Execuitve Engineer,Vidarbha ... vs Dayal Navalchand Bhansali And 2 ...
2017 Latest Caselaw 3958 Bom

0407 FA 753/2008 & XOB 35/2008                1                        Judgment


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


                        FIRST APPEAL NO. 753/2008 


Executive Engineer,
Vidarbha Irrigation Corporation
Bembla Project Division,
Awadhootwadi, Yavatmal.                                 APPELLANT
                                .....VERSUS.....

1]     Dayalal S/o Navalmal Bhansali,
       Aged about 60 years, Occu: Agriculturist,
       R/o. Dighi, Tal. Babulgaon,
       District - Yavatmal.

2]     The State of Maharashtra,
       Through the Collector, Yavatmal.

3]     The Special Land Acquisition Officer,
       Bembla Project Division, Yavatmal.                RESPONDE NTS
                                                                     

                                     AND

                      CROSS OBJECTION No. 35/2008


Executive Engineer,
Bembla Project,
Vidarbha Irrigation Development 
Corporation, Awadhootwadi, Yavatmal,
Tq. & Distt. Yavatmal.                                   APPL IC
                                                                 ANT
                                                                    

                                .....VERSUS.....


1]     Dayalal Nawalmal Bhansali,
       Aged about 56 years, Occu: Agriculturist,
       R/o. Dighi, Tq. Babhulgaon, Distt. Yavatmal.


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 0407 FA 753/2008 & XOB 35/2008                    2                         Judgment



2]     The State of Maharashtra,
       Through Collector, Yavatmal.

3]     The Special Land Acquisition Officer,
       Bembla Project, Yavatmal.                               NON-APPLICANT S
                                                                               


Shri A.B. Patil, counsel for appellant.
Shri V.R. Choudhari, counsel for respondent no.1/cross-objector.
Shri A.R. Chutake, counsel for respondent nos.2 and 3.


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

               DATE     : JULY 04, 2017.


ORAL JUDGMENT :  

The subject of this appeal and cross-objection is the

judgment and order dated 20/11/2006, passed by Ad-hoc District

Judge-1, Yavatmal in Land Acquisition Case No. 425/2003. By the

said judgment and order, learned reference court has enhanced the

amount of compensation towards open plot of land and also

constructed area. Hence, being aggrieved, the Acquiring Body has

preferred the appeal. At the same time, being not satisfied with the

enhancement granted by the reference court on both the counts, the

claimant-respondent no.1 has preferred the cross objection.

 0407 FA 753/2008 & XOB 35/2008                  3                         Judgment


2]              Brief facts of the appeal can be stated as follows :-

Claimant, who is the owner of the house property

bearing no. 275 admeasuring 297 sq. mtrs., out of which open area

was comprising of 53.70 sq. mtrs. and the constructed portion was

admeasuring 243.30 sq. mtrs. The house was situated at the village

Dighi, Tal. Babulgaon, District - Yavatmal. By virtue of notification

published in the Government Gazette on 4th February, 1999, issued

under Section 4(1) of the Land Acquisition Act (hereinafter will be

referred to as "Act" for convenience), the said house of the claimant

was acquired by the Government. The Special Land Acquisition

Officer declared the award on 10/04/2002 and awarded

compensation at the rate of Rs.75/- per sq. mtr. for open plot of

land and Rs.2,210/- per sq. mtr. for the constructed portion.

3] Being not satisfied with the said amount of

compensation, claimant preferred the reference under Section 18 of

the Act, contending inter alia that market value of the constructed

portion cannot be less than Rs.4,600/- per sq. mtr. It was further

submitted that village Dighi is a well developed village, having

access to other villages, and the property situated therein can fetch

0407 FA 753/2008 & XOB 35/2008 4 Judgment

fair market value. The Land Acquisition Officer, has however not

considered these aspects, and hence, the compensation awarded by

the Land Acquisition Officer was not just and reasonable. He also

prayed for compensation in respect of wooden material used for the

construction of the house and for the loss suffered by him on

account of the change of business and place.

4] This claim petition came to be resisted by appellant

herein by submitting that Land Acquisition Officer has considered

all the aspects for determination of compensation. He has also

considered the sale instances of neighbouring land and has rightly

arrived at the amount of compensation, which is just, reasonable

and fair.

5] In support of his claim for enhanced amount of

compensation, claimant examined himself and also led the evidence

of the Government Valuer, by name, Chandrashekhar Panjabrao

Wankhade, to prove the valuation report at Exh.42.

6]              On   appreciation   of   the   evidence   led   by   claimant, 





 0407 FA 753/2008 & XOB 35/2008                    5                         Judgment

learned trial court was pleased to enhance the compensation for the

open plot of land from Rs.75/- per sq. mtr. to Rs.646/- per sq. mtr.,

whereas as regards the constructed portion, the reference court

granted the marginal increase of Rs.50/- per sq. mtr. and held the

claimant entitled for compensation at the rate of Rs.2,260/- per sq.

mtr.

