Lildhar Pandurangi Pohane vs The State Of Mah.Thr.Collector ...
2017 Latest Caselaw 4164 Bom

343-J-FA-333-06                                                                    1/20


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

                            FIRST APPEAL NO.333 OF 2006
                                          

Liladhar s/o Pandurangi Pohane 
Aged about 52 years, 
Occ. Service, R/o Ward No.4, 
Khade Lay Out, Wardha, 
Tahsil & Dist. Wardha.                                  ... Appellant. 

-vs-

1.  The State of Maharashtra,
     Through the Collector,  Wardha.

2.  The Special Land Acquisition Officer,
     (General) Wardha, Tah. & Dist. Wardha. 

3.  Executive Engineer, Minor Irrigation Division,
     Wardha. Tahsil and Dist. Wardha.                   ... Respondents. 


Shri S. U. Nemade, Advocate for appellant. 
Ms S. Haider, Assistant Government Pleader for respondent No.1/State. 
Shri V. G. Palshikar, Advocate for respondent Nos.2 and 3.   


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

ARUGMENTS WERE HEARD ON : JUNE 20, 2017 JUDGMENT PRONOUNCED ON : JULY 7, 2017

Oral Judgment :

By this appeal preferred under Section 54 of the Land Acquisition

Act, 1894, appellant-the original claimant is challenging the judgment and

award dated 06/03/2006 passed by the 2 nd Ad-hoc Additional District Judge,

Wardha in LAC No.278 of 2001, being partly aggrieved by the said judgment

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and award in so far as it relates to disallowance of his claim for enhancing

the amount of compensation.

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

Appellant is the owner of the field bearing survey No.10

admeasuring 7.35 hectare situated at village Pimpalgaon, Tahsil Arvi, Dist.

Wardha. By virtue of notification issued under Section 4 of the Land

Acquisition Act on 23/10/1997 which was published on 29/04/1998 and in

pursuance of notification issued under Section 6 of the said Act on

29/04/1999, the land of the appellant was proposed to be acquired.

Accordingly, notice under Section 9 of the Act was issued to the appellant,

whereupon appellant filed his objection before the Land Acquisition Officer

on 19/05/1998. The Spl. LAO, vide award dated 30/11/2000, granted

compensation of Rs.23,29,614/- including the cost of land and cost of orange

and other trees, in addition to the cost of stone bandhs and solatium at the

rate of 30% and special component interest at the rate of 12% per annum

from 29/04/1998 to 30/11/2000.

3. Being not satisfied with the meagre amount of compensation

awarded by the Spl. LAO, the appellant approached the Reference Court

contending inter alia that the market value of the land cannot be less than

Rs.2,00,000/- per hectare. It was submitted that the acquired land of the

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appellant is irrigated one as the well is situated therein. However, Spl. LAO

has committed an error in classifying the land into three categories of dry

crop land, seasonally irrigated land and perennially irrigated land. This

classification was misconceived and not warranted. As a result the Spl. LAO

has given different amounts of compensation by dividing the acquired land in

these three categories. The said amount of compensation is totally against

the actual market value of the acquired land and hence having regard to the

evidence on record it should be enhanced to Rs.2,00,000/- per hectare.

4. As regards compensation for orange trees, it was submitted that as

per the joint measurement report, it was found that there were totally 475

orange trees in the acquired land. However at the time of passing award,

Spl. LAO has considered only 362 trees and no adequate compensation was

awarded in respect of those trees and in respect of remaining 126 trees

amount of compensation was not awarded at all. Hence it was submitted

that on this score also, the compensation amount needs to be enhanced.

5. Further, it was submitted that Spl. LAO has awarded a very

meager amount of compensation of Rs.43,205/- for the well and hence the

appellant is entitled to the compensation of Rs.1,25,000/- towards the well.

