Madhukar Daulatrao Kotwal Died Th ... vs The State Of Maharashtra And Ors
2017 Latest Caselaw 4927 Bom

                                      1                            FA 1/2012

        IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                   BENCH AT AURANGABAD


                          FIRST APPEAL NO.1 OF 2012


  Madhukar s/o Daulatrao Kotwal (died)
  (Through legal heirs)


  1.       Indumati wd/o Madhukar Kotwal
           Age: 62 Yrs., occu. Household;


  2.       Rajendra s/o Madhukar Kotwal
           age: 37 Yrs., occu. Agril.


  3.       Mahesh s/o Madhukar Kotwal
           age: 35 Yrs., occu. Agril.


           All R/o New Mondha, Partur,
           Tq. Partur, Dist. Jalna.          =        APPELLANT/S
                                             (orig. claimants)


           VERSUS


  1)       The State of Maharashtra
           Through Collector, Jalna,
           District Jalna.


  2)       The Executive Engineer,
           Lower Dudhana Project,
           Division Sailu, Dist.Parbhani


  3)       The Special Land Acquisition Officer 




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                                          2                              FA 1/2012

           (Krushna Khore), Jalna,
           District Jalna                         =        RESPONDENT/S 
                                                  (orig. Respondents)
                                   -----
  Mr. Sachin S.Panale, Advocate for Appellants;
  Mr. SM Ganachari, AGP for Respondent Nos.1 to 3.
                                   -----
                               CORAM :  P.R.BORA, J.

DATE :

24 th

July,2017.

ORAL JUDGMENT:

1) Heard. Admit. With the consent of

learned Counsel appearing for the parties, the

appeal is taken up for final disposal.

2) The present appeal is filed seeking

enhancement in the amount of compensation as

awarded in LAR No.388/1998 decided by District

Judge-3, Jalna decided on 3rd May, 2008.

3) Land admeasuring 4 hectares and 4 Ares

belonging to the present appellants was acquired

for the purpose of rehabilitation of the project

affected persons having nexus with Lower Dudhana

Project. Notification under Section 4 of the

3 FA 1/2012

Land Acquisition Act (hereinafter referred to as

the Act) in that regard was published in the

official Gazette on 18th February, 1997 and after

complying with the required procedure, award

under Section 11 of Act came to be passed on

12.2.1998.

. The Special Land Acquisition Officer had

offered the compensation @ Rs.483/- per Are.

Dissatisfied with the amount of compensation so

offered, the appellants filed an application

under Section 18 of the Act, which was

adjudicated by the Civil Court (hereinafter

referred to as the Reference Court).

. In Reference Court the appellants had

claimed the compensation @ Rs.1,500/- per Are.

The learned Reference Court, after having

assessed the oral and documentary evidence

brought before it, determined the market value of

the acquired lands @ Rs.725/- per Are and

accordingly enhanced the amount of compensation.

According to the appellants, even the Reference

Court has not awarded the just and fair

4 FA 1/2012

compensation to the expectation of the appellants

- claimants The present appeal is, therefore,

preferred by them seeking enhancement in the

amount of compensation as has been awarded by the

Reference Court.

4) Shri Sachin Panale, learned Counsel

appearing for the appearing for the appellants -

claimants, submitted that though sufficient

evidence was adduced by the claimants before the

Reference Court, so as to determine the market

value of the acquired lands on the basis of the

said evidence, the Reference Court, instead of

making the said sale instances a base for

determining the market value of the acquired

land, preferred to rely upon the decision in LAR

No.385/1998, which was settled in Lok Adalat. In

the said matter, the compensation was enhanced

with consent of the parties by 50% i.e. from

Rs.483/- per Are to Rs.725/- per Are. The

learned Counsel submitted that merely because the

claimants in the said LAR settled the matter

5 FA 1/2012

amicably and accepted the compensation as has

been agreed in the said matter, will not preclude

the present appellants or the similar other

appellants to claim enhanced compensation more

than as has been awarded in the said matter. The

learned Counsel submitted that the present

appellants had never agreed for any settlement in

Lok Adalat and were willing to get their matter

decided by the Court on its own merits. The

learned Counsel submitted that in such

circumstances, the learned Reference Court should

not have determined the market value of the

acquired lands on the basis of the settlement

arrived at in LAR No.385/1998. The learned

Counsel submitted that two sale instances were

placed on record by the appellants one at Exh.50

and another at Exh. 51. Learned Counsel

submitted that the land, which was the subject

matter of Exh. 50, was admeasuring 73 Ares from

village Warphal and was sold by registered sale

deed executed on 15th April, 1994 for the

consideration of Rs.1,00,000/-, i.e. @ Rs.