7] Being not satisfied with the judgment and order of the

reference court, both the parties have approached this court.

8] As regards the compensation to the open plot of land,

that issue is already settled by this court in First Appeal No.

487/2006 connected with other appeals. In the judgment of this

court, in the said appeals, delivered on 12 th and 13th October, 2010,

this court has already fixed the compensation for the open plots

situated at village Dighi at the rate of Rs.500/- per sq. mtr. Hence,

as the acquired plot in the present appeal is also situated at village

Dighi, it has to be held that the claimant is entitled for the same

amount of compensation at the rate of Rs.500/- per sq. mtr. in

respect of the open plot of land. As the reference court has

0407 FA 753/2008 & XOB 35/2008 6 Judgment

awarded the said compensation at the rate of 646/- per sq. mtr.,

interference is warranted to that extent in this appeal for reducing

the said amount of compensation to Rs.500/- per sq. mtr.

9] As regards the constructed portion on the said plot, the

claimant has asked for compensation at the rate of Rs.4,600/- per

sq. mtr., whereas the reference court has awarded the same at the

rate of Rs.2,260/- per sq. mtr. In this respect, submission of learned

counsel for respondent-claimant is that the reference court has not

at all considered the evidence of the Government Valuer Shri

Chandrashekhar Wankhade, who is examined by the respondent-

claimant and his report was also produced on record at Exh.42. It is

submitted that in para no.10 of its judgment, reference court has

merely referred to the evidence of Shri Wankhade and his report,

but has not stated the reasons why it did find it fit to rely upon the

said evidence. The reference court has discarded it merely by

observing that the witness Shri Wankhade has not issued notices to

others or he has also not examined the Gram Panchayat document.

It is submitted by learned counsel for respondent-claimant that Shri

Wankhade has given in detail the reasons as to why he has valued

0407 FA 753/2008 & XOB 35/2008 7 Judgment

the costs of construction at Rs.14,91,056/-, he has also elaborated

in the report that said construction was fully new and it was in

bricks, cement and mortar. No doubt, there was roof of tin shed, but

having regard to the fact that the construction was new one and it

was in bricks, cement and mortar and also with the use of teak

wood. It is submitted that the valuation of the said constructed

portion, as given by Shri Wankhade, should have been accepted by

the reference court.

10] The reference court in para no.12 of its judgment, has

however, considered that the respondent-claimant has not filed any

document to show the costs incurred for raw material while

constructing the house and has also not maintained the account of

expenses incurred in construction. The reference court, therefore,

held that the market price as claimed by respondent-claimant at the

rate of Rs.4,600/- per sq. mtr. was too exorbitant and excessive.

Despite that, learned reference court granted marginal increase of

Rs.50/- per sq. mtr. so far as the constructed portion is concerned.

11]             In my considered opinion, having regard to nature of 





 0407 FA 753/2008 & XOB 35/2008                8                         Judgment

construction carried out by respondent-claimant and particularly

considering the fact that construction was brand new, the

compensation which is awarded by the reference court towards the

constructed portion, needs to be enhanced from Rs.2,260/- per sq.

mtr. to Rs.3,000/- per sq. mtr.

12] As regards the claim made by respondent-claimant

towards the compensation for wooden material used in the

construction, respondent himself has admitted in his cross-

examination that wooden material of the house is with him as he

has taken it away, therefore, he cannot be entitled for compensation

in respect of the wooden material used.

13] As regards the compensation claimed by respondent for

change of business and place, the learned reference court has

rightly held that as claimant is benefited by additional component,

solatium etc. and even interest on the amount as per Sections 34

and 28 of the Act, he cannot be entitled for any compensation on

these heads.

 0407 FA 753/2008 & XOB 35/2008                    9                          Judgment


14]             Thus,   only   to   the   limited   extent   of   enhancing 

compensation of constructed portion from Rs.2,260/- per sq. mtr. to

Rs.3,000/- per sq. mtr., interference is warranted in the impugned

judgment of the trial court at the instance of respondent and to that

extent, cross objection needs to be allowed partly.

15] The impugned judgment and order of the reference

court is modified to the extent that compensation awarded for the

open plot of land is determined at the rate of Rs.500/- per sq. mtr.,

whereas the compensation for the constructed portion is held to be

Rs.3,000/- per sq. mtr. The respondent-claimant is accordingly

entitled for the compensation at the rate of Rs.500/- per sq. mtr. for

open plot of land and Rs.3,000/- per sq. mtr. for the constructed

portion.

16] As a result, both the appeal and cross objection are

allowed partly.

17] Rests of the judgment of reference court is confirmed.

 0407 FA 753/2008 & XOB 35/2008                 10                         Judgment


18]             Needless   to   state   that,   respondents-claimants   will   be 

entitled to the solatium and additional component on the enhanced

amount of compensation.

19]             Appeal is disposed of in above terms.




                                                    JUDGE

Yenurkar