The State Of Mah. Thru Its ... vs Smt. Narunnalaabegam W/O Mirza ...
2017 Latest Caselaw 4722 Bom

 fa334.06+.J.odt                           1




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

                        FIRST APPEAL NO.334 OF 2006

          Smt. Nurunnisabegam w/o Mirza Hamidbeg,
          through L.Rs.

 1]       Mirza Hamidabeg,
          Aged about 92 years.

 2]       Mirza Nihazali Beg @ Zafar Patel,
          Aged about 57 years.

 3]       Fatimabegum d/o Hamidbeg,
          Aged about 50 years.

 4]       Mirza Mazidbeg,
          Aged about 48 years.

          All 1 to 4 R/o Moulana Azad Ward,
          Pandharkawada, Tq. Kelapur,
          Dist. Yavatmal.

          All appellant No.1, 3 and 4 through their
          power of attorney i.e. appellant No.2
          Mirza Nihazali Beg @ Zafar Patel.     ....... APPELLANT

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

 1]       State of Maharashtra.

 2]       The Collector, Yavatmal.

 3]       The Special Land Acquisition
          Officer, Beneficial Zone,
          Yavatmal.                                          ....... RESPONDENTS
 -------------------------------------------------------------------------------------------
          Shri Abhay Sambre, Advocate for Appellant.
          Ms. Shamsi Haider, A.G.P. for Respondents.
 -------------------------------------------------------------------------------------------




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  fa334.06+.J.odt                           2

                       FIRST APPEAL NO.1405 OF 2009


 1]       State of Maharashtra through 
          its Collector, Yavatmal, 
          District Yavatmal.

 2]       Special Land Acquisition Officer,
          Benefitted Zone,  Yavatmal.                       ....... APPELLANTS

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

          Smt. Nurunnisabegam w/o Mirza Hamidabeg,
          Aged about 75 years, R/o Gandhi Ward,
          Moulanan Azad Ward, Pandharkwada,
          Tq. Kelapur, Dist. Yavatmal (dead).

          Legal Heirs :-

 1]       Mirza Hamidbeg,
          Aged about 87 years.

 2]       Mirza Nihazali Beg @ Zafar Patel,
          Aged about 50 years.

 3]       Fatimbegum d/o Hamidbeg,
          Aged about 44 years.

 4]       Mirza Mazidbeg,
          Aged about 42 years.

          All R/o Gandhi Ward
          (Moulana Azad Ward),
          Pandharkawada, Tq. Kelapur,
          Dist. Yavatmal.                                    ....... RESPONDENTS
 -------------------------------------------------------------------------------------------
          Ms. Shamsi Haider, A.G.P. for Appellants.
          Shri Abhay Sambre, Advocate for Respondents.
 -------------------------------------------------------------------------------------------

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

          DATE:                th
                            19    JULY, 2017.







 ORAL JUDGMENT



 1]               As both these appeals are counter appeals, arising out

of one and same judgment dated 17.12.2005 of the Court of Civil

Judge, Senior Division, Pandharkawada [Kelapur] in Land

Acquisition Case No.205/2002, they are being decided together by

this common judgment.

2] For the sake of convenience, the parties are referred

by their original nomenclature as petitioner-claimant and the

respondent.

3] Brief facts of the appeals can be stated as follows:

The land bearing Gat No.50, admeasuring 0.95

hectare situated at Gondawakadi was owned by the petitioner-

claimant, which came to be acquired by the respondents for

Gondwakadi Tank Project, by virtue of notification issued under

Section 4 (1) of the Land Acquisition Act, which was published on

05.05.1994 in the Government Gazette. The Special Land

Acquisition Officer had, vide his award dated 17.02.1996 granted

compensation of Rs.18,000/- per hectare for the acquired land

and Rs.5,868/- for One Mango Tree situate therein.

