Santosh S/O Tukaram Banmare vs The Special Land Acquisition ...
2017 Latest Caselaw 4444 Bom

 fa139.06.J.odt                            1



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

                        FIRST APPEAL NO.139 OF 2006

          Santosh s/o Tukaram Banmare,
          Age 40 years, Occ: Agriculturist,
          R/o Hinganghat, Tah. Hinganghat,
          Dist. Wardha.                                     ....... APPELLANT

                                   ...V E R S U S...

 1]       The Special Land Acquisition
          Officer, Tah. Hinganghat,
          Dist. Wardha.

 2]       State of Maharashtra, through
          the Collector, Wardha.

 3]       Maharashtra Industrial Development
          Corporation, through its Area Manager,
          Wardha.                                            ....... RESPONDENTS
 -------------------------------------------------------------------------------------------
          Shri N.D. Khamborkar, Advocate for Appellant.
          Ms. Shamsi Haider, AGP for Respondent Nos.1 and 2.
          Shri M.M. Agnihotri, Advocate for Respondent No.3.
 -------------------------------------------------------------------------------------------

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

          DATE:                th
                            13    JULY, 2017.


 ORAL JUDGMENT



 1]               This   appeal   is   preferred   by   the   original   claimant

challenging the judgment and award dated 27.07.2005 passed by

the 4th Ad-hoc Additional District Judge, Wardha in Land

Acquisition Case No.70/1995, under Section 18 of the Land

Acquisition Act, granting additional compensation of Rs.27,132/-.

Being not satisfied the meagre amount of compensation awarded

by the Reference Court; the appellant has approached this Court.

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

The appellant was the owner of the agricultural land,

bearing Survey No.362 admeasuring 2.10 H.R. situate at Mouza

Jamb, Tahsil Samudrapur, District Wardha. The said land was

acquired by the respondents in pursuance of the notification

issued under Section 4 of the Land Acquisition Act, on 07.12.1989

and in pursuance of the award passed by the L.A.O. on

08.12.1994. The L.A.O. granted compensation for the acquired

land at the rate of Rs.19,000/- per hectare. According to

appellant, the market value of the acquired land was Rs.50,000/-

per hectare. Therefore, he has approached the Reference Court.

3] In support of his case, the appellant examined himself

and one witness by name Keshao Pandurang Wadwha to prove the

sale instance of the land at village Kankati. Respondent also

examined the Land Acquisition Officer Shri Nishikant Suke to

prove that the valuation of the land made by him was reflecting

the correct market value.

4] The Reference Court, after considering the evidence

on record, was pleased to hold that the acquired land could have

fetched the market value of Rs.25,000/- per hectare, enhanced the

compensation from Rs.19,000/- per hectare to Rs.25,000/- per

hectare. As to the claim of the appellant for compensation of

Rs.35,500/- towards the various trees in the acquired land,

Learned Reference Court rejected the said claim holding that there

was no evidence on record about the existence of the said trees.

5] Being dissatisfied with the rejection of his claim for

compensation towards the trees and also on account the megare

enhancement in the compensation amount, awarded by the

Reference Court this appeal is preferred under Section 54 of the

Land Acquisition Act.

6] According to learned counsel for appellant, the

Reference Court has not properly considered the evidence on

record especially the fact that the acquired land was adjoining to

the road and secondly the evidence of the witness Keshao which

prove that his land situate at village Kankati was sold for a

consideration of Rs.1,30,000/- per hectare. According to learned

counsel for appellant, the certified copy of the index II produced

at Exh.47 shows one sale transaction between Damodhar and

Durgesh, according to which, the land at Kankati was sold for a

consideration of Rs.1,08,000/- per hectare. Thus, it is submitted

that in view of this evidence on record, the amount of

compensation awarded by the Reference Court needs to be

enhanced in this appeal.

7] Per contra, learned counsel for respondents has

supported the judgment and order of the Reference Court by

pointing out that absolutely no evidence was brought on record by

the appellant before the Trial Court in respect of the sale instances

of village Jamb. It is urged that the sale instances relied upon by

learned counsel for the appellant are of village Kankati, which is

situated far away from village Jamb and moreover the sale

transaction of Damodhar and Durgesh is of the year 1992 i.e.

three years after the notification. Hence, according to learned

counsel for respondents, as the compensation awarded by the

Reference Court is legal and correct, no interference is warranted

therein.

