Bombay High Court
Shamrao Nagoji Kale vs State Of Mah Thru The Collector, ... on 27 July, 2017
Bench: S.B. Shukre
fa446.05 and 672.08.CJ.odt 1/12
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
FIRST APPEAL No. 446 OF 2005
Vidarbha Irrigation Development
Corporation.
Through its Executive Engineer,
Bembla Project, Yavatmal. : APPELLANT
...VERSUS...
1] Shamrao Nagoji Kale.
Aged about 65 years.Occup-Agriculturist,
R/o-Kumbharkinhi, Tah-Darwha,
District - Yavatmal.
2] The State of Maharashtra,
Through the Collector, Yavatmal.
3] The Sub Divisional Officer and Land
Acquisition Officer, Darwha,
Tah-Darwha, Dist - Yavatmal. : RESPONDENTS.
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Shri A. B. Patil, Advocate for the Appellant.
Shri Abhay Sambre, Advocate for the Respondent No.1.
Shri S. B. Bissa, AGP for the Respondent Nos.2 and 3.
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AND
FIRST APPEAL No. 672 OF 2008
Shamrao S/o Nagoji Kale.
Aged about 75 years.Occup-Agriculturist,
R/o-Kumbharkinhi Tah-Darwha,
District - Yavatmal. : APPELLANT
...VERSUS...
1] The State of Maharashtra,
Represented by the Collector, Yavatmal.
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2] The Sub-Divisional Officer,
and Land Acquisition Officer,
Darwha, Tah-Darwha, Dist-Yavatmal.
3] The Executive Engineer,
Lower Pus Project, Pusad,
Tah-Pusad, Dist - Yavatmal. : RESPONDENTS
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Shri Abhay Sambre, Advocate for the Appellant.
Shri S. B. Bissa, AGP for the Respondent Nos.1 and 2.
Shri A. B. Patil, Advocate for the Respondent No.3.
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CORAM : S.B. SHUKRE, J.
th
DATE : 27
JULY, 2017.
ORAL JUDGMENT :
This common judgment disposes of these two appeals
filed respectively by the acquiring body and the claimant, both
being aggrieved by the findings recorded by the Reference Court in
its judgment and order dated 21 st March, 2005 in Land Acquisition
Case No.1111/2004 (Old No.234/1999).
02] 1 H, 21 R land bearing Gat No.18 situated at village
Kumbharkinhi, Tah-Darwha, District-Yavatmal was acquired for the
purpose of construction of a dam at Kumbharkinhi. Notification
under Section 4 of the Land Acquisition Act, was published on 24 th
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October, 1996 while the award under Section 11 of the Act was
passed on 30/06/1999. The true value of the land, in the opinion
of the Land Acquisition Officer, was of Rs.37,000/- per hectare. It
was not acceptable to the claimant. A reference application was,
therefore, moved by the claimant. On merits of the case, the
Reference Court found that the market value of the land acquired
was determined on the lower side by the Land Acquisition Officer
and even the compensation given for the trees was somewhat on
the lesser side and therefore, the Reference Court partly allowed
the reference application. The Reference Court found that the true
market value of the acquired land was Rs.1,50,000/- and that the
correct valuation of the trees was in terms as mentioned in
paragraph No.24 of its award. This award was passed on
21.03.2005. The acquiring body, the appellant in First Appeal
No.446 of 2005 and the claimant, the appellant in First Appeal
No.672 of 2008 were dissatisfied and that is the reason why both of
them are before this Court in these two appeals.
03] Heard Shri. A. B. Patil, learned counsel for the acquiring
body and Shri Abhay Sambre, learned counsel for the claimant. I
have also heard Shri S. B. Bissa, learned Assistant Government
fa446.05 and 672.08.CJ.odt 4/12
Pleader for the State in both the appeals. I have gone through the
record of the case. Now the only point which arises for my
determination is :
Whether the compensation awarded by the Reference
Court is just and proper ?
