Kishorkumar S/O Bajranglal ... vs The State Of Maharashtra Through ...
2017 Latest Caselaw 4169 Bom

                                               1




                IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

                                   NAGPUR BENCH : NAGPUR



First Appeal No.  775 of 2013



Appellant               :          Kishorkumar Bajranglal Chokhani, aged

                                   about 70 years, Occ:  Business, resident of

                                   Mahatma Fule Chowk, Main Road, Yavatmal

                                   versus

Respondents             :          1)   The State of Maharashtra, through 

Collector, Yavatmal

2) Special Land Acquisition Officer, Minor

Irrigation Works No. 1, Administrative Bldg.

Collector Office premises, Yavatmal

3) The Executive Engineer, Public Works

Department, Yavatmal

Shri A. V. Bhide, Advocate for appellant

Shri S. B. Bissa, Asst. Govt. Pleader for respondents

Coram : S. B. Shukre, J

Dated : 7th July 2017

Oral Judgment

1. This is an appeal preferred against the judgment and order

rendered in Land Acquisition Case No. 411 of 2007 by the Civil Judge,

Senior Division, Yavatmal on 4th April 2013.

2. Part of the land bearing survey number 1/3 situated at village

Bhoyar, District Yavatmal was acquired by respondents no. 1 and 2 for the

purpose of construction of turn road proceeding from Darwha to Arni.

The area of the land acquired, as per Section 6 Notification dated

12.9.2002, was 0.27 R, but it was actually found to be 0.32 R by the

Reference Court. Section 4 notification was issued on 5.4.2001. The

Reference Court considered the sale instance of agricultural land from

village Lohara dated 10.11.1994 and considering 10% increase every

year, found the rate of agricultural land on the date of notification to be

of Rs. 6,37,000/- per hector. The Reference Court, however, reduced this

amount by making 40% deduction and declared the market value of the

acquired land at Rs. 3,75,000/- per hector. Similarly, the Reference Court

granted damages @ Rs. 37,500/- per hectare for the piece of land

admeasuring 0.19 R on account of it being severed from the acquired

land and rendered useless for any meaningful purpose.

3. Shri Bhide, learned counsel for the appellant contends that

the Reference Court did not take into consideration the non-agricultural

potential of the acquired land, because the evidence brought on record by

the appellant did show that the acquired land had such a potential. He

submits that a comparative sale instance, therefore, would have been a

sale deed dated 7.5.2000 (Exhibit 33) from village Bhoyar which was in

respect of a Layout of plots of land.

4. Learned Assistant Government Pleader submits that just and

proper compensation has been granted in the instant case.

5. So far as the argument relating to non-agriculture potential

of the acquired land is concerned, I do not find any merit in the same.

There are several admissions given by the appellant which together go to

show that the acquired land could not have been considered as holding

out any non-agricultural use potential. The admissions were to the effect

that village Bhoyar was a small village having population of 1000 and that

the acquired land was being cultivated at the time of issuance of Section 4

Notification by the appellant. The appellant has admitted that he was

growing cotton, soyabean and pulses in the acquired land. He has

admitted that though a resolution was passed by the Gram Panchayat

dated 2.12.1999 approving non-agriculture conversion of the land, he did

not make any application to the Sub-Divisional Officer for grant of

permission to use the land for non-agricultural purposes. He further

admitted that distance between Lohara and Bhoyar was of more than one

kilometer. Then the sale instance at Exhibit 33, though relied upon by

appellant, was not shown to be a comparable sale instance by the

appellant. The appellant did not tender any evidence regarding similar

potential and situation of the acquired land and the land which was

subject-matter of sale deed vide Exhibit 33. Therefore, I find that the

Reference Court has rightly considered the acquired land to be not having

non-agriculture potential.

6. The Reference Court, there being no other evidence available

on record to appropriately determine market value, relied upon sale

instance from village Lohara dated 10.11.1994 and rightly so. It rightly

considered 10% rise every year and determined its value to be at Rs.

37,500/- per hectare. However, I find that from such market value of

Lohara land, the Reference Court has wrongly deducted 40% and

determined the market value of the acquired land at Rs. 3,75,000/- per

hectare. No reasons are stated by the Reference Court for making such a

huge deduction. The Reference Court has also not given any justification

as regards the approach adopted by it in making such a substantial

deduction. I am conscious of the fact that when the evidence brought on

record by the rival parties suffers from the vice of insufficiency, the

Reference Court in such cases would have no other alternative than to

resort to method of guess-work and assumption. But, even while

adopting such a method, the Reference Court must keep certain criteria in

mind so that an impression is not created that the market value has been

arbitrarily determined. Since no reference point has been fixed for making

deduction by the Reference Court, I find that the approach adopted by the

Reference Court for determining the market value of the acquired land is

not justifiable under the law. It deserves interference and modification by

this Court.

7. Now, what could be the reference point for making

deductions from the market value of the land vide Exhibit 34 so as to

appropriately determine the market value of the land in this case ? I find

clue for such reference point found in the evidence of the parties

available on record. Admittedly, the distance between village Lohara and

village Bhoyar is of about one kilometer. Admittedly, village Lohara is a

fast growing town, because it has industrial area surrounding it. In other

words, village Lohara is on its way to become an urban centres. In such a

case, the satellite villages would also jump into the fray and would

themselves become the satellite urban centre. If the distance between

such potentially urban centre and the village in question is of one

kilometer, the progress of such village will be quite fast. Therefore,

deduction of 20% of the total value for every one kilometer of distance

between the potentially urban centre and the satellite village could be

there and that being so, I find that the market value of the acquired land

in the instant case would come to Rs. 5,10,000/- per hectare and this

would be for 0.32 R of the total acquired land.

8. As regards the damages given for the severed land of 0.19 R

@ Rs. 37,500/- per hectare, I find this rate is on extremely lower side and

it should have been 50% of the market value of the acquired land now

determined by this Court and damages payable to the appellant for 0.19 R

of land on account of its severance, would be @ Rs. 2,55,000/- per

hectare.

9. In the result, I find that the appellant is entitled to receive

compensation @ Rs. 5,10,000/- per hectare in respect of land from

survey number 1/3 admeasuring 0.32 R situated at village Bhoyar,

District Yavatmal. The applicant is also entitled to receive further

compensation as damages for severed land of 0.19 R @ Rs. 2,55,000/- per

hectare, but this shall be without any future interest. Appeal is allowed

accordingly and the impugned Award stands modified in above terms.

Rest of the impugned Award is confirmed. No costs.

S. B. SHUKRE, J

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