4] Being not satisfied with the said amount of

compensation, the petitioner approached the Reference Court

under Section 18 of the Land Acquisition Act, contending inter

alia that the actual market value of the acquired land as on the

date of notification was far higher than the compensation

awarded by S.L.A.O. It was submitted that the land was irrigated

with the water from canal (Nala). He was taking various crops

therein and earning the net income of Rs.7000/- to Rs.8000/- per

acre, per annum. According to the petitioner, the village

Gondwakadi is having all the facilities like electricity, Post Office,

School etc. and hence, having regard to the fertility, potentiality

and productivity of the land, its market value cannot be less than

Rs.2,50,000/-. For the Mango Tree, petitioner claimed

compensation of Rs.15,000/-. Further according to him, there

were 60 Teak Wood Trees, the valuation of which can be

Rs.2,50,000/- hence, on this count also he claimed enhanced

amount of compensation.

5] This petition came to be resisted by the respondent

vide written statement at Exh.10 contending that L.A.O. has

considered all the relevant factors for determining the market

value of the acquired land. It was denied that the compensation

awarded by the S.L.A.O. was inadequate or meagre in any way.

The existence of Teak Wood Trees in the acquired land is also

denied by the respondents. Respondents, therefore, prayed for

dismissal of the petition on the ground that compensation as

claimed was unrealistic and based upon imaginary grounds.

6] On these respective pleadings of the parties, the

Reference Court framed necessary issues for its consideration at

Exh.11. In support of their case the petitioner Mirza Niyajali Beg

examined himself and that was the only oral evidence adduced in

the case, apart from the certified copies of the judgment in other

reference petitions, which were relied upon by the petitioner,

coupled with the 7/12 extract of the land.

7] On appreciation of this evidence, the learned

Reference Court was pleased to enhance the compensation for the

acquired land from Rs.1800/- to Rs.75,000/- per hectare.

The Reference Court however, rejected the claim for enhancement

of compensation for Mango Tree.

8] Being not satisfied with this enhancement of the

compensation awarded by the Reference Court, the claimants

have preferred the appeal bearing First Appeal No.334/2006,

whereas being aggrieved by the enhancement of the compensation

granted by the Reference Court, the respondents have also

challenged the impugned judgment, by filing First Appeal

No.1405/2009.

9] The only issue therefore, which necessarily arises for

my determination in these appeals is whether the Reference Court

was justified in enhancing the amount of compensation and the

enhanced amount of compensation is just reasonable and correct

or warrants interference therein?

10] As stated above, the only oral as well as documentary

evidence is that of the claimant. According to him, his land was

irrigated and having good potentiality and fertility. However, the

7/12 extract of the land does not show any source of irrigation

like the well, water pump or pipe line. There is nothing on record

to show that the petitioner was irrigating his land from the water

of canal with the help of oil engine pump. Even the entries of the

crops in the 7/12 extract show that the dry crops like cotton, tur

and jowar were cultivated in the acquired land. Therefore, in the

absence of evidence on record it has to be held that the acquired

land was dry crop land.

11] The petitioner-claimant has then relied upon the

three judgments of the Reference Court in respect of the adjoining

lands. The first judgment pertains to the land situate at village

Dhoki, which was belonging to one Omprakash and according to

the petitioner, this land of Omprakash was adjoining to his land

and was of the same quality. As per the judgment of the Reference

Court, certified copy of which is produced on record at Exh.49,

the Reference Court has awarded compensation for this land at

the rate of Rs.2,07,800/- per hectare. However, in my considered

opinion the Reference Court has rightly refused to accept this

judgment as comparable instance, having regard to the fact that

the land acquired there in was from village Dhoki and there is

nothing on record to show that it was adjoining to the acquired

land of petitioner. The certified copy of village map of

Gondwakadi Exh.53 is also sufficient to show that acquired land

of petitioner is far away from the border of village Dhoki.

Moreover, the said land was acquired for the purpose of a bridge

of the National Highway No.7, which fact itself was suggestive

that the said land was just abutting the National Highway. In the

said judgment it was also considered that the National Highway

passes through the acquired land of Omprakash. It was also

considered that there were developed plots in the acquired land of

Omprkash and hence, having regard to all these factors, especially

the potential and the purpose for which the said land was

acquired, the Reference Court has rightly refused to accept the

same as base for awarding compensation at the same rate to the

petitioner.

