Vidarbha Irrigation Development ... vs Purushottam Vithalrao Wankhade ...
2017 Latest Caselaw 4637 Bom

1807 FA  246/2006                              1                        Judgment


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


                         FIRST APPEAL NO. 246/2006 




Vidarbha Irrigation Development
Corporation, through its Executive
Engineer, Minor Irrigation Project,
Pusad, Distt. Yavatmal.                                  APPELLANT


                                 .....VERSUS.....



1]       Purushottam Vithalrao Wankhade,
         Aged about 32 years, 
         R/o. Kholapuri, Post Satefal,
         Tah. Ner, Distt. Yavatmal.

2]       State of Maharashtra,
         Through Collector, Yavatmal,
         Tah. and Distt. Yavatmal.

3]       Special Land Acquisition Officer,
         Lower Pus Project, Pusad,
         Distt. Yavatmal.                                 RESPONDE NTS


Shri A.B. Patil, counsel for appellant.
Shri B.D. Vora and Ms. Sonali M. Saware, counsel for respondent
no.1.
Shri M.A. Kadu, AGP for respondent nos.2 and 3.


               


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 1807 FA  246/2006                               2                         Judgment


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

                  DATE      : JULY 18, 2017.



ORAL JUDGMENT :  

This appeal is preferred by the V.I.D.C., an Acquiring

Body challenging the judgment and award dated 28/01/2005,

passed by the Civil Judge (Sr.Dn.), Darwha in L.A.C. No. 144/1999

(old) and 1150/2004 (new), thereby granting enhancement in the

compensation amount as awarded to the respondent no.1 herein, by

the Special Land Acquisition Officer.

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

Respondent no.1 was the owner and possessor of the

land bearing Gat No. 118 admeasuring 3 H 4 R, situated at village

Sirasgaon, Tah. Ner. The land was irrigated by the water of the well

situated therein. There were also fruit bearing trees like, Orange,

Mango, Guava etc. The said land along with the trees came to be

acquired for Sirasgaon Project by the Government in pursuance of

the Notification issued under section 4 of the Land Acquisition Act,

1894 on 01/01/1998. The award was passed by Special Land

1807 FA 246/2006 3 Judgment

Acquisition Officer on 19/03/1999, thereby granting compensation

of Rs.44,250/- per hector for 2 H 24 R land which was cultivable

and Rs.15,000/- per hector for 80 R land which was uncultivable

(Potkharaba). The Special Land Acquisition Officer also granted

compensation of Rs.4,87,337/- for trees and Rs.38,550/- for well.

3] Being not satisfied with the said amount of

compensation, respondent no.1 approached the reference court,

with a grievance that his land is irrigated one and it's market value

was Rs.2,50,000/- per hector. It was contended that Special Land

Acquisition Officer has committed an error in awarding separate

compensation for Potkharaba land. It is denied that it was

uncultivable. The grievance also was raised that the compensation

awarded for the well and for fruit bearing trees, was at a very lower

rate and the said compensation needs to be enhanced.

4] This petition came to be resisted by respondent nos.2

and 3 herein contending that the amount claimed by the respondent

no.1 was on imaginary grounds. It was denied that market value of

the acquired land can be Rs.2,50,000/- per hector. It was submitted

that SLAO has, after considering all the necessary factors, such as

1807 FA 246/2006 4 Judgment

sale instances of neighbouring land and the quality and potentiality

of the acquired land, awarded just and reasonable amount of

compensation. Hence, no interference was warranted therein.

5] On these respective pleadings of the parties, the

reference court framed necessary issues for its consideration at

Exh.10. In support of his claim, respondent no.1 examined himself

and Shri Vishnu Paradkar, the agriculture expert. He also led the

evidence of the expert Sunil Chandkapure to prove the value of the

well. Respondent nos.2 and 3, however, did not lead any evidence

on record except for relying upon the award passed by the SLAO

and Annexures thereto.

6] On appreciation of this evidence, learned reference

court was pleased to enhance the compensation for the acquired

land from Rs.44,250/- per hector to Rs.1,00,000/- per hector and

for the Orange, Mango and Guava trees thereby granting total

compensation of Rs.8,20,000/-.

7] Even in respect of compensation for the well, the

reference court enhanced it to Rs.50,000/- from Rs.38,550/-.