In respect of the baandh, he claimed Rs.70,000/- as compensation. It was

submitted before the Reference Court that the compensation given by the

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Spl. LAO for all these components being inadequate hence the total amount

of compensation to which the appellant becomes entitled is to the extent of

Rs.27,30,240/-

6. This reference petition came to be resisted by the respondent

contending inter alia that valuation of the land, as made by the Spl.LAO is

reflecting the correct market value of the same. It was submitted that

admittedly the land of the appellant was of three categories viz. Murmali,

seasonally irrigated and perennially irrigated. Hence Spl. LAO has not

committed any error in awarding compensation of the land as per its

respective category. Further it was submitted that when the valuation of the

land was made on the basis of it being irrigated land, there was no question

of paying any separate amount of compensation towards orange trees and

the construction of well. As regards the baandh, it was submitted that Spl.

LAO has already awarded the compensation of Rs.14,400/- which is the fair

amount of compensation and hence no separate order needs to be passed

towards the payment of compensation for the baandh.

7. On these respective pleadings of the parties, the Reference Court

framed necessary issues for its consideration. In support of his case, the

appellant examined himself and one witness by name Ranjana Purushottam

Deshmukh to prove the sale deed (Exhibit-42) of the adjacent land to show

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that even the market price of dry crop land in the said area was

Rs.1,60,000/- per hectare. The appellant also led the evidence of two more

witnesses from Sugar Factor at Jamani and one witness by name

Purushottam Wasudeorao Sagane from Arvi Sahakari Kastakari Kharedi Vikri

Sanstha, Arvi. Lastly he also relied upon evidence of Talathi of the village

Ajangaon viz Raju Bakaraji Dehankar. All these witnesses were cross-

examined on behalf of the respondents. The respondents however did not

lead any oral or documentary evidence on record.

8. Thus on appreciation of the evidence adduced by the appellant and

his witnesses, the Reference Court was pleased to allow the claim petition of

the petitioner partly, thereby enhancing the compensation amount to the

tune of Rs.75,000/- per hectare for dry crop land admeasuring 4.40 hectare;

Rs.1,12,500/- per hectare for seasonally irrigated land admeasuring 1.63

hectare and Rs.1,50,000/- per hectare for irrigated land, admeasuring 1.32

hectare. Learned Reference Court however did not accept the market price

for the entire acquired land, as claimed by the appellant at the rate of

Rs.2,00,000/- per hectare. The Reference Court also refused the claim of the

appellant towards enhanced amount of compensation for orange trees, well

and baandh. Hence being aggrieved, this appeal is preferred by the

appellant-claimant seeking enhanced amount of compensation to the tune of

Rs.27,30,240/-.

 343-J-FA-333-06                                                                               6/20


9.           In   this   appeal,   I   have     heard   at   length,     learned   counsel   for

appellant and respondent. In the light of submissions advanced by them, the

only issue arising for my consideration in the present appeal is whether

compensation awarded by Reference Court is just and fair ? For deciding the

correct amount of compensation, which can be called as fair and reasonable,

the initial burden always rests upon the claimant to prove that the claim for

enhanced compensation is justifiable. However at the same time, it is

necessary for Court also to evaluate the evidence, on the basis of all the

material placed on record by both the parties and by closely scrutinising the

evidence in proper perspective to arrive at conclusion regarding adequate

and reasonable market value of the land acquired. The Apex Court has in

the case of Special Deputy Collector vs. Kurra Sambasiva Rao and ors.

AIR 1997 SC 2625, clearly observed in this regard that the attending facts

and circumstances in each case would furnish guidance to arrive at the

market value of the acquired lands and it is equally relevant to consider the

neighbourhood lands as are possessed of similar potentiality or any

advantageous features or any special circumstances available in each case.

The Court is required to take into account all the relevant considerations. It

is further observed that in that process, though some guess work is involved,

feats of imaginations should be eschewed and mechanical assessment of the

evidence should be avoided and even in the absence of oral evidence

adduced by the Land Acquisition Officer or the beneficiaries, the judges are

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to draw from their experience, the normal human conduct of the parties and

bona fide and genuine sale transactions are guiding star in evaluating the

evidence. At the same time misplaced sympathies or undue emphasis solely

on the claimant's right to compensation would place very heavy burden on

the public exchequer to which everyone contributes by direct or indirect

taxes. And therefore the fair and reasonable and adequate market value is

always a question of fact which depends upon the evidence adduced,

circumstantial evidence and probabilities arising in each case.