12] The other two judgments of the Reference Court on

which the petitioner has relied upon pertain to the lands at village

Gondwakadi. The first judgment of Reference Court, certified copy

of which is produced on record at Exh.50 shows that it was in

respect of acquisition of the land bearing Gat No.51, which was

belonging to Syed Allem Shah and it was adjoining to the

acquired land of the petitioner bearing Gat No.50. It was on

record that both the lands were dry crop lands. Similarly, another

land bearing Gat No.52, which was belonging to Haleem Shah

was also adjoining to Gat No.51 and hence adjacent to petitioner's

land. The certified copy of the judgment in respect of that land,

which is produced at Exh.51, also shows that it was a dry crop

land and acquired for the same project under the same

notification.

13] As all these three lands including the land of the

petitioner were having more or less the same potential and being

in the vicinity, the judgments in respect of those two lands are

relevant for ascertaining the market value of the acquired land. It

can be seen that in those judgments the compensation was

awarded at the rate of Rs.70,000/- per hectare. There was nothing

on record, not even any suggestion, that the respondents had

challenged the said rate of compensation, by preferring the

appeals against those judgments. Hence, both these judgments,

the certified copies of which, were produced at Exh.50 and 51,

were rightly considered by the Reference Court as base for

arriving at the market value of the acquired land.

14] The perusal of the judgment of the Reference Court

goes to show that Reference Court has also considered that from

the map of acquired land Exh.50 it was evident that petitioner's

land is nearer to gaothan of village Gondwakadi, whereas the

lands of above said two judgments of the Reference Court were

somewhat away from the gaothan and hence, Reference Court

held that the land of petitioner was having the non-agricultural

potential. The Reference Court has hence held that market value

of the petitioner's land was comparatively higher and enhanced it

to Rs.70,000/- per hectare.

15] While arriving at this rate of compensation the

Reference Court has also considered the evidence of the claimant

showing that he was earning net income of Rs.7000/- to

Rs.8000/- per acre, which appeared to be excessive and hence,

taking into consideration its location and the fact that it was a dry

crop land, the Reference Court considered the net reasonable

income of Rs.3000/- to Rs.3100/- per acre and accordingly arrived

at the finding that even if the capitalization method is applied for

assessing the market value of the acquired land, then it comes to

Rs.76,570/- per hectare.

16] Thus after taking into consideration all the relevant

factors and applying both the methods of assessing the correct

amount of compensation, namely the capitalization method,

which is based on the income from the yield of the agricultural

land and the earlier decided judgments of the Reference Court,

the Tribunal has arrived at the just and fair amount of

compensation as Rs.75,000/- per hectare. Absolutely nothing new

is brought on record to show that the said amount of

compensation is in any way excessive or meagre and therefore, no

interference is warranted therein, either at the instance of the

petitioner or at the instance of the respondents.

17] Even as regards the claim of the petitioner for

enhanced amount of compensation for Mango Tree at the rate of

Rs.15,000/-, the Reference Court rightly held that there was no

cogent and convincing evidence to enhance said valuation.

The petitioner has also failed to produce on record evidence to

prove existence of Teak Wood Trees in the acquired land. In the

7/12 extract there is no mention of the Teak Wood Trees.

Hence, the Reference Court has rightly rejected the claim of the

petitioner for compensation for Teak Wood Trees.

18] At this stage learned A.G.P. points out that in the

operative part of the judgment, the Reference Court has directed

the respondents to pay interest on the amount of compensation

and also the excess amount of compensation at the rate of Rs.9%

per annum from the date after 15 days of the notice under Section

9(1) of the Land Acquisition Act, for the first year and then at the

rate of 15% per annum for subsequent period till the date of

deposit of such excess amount in the Court under Section 28 and

34 respectively of the Land Acquisition Act. The learned A.G.P.

has rightly submitted that both these directions being legally not

tenable they need to be set aside. To this limited extent only

interference is warranted in the impugned judgment.

19] As a result, the appeal filed by the petitioner-claimant

bearing First Appeal No.334/2006 stands dismissed.

The First Appeal No.1405/2009 filed by the

respondent/State is partly allowed to the extent of modifying the

direction given in the order by the Reference Court and it is held

that the petitioner-claimants are entitled for the interest at the

rate of 9% per annum from the date of the possession for first year

and at the rate of 15% per annum for subsequent period till

realization of the amount.

In theses circumstances, there is no order as to costs.

JUDGE

NSN