V.I.D.C. Thr. Exe. Engineer vs Vinayak S/O Shankarrao Parimal ...
2017 Latest Caselaw 4341 Bom

                                                                                                                 fa-j 791-10.odt
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            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      NAGPUR BENCH, NAGPUR

                               FIRST APPEAL NO. 791 OF 2010

        Vidarbha Irrigation Development Corporation,
        Through its Executive Engineer,
        Bembla Project Division, 
        Taq. & Dist. Yavatmal.             ....... APPELLANT.
                                       
              ...V E R S U S...

1]      Vinayak s/o Shankarrao Parimal 
        Aged about 62 years, Occ.: Housewife                                            

2]      Nanibai w/o Vinayak Parimal
        Aged - 62 years, Occ.: Housewife
        Both R/o Kolhi, Tq. Babhulgaon
        District-Yavatmal.

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

3]       The Special Land Acquisition Officer
         Bembla Project Division,
         Yavatmal.                                  .......RESPONDENTS.
                                                             
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         Shri A. B. Patil, Advocate for Appellant.
         Shri A. B. Nakshane, Advocate for Respondent nos. 1 & 2.   
         Shri. M. A. Kadu, A.G.P. for respondent nos. 3 & 4.  
  -------------------------------------------------------------------------------------------

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

DATE : 11 th JULY, 2017.

ORAL JUDGMENT

By this appeal, filed under Section 54 of the Land

Acquisition Act 1894, the acquiring body has challenged the

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enhancement in the compensation as awarded by Civil Judge, Senior

Division, Yavatmal vide its Judgment and Order dated 25.11.2008 in

Land Acquisition Case No. 313/06.

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

The land bearing plot no. 28, situated at village- Kohli, was

owned and possessed by respondent nos. 1 and 2. It was an open plot of

land which came to be acquired for the purpose of Bembla Project by

virtue of Notification issued under Section 4(1) of the Land Acquisition

Act and published on 31.7.2003. The Special Land Acquisition Officer

(S.L.A.O) by his Award dated 4.4.2005, awarded compensation at the

rate of Rs.90/- per square meter. Being not satisfied with the amount of

compensation awarded by the S.L.A.O., respondent nos. 1 and 2 filed

Reference before the Trial Court seeking enhancement of compensation

at the rate of Rs.1,000/- per square meter.

3] This petition came to be resisted by the appellant herein

contending inter-alia that the compensation awarded by the S.L.A.O. is

just and reasonable and as per the prevailing market rate. It was

submitted that the sale transaction on which respondent nos. 1 and 2

are relying, are not pertaining to the property situated in the same

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village and not having same potentiality and fertility. It was also

submitted that respondent nos. 1 and 2 had not made any specific claim

for enhancement of compensation before the S.L.A.O. They had also not

produced any expert opinion before the S.L.A.O. In such situation, no

interference is warranted in the amount of compensation as awarded by

the S.L.A.O.

4] In support of his case, respondent examined himself and

adduced the evidence of one expert by name Dhananjay Wamanrao

Pachghare to prove the valuation report produced at Exh.33/1. On

behalf of appellant, however, no oral or documentary evidence was

adduced.

5] On appreciation of the evidence on record, learned

Reference Court was pleased to enhance the compensation amount at

the rate of Rs.753/- per square meter in place of Rs.90/- per square

meter, as awarded by S.L.A.O.

6] While challenging this judgment and order of the Reference

Court, submission of learned counsel for appellant is that there is

absolutely no evidence produced on record by respondent to prove the

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market value of the acquired plot of land at the rate of Rs.753/- per

square meter, as awarded by the Reference Court. It is submitted that

the Reference Court has relied upon sale instances of village Pahur.

Village Pahur is on the side of the road whereas place Kohli is three

kilometer interior to road. Further, it is submitted that the Reference

Court has relied upon the amount of compensation awarded in respect

of the open plot situated at village Dighi and considered it as base for

enhancement of compensation of the acquired land. However, in

respect of the open plots at village Dighi, this Court has already fixed

the rate of Rs.500/- per square meter and therefore, the compensation

awarded by the Reference Court also needs to be reduced.

7] Per contra, learned counsel for respondent nos. 1 and 2 has

supported the impugned judgment and order of the Reference Court by

relying upon various authorities and also pointing out that the sale

instances on which the respondents have relied upon were of the year

1994 and that too at the rate of Rs.888/- per square meter. Notification

is of the year 2003. Hence, the market rate should have been enhanced

to Rs.1,680/- per square meter. Despite, that the Reference Court has

awarded the compensation at the rate of Rs.753/- square meter only

and hence, no interference is warranted in the said amount.

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8] Having considered the submissions advanced by learned

counsel for both the parties, the only point which arises for my

determination is, whether Reference Court was justified in granting

compensation @ rate of 753/- square meter for the acquired plot of

respondent nos. 1 and 2?

9] Perusal of the evidence of respondent no.1 and the

judgment of Reference Court reveal that the Reference Court has

considered the sale instance of village Pahur, the copy of which was

produced on at Exh.29. As per the said sale-deed, the open plot of land

admeasuring 56.25 square meter situated at village Pahur was sold for

Rs.50,000/- on 25.3.1994 and hence, the market rate according to

learned counsel for respondent, of the open plot of land situated at

village comes to Rs.888.88 per square meter in the year 1994. In the

instant case, as the Notification is issued on 31.7.2003, the said rate

will have to be enhanced at Rs.1,086 per square meter.

