount of

compensation as awarded by the LAO, respondent claimant

approached the Reference Court contending interalia that

his lands were irrigated. He used to cultivate the crops in

Kharip as well as Rabbi season all over the year. He used to

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get annual yield of 15 quintal of grains and 10 to 12

quintals of cotton per acre. He was earning profit in the

range of Rs. 20,000/- to 25,000/- per acre per annum.

Moreover, his village and land is well connected with

market place by road and there is availability of frequently

plying S.T. buses and other private vehicles. Therefore,

approximate market value of the said land can not be less

than Rs. 2 lac per acre on the date of publication of the

notification whereas the LAO has awarded the

compensation of Rs. 43,500/- per hector only.

4 As regards the trees standing thereon, it was

submitted that having regard to the fruit bearing

potentiality of the said trees, the amount of compensation

awarded by the LAO was not at all just and fair. There

were total 297 Orange trees, 50 Nilgiri trees and 1552

Nilgiri trees of different ages and one Sag tree. The market

value of the said trees also far exceeds the amount awarded

by the LAO and therefore, he claimed for enhancement of

the compensation in the amount as awarded by the LAO.

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      5        The appellant herein failed to file written statement

to his petition and hence it proceeded without written

statement. At the time of hearing, the claimant lead his

own evidence and evidence of Government Valuer by name

Shri Narend Patil. Both these witnesses were cross

examined on behalf of the appellant.

6 On appreciation of this evidence on record, the

Reference Court was pleased to hold that if the Court goes

by the method of comparison of sale instances in

determining the market value of acquired land and fruit

bearing trees standing thereon, then it would come to Rs.

8,44,211/- whereas if the capitalization method is adopted

and the report of the witness examined by respondent no. 1

namely Government Valuer - Narendra Patil is accepted,

then it comes to Rs. 26,00,790/-. The Reference Court held

that the claimant is entitled to the compensation as has

been assessed on the basis of capitalization method by the

valuation expert, and accordingly awarded the

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compensation of Rs. 26,00,790/- to the respondent

claimant.

7 While challenging the impugned judgment and order

of the Reference Court, the submission of learned AGP is

that it is the duty of the Reference Court to fix such amount

of compensation which can be called as just, reasonable

and adequate. According to him, even assuming that the

appellant herein has not laid any evidence, in that case

also, the Reference Court could not have overlooked the

current market prices and should have arrived at a

reasonable sum of compensation. It is urged that in this

case, the Reference Court has relied simplicitor on the

evidence of the witness examined by the respondent and

relying on his version as gospel truth enhanced the

compensation amount to the extent of 3 ½ times of

awarded compensation of Rs.26,00,790/-. According to

learned AGP, therefore, this is a fit case where interference

in the impugned judgment and order of the Reference

Court, is required.

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      8        Per contra, learned counsel for respondent claimant

has relied upon the judgment of Hon'ble Apex Court in the

case of Mahesh Dattatraya Thirthkar Vs. State of

Maharashtra reported in (2009)11 SCC 141 to submit that

the burden of proving the true market value of the acquired

property is on the State that has acquired it for a purpose.

It is submitted that, in this case, the LAO has relied upon

one report submitted by Government Valuer, however, it

was not at all exhibited. As against it, the respondent

claimant has examined the Government Valuer, who has

personally visited the acquired land, inspected the trees

standing thereon and thereafter arrived at the market

valuation. Thus, it is the claimant who has successfully

proved the market value of the acquired property, as

against the State Appellant. It is submitted that, by his own

testimony and the testimony of the expert valuer

respondent claimant has succeeded in proving that the

award of compensation passed by the LAO was inadequate.

Hence, onus was shifted on the appellant to adduce

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sufficient evidence. However, appellant has failed to

discharge this burden and hence, sans any evidence

produced on record by the appellant to support the

valuation of the acquired property made by LAO, the

Reference Court has rightly relied upon the evidence

produced by the respondent / claimant and awarded just

amount of compensation.

9 Further learned counsel for respondent has also

repolied upon the judgment of Nama Padu Hudar & Ors Vs.