 1807 FA  246/2006                                5                          Judgment


8]              This judgment and order of the reference court is the

subject matter of the present appeal. According to learned counsel

for appellant, the reference court has not at all taken into

consideration the fact that the acquired land consists of a major

portion, to the extent of 80 R, as Potkharaba, which was

uncultivable, and hence compensation awarded at the rate of

Rs.1,00,000/- per hector, which was for the perennially irrigated

land, was not proper. Even in respect of the compensation awarded

for the Orange trees, it is submitted that the Orange trees were only

4 years old, but the reference court has awarded the compensation

at the rate of Rs.1,500/- per Orange tree. As regards the remaining

Orange trees, it is submitted that the compensation awarded by the

reference court at the rate of Rs.3,000/- per Orange trees was

excessive. Thus, according to learned counsel for appellant, amount

awarded by the reference court being excessive and on higher side

itself, needs to be modified.

9] Per contra, learned counsel for respondent no.1 has

supported the judgment and order of the reference court, by

pointing out that there was sufficient evidence adduced by the

respondent no.1 - claimant proving the market value of the acquired

1807 FA 246/2006 6 Judgment

land as well as valuation of the trees and well. As against it,

respondent nos.2 and 3 had not adduced single piece of evidence.

Nothing much is also elicited from the cross-examination of the

witnesses who were the experts and examined by the respondent

no.1, and hence according to learned counsel for respondent no.1,

compensation awarded by the reference court being just, legal,

correct and adequate, no interference is warranted therein.

10] In view of the rival submissions made before me by

learned counsel for both the parties, the only issue arise for my

consideration is whether the reference court was justified in

enhancing the amount of compensation to the extent as it has done.

11] As stated above, the SLAO has awarded the

compensation of Rs.44,250/- per hector to the acquired land which

is enhanced by the reference court to Rs.1,00,000/- per hector. In

this respect, the reference court has considered the relevant sale

instance produced at Exh.38 which was in respect of the land

purchased by Pushpa Kawalkar, which was a dry crop land and after

considering the purchase price of the said land which was

Rs.37,500/- per hector and that too in the year 1996, the reference

1807 FA 246/2006 7 Judgment

court has, allowing 10% increase per hector per year, determined

the market value of the acquired land on the date of Notification as

Rs.1,00,000/- per hector, considering that it was a perennially

irrigated land.

12] My attention is also invited by learned counsel for

respondent no.1 to the judgment of this court in First Appeal

No.700/2006 with First Appeal No. 1278/2008 dated

15/09/2015, in which for the land situated in the same village, this

court has maintained the compensation granted by the reference

court at Rs.50,000/- per hector considering that the said land was

dry crop land and for some irrigated land, compensation was at the

rate of Rs.70,500/- and Rs.70,000/- per hector was maintained. In

the instant case, admittedly the acquired land was perennially

irrigated as it was having the well situated therein, and hence

having regard to this fact, the compensation enhanced by the

reference court for the acquired land at the rate of Rs.1,00,000/- per

hector from Rs.44,250/- per hector, appears to be just and

reasonable, and hence does not call for interference.

13]             However perusal of the judgment of the reference court



 1807 FA  246/2006                                8                          Judgment

makes it clear that reference court has not made any distinction

between the perennially irrigated land and the uncultivable land

(Potkharaba). The 7/12 extracts of the acquired land which are

produced on record, clearly go to show that 80 R of the said land

was uncultivable, and hence SLAO has awarded compensation at the

rate of Rs.15,000/- per hector for Potkharaba land. The judgment of

the reference court is conspicuously silent about this particular

aspect. The reference court has granted the wholesome

compensation at the uniform rate of Rs.1,00,000/- per hector to the

acquired land, ignoring the fact that the major portion to the extent

of 80 R out of the said land was uncultivable. Hence, there appears

much substance in the submission advanced by learned counsel for

appellant that to this extent, some modification is required in the

impugned judgment and order of the reference court. Considering

that 80 R of the land was uncultivable and not a land which was

cultivated for a particular period and then lying barren, in my

considered opinion, it is just and reasonable to enhance

compensation at the rate of Rs.25,000/- per hector to this 80 R of

the land which is Potkharaba, whereas for the remaining land, as

held above, the compensation would be at the rate of Rs.1,00,000/-

 1807 FA  246/2006                               9                          Judgment


per hector.