10] Now in order to ascertain whether village Kohli and village

Pahur are situated nearby or having the same set of facilities, one has to

go to the evidence of respondent no.1 himself. He has admitted that

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Bembla river flows in between village Kohli and Pahur. He has further

admitted that population of village Kohli is 1600, education facility

available there is upto 7th standard. The facilities like bank, school,

P.H.C. are available at Pahur. Village Pahur is situated on the road

whereas his village Kohli is three kilometers interior from the road.

Village Pahur is three to four times bigger than his village. According to

him, the distance between Kohli and Pahur is 20 kilometers by road,

whereas distance between Babhulgaon and Pahur is approximately six

to seven kilometers. His witness Dhananjay has also admitted in his

cross-examination that population of village Pahur is 10,000 to

15,000/- and all facilities are available there. According to him,

distance between Babhulgaon to Kohli is 15 kilometer, whereas distance

between Babhulgaon to Pahur is 18 kilometer. He has also admitted

that the prices of the landed property in small villages cannot be

compared with the big villages. Thus, it can be seen that the village

Pahur is totally a different village, much developed than village Kohli.

In such situation, the market price of the land situated at village Pahur

cannot be compared with the market value of the land at village Kohli.

11] The law is well settled that only when the acquired land

and the lands under sale instances are identical or situated nearby and

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are similar in other aspects, those sale instances can be considered; not

otherwise. Herein the case, not a single sale instance of village Kohli is

produced on record by any of the parties. Kohli is a very small village.

Therefore, the price which the land of village Pahur can acquire cannot

be considered as base for deciding the compensation for the land

situated at village Kohli. Hence, the submission advanced by leaned

counsel for the respondent that the market price of the acquired land

should also be considered at the rate of sale-deed of the land of village

Pahur produced at Exh.29 cannot be accepted, Reliance placed

therefore, on the decision in the case of Mahesh Dattatray Thirthkar

Vs. State of Maharashtra, AIR 2009 Supreme Court 2238 is

misplaced.

12] It may be true that in this case appellant had not led any

evidence to prove true market value of the acquired property but it was

for the reason that already appellant had produced such evidence

before S.L.A.O. and relying upon the same, whatever market value was

fixed by S.L.A.O. for awarding compensation being just and reasonable,

appellant preferred not to adduce any further evidence.

13] As regards the evidence adduced by the respondent nos. 1

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and 2, as stated above, the reliance placed upon the sale-deed of the

land at village Pahur cannot be considered having regard to the fact

that village Kohli and village Pahur are not identically situated, nor

having the similar facilities, nor situated adjacent to each other also.

Therefore, it appears that the Reference Court has also not relied upon

this sale-deed.

14] The Reference Court has in this respect relied upon the

amount of compensation which was granted to the open plot situate at

village Dighi in LAC No. 88/2004. According to Reference Court as in

LAC No. 88/2004, the compensation was granted at the rate of

Rs.753/- per square meter for open plot at village Dighi, that would be

just and proper amount of compensation. However, it is pointed out

that in this appeal by learned counsel for appellant that, amount of

compensation which was granted to the open plot at village Dighi in

LAC No. 88/2004 was subsequently reduced by this Court at Rs.500/-

per square meter. If it is so, in this case also, if the price of the land at

village Dighi was considered as base by the Reference Court, then the

same price of Rs.500/- square meter as fixed by this Court for the plots

at village Dighi will be considered as proper market value. However,

considering that Rs.500/- per square meter was fixed by this Court for

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plot which was acquired in pursuance of Notification in the year 1999,

whereas in this case the Notification under which the respondents' land

is acquired is of the year 2003, hence proportionate increase needs to

be made in the said rate and it has to be accordingly fixed at Rs.650 per

square meter.

15] As regards the reliance placed by the learned counsel for

the respondent on the judgment of the Hon'ble Apex Court in the case

of Ali Mohammad Beigh and others Vs. State of J & K, AIR 2017

Supreme Court 1518, it has to be reiterated that only when acquired

land and the land situated nearby are identical and similar and

acquisition is for the same purpose, under the same Notification, there

need not be any discrimination in between the two lands to pay more to

some of the landowners and less compensation to others. Here in the

case, not only the village Pahur and Kohli are different one and not

identical and similar in any manner but the lands are also not acquired

under the same notification, though may be for the same purpose. In

view thereof, this judgment cannot be made applicable to the facts of

the present case.

16] So far reliance placed on the judgment of Mehrawal

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Khewaji Trust (Registered), Faridkot and others Vs. State of Punjab

and others, (2012) 5 Supreme Court Cases 432, what it lays down is

that the transaction representing the higher value should be accepted as

base, unless there are strong circumstances justifying the different

course. However, the necessary requisite for applying this ratio is that

the lands must be situated in the same locality and the sale instances

should be of the same locality. Here in the case not a single instance of

village Kohli is produced and village Kohli is not at all similarly situated

like village Pahur. Hence, the market rate of the land at Pahur cannot

be applied to the land at village Kohli.

17] Therefore, having regard to the entire evidence on record,

in my considered opinion, interference is warranted in the impugned

judgment and order of the Reference Court for reducing compensation

amount awarded at the market rate of Rs.753/- per square meter to

Rs.650/- square meter.

18] The appeal is accordingly allowed partly, with no order as

to costs.

The impugned judgment and order of the Reference Court

is modified to the extent that respondent nos. 1 and 2 are entitled to get

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compensation at the rate of Rs.650/- square meter in the place of

Rs.753/- square meter.

Rest of the judgment of the Reference Court stands

confirmed.

The appeal is disposed of.

JUDGE

RGIngole