8] In view of these rival submissions advanced before

me by learned counsel for both the parties, the only issue arising

for my consideration is whether the appellant is entitled to any

enhanced amount of compensation than the one awarded by the

Reference Court.

9] As stated above, the S.L.A.O. has granted

compensation at the rate of Rs.19,000/- per hectare, which is

increased by the Reference Court at the rate of Rs.25,000/- per

hectare. Now, the question for consideration is whether any

further enhancement is justified in the said amount of

compensation? Respondent herein has not challenged this

enhancement of Rs.25,000/- per hectare as awarded by the

Reference Court.

10] In the fact of this case, the evidence which was

adduced before the Reference Court by the appellant was only of

two sale instances and both the sale instances are of the different

village. The first sale instance at Exh.47 is for the land

admeasuring 1.11 hectare of Survey No.243/3 and it was for total

consideration of Rs.1,20,000/-, which was executed on

28.12.1992 and the market rate of the said sale instance appears

to be Rs.1,08,000/- per hectare. However, as rightly observed by

the Reference Court, the said sale instance is three years after the

notification which in this case was issued on 07.12.1989.

11] In this respect, learned counsel for respondent has

relied upon the judgment of the Apex Court in the case of General

Manager, Oil and Natural Gas Corporation Limited vs. Rameshbhai

Jivanbhai Patel and another (2008) 14 SCC 745. It was in

reference to the recent trend to determine the market value of

acquired lands, with reference to future sale instances of

acquisition. It was held that, "one of the fundamental principles of

valuation is that the transactions subsequent to the acquisition

should be ignored for determining the market value of the

acquired lands, as the very acquisition and the consequential

development would accelerate the overall development of the

surrounding areas, resulting in a sudden or steep spurt in the

prices". It was further held that, "even if there is no actual

improvement in infrastructure, the potentiality and possibility of

improvement on account of the future acquisition is likely to result

into a higher rate of escalation in prices. The Courts should

therefore, have not determined market value with reference to

subsequent or future transactions.

12] As a result, the only piece of evidence on which the

appellant can place reliance in this case is the evidence of witness

No.1 Keshao, who has stated that the government has granted him

compensation at the rate of Rs.52,400/- per acre which comes to

Rs.1,30,000/- per hectare, for his acquired land situated at

Kankati. However, he has admitted that village Kankati is situated

10 Km. away from Jamb. The Reference Court has considered that

the copy of the map was not produced to show the location of the

land acquired. Therefore, it cannot be said that the acquired land

of Keshao and of the present appellant is of the same quality and

same potentiality. Moreover as said land is situated at Kankati and

hence, of a different village, that evidence was also not of much or

any help to the appellant.

13] In such a situation, sans any evidence produced on

record by appellant, the Reference Court has relied upon the

evidence of Land Acquisition Officer Nishikant Suke and found

that whatever sale transactions, which he has considered while

determining the market value of the acquired land, also included

the sale transaction of the land situate at Jamb at the rate of

Rs.23,750/- and Rs.25,000/- per hectare. As this was the highest

exemplar, the Reference Court accepted the same, keeping in

mind the fact that acquired land is adjacent to the

Nagpur-Hyderabad road and the road area in between Hinganghat

to Jamb is a developing area. Thus, all the factors on which the

learned counsel for appellant is relying upon in this case for

enhancement of the compensation amount as awarded by the

S.L.A.O., are already considered by the Reference Court, and

thereafter granted additional compensation, increasing the rate

from Rs.19,000/- per hectare to Rs.25,000/-. In such situation, in

the absence of any other evidence on record, no further

enhancement in the amount of compensation can be granted in

this appeal.

14] As regards the compensation for trees the Reference

Court has rightly held that neither the 7/12 extract of the

acquired land nor the joint measurement report reveals the

existence of the trees and hence again on this aspect also in the

absence of any evidence on record, the Reference Court has

pleaded its inability to grant enhanced amount of compensation.

15] Thus, the amount of compensation as awarded by

enhancement by the Reference Court being just, legal and correct,

no interference is warranted therein. Hence, the appeal stands

dismissed, with no order as to costs.

JUDGE NSN