Vitthal S/O Govindrao Tamake ... vs The State Of Maharashtra Thr. ...
2017 Latest Caselaw 4324 Bom

                                     1                   FA NO.2299 OF 2016

          IN THE HIGH COURT OF JUDIATURE AT BOMBAY
                    BENCH AT AURANGABAD

                   901 FIRST APPEAL NO. 2299 OF 2016

           Vitthal s/o Govindrao Tamake,
           Since died through Legal Heir,
           Bhanudas s/o Vitthal Tamake,
           Age 64 years, Occ. Agri.,
           R/o. Bhatsangavi, Tal.Ahmedpur,
           District Latur.

                                         ...APPELLANT
                                         (Orig.Claimant)
           VERSUS

  1.       The State of Maharashtra,
           Through District Collector, Latur.

  2.       The Executive Engineer,
           Minor Irrigation,
           Zilla Parishad, Latur,
           Tal. & District Latur.

                                         ...RESPONDENTS
                                         (Orig.Respondents)
                               ...

      Advocate for Appellant : Mr. Solanke Shrikrashna B.
         AGP for Respondent State:Mr. S.P.Sonpawale
                               ...
                    CORAM : P.R. BORA, J.

Dated: July 11, 2017 ...

ORAL JUDGMENT :-

. Heard finally with consent of learned Counsel

appearing for the parties.

1. The appellant has filed the present appeal seeking

enhancement in the amount of compensation as awarded by

2 FA NO.2299 OF 2016

the Court of Extra Joint Civil Judge, Senior Division, at Latur

(hereinafter referred to as the Reference Court) in LAR

No.87/2002 (Old LAR No.880/1992 = 384/2001) decided on

9.12.2015.

2. The land admeasuring 1 Hectare 12 Are, owned by

the present appellant, was acquired for construction of

percolation tank at village Bhatsangavi, Tal. Ahmedpur, district

Latur. Notification under Section 4 of the Land Acquisition Act

(hereinafter referred to as the said 'Act'), was published on 6th

of October, 1988. The compensation of the acquired land was

taken prior to that. After having complied with other

procedure, award under Section 11 of the Act was passed on

4th of December, 1991. The Special Land Acquisition Officer

(hereinafter, for short, referred to as the 'S.L.A.O.') offered

compensation to the appellants at the rate of Rs.7200/- per

acre. Dissatisfied with the amount of compensation so offered,

appellant presented an application under Section 18 of the Act

to the Collector of the district which was in turn forwarded to

the Civil Court for adjudication. The appellant had claimed the

compensation of his acquired land at the rate of Rs.50,000/-

per acre before the Reference Court. In order to substantiate

his claim, appellant himself deposed before the Reference Court

3 FA NO.2299 OF 2016

and also placed on record certain sale instances. No oral or

documentary evidence was adduced by the State or acquiring

body. Learned Reference Court, after having assessed the

oral as well as documentary evidence brought before it,

determined the market value of the acquired land at the rate of

Rs.23,600/- per acre and, accordingly, enhanced the amount of

compensation. The appellant has filed the present appeal

seeking enhancement in the amount of compensation so

awarded.

3. Shri S.B.Solanke, learned Counsel appearing for the

appellant, submitted that the Reference court has failed in

appreciating that for the adjacent lands acquired for the same

purpose, in LAR No.111/2002 and 112/2002, commonly

decided by the Court, the market value was determined of the

said lands at the rate of Rs.30,000/- per acre. Learned Counsel

further submitted that the sale instances which were relied

upon by the Reference Court while deciding the said Reference

Applications were also relied upon by the appellant in the

present matter. Learned Counsel submitted that the Reference

Court, however, made some incorrect and wrong observations

that, the land involved in the sale instance at Exh.41 cannot be

held to be comparable, and the compensation for the subject

4 FA NO.2299 OF 2016

land cannot be as same as the consideration received to the

land which was the subject matter of Exh.41. Learned Counsel

further submitted that in the circumstances, the Reference

Court by improperly reducing the amount of consideration

received to the said land, determined the market value of the

acquired lands at the rate of Rs.23,600/- per acre. Learned

Counsel submitted that, injustice thus has been caused to the

appellant. Learned Counsel submitted that, according to the

knowledge of the appellant, the State or the acquiring body did

not prefer any appeal against the common judgment delivered

in Land Acquisition Reference Nos. 111/2002 with 112/2002.

Learned Counsel submitted that though the land of the present

appellant is similar in all respects to the lands in LAR

Nos.111/2002 and 112/2002, and when the claimants in the

said Reference Applications had received the compensation at

the rate of Rs.30,000/- per acre, the appellant did receive the

compensation only at the rate of Rs.23,600/- per acre.

Learned Counsel submitted that the Reference court has also

not appreciated that there was a well in the field adjacent to

the subject land which is also owned by the appellant and the

appellant was having right to use water of the said well.

