Vidarbha Irrigation Development ... vs Prakash Namdeo Dive & Ors
2017 Latest Caselaw 5144 Bom

        fa520.05 and 677.08.CJ.odt                                                                                1/12    


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

                                    FIRST APPEAL No. 520 OF 2005

              Vidarbha Irrigation Development
              Corporation.
              Through its Executive Engineer,
              Medium Project Division, Pusad,
              District - Yavatmal.                                               :      APPELLANT

                          ...VERSUS...

        1]  Prakash Namdeo Dive.
              Aged about 40 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
        =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
        Shri A. B. Patil, Advocate for the Appellant.
        Shri Abhay Sambre, Advocate for the Respondent No.1.
        Shri S. J. Kadu, AGP for the Respondent Nos.2 and 3.
        =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
                                                            AND 

                                    FIRST APPEAL No. 677 OF 2008

              Prakash Namdeo Dive,
              Aged about 47 years.Occup-Agriculturist, 
              R/o-Kumbharkinhi Tah-Darwha,
              District - Yavatmal.                      :      APPELLANT

                          ...VERSUS...

        1]  The State of Maharashtra,
              Represented by the Collector, Yavatmal.
              District - Yavatmal.




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         fa520.05 and 677.08.CJ.odt                                                                                2/12    


        2]  The Sub-Divisional  and Land
              Acquisition Officer, Darwha,
              Tah-Darwha, Dist-Yavatmal.

        3]  The Executive Engineer,
              Lower Pus Project, Pusad,
              Tah-Pusad, Dist - Yavatmal.                                         :      RESPONDENTS

        =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
        Shri Abhay Sambre, Advocate for the Appellant.
        Shri S. J. Kadu, AGP for the Respondent Nos.1 and 2.
        Shri A. B. Patil, Advocate for the Respondent No.3.
        =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-


                                                     CORAM  :   S.B. SHUKRE, J.

th DATE : 27 JULY, 2017.

ORAL JUDGMENT :

This common judgment disposes of both these appeals

which challenge the legality of correctness of one and the same

award dated 21.03.2005 passed by Civil Judge Senior Division,

Darwha in Land Acquisition Case No.1202 of 2004 (Old

No.223/1999).

02] 0.98 R land situated at village Kumbharkinhi, Tah-

Darwha, District - Yavatmal from out of Gat No.9 belonging to the

claimant, who is appellant in First Appeal No.520/2005 was

acquired for the purpose of construction of a dam at Kumbharkinhi.

fa520.05 and 677.08.CJ.odt 3/12

Notification u/s 4 of the Land Acquisition Act was published on

24.10.1996 and the award under Section 11 of the Act, was passed

by the Land Acquisition Officer on 30.06.1999. The Land

Acquisition Officer determined the true market value of the

acquired land to be of Rs.37,000/- per hectare. Since the claimant

was not satisfied with it he preferred a reference application under

Section 18 of the Land Acquisition Act. On merits of the case, the

Reference Court found the value of the land determined by the

Land Acquisition Officer as well as the valuation of the trees done

by the Land Acquisition Officer to be on the lower side and

therefore, by the Award passed on 21.03.2005, the Reference Court

enhanced both the values fixing the value of the land at

Rs.1,50,000/- per hectare and determining the value of the trees

standing on the acquired land at substantially higher rate. The

acquiring body as well as the claimant, however, were not satisfied

with such an award and therefore, 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. J. Kadu learned Assistant Government

fa520.05 and 677.08.CJ.odt 4/12

Pleader for the State in both the appeals. I have gone through the

record of the case. Now 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 instance vide

Exh.47 as well as the award passed vide Exh.68 could have been

drawn by the Reference Court as the lands involved in these

documents were not the nearby lands but were the distant lands.

He further submits that at the most the sale instance vide Exh.47 in

which the land bearing Gat No.9 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 maps vide Exh.45 and 46 would confirm the same, and

therefore, no error in this regard could be found in the approach

fa520.05 and 677.08.CJ.odt 5/12

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 maps vide Exh.45 and 46, one would

fa520.05 and 677.08.CJ.odt 6/12

find they show 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 Gat No.9 whereas

the land involved in the judgment at Exh.68 has Survey No.155

and the distance between Gat No.9 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 Gat No.9 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

fa520.05 and 677.08.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-4 - 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-4 - 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.

         fa520.05 and 677.08.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

fa520.05 and 677.08.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-4 - 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

fa520.05 and 677.08.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 expert and 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.28 to 38 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.

         fa520.05 and 677.08.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-4 - 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-4 - Vishnu

Gangadhar Paradkar. The cumulative effect of this evidence has

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 made its conclusions and rightly so. 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

fa520.05 and 677.08.CJ.odt 12/12

acquiring body to enable 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