04] It is submitted by Shri A. B. Patil, learned counsel for
the acquiring body that no support from the sale instances vide
Exhs.47, 48 and 50 as well as the award passed vide Exh.68 could
have been drawn by the reference as the lands involved in these
documents were not the nearby lands and that they were distant
lands. He further submits that at the most the sale instance vide
Exh.49 in which the land bearing Gat No.2 was involved could
have been relied upon by the Reference Court and if the Reference
Court had relied upon it, the market value of the land even by
giving increase for the year which passed by after that sale
instance, would have been of Rs.1,35,000/- per hectare. Shri Abhay
Sambre, learned counsel for the acquiring body submits that in his
evidence, the claimant has given in quite categorical terms the
similarity of all these lands and that even the situation of these
lands as shown in the map vide Exh.53 would confirm the same,
and therefore, no error in this regard could be found in the
fa446.05 and 672.08.CJ.odt 5/12
approach adopted by the Reference Court. He also submits that in
First Appeal No.74 of 2006 decided on 3rd July, 2017 in which the
acquired land was Gat No.155, this Court determined the market
value of the land to be of Rs.90,000/- per hectare for dry crop land
and in the present case the land acquired being admittedly a
perennially irrigated land, the true value of the land, by relying
upon the determination made by this Court in the said appeal,
would come to Rs.1,80,000/-. He claims the enhancement of the
compensation for the acquired land to this extent.
05] If one goes through the evidence of the claimant -
PW-1, who is the claimant, one would find that he has mentioned
some similarity between the lands involved in the sale instance and
relied upon by the Reference Court. One would further see that
there has been no effective cross-examination of this witness in this
regard. This was the reason why the Reference Court considered
these sale instances to be relevant. The impugned award shows
that the Reference Court also relied upon the award given in
another case vide judgment at Exh.68. The land involved in the
judgment vide Exh.68 which was Survey No.155, was a matter of
record. If one considers the map vide Exh.53, one would find, it
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shows various lands with different survey numbers, many of which
were acquired under the same notification as the land involved in
the present case. On a closure look one can easily come to the
conclusion that these lands including the present land together
formed a circle around the 'Gawthan' area which was at the center
of the circle. The acquired land has Survey No.18 whereas the land
involved in the judgment at Exh.68 has Survey No.155 and the
distance between Survey No.18 and 'Gawthan' is almost equal to
the distance between Gawthan and Survey No.155. Therefore, I
do not think that any different view can be taken than the one
taken by the Reference Court in recording a finding that the
acquired land as well as the land Survey No.155 bore similarities
with each other and therefore, deserved same treatment. This
would make me record a finding that same rate of land as has been
given for Survey No.155 also deserves to be given for the acquired
land bearing Survey No.18 and it is of Rs.1,50,000/- per hectare.
This is also the rate ascertained by the Reference Court to be the
true market value of the acquired land and rightly so.
06] A serious doubt has been expressed by learned counsel
for the acquiring body about the valuation of the various trees done
fa446.05 and 672.08.CJ.odt 7/12
by the Reference Court. In the opinion of learned counsel for the
acquiring body, the assessment has been done on the basis of
unreliable evidence of the expert witness PW-2 - Vishnu
Gangadhar Paradkar and on some assumptions, which has led to
granting of exorbitant rates for different trees. He submits that
there were material admissions given by the expert witness in his
cross-examination, which rendered his entire testimony as
untrustworthy. The learned counsel for the claimant, however, has
different opinion. He submits that in spite of some admission given
by PW-2 - Vishnu Gangadhar Paradkar, his evidence cannot be
rejected altogether for the reason that whatever doubt created
because of those admissions stood removed by other evidence
brought on record by the claimant. He submits that it is not the
law that in all cases, notes of inspection or the details of the factual
data be placed on record, especially when such lacunae are seen to
be filled up by some other evidence available on record and in the
present case, the other evidence has helped remove those doubts.
He also submits that the evidence brought on record by the
claimant is of such nature as would convince this Court that the
claimant deserves to be given even more compensation for the
trees than what has been granted by the Reference Court.
fa446.05 and 672.08.CJ.odt 8/12
07] In the case of Land Acquisition Officer ..vs.. Sidappa
Omanna Tumari, reported in 1995 Supp(2) SCC 168, the Hon'ble
Apex Court had held that when opinion of the expert is based upon
relevant factual data, such factual data must be produced in Court
in the absence of which, the Court has to exercise caution and care
before relying upon the evidence of the expert. It further held that
the report of the expert must be assessed by the Court properly and
it is the duty of the party relying upon such a report to prove to the
satisfaction of the Court that expert evidence is as genuine and
reliable as any other evidence. In the case of Mahesh Dattatray
Thirthkar ..vs.. State of Maharashtra, reported in (2009) 11
Supreme Court Cases 141, the Hon'ble Apex Court held that it is
well established a proposition of law that burden of proving true
market value of the acquired property is on the State which
acquired it for a particular purpose. The Hon'ble Apex Court also
referred to this proposition of law laid down in the case of Land
Acquisition Officer & Mandal Revenue Officer ..vs.. V.