10. Law is also well settled to the effect that the Court should not

place too much emphasis on the oral evidence adduced on behalf of the

claimant about the income from the land and the best evidence would be the

evidence of sale instances of similar lands at about the time of notification

under Section 4 of the Act.

11. As held by the Honourable Supreme Court in case of Mehrawalji

Trust (Registered), Faridkot and ors. vs. State of Punjab and ors. (2012)

5 SCC 432, " when there are several exemplars with reference to similar

lands, it is the general rule that the highest of the exemplars, if it is satisfied

that it is a bonafide transaction, has to be considered and accepted. When

the land is being compulsorily taken away from a person, he is entitled to the

highest value which similar land in the locality is shown to have fetched in a

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bonafide transaction entered into between a willing purchaser and a willing

seller near about the time of the acquisition. In our view, it seems to be only

fair that where sale deeds pertaining to different transactions are relied on

behalf of the Government, the transaction representing the highest value

should be preferred to the rest unless there are strong circumstances

justifying different course."

12. In the backdrop of this legal position, if one considers the

evidence on record in this case, perusal of the award of Spl. LAO reflects that

he has classified the acquired land of the appellant in three categories viz.

dry crop land, seasonally irrigated land and perennially irrigated land.

Accordingly he awarded compensation at different rates to these three

categories of land. For arriving at the market value of the land, he has

considered three sale instances in the award as according to him, those were

the only sale instances available from village Pimpalgaon during the relevant

period from 26/02/1991 to 14/02/1996. Out of these three sale instances,

he found that though the sale instance of 26/02/1991 was of adjacent land

to the acquired land, considering that the said sale instance has taken place

seven years prior to the notification and it was for a much lessor

consideration, he did not rely upon it. Even in respect of another sale

instance, dated 19/01/1993, he found that the said sale instance is also of

about 5 years prior to notification and it was for the sum of Rs.15,501/- for

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the land admeasuring 2H 45 R. Hence he considered the third sale instance

of the land bearing, Gut No.17 admeasuring 4 hectare and which was

effected on 14/02/1996 for consideration of Rs.58491/- per hectare. As this

sale instance was nearer to the date of notification and it was for a higher

rate, he considered the same for determining correct market value of the

acquired land. However he has decreased the value of the said sale instance

by 10% on account of the fact that the revenue assessment of the said land

was at higher rate than of acquired land. Then he again granted 12%

increase on the ground that from the date of sale instance till the date of

notification, there must be increase in the price of the land and then held

that for the land having revenue assessment of Rs.3.76 to 5.00, reasonable

valuation can be Rs.66,000/- per hectare. However having regard to the

revenue assessment of the acquired land, he fixed the market value at the

rate of Rs.41,500/-.

13. Perusal of judgment of the Reference Court shows that Reference

court rightly found that classification made by the Spl. LAO depending on the

revenue assessment was correct and held that the market rate of dry crop

land, having regard to the evidence on record, can be assessed at

Rs.75,000/- per hectare, then allowing the increase at the rate 1.5% of the

value of dry crop land, Reference Court has assessed the market value of

seasonally irrigated land to Rs.99,000/- per hectare. So far as perennially

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irrigated land was concerned, Reference Court has doubled market rate of

dry crop land and held that it would be proper to consider the market rate of

perennially irrigated land at the rate of Rs.1,50,000/- per hectare.

14. To challenge this valuation as being inadequate, much reliance is

placed by learned counsel for appellant on the evidence of witness Ranjana

Deshmukh, who has purchased the agricultural land of village Natala for

consideration of Rs.1,60,000/- from Raju Banarao Deshmukh in the year

1996. It is submitted that as per sale deed Exhibit-42, if the dry crop land

can fetch the market price of Rs.1,60,000/- then in respect of the appellant's

acquired land which is to a large portion irrigated one, as having a well

situate therein, appellant must get the compensation at the rate of

Rs.1,20,000/- per hectare for dry crop land. However sale deed Exhibit-42

can not be of much help to appellant as it is not of the village Pimplegaon

where the acquired land is situated but it is of village Natala. When

admittedly the sale instances of village Pimplegaon were available and which

are considered by the Spl. LAO and Reference Court, the sale instance of

village Natala cannot be considered, without there being any evidence to

show that both the villages are adjacent or even quality of both the lands is

more or less similar. This witness Ranjana Deshmukh has also admitted in

her cross-examination that her field is abutting to river. Her land is of good

quality having black soil. As against it, about half of the filed of the

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appellant was stony (murmali). According to her, only in two acres of land,

