Bombay High Court
Fatimabegum D/O Mirza Hamid Baig vs State Of Mah. & Ors on 19 July, 2017
Bench: Dr. Shalini Phansalkar-Joshi
fa336.06.J.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
FIRST APPEAL NO.336 OF 2006
Fatimabegum d/o Mirza Hamid Baig,
Aged about major, Occ: Agriculturist,
R/o Gandwakdi, Tq. Kelapur,
Dist. Yavatmal. ....... 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
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Shri Abhay Sambre, Advocate for Appellant.
Ms. Shamsi Haider, A.G.P. for Respondents.
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CORAM: DR. (SMT.) SHALINI PHANSALKAR-JOSHI, J.
DATE: th
19 JULY, 2017.
ORAL JUDGMENT
1] This appeal is preferred by the original claimant
against the judgment and the order of the Reference Court of the
Civil Judge, Senior Division, Pandharkawada [Kelapur] dated
17.12.2005 in Land Acquisition Case No.197/2002, being
aggrieved by inadequate amount of compensation awarded
therein.
2] Brief facts of the appeal can be stated as follows:
The land bearing Gat No.79, area admeasuring 4.64
hectare and the land bearing Gat No.53 area admeasuring 4.46
hectare situated at Gondwakadi was owned by the appellant.
It was acquired by the respondents for the construction of
Gondwakadi Tank Project, in pursuance of the notification issued
under Section 4(1) of the Land Acquisition Act and published
on 20.10.1994 in Government Gazette. The Special Land
Acquisition Officer by his award dated 02.01.1996, granted
compensation at the rate of Rs.22,000/- per hectare for Gat No.79
and Rs.26,000/- per hectare for Gat No.53.
3] Being not satisfied with the said amount of
compensation, the appellant 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 acquired land was
irrigated with the water from canal (Nala). He was taking various
cash crops therein and earning the net income of Rs.7000/- to
Rs.8000/- per acre, per annum. According to the appellant, 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 Four Mango Trees, he claimed
compensation at the rate of Rs.15,000/-. Further according to
him, there were 85 big Teak Wood Trees, 200 teak wood trees,
50 big Adjat trees and 20 small Adjat trees in the acquired land of
Gat No.79 the valuation of which can be Rs.2,50,000/- hence, on
this count also he claims enhanced amount of compensation.
4] This petition came to be resisted by the respondents
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 and other trees in the acquired
land is also denied by the respondents. Respondents, therefore,
placed prayed for dismissal of the petition on the ground that it
was unrealistic and based upon imaginary grounds.
5] On these respective pleadings of the parties, the
Reference Court framed necessary issues for its consideration at
Exh.11. In support of their case claimant Mirza Niyajali Beg
examined himself and that was the only evidence adduced in the
case, apart from the certified copies of the judgments in other
reference petitions, which were relied upon by the claimant,
coupled with the 7/12 extract of the acquired land.
6] On appreciation of this evidence, the learned
Reference Court was pleased to enhance the compensation for the
acquired land from Rs.1800/- per hectare to Rs.70,000/- per
hectare. The Reference Court however, rejected the claim for
enhancement of compensation for the various trees.
7] Being not satisfied with this enhancement of the
compensation awarded by the Reference Court, the claimants
have preferred this appeal.
8] The only issue therefore, which necessarily arises for
my determination in this appeal is whether the appellant is
entitled for further enhancement in amount of compensation?
9] 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.
10] 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.
11] 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.
12] 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.
13] 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.
14] 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.
15] 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.
16] The appellant has also claimed the compensation for
4 Mango Trees, 85 big teak wood trees and 200 small teak wood
trees, 50 big adjat trees and 200 small adjat trees from the
acquired land bearing gat No.79. To support her claim, the
appellant has relied upon the 7/12 extract of the agricultural land.
However, the Reference Court has rightly considered as to how
the entry of these trees in the 7/12 extract is not pertaining to the
acquired land, but pertain to the remaining land, which is the part
of the same Gat No.79. It is a matter of record that out of the total
area of 6.84 H.R. of Gat No.79, the area admeasuring 4.64 H.R.
was only acquired by the respondents. Therefore, there was
remaining portion of 2.20 H.R. of the acquired land the possession
of which remained with the appellant. The 7/12 extract, which
was produced on record at Exh.40, no doubt shows that there was
entry of 85 teak wood trees, 4 Mango trees and 50 adjat trees.
However, as rightly considered by the Reference Court this entry
appears to be taken subsequently in the year 2005 when the 7/12
extract was issued and pertains to the un-acquired portion land of
Gat No.79, as in the 7/12 extract it is also mentioned that the
remaining portion of the said land was acquired by the
Government. The Reference Court has also considered that there
was no entry of these trees in the acquired portion of the land.
Reference Court further found that the appellant has not produced
on record any evidence like the certificate from Forest Department
or even the report of horticulture expert to show the existence of
these trees in the acquired land. The appellant has not even
produced on record the joint measurement report or the copy of
the award to prove the existence of these trees at the time of
acquisition. Hence, in my opinion no fault can be found in the
finding of the Trial Court of not granting the compensation for
these trees.
17] Even as regards the claim of appellant for
compensation of 47 big teak wood trees, 100 small teak wood
trees, 115 adjat trees, 100 small adjat trees from the acquired land
of Gat No.53, the Reference Court has considered that the entries
of these trees is not appearing in the 7/12 extract of the acquired
land, but entries appear to be made subsequent to the acquisition
in the remaining portion of the land. Hence in the absence of any
further evidence on record to that effect, including the copy of the
statement, which was filed by the appellant before the S.L.A.O.
after the receipt of notification under Section 9 of the Act, the
Reference Court has rightly rejected the claim of the appellant
towards compensation for these trees. No interference is
warranted in the impugned judgment and order of the Reference
Court on that score also.
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 stands dismissed with a small
modification in the impugned order of the Reference Court to the
extent that appellants are held entitled for the interest at the rate
of 9% per annum from the date of possession for the first year and
at the rate of 15% per annum for subsequent period till realization
of the amount.
In the circumstances, there is no order as to costs.
JUDGE
NSN
