Vidarbha Irrigation Development ... vs Kongabai Sadashiv Wankhade And ...
2017 Latest Caselaw 4998 Bom

 fa292.06.J.odt                            1



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

                        FIRST APPEAL NO.292 OF 2006


          Vidarbha Irrigation Development
          Corporation, through Executive
          Engineer, Minor Irrigation Division
          No.2, Akola.                                      ....... APPELLANT

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

 1]       Kongabai Sadashiv Wankhade,
          Aged - Adult, Occ: Cultivator,
          R/o. Bidgaon, Tq. Murtizapur,
          Dist. Akola.

 2]       The State of Maharashtra through
          Collector, Akola.                                  ....... RESPONDENTS
 -------------------------------------------------------------------------------------------
          Shri A.B. Patil, Advocate for Appellant.
          Shri M.A. Kadu, A.G.P. for Respondent No.2.
 -------------------------------------------------------------------------------------------

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

          DATE:                th
                            25    JULY, 2017.


 ORAL JUDGMENT



 1]               This appeal takes an exception to the judgment and

award dated 12.12.2005, delivered in Land Acquisition Case

No.202/1999, by the 2nd Ad-hoc Additional District Judge, Akola,

thereby enhancing and granting additional compensation amount

of Rs.51,715/-, to respondent No.1, the claimant.

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

Respondent No.1 was the owner of plot, bearing

No.62/1 admeasuring 110 sq. mtr. with a constructed house

thereon, admeasuring 50 sq. mtr. situate at village Bidgaon,

Tq. Murtizapur, District Akola. By virtue of notification issued

under Section 4 of the Land Acquisition Act 1894, in March, 1995,

the said plot of land, with constructed house thereon came to be

acquired. As per the award passed by the S.L.A.O. on 21.04.1997,

respondent No.1 was granted compensation at the rate of Rs.50/-

per sq. mtr. for the open plot of land and Rs.495/- per sq. mtr. for

the constructed portion. Thus, the total compensation awarded to

the respondent No.1 by S.L.A.O. was Rs.5500/- for open plot and

Rs.29,185/- for the house constructed thereon.

3] Being not satisfied with the said amount of

compensation, respondent No.1 approached the Reference Court

under Section 18 of the Land Acquisition Act. In support of his

case, respondent No.1 examined himself and also adopted the

evidence of expert Rameshwar Junekar, which was recorded in

another reference petition.

4] On appreciation of this evidence, the Reference Court

was pleased to reject the enhancement in compensation amount

awarded for open plot of land. However, as regards the house

property, Reference court was pleased to enhance the

compensation from Rs.495/- to Rs.1369/- per sq. mtr.

5] Now it is the turn of the appellant, the acquiring

body, to challenge the said enhancement. According to learned

counsel for appellant, Reference Court has not taken into

consideration the fact that the house of the respondent No.1 was

constructed in the year 1973 i.e. about 20 years prior to the

acquisition. Moreover the valuer has not deducted requisite

amount towards the depreciation. It is also submitted that the

valuer's report was not produced; only his evidence recorded in

another proceeding was adopted, by filing a pursis. In such

situation, it is urged that, in the absence of evidence of any sale

instance of the adjoining area, as the Reference Court has

enhanced the amount of compensation by Rs.51,715/-, it needs to

be set aside.

6] It is brought to the notice of this Court that matters

arising out of same notification, same village, wherein the view

taken by Reference Court is upheld and appeals filed by present

appellant are dismissed; some of such appeals are First Appeal

Nos.291/2006 and 189/2006.

7] As the finding of the Reference Court rejecting the

claim of respondent No.1 for enhanced amount of compensation

for the open plot is not challenged by filing a cross-objection or

cross-appeal, that finding has become final. Hence, the only issue

which arises for my determination in this appeal is whether the

Reference Court was justified in enhancing the amount of

compensation for constructed house from Rs.405/- to Rs.1369/-

per sq. mtr?

8] According to learned counsel for appellant, the

enhancement granted by the Reference Court is almost double the

amount awarded by the S.L.A.O. and it is also without any

adequate material produced on record by the respondent No.1.

9] However, this submission cannot be accepted as in

the present case, by filing a separate pursis, the appellant and the

respondent No.1 has adopted the evidence of valuer Junekar,

which was recorded in another reference petition. Hence, the

Reference Court has considered the evidence of the valuer

Junekar, recorded in L.A.C. No.4/2000 the certified copy of which

was filed on record and both the parties adopted the said

evidence.

10] Now, as per the evidence of Junekar, the value of the

house comes to Rs.89,700/-. The Reference Court has found the

report of valuer as fact finding report and did not found the same

as exorbitant and also considering the fact that the said

construction was made about 20 years prior, depriciated the

valuation given by valuer by 10% and accordingly enhanced the

compensation by additional amount of Rs.51,715/-.

11] Hence, considering the marginal increase in the

amount of compensation and having regard to the evidence on

record, I do not find that any ground is made out to interfere in

the impugned judgment and order of the Reference Court.

The appeal therefore, holds no merit and hence stands dismissed,

with no order as to costs.

JUDGE NSN