the appellant was having orange trees. Further she has also stated that,

village Pimplegaon is comparatively smaller one and it is about 10 km away

from Anji (Mothi), whereas Arvi is about 35 to 40 km away from

Pimplagaon. Thus considering her evidence and the fact that her land was

not of the same village of the acquired land, the sale deed of her land cannot

be considered as comparable sale instance.

15. The real grievance of the appellant is about the Spl. LAO

classifying his land in three categories and Reference Court upholding said

classification. It is submitted by learned counsel for appellant that when

admittedly a well is situated in the acquired land, then whether the

appellant irrigates or does not irrigate the entire land should not make any

difference. The fact remains there is source of continuous water to his land

and hence entire acquired land has to be assessed as irrigated land. To

substantiate this submission, learned counsel for appellant has placed

reliance on the judgment of the Apex Court in Chindha Fakira Patil (Dead)

Thr. LRs. vs. Special Land Acquisition Officer, Jalgaon (2012(2) Mh.L.J.

530 wherein, in the facts of the said case, in para 13 it was held that, "when

it was not in dispute that there were wells in the acquired land, the mere fact

that the appellants had not cultivated sugarcane or wheat cannot lead to the

inference that the land was not irrigated land." It has further held that,

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"there was no valid reason therefore for the High Court to interfere with the

finding recorded by the Reference Court that parts of the lands were Bagayat

and for such land claimants were entitled for compensation at the rate of

Bagayat land."

16. In this respect learned counsel for the appellant has also placed

reliance on the decision of this Court dated 13/10/2014 in F.A. No.41/2008

Gopichand Bhika Rathod vs. The State of Maharashtra with connected

appeals, wherein also relying on the judgment of Chindha Fakira Patil

(supra) it was held that as the existence of source of irrigation for the land

in question is the common and it is from the river bed, merely because the

claimants in the appeal were not taking crop of sugarcane, it would not mean

that the land in question was not perennially irrigated. It was further held

that if there is fluctuation in supply of water to the land from the river bed

depending upon the gravity of rainy season in particular years and the

availability of water flow in the river, it would not make any difference. The

land remains an irrigated land having perennial source of water from the

river bed. How much area of the land or to what extent the irrigation facility

is provided would not make any difference while determining the amount of

compensation to be awarded. It was further held that such land cannot be

treated as dry crop land and the distinction made by the Reference Court to

that effect being without any basis, cannot be accepted.

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17. In my considered opinion, though there cannot be any two

opinions about the legal proposition laid down herein above, facts of the

present case need to be distinguished. Here in the case, not only the witness

for appellant Ranjana Deshmukh has admitted that half of the portion of the

land of appellant is 'murmali' that is 'stony' but even the appellant himself has

admitted in his cross-examination that his land was of three qualities i.e.

stony (murmali), black and moderate. Thus he himself is not disputing the

fact that the quality of entire acquired land is not the same but it can be

divided into three categories of good, moderate and stony. In such

circumstances, it cannot be said that, either the Spl. LAO or Reference Court

has committed any error in assessing the market value of the said land on

the basis of three categories, depending on the quality. Moreover, It is one

thing to say that the land is having perennial source of water like river bed

but the land owner not taking every time the irrigated crop and it is another

thing to say that though there is a well in the land, as in the instant case, the

land owner is taking different crops in different portions of his land. It was

necessary therefore for the appellant to show that there was sufficient water

in the well or even if there was sufficient water, considering the murmali and

moderate quality of land as he has admitted, he could not take, in the said

land, irrigated crop. Appellant had admitted that he was taking non-

irrigated crops in the said land along with irrigated crop like sugarcane.