Learned Counsel further submitted that though 7/12 extract

was very well on record, evidencing that the appellant was

5 FA NO.2299 OF 2016

taking two crops, the Reference Court has declined to award

compensation to the subject land treating the same to be

irrigated land. Learned Counsel submitted that on all other

grounds, the amount of compensation, as enhanced by the

Reference Court, needs to be adequately enhanced.

4. Shri Sonpawale, learned A.G.P. appearing for the

State, supported the impugned judgment and award.

Learned Counsel submitted that the Reference Court has

elaborately discussed the evidence which was before it and has

rightly determined the market value of the acquired land.

Learned A.G.P. submitted that the land which was involved in

Exh.41 was admittedly from village Chakur and was adjacent to

Highway and, as such, it was quite evident that the

consideration received to the said land was obviously on higher

side and the same criteria should not have been applied while

determining the market value of the subject lands of village

Bhatsangavi which were admittedly not adjacent to the road.

Learned A.G.P. has submitted that the Tribunal has rightly

determined the market value of the acquired land at the rate of

Rs.23,600/- per acre after making some deductions. Learned

A.G.P. submitted that no interference is warranted in the

impugned judgment and award. Learned A.G.P., therefore,

6 FA NO.2299 OF 2016

prayed for dismissal of the appeal.

5. I have carefully considered the submissions made

on behalf of the appellant as well as the respondents. I have

also perused the impugned judgment, the evidence on record

and the other material available on record. It is not in dispute

that the lands which were the subject matter of LAR

No.111/2002 and 112/2002 were the survey Nos. 51 and 52

respectively from village Bhatsangavi whereas subject land is

Gat No.50. It is, thus, quite clear that all these lands are

adjacent to each other. No information is placed on record to

rebut the contention of the appellant that the State did not

prefer any appeal against the common award passed in LAR

No.111/2002 and 112/2002.

6. I have carefully read the common judgment and

award passed in aforesaid Reference applications. In the said

matter, learned Reference Court, which has decided the said

Reference Applications, had relied upon the sale instances

pertaining to 8 Are land from village Chakur which was

executed on 29th of April, 1987, and the consideration received

was to the tune of Rs.60,000/- i.e. around Rs.30,000/- per

acre. The same sale deed is relied upon in the present matter

7 FA NO.2299 OF 2016

also. In the circumstances, it appears to me that there was no

reason for the Reference Court to take any contrary view while

determining the market value of the subject land. From the

evidence on record it is further clear that all these lands are of

same nature and quality and, as such, deserve to be granted

the same compensation.

7. For the reasons stated above, it appears to me that

in the present matter also the Reference Court must have

determined the market value of the acquired land at the rate of

Rs.30,000/- per acre. To that extent, the award needs to be

modified and the amount of compensation accordingly needs to

be enhanced. It was further pointed out by the learned

Counsel for the appellant that previously Reference Application

filed by the present appellant was dismissed in default

whereupon First Appeal Stamp No.34952/2014 was preferred

by the appellant and the same was allowed by this Court

( Coram: M.T.Joshi, J.) vide order passed on 12th of March,

2015. Learned Counsel submitted that in the said order, this

Court has dis-entitled the present appellant for statutory

interest in case of enhancement in the compensation by the

Reference Court for the delay period i.e. from the date of his

absence in the trial Court till the decision of the said appeal.

8 FA NO.2299 OF 2016

From the record it is evident that the appellant did remain

absent before the Reference Court on 23rd July, 2012, and

onwards and that was the reason that the Reference Application

was dismissed in default. First Appeal filed by the appellant on

Stamp No.34952/2014, was dismissed by this Court on 12th of

March, 2015. The appellant is, thus, not entitled for interest

of the period from 23rd July, 2012, to 12th of March, 2015.

Learned Counsel pointed out that the Reference Court has

awarded interest on the enhanced amount of compensation

from 12th of March, 2015, whereas the same ought to have

been awarded from the date of the award. Learned Counsel

submitted that the only period for which the appellant is dis-

entitled from interest is from 23rd of July, 2012, to 12th of

March, 2015.

8. After having gone through the record, I am

convinced that the Reference Court has committed an error in

not awarding interest on the enhanced amount of compensation

from the date of award under Section 28 of the Act. The said

mistake also needs to be rectified.

9. For the reasons stated above, the following order is

passed:

                                        9               FA NO.2299 OF 2016



                               ORDER

1. The amount of compensation as determined by the

Reference Court at the rate of Rs.23,600/- per acre is enhanced

to Rs.30,000/- per acre.

2. The appellant is entitled for the statutory benefits

and the interest under the provisions of the Act from the date

of award till realization of the amount excluding the period from

23rd July, 2012, to 12th of March, 2015.

3. The First Appeal stands allowed in aforesaid terms.

No costs.

( P.R. BORA ) JUDGE

...

agp/2299-16fa