Bombay High Court
Vidarbha Irrigation Development ... vs Mangal S/O Laludeo Kukde & Another on 25 July, 2017
Bench: S.B. Shukre
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH : NAGPUR
First Appeal No. 480 of 2005
Appellant : Vidarbha Irrigation Development Corporation,
through Executve Engineer, Medium Project
Division, Nagpur
versus
Respondents : 1) Daulat son of Motideo Malapure, aged
about 65 years, Occ: Agriculturist, resident
of Mendki, Tahsil Narkhed, Dist. Nagpur
2) The State of Maharashtra, through Special
Land Acquisition Officer, Kanoli Nalha Project,
having its Office at Collectorate, Nagpur
Shri V. G. Palshikar, Advocate for appellant
Shri M. G. Bhangde, Senior Advocate and Shri S. M. Bhangde, Advocate
with him for respondent no. 1
Shri S. B. Bissa, Asst. Govt. Pleader for respondent no. 2
------
First Appeal No. 465 of 2005
Appellant : Vidarbha Irrigation Development Corporation,
through Executve Engineer, Medium Project
Division, Nagpur
versus
Respondents : 1. Mangal Laludeo Kukde, aged about 50
years, Occ: Agriculturist ... since deceased,
through his Legal Representatives -
1a) Maltibai wd/o Mangaldeo Kukde (wife),
aged about 72 years, Occ: Household
1b) Jayashree Sunil Rahate (married daughter),
aged about 26 years, Occ : Household
1c) Amol Mangaldeo Kukde (son), aged about
27 years, Occ: Agriculturist
1d) Nilesh Mangaldeo Kukde (son), aged about
23 years, Occ: Agriculturist
1a to 1d all residents of Mendki, Post Sonoli,
Tahsil Katol, District Nagpur
2. The State of Maharashtra, through Special
Land Acquisition Officer, Kanholi Nalha Project,
having its Office at Collectorate, Nagpur
Shri V. G. Palshikar, Advocate for appellant
Shri C. B. Dharmadhikari, Advocate for respondents 1a to 1d
Shri Shamal Kadu, Asst. Govt Pleader for respondent no. 2
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First Appeal No. 492 of 2005
Appellant : Vidarbha Irrigation Development Corporation,
through Executve Engineer, Medium Project
Division, Nagpur
versus
Respondents : 1) Gulab son of Motideo Malapure, aged
about 65 years, Occ: Agriculturist, resident
of Mendki, Tahsil Narkhed, Dist. Nagpur
2) The State of Maharashtra, through Special
Land Acquisition Officer, Kanoli Nalha Project,
having its Office at Collectorate, Nagpur
Shri V. G. Palshikar, Advocate for appellant
Shri M. G. Bhangde, Senior Advocate and Shri S. M. Bhangde, Advocate
with him for respondent no. 1
Shri S. B. Bissa, Asst. Govt. Pleader for respondent no. 2
------
Coram : S. B. Shukre, J
Dated : 25th July 2017
Oral Judgment
1. These appeals challenge the legality and correctness of the
Award passed by the Reference Court in LAC No. 77 of 1990, LAC No. 83
of 1990 and LAC No. 82 of 1990 on 21 st April 2005. These appeals are
disposed of by this common judgment for the reasons that the lands
acquired in these cases are covered by one and the same notification
under Section 4 of the Land Acquisition Act issued on 21.7.1987; acquired
lands were situated at mouza Mendki; common Award dated 30 th
December 1980 was passed by the Land Acquisition Officer and the all the
lands were acquired for Chincholi Nallah Project (Medium Project
Division).
2. I have heard Shri V. G. Palshikar, learned counsel for
appellant; Shri M. G. Bhangde, learned Senior Advocate for respondent
no. 1 in First Appeal Nos. 480 of 2005 and 482 of 2005; Shri C. B.
Dharmadhikari, learned counsel for respondent no. 1 in FA No. 465 of
2005 and Shri S. B. Bissa, learned Assistant Government Pleader for
respondent no.2 in all these appeals. I have gone through the record of
the case including impugned judgments and orders.
3. The only point that arises for my determination is as under :
Whether the compensation granted by the Reference
Court for orange trees is just and proper ?
4. Shri V. G. Palshikar, learned counsel for the appellant
submits that the compensation granted by the Reference Court for the
orange trees is exorbitant. According to him, the evidence of expert PW 2
Dadan Borkar was liable to be rejected on the ground that he never
visited the site where orange trees were standing and had no occasion to
personally inspect those orange trees. In support, he invites my attention
to certain admissions given by this witness. He also submits that in the
year 1987 the bulk rate of oranges was not more than Rs. 2/- per kg.
5. Learned Senior Advocate submits that it was not possible for
the expert to personally inspect the orange trees and he relied upon the
yield figures given by the State Department of Horticulture and he had
reason to disagree with the production figure of 40 kg per tree as given
by the Deputy Director of Horticulture. He submits that PW 2 Dadan
Borkar, after considering the report of the Government Department of
Horticulture, found that the average annual yield per tree was 1000-1200
fruits and the price of the oranges then prevailing was Rs. 4/- per kg. He
also invites my attention to relevant portions from the evidence of PW
Dadan Borkar in this regard. Shri Dharmadhikari, learned counsel for the
claimant in FA No. 465 of 2005 adopts the arguments of learned Senior
Advocate.
6. Considering the evidence of PW 2 Dadan and report of the
Department of Horticulture, I find that there is no force in the submission
of learned counsel for the appellant and find merit in the submission of
learned Senior Advocate for the claimants.