Therefore if he himself was treating the land and accepting the fact that it

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was of three different qualities, the market value of such land has to be

assessed on the basis of its different qualities. Therefore in the facts of the

present case, it cannot be accepted that either Spl. LAO or the Reference

Court has committed error in categorizing the land of the appellant and

assessing its market value accordingly.

18. However, there appears some substance in the grievance raised by

the appellant about the Spl. LAO holding only 1 H 32 R land as perennially

irrigated and categorising a major portion of 4 H 40 R land as dry crop land

and 1 H 63 R land as seasonally irrigated land. In this respect, I find much

substance from 7/12 extract of the acquired land produced on record, which

shows that the appellant was cultivating sugarcane crop in the area of 1 H

land in the year 1991-92, 1992-93 and 1995-96 whereas in the year 1993-94

he has cultivated sugarcane only in 80 R land. But in the year 1995-96 and

in the year 1996-97 sugarcane crop was taken in the area admeasuring 2 H

10 R and 2H 50 R respectively. Therefore the larger area in which the

irrigated crop like sugarcane was taken, which was to the tune of 2 H 50 R,

needs to be considered for assessment of the market value, it being a

beneficial piece of legislation. The appellant, therefore, becomes entitled to

get rate for irrigated land which is at the rate of Rs.1,50,000/- per hectare for

perennially irrigated land admeasuring 2 H 50 R instead of 1 H 32 R . As

regards the area of 1 H 03 R considered by Spl. LOA and by the Reference

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Court, as seasonally irrigated land, there need not be any interference.

However, as the portion of perennially irrigated land is increased to the

extent of 2 H 50 R, proportionally the portion of dry crop land would be

reduced and compensation needs to be assessed and paid accordingly. Thus

to the extent of holding the appellant entitled for compensation at the rate of

1,50,000/- per hectare for perennially irrigated land admeasuring 2 H 50 R

and proportionally modifying and reducing the portion of dry crop land, the

appeal needs to be allowed and to that extent the impugned order of the

Reference Court is required to be modified.

19. The second head on which the appellant has raised grievance

pertains to the compensation awarded for orange trees. It is undisputed that

at the time of joint measurement, total 475 orange trees were found in the

acquired land. However, according to Spl. LAO at the time of acquisition of

land, only 364 orange trees were found and he has valued the compensation

for those 364 trees only. Appellant has claimed compensation for the

remaining 111 orange trees also. Moreover, according to him, the

compensation awarded to him towards orange trees is very meagre. As

against it, submission of learned counsel for the respondents is that if

compensation was paid considering the land as orchards, then no separate

compensation can be awarded towards the orange trees.

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20. However, in view of the recent decision of the Apex Court in case

of Ambya Kalya Mhatre (dead) Thr. LRs and ors. vs. State of

Maharashtra 2012(1) Mh.LJ 9, this submission cannot be accepted. In this

decision, in paragraph 22, it was clearly held that if the land value had been

determined with reference to the sale statistics or compensation awarded for

a nearby vacant land, then necessarily, the trees will have to be valued

separately. But if the value of the land has been determined on the basis of

the sale statistics or compensation awarded for an orchard, that is land with

fruit-bearing trees, then there is no question of again adding the value of the

trees. It was further held that if the market value has been determined by

capitalizing the income with reference to yield, then also the question of

making any addition either for the land or for the trees separately does not

arise.

21. In the instance case, the Spl LAO has not determined the value of

the land on the basis of it being an orchard i.e. the land with fruit-bearing

trees but he himself has awarded a separate amount of compensation

towards the orange trees, as can be seen from the E-statement wherein it is

stated that the appellant is entitled for compensation of Rs.9,20,513/-

towards the value of orange and other trees. In such situation, no question

arises of holding that the land was valued as a orchard.

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22. Now the question for consideration is whether the compensation

awarded by the Spl LAO for orange trees and confirmed by the Reference

Court is just, reasonable and correct ? If one considers E-statement which is

part of award, it goes to show that Spl. LAO has considered the yield from

the orange trees. Upon considering the approximate market income

therefrom, he has fixed he market value of the orange trees. Appellant has

not produced on record the evidence of any horticulture expert or other

witness to show that the value assessed by the Spl. LAO for the orange trees

is in any way not fair or just.