                                      6                             FA 1/2012

  1,370/-   per   Are.     The   learned   Counsel   submitted 

that it has come on record that village Warphal

is at the distance of hardly 1 km from village

Koregaon, where the subject land is situated.

The learned counsel submitted that the land which

was the subject matter of Exh.51 was sold on 14th

December, 1994 and has received the consideration

at Rs.2,500/- per Are. It was 2 Ares land and

was sold for the consideration of Rs.5,000/-.

The leaned counsel submitted that the vendee of

the said land was examined before the court and

it has come in the evidence of the said witness

that the acquired land belonging to the present

appellants was better in quality than the land

sold by her vide sale deed at Exh.50. The learned

Counsel submitted that in such circumstances,

based on the said sale instance, the Reference

Court must have determined the market value of

the acquired lands.

. The learned counsel submitted that the

Reference Court has also ignored the evidence

brought on record by the appellants as about the

7 FA 1/2012

irrigation facilities available to the acquired

lands. The learned Counsel submitted that the

appellants have placed on re cord the receipts

from the sugar factory, evidencing purchase of

sugarcane belonging to the appellants by the said

sugar factory. The learned Counsel submitted

that the 7/12 extracts of the acquired lands show

existence of Well therein. However, the

Reference Court has drawn an incorrect inference

that the acquired land was semi-irrigated land,

when the evidence on record was enoght to reach

to the conclusion that the acquired land was

fully irrigated land. The learned Counsel,

therefore, prayed for adequate enhancement in the

amount of compensation based on the evidence as

has been adduced by the claimants before the

Reference Court.

5) Shri Ganachari, learned AGP appearing

for the State, has opposed the submissions

advanced on behalf of the appellants. Learned

AGP, reading out the discussion made by the

8 FA 1/2012

Reference Court in para 15 of its judgment,

submitted that it were the appellants/claimants

who have relied upon the settlement arrived at in

LAR No.385/1998, meaning thereby that if the same

rate is awarded in their matter also, they will

accept the said price. The learned AGP further

submitted that in such circumstances, the

Reference Court has rightly considered the market

value, which was determined by way of settlement

in LAR No.385/1998 and has given same market

value for the land of the present appellants. The

learned AGP submitted that the appellants are now

estopped from giving any challenge to the order

so passed in view of the evidence adduced by the

appellants claimants themselves. The learned

AGP, therefore, prayed for dismissal of the

appeal.

6) I have carefully considered the

submissions made on behalf of the learned Counsel

appearing for the respective parties.

                                  9                             FA 1/2012

  7)       I have perused the impugned Judgment and the 

  evidence   on   record.     On   perusal   of   the   impugned 

Judgment, it is apparently revealed that, the

market value of the acquired land was determined

by the Reference Court on the basis of the

settlement arrived at in Lok Adalat in case of

Land Acquisition Reference No.385/1998. The

question arises whether the settlement arrived at

between the parties in some different proceedings

can be accepted as a base for deciding a dispute

between two different parties without their

consent. The market value determined in LAR

No.385/1998 by way of amicable settlement between

the parties in the said proceedings will be

binding only for the said parties and the parties

to the present appeal, more particularly, the

original claimants unless they agree for

accepting the market value received in the said

LAR no.385/1998, the market value in the present

matter would not have been determined on the

basis of the settlement arrived at in the said

LAR.

                                    10                            FA 1/2012

  8)       The   Reference   Court   was   bound   to   determine 

the market value on the basis of two sale

instances brought on record by the claimants in

order to substantiate the claim raised by them.