Narasaiah, reported in (2001) 3 SCC 530.
08] So, from the above referred cases, two propositions of
law emerge - (i) the burden of proving the true market value of the
fa446.05 and 672.08.CJ.odt 9/12
acquired property is on the State, and (ii) when the report of expert
is based upon relevant factual data and material which constitute
its basis, it must be produced and the party relying on it must prove
it to be as genuine and reliable as any other evidence before the
Court.
09] In the present case,PW-2 - Vishnu Gangadhar Paradkar's
report, a horticulture expert, vide Exh.25, was undoubtedly based
upon the factual details recorded by him in his notes of inspection
he had taken on the date of his visit to the acquired land. There is
an admission given in this regard by him. This witness also
admitted that he did not produce those notes of inspection before
the Court. The report vide Exh.25 was issued by him, admittedly,
about 4 years after the date of the inspection which was in the year
1996. The explanation given by him that he prepared the report
within 3 months from the date of the inspection and that it was
collected belatedly sometime in January, 2000 by the claimant
appears to be a lame excuse for the delay. This report at Exh.25
bears the date of 28.01.2000 and not of the year 1996, indicating
thereby that it was issued on the date which it bore in its body.
Had the report been issued within 3 months of the inspection
fa446.05 and 672.08.CJ.odt 10/12
which he says to have been done sometime in 1996, the date of the
report would have been of the year 1996. So, the report is full of
doubts. This would call for this Court to exercise care and caution
while appreciating the evidence of the claimant on the point of
insufficiency of the compensation amount.
10] This would make this Court to turn to the other
evidence available on the record. Other evidence is mainly in the
nature of deposition of the claimant, PW-1, 7/12 extracts vide
Exhs.40, 41, 42, 43 and 44 as well as the material referred to in the
award passed by the Land Acquisition Officer.
11] So far as the number of trees is concerned, one can see
that the Land Acquisition Officer, based upon the joint inspection
report, has accepted the number of trees as claimed by the claimant
to be correct and this is also the case with the Reference Court.
The acquiring body also does not raise any dispute about the
number of trees as well as the kind of trees found to be present on
the acquired land by the Reference Court at the relevant point of
time.
fa446.05 and 672.08.CJ.odt 11/12
12] So, the controversy now would boil down to only about
the valuation of the trees done by the Reference Court. We have
already seen that the evidence of the expert witness PW-2 - Vishnu
Gangadhar Paradkar, has some doubts in it. But, there is also
evidence of the claimant, PW-1. The claimant,PW-1,has given
details of the number of trees, the kind of trees, their age and their
overall health and also yields given out per annum by them. There
is no effective cross-examination of the claimant in this regard by
the learned counsel for the acquiring body as well as State.
Therefore, this evidence would have to be accepted as reliable and
inspiring confidence. Doing so, I find that evidence of the claimant
which gives some data for making proper valuation of the trees
broadly tallies with the evidence of expert witness PW-2 - Vishnu
Gangadhar Paradkar. Cumulative effect of this evidence has also
been considered by the Reference Court in ascertaining the valuation of
the trees as well as the kind of trees found to be present at the relevant
time on the acquired land, and accordingly, it rightly made its
conclusions. These conclusions having regard to the evidence
available on record, cannot be said to be suffering from any factual
or legal error. Apart from this, there is no other evidence brought
on record either by the claimant or the acquiring body to enable
fa446.05 and 672.08.CJ.odt 12/12
this Court to find any error in the findings so recorded by the
Reference Court.
13] In the result, I find that the compensation awarded by
the Reference Court is just and proper. There is no scope for
making any interference with the findings recorded by the
Reference Court. The point is answered accordingly.
O R D E R.
(i) Appeals stand dismissed.
(ii) Parties to bear their own costs.
JUDGE
PBP