7. The evidence of the horticulture expert P.W. 2 Dadan is
important for determining the issue involved in this case. It is seen from
his evidence that he prepared his valuation report only on the basis of
the opinion given in the report of Deputy Director of Horticulture, Nagpur
in Appendix E to the Award in LAC No. 64/A-65/85-86 of village
Mendki, Tahsil Narkhed, District Nagpur. It is seen from his evidence that
so far as the data and other factual details given in the report of the
Deputy Director were concerned, he accepted them as they were. But, he
disagreed with the opinion of the Deputy Director in respect of two
observations, one about the orange yield per tree per year and the other,
in respect of rate of oranges per kilogram. He stated that as per the Hand
Book on Agriculture published by the Indian Council of Agriculture
Research Institute, New Delhi (1984) page 1059, usually the full crop of
the oranges is harvested from 7th year and onward and the actual
productive life of an orange tree is of 18-20 years. Using his experience
and the research data, he opined that the average annual fruit production
per tree per year ranged from 1000-1200 fruits and given the weight of
an individual fruit, the yield of oranges per tree per year would be of 125-
150 kg. For calculating the yield in terms of weight, PW 2 Dadan took
into consideration the fact that about 6-8 oranges would constitute
together one kilogram. P.W. 2 Dadan, for determination of per kilogram
salable rate of oranges, relied upon the rate determined in LAC No.
33/LND/47/86-87 of mouza Khumari, Tahsil Kalmeshwar, District
Nagpur. There is hardly anything in his cross-examination to enable this
Court to express doubt about or have difference of opinion with the
opinion of PW 2 Dadan Borkar. After all, he is an expert horticulturist
and has relied upon the same data used even by the Deputy Director of
Horticulture, Nagpur which formed the basis for the Land Acquisition
Officer to assess the valuation of every orange tree. He differed with the
opinion of the Deputy Director only on two aspects, as stated above and
for that purpose, he gave the reasons. The reasons given by him cannot
be dismissed as being unfounded or outlandish having regard to his
experience as well as absence of necessary facts in the cross-examination
to do so. Therefore, report of PW 2 Dadan as well as his evidence can be
accepted in a broader terms and accordingly, it could be found that the
average annual fruit production of orange trees in the instant case was
somewhat more than what was found by the Deputy Director of
Horticulture and the salable rate of oranges in bulk prevailing at the time
when Section 4 notification was issued in the present case was not Rs. 2/-
per kg as determined by the Deputy Director, but was of Rs. 4/- per kg
accepted in LAC No. 33/LND/47/86-87.
8. Now, the question would be, what could have been the
average annual yield of the orange trees in the instant case - Was it
1000-1200 = 125-160 kg per tree per year as found by PW 2 Dadan or
was it somewhat lower than that, but higher than what was found by the
Deputy Director of Horticulture ?
9. In finding the average annual yield per year of 1000-1200 =
125-160 kg, PW 2 Dadan, as per his evidence, appears to have relied upon
the research work carried out by the Indian Council of Agriculture
Research Institute, New Delhi and taken into account, 6-8 fruits going
into 1 kg of fruits. PW 2 Dadan Borkar, however, has not reflected
anywhere in his evidence on the general condition of the orange trees.
The general condition of the orange trees has been described in Appendix
E by the Deputy Director of Horticulture. It is of "good" category. So, it
was necessary for PW 2 Dadan to have expressed his mind over each
category of orange trees yielding which number of fruits per year. We all
know by our common experience that general condition of an orange tree
or for that matter, any fruit bearing plant can be categorised into such
grades as below average, average, good, very good and excellent.
Obviously, an average annual yield for each of these categories would be
different. It is also clear that there being no evidence available on record
in this behalf that this Court would have to do some guesswork. To be
fair to both sides, this Court would have to consider an average annual
yield of 1000-1200 fruits per year considered by PW 2 Dadan to be that of
very good or excellent quality orange tree. In the instant case,
admittedly, the orange trees were of good quality and not of very good or
excellent quality. Therefore, the average annual yield would have to be
reduced from what has been found by PW 2 Dadan to about 600 fruits per
tree per year. Although PW 2 Dadan has taken into consideration, 6-8
number of oranges as making up 1 kilogram of the weight, by common
knowledge, one can say that the number could of 10 oranges in every one
kilogram. So,by these calculations, the average annual yield per tree in
the instant case would be of 60 kg. I have already found that the salable
rate of oranges in bulk which was prevailing at the relevant time was of
Rs. 4/- per kg. So, every orange tree can be considered to be yielding
income of Rs. 240/- per annum. In such a case, as held in the case of
Airports Authority of India v. Satyagopal Roy & ors reported in (2002)
3 SCC 527, the multiplier of "8" would have to be applied and applying
the same, I find that average valuation of every orange tree would be of
Rs. 1920/- which being very close to the one done by the Reference
Court could be raised to Rs. 2000/-.
10. In the instant case, the Reference Court reduced the rate
determined by PW 2 Dadan which was based upon the net income of Rs.
3524/- per tree per year to Rs. 2000/- per tree per annum. However, I
could not find any reason given by the Reference Court for such reduction
of the valuation of the orange trees nor learned Senior Advocate nor
learned Assistant Government Pleader could point out to me any single
reason. However, reasons or no reasons, ultimately what has turned out
is the fact that the determination of the valuation of the orange trees done
by the Reference Court has come as near as possible to the one done by
this Court for reasons stated earlier. Therefore, such determination of the
valuation of the orange trees carried out by the Reference Court could not
be termed as unreasonable and so, I find that there is no merit in these
appeals. The point is answered accordingly.
11. In the result, appeals are dismissed. Parties to bear their own
costs.
S. B. SHUKRE, J
joshi