The land which is the subject matter of Exh.50

was admeasuring 77 R and was sold for the

consideration of Rs.One Lakh vide registered sale

deed executed on 15.04.1994 i.e. at the rate of

Rs.1370/- per Are. The said land was of village

Warphal whereas the land which is the subject

matter of the present appeal is from village

Koregaon. It has come on record that, village

Warphal is at the distance of 1 k.m. from

Koregaon. The second sale deed at Exh.51 was

pertaining to the land admeasuring 2 Are. The

said land was also from village Warphal and was

sold at the price of Rs.5000/- i.e. at the rate

of Rs.2500/- per Are. At the outset, it has to

be stated that, the sale instance pertaining to

small piece of land admeasuring 2 Are could never

have been the base to determine the market value

of the subject land, which was more than 4

11 FA 1/2012

hectors. The said sale instance will have to be

therefore kept out of consideration and the

Reference Court has also rightly kept the same

out of consideration. However, insofar as the

sale instance at Exh.50 is concerned, in absence

of any contrary evidence or in absence of any

other sale instance brought on record by the

respondent, the Reference Court was bound to take

into account the said sale instance for

determining the market value of the acquired

land.

9) During the course of the argument, it was

brought to my notice that, in companion matter

arising out of the same acquisition pertaining to

the lands belonging to some other villages, the

Reference Court has determined the market value

at higher rate, and as such, the same criteria

may be applied for determining the market value

in the present matter also. I am not at all

convinced by the argument so advanced and it

appears to me that, when sufficient evidence is

12 FA 1/2012

available on record in the present matter, the

market value of the subject land can be

determined on the basis of the said material. As

has come on record through the evidence of PW

No.2 - Sau. Radhabai, the land involved in the

sale instance Ex.50 was the irrigated land. It

was sought to be canvassed by the learned Counsel

appearing for the appellant that, the land which

is the subject matter of the present appeal is

also fully irrigated land and sufficient evidence

in that regard was produced on record. The

learned Counsel invited my attention to various

receipts evidencing sugarcane belonging to the

present appellant purchased by Godavari Dudhna

Sugar Factory. The learned Counsel further

brought to my notice that, the 7/12 extract

pertaining to the subject land very well shows

the existence of the well therein. In this

background, it was the contention of the learned

Counsel that, the Reference Court must have held

the subject land to be irrigated one and has

accordingly given rate of the irrigated land.

13 FA 1/2012

Though the submissions so made was opposed by the

learned AGP stating that, the evidence on record

is insufficient to reach to any conclusion

whether the subject land is fully irrigated or

otherwise, I do not find it necessary to indulge

in the said controversy in view of the conclusion

recorded by the Reference Court that, the subject

land is semi irrigated land.

10) The next question arises whether at what rate

the compensation could have been awarded for the

said land. As I discussed herein above the sale

instance at Exh.50 was duly proved by the

appellant by examining the vendee of the said

land. Though the said land was from village

Warphal, as I noted earlier there was no

difficulty in accepting the said sale instance as

of a comparable land, since it was hardly at the

distance of 1 k.m. from the acquired land. It was

argued by the learned AGP that, the said land was

fully irrigated land and as such if at all the

market value is to be determined on the basis of

14 FA 1/2012

the consideration received to the said land, the

appropriate deductions will have to be made to

the subject land being semi irrigated land.

11) I have carefully perused the evidence of

PW No.2 Radhabai and I have also perused the

contents of the sale deed at Exh.50. After

having considered the said evidence, it does not

appear to me that, the said land was fully

irrigated land. As has come on record, in the

evidence and as the recitals of the sale deed

also suggest that, 22 Are land out of the 73 Are

land was fully irrigated meaning thereby that,

the remaining land was not fully irrigated.

Therefore, there may not be any difficulty to

hold that, the consideration which was received

to the said land was due consideration for the

semi irrigated land. Even if some negative

allowances are given while determining the

market value of the subject land on the basis of

the land involved in Exh.50, it does not appear

to me that, the market value for the acquired

15 FA 1/2012

land can be determined at the rate less than

Rs.1200/- per Are. After having considered the

evidence brought on record by the appellant, I

deem it appropriate to determine the market value

of the acquired land at the rate of Rs.1200/- per

Are and hold the appellant entitled for the

enhanced compensation accordingly with all

statutory benefits and interest under the

provisions of the law. Award be modified

accordingly.

Appeal stands allowed in the aforesaid terms.

(P.R.BORA) JUDGE

bdv/