State of Maharashtra reported in 1993(3) Bom. C.R. 54 to

submit that if there is no evidence tendered on behalf of the

State, then the Court has to decide the market value of the

acaquired property on the basis of the factual aspects and

evidence brought before it by the respondent claimant. In

this case, it is urged that there is no effective cross

examination of the expert examined by the respondent.

Merely some suggestions are put to him in his cross

examination that he is not the Government recognized

valuer. It is urged that the suggestion which is denied by

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him can not be sufficient to disbelieve his evidence,

especially, when he has visited the acquired land and also

inspected the trees standing thereon. Hence, according to

learned counsel for respondent, Reference Court has not

committed any error in accepting his evidence and

valuation made by him.

10 Further, learned counsel for respondent has also

relied upon the landmark decision of Ambya Kalya Mhatre

Vs. State of Maharashtra reported in 2011 (6) ALL MR 974

to submit that once the land owner states that he has

objection to the amount of compensation and seeks

reference to the Civil Court, the entire issue of

compensation is before the Reference Court. Once claimant

informs the Reference Court that the compensation

awarded by the LAO is inadequate, the Reference Court has

to proceed to determine the compensation with reference to

the principles laid down u/s. 23 of the Land Acquisition

Act. It is submitted that as held by the Hon'ble Supreme

Court in this authority, as the LAO is not a Court when he

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determines the compensation, he does not adjudicate but

merely takes over the acquired land on behalf of the

Government. It is urged that as held in this authority of

Ambya Kalya Mhatre Vs. State of Maharashtra, the Court in

the case of determination of market value by the method of

comparing the sale instances can award separately the

compensation for the trees also. However, if the method

for determination of compensation adopted by the

Reference Court is capitalization method as in the instant

case, there is no fault committed by the Reference Court in

relying on the figure quoted by the Government Valuer -

the expert and awarding the sum which may be higher than

the one, which could have been arrived at by the method of

comparing the sale instances.

11 According to learned AGP, however, even accepting

that capitalization method as also one of the methods

recognized for determining market value of the acquired

land and trees standing thereon, in that case also, such

amount has to be reasonable and not exorbitant. Here in

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this case, according to him, as Reference Court has relied

simplicitior on the report of the witness examined by the

claimant, such compensation awarded by the Reference

Court can not be considered as just, reasonable and correct,

as the claimant is bound to quote and lead such evidence so

as to get enhanced amount of compensation. Therefore,

much significance should not have been to the report.

12 In the light of the rival submissions advanced by

learned AGP and learned counsel for respondent /

claimant, it can be seen from the judgment of Reference

Court that the Reference Court has considered the

situation, potentiality, size, area and other aspects of the

acquired land and fixed its market value @ Rs. 43,500/- per

hector. The Reference Court has considered that the

acquired land is having high potentiality of annual yield

and it is also adjacent to the State highway connecting the

villages. The Reference Court also considered the sale

instances which were produced by the respondent claimant

and thereafter, held that considering the value of the

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acquired land on the date of notification and having regard

to the fact that required lands are irrigated, and relying

upon the sale instance dated 10.5.1997 regarding the land

bearing block no. 18/2 of the same village, the market price

of the land was Rs. 74,074/- per hector, granted increase of

10% has held that market value of the acquired land can be

Rs. 88,272/- per hector. I do not find that there is any

infirmity or illegality so far as the determination of market

value of the acquired land is concerned.

13 The real dispute appears to be in respect of

determining the market value of the trees standing in the

acquired land. As regards the number of trees and the

kinds of trees, there is no dispute. As per the award total

297 Orange trees were standing in the land whereas 50 and

1552 Nilgiri tress and one Sag tree was standing. LAO has

granted compensation of Rs. 5,71,951/- for the 297 Orange

tree and Rs. 98,610/- towards 1552 Nilgiri trees and Rs.

1170/- towards Sag tree.

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      14       As much reliance is placed by respondent claimant on

the evidence of his expert Shri Narendra Patil, it is

necessary to read his affidavit evidence so also his cross

examination. According to him, he has visited the acquired

land of respondent claimant, inspected the trees standing in

the field, took measurement of the land, verified the trees

minutely, inspected them and then prepared his report. He

has filed said valuation report at Exh. 34. According to his

evidence, he is a private Government valuer and qualified

engineer. In his cross examination he has admitted that, he

has not produced any document to show that he is

Government approved valuer on civil engineering works. It

is his case that he has filed valuation reports in about 25 to

30 proceedings. He has admitted that he takes rough notes

of the property for valuation and maintain that record.