14]             As regards the compensation awarded to the trees, the

perusal of the judgment of the reference court shows that it has

granted compensation at the rate of Rs.1500/- per tree to 46 Orange

trees, which were, as per the report of the expert Paradkar also, only

4 years old, whereas for the grown up Orange trees which were 199,

the reference court has granted the compensation at the rate of

Rs.900/- per tree. In my considered opinion, having regard to the

entries made in the 7/12 extracts which show that in the year 1991-

92, there is no reference of Orange trees and considering the report

of the expert Paradkar itself that 46 Orange trees were only 4 years

old, for those trees the compensation at the rate of Rs.900/- would

be just and reasonable, whereas for 199 big Orange trees,

compensation at the rate of Rs.2500/- per tree would be just and

reasonable.

15] As regards the judgment of this court in First Appeal

No. 581/2007 (The State of Maharashtra and others -Vs-

Harichand Bhasu Rathod) dated 23/03/2016, which is relied upon

by learned counsel for respondent no.1 to submit that compensation

1807 FA 246/2006 10 Judgment

for Orange trees was awarded at the rate of Rs.4,000/- per tree and

it was accepted by the State Government, in my considered opinion,

having regard to the evidence produced in that case, it was held that

compensation at the rate of Rs.4,000/- per Orange tree will be just

and reasonable one. As against it, in the present case, the

compensation at the rate of Rs.2,500/- per tree for grown up Orange

trees would be proper, fair and adequate.

16] As regards the compensation awarded for Guava trees

which is Rs.1,000/- per tree and for three Mango trees which is

Rs.5,000/-, I do not find any reason to disturb or interfere in the

said valuation as there is sufficient evidence produced on record

about the existence of 139 Guava trees and also existence of 3

Mango trees. It may be true that as pointed out by learned counsel

for appellant, for the first time the existence of Mango trees is

shown in the 7/12 extract for the year 1997-98, but then in the

award, SLAO himself has mentioned the existence of 2 Mango trees,

whereas the expert Paradkar has mentioned the existence of 3

Mango trees in his report and the age of Mango trees in between 30

to 35 years. There is no effective cross-examination of expert

Paradkar to this aspect, and therefore compensation for the Mango

1807 FA 246/2006 11 Judgment

trees at the rate of Rs.5000/- per tree as awarded by the reference

court also does not call for any interference, it being just and fair.

17] In respect of the market value of the well, there is

evidence of the expert Chandkapure and the enhancement awarded

by the reference court on that aspect is only marginal as SLAO as

awarded the compensation of Rs.38,550/- which is increased by the

reference court to Rs.50,000/-. Therefore, on that count, no

interference is warranted in the impugned judgment and order of

the reference court.

18] There is one more aspect which needs to be considered

as it is pointed out by learned counsel for appellant. It pertains to

the direction given by the reference court in clause (6) of its order,

directing the respondent nos.2 and 3 to pay rental at the rate of 8%

per annum on enhanced amount of compensation from the date of

taking possession of the land i.e. 10/02/1998 till the date of award

on 19/03/1999. As rightly submitted by learned counsel for

appellant, such direction cannot be sustainable in the present case

as the possession of the land is taken after the Notification was

issued under section 4 of the Land Acquisition Act on 01/01/1998,

1807 FA 246/2006 12 Judgment

and therefore, respondent no.1-claimant is entitled for additional

component of 12% on the enhanced amount of compensation from

the date of Notification dt.01/01/1998 till the date of award i.e.

19/03/1999, which is ordered by the reference court also.

19] To sum up, therefore, appeal needs to be allowed partly

and accordingly stands allowed partly.

20] The compensation amount awarded by the reference

court for the acquired land is modified to the extent that respondent

no.1 shall be entitled to get compensation at the rate of Rs.25,000/-

per hector for 80 R Potkharaba land, whereas for remaining land he

will be entitled to get compensation at the rate of Rs.1,00,000/- per

hector, as awarded by the reference court.

21] Similarly, amount of compensation awarded for the

Orange trees is also modified and it is held that respondent no.1

shall be entitled for compensation at the rate of Rs.900/- per tree for

46 small trees and Rs.2,500/- per tree for 199 big grown up Orange

trees.

 1807 FA  246/2006                                   13                          Judgment


22]             The direction given by the reference court in clause (6)

of it's order relating to payment of rental at the rate of 3% per

annum is also set aside.

23] Rests of the judgment and order passed by the

reference court stands confirmed.

24] The Special Land Acquisition Officer is directed to

accordingly make calculations and submit his report to the court

within a period of three months.

25] Upon such calculations, appellant is entitled to refund

of excess deposited amount in the court. If the entire amount is

already withdrawn by respondent no.1, then appellant is entitled to

recover the same from respondent no.1.

JUDGE

Yenurkar