23. As regards the grievance of the appellant, that he has been

awarded compensation for only 364 orange trees though at the time of joint

measurement 475 orange trees were found in the acquired land, appellant

himself has admitted that every year some trees become dry. There is no

evidence to show that after joint measurement of the trees, all the trees

remained alive and not a single tree became dry. Appellant's witness

Ranjana Deshmukh has also admitted in her cross-examination that every

year 'Tan' is required to orange trees and due to 'Tan' about 10% trees die

every year. Therefore in the light of this evidence on record, if at the time of

acquisition, only 364 orange trees were found in existence, then it cannot be

held that appellant is entitled for compensation of 475 orange trees. Hence

no interference is warranted, as regards the amount awarded by the Spl. LAO

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or by the Reference Court under that head.

24. The last submission of learned counsel for the appellant pertains

to the inadequate compensation awarded towards the well. According to

appellant, the value of well was Rs.1,25,000/-, whereas the Spl. LAO and

Reference Court has awarded compensation Rs. 43, 205/- only towards the

well. Per contra, according to learned counsel for respondent, if the

compensation amount is arrived at on the basis of it being an irrigated land,

then no separate compensation can be paid towards the well. In this respect

learned counsel for the respondent has placed reliance on the judgment of

this Court in State of Maharashtra and anr. vs. Arvind R. Bhalerao

2001(3) Mh.L.J. 156, wherein it was held that, "as regards the

compensation of Rs.1000/- awarded by the Reference Court in relation to the

well, the learned Government advocate is justified in contending that once

the market value is determined on the basis of nature of the crops grown in

the land taking into consideration the water facility available from irrigation

wells, further determination of compensation for the well on the basis of

construction costs etc. cannot arise. Therefore it was proper for the

Reference Court not to grant any compensation towards well".

25. As against this, learned counsel for the appellant has relied upon

the judgment of the Apex Court in case of Tejumal Bhojwani (Dead) Thr.

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Lrs. And ors. vs. State of UP. (2003) SCC 525, wherein in paragraph 7

while deciding the question as to whether the claimants were entitled to

separate compensation for the tubewell as well as for the structure standing

on the land, it was held that "when amount of compensation is determined

by capitalization method, there can be justification for claimant being not

given separate compensation for land and building separately. However

where there was no capitalizing of value of land and structure by LAO in his

award, and LAO has himself given compensation separately for the land,

building and tube-well, then the claimants are entitled to get the same.

26. In the case of Ambya Kalya Mhatre (supra), it is held by the

Hon'ble Supreme Court that, if the market value is determined by capitalizing

the income with reference to yield and other structures on the land, then

separate compensation need not be paid towards those head. In this case,

admittedly the market value of the acquired land was not fixed by adopting

capitalization of the value of land and the structure therein. Therefore the

appellant becomes entitled to get compensation for the baandh and well.

It is pertinent to note that Spl.LAO has also awarded

compensation separately for the baandh and well. As regards baandh,

appellant is not making any grievance on that score. The statement of

compensation awarded by the Spl LAO for well, which is enclosed with the

award of the Spl. LAO, shows that appellant has been awarded Rs.43,205/-

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towards the valuation of well. Considering that the well was having pucca

UCR masonry structure, the amount of compensation awarded by the

Reference Court being just and reasonable, in my considered opinion, no

inference is warranted on that score also, particularly because, though

appellant has claimed Rs.1,25,000/- towards the acquisition of well, he has

not produced any evidence on record to that effect.

27. To sum up therefore, this appeal is allowed partly, to the extent of

modification in the area of irrigated land. It is held that the appellant is

entitled to get compensation at the rate of Rs.1,50,000/- per hectare for the

perennially irrigated land which is held to be admeasuring 2 H 15 R.

Proportionately the area of dry crop land will stand reduced.

Respondent to calculate the amount of compensation accordingly

and pay the same to the appellant with all statutory benefits within six

months from the date of this order.

Rest of the judgment and award of the Reference court is

confirmed.

Appeal is disposed of in above terms with no order as to costs.

JUDGE

Asmita