However, it is pertinent to note that, no such record is

produced in the case, nor he has produced any document to

show that he is Government approved valuer or

horticulture expert. Further, according to him, he has

measured the land and inspected the trees standing therein,

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on the request and at the instance of the claimant. Further

he has stated that for the inspection of this acquired land

and the trees standing therein, he was accompanied with

two assistants and within three hours, they inspected 1900

standing in the land of the claimant. During these three

hours, he verified the age, height, width etc of all the trees.

Further, he has admitted that this inspection and

verification of the trees took place after the notification. In

his valuation report Exh. 34, he has given the valuation of

the some of the orange trees @ Rs. 5094/- per tree then

Rs.4470, Rs.4447 and Rs.2307/- per tree. Thus, he has

awarded compensation in the range of Rs. 2307/- to Rs.

5094/- In my considered opinion, having regard to this

evidence on record, market price of Orange trees at the rate

of Rs. 2500/- per tree appears to be just and reasonable by

striking a proper balance.

As regards Nilgiri trees, it can be seen that LAO has

awarded compensation @ Rs. 48/- and Rs.60/- per tree.

The report produced on record by the respondents

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Valuation at Exh. 34 does not spell out at which rate per

tree he has valued the Nilgiri trees therein.

15 From the judgment of the Reference Court in para

no. 21, it can be seen that the Dy. Conservator of Forest, on

whose report LAO has relied upon, has granted

compensation of Rs. 1,05,974/- for total Nilgiri trees

whereas the valuer examined by the claimant, has

enhanced the said value to the tune of Rs. 11,04,481/-.

Thus, whereas, LAO has considered the market value of the

Nilgiri trees at Rs. 48 and Rs. 60/- respectively, the expert

has increased its market value to the tune of Rs. 700/- to Rs

750/- per tree. In my considered opinion, having regard to

this vast difference between the market value of the Nilgiri

trees fixed by the Government valuer, Deputy Conservator

of Forest and the witness examined by claimants, who was

not proved to be a Government recognized valuer such

market value of the Nilgiri trees as fixed by the claimant's

witness definitely appears to be exorbitant and

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unreasonable and hence is required to reduced to Rs. 350/-

per Nilgiri tree.

16 As regards the Sag tree i.e. teak wood tree, Deputy

Conservator of Forest on whose report LAO has relied upon,

has considered its market value as Rs. 1170/-, whereas, the

expert witness of the claimant has valued it at Rs. 2307/-.

There is no reason for the witness of the claimant to do so

without furnishing any details to that effect. Hence, market

value of the Sag tree as determined by Deputy Conservator

of Forest and awarded by LAO being reasonable and correct

that needs to be maintained.

17 It may be true that the expert examined by the

claimants has adopted capitalization method and the

compensation arrived by @ Rs. 26,07,790/- is higher but

then that compensation needs to be reasonable also,

whatever method of compensation may be adopted. It is

the duty of the Court also to ensure that the amount of

compensation is neither excessive nor exorbitant and at the

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same time it should not be meager. Therefore, it is for the

Reference Court to strike just, balance to ensure that the

claimant is adequately compensated for compulsory

acquisition of the land and trees standing therein.

18 Hence, having regard to the entire evidence on

record and on its proper re-appreciation, I have no

hesitation to come to conclusion that the compensation of

acquired land needs to be paid @ Rs. 88,272/- per hector,

whereas, compensation for the 297 Orange trees is to be

awarded @ Rs. 2500/- per tree, for 50 + 1552 Nilgiri

trees @ Rs. 350/- per tree and for one Sag tree @ Rs.

1500/-. The impugned judgment and order of the

Reference Court is modified to that extent. The LAO to

calculate the amount accordingly and if any amount

remained to be paid to the claimant, it should be paid

immediately. If any excess amount is found to be paid to

the claimant, then, appellant is at liberty to recover the

same.

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Appeal is disposed off in above terms with no order

as to costs.

JUDGE

belkhede, PA