Abdul Hamid S/O Abdul Majid vs State Of Maharashtra & Another
2017 Latest Caselaw 3036 Bom

 fa79.06.J.odt                          1



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

                       FIRST APPEAL NO.79 OF 2006

          Abdul Hamid s/o Abdul Majid
          Aged about 47 years,
          Occ: Cultivator, R/o Deoli,
          District Wardha.            ....... APPELLANT

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

 1]       State of Maharashtra, through
          Collector, Wardha,
          Tah. & Dist. Wardha.

 2]      The Maharashtra Industrial 
         Development Corporation having
         its Head Office at Bombay and
         Branch Office at Udyog Bhavan,
         Civil Lines, Nagpur, through its
         Area Manager, Wardha.                   ....... RESPONDENTS
 -------------------------------------------------------------------------------------
         Shri A.Z. Jibhkate, Advocate for Appellant.
         Ms. Shamsi Haider, AGP for Respondent No.1.
         Shri M.M. Agnihotri, Advocate for Respondent No.2.
 -------------------------------------------------------------------------------------

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

th DATE: 12 JUNE, 2017.

ORAL JUDGMENT

1] Being aggrieved by the judgment and order dated

02.04.2005 passed in Land Acquisition Case No.45/1995 by

the 4th Adhoc Additional District Judge, Wardha, whereby the

additional compensation of Rs.2,64,390/- as against the claim

for enhancement of Rs.1,26,199/- was granted, the appellant

has preferred this appeal.

2] Facts of the appeal can be stated as follows:

In pursuance of the notification issued under

Section 4 of the Land Acquisition Act on 14.12.1989, the land

bearing S.No.495 admeasuring 3.0 hectare of Mouza Deoli

situated on Deoli-Wardha and Deolin-Pulgaon road came to

be acquired. The Land Acquisition Officer assessed the market

value of the land at the rate of Rs.28,000/- per hectare.

He also allowed the amount of Rs.51,799/- for the well

situated in the land and Rs.2,10,262/- towards the fruit

bearing and other trees. The total claim of Rs.3,48,391/- was

allowed with solatium and interest by the award dated

13.07.1997.

3] Being not satisfied with the same, the

appellant/claimant approached the learned Reference Court

contending inter alia that the amount of compensation

granted towards the price of the land was nominal only and it

should be increased to the rate of Rs.1,125,000/- per hectare.

Even as regards the compensation for well, it was claimed

that the proper amount of compensation will be of

Rs.1,50,000/- and not Rs.51,799/-, as awarded by the Land

Acquisition Officer. It was further submitted that there were

totally 277 orange trees in the land and hence, the

compensation at the rate of Rs.2500/- per tree comes to

Rs.6,92,500/-, whereas the learned Reference Court has

awarded the amount of Rs.2,10,262/- only in totality. It was

further submitted that the Land Acquisition Officer has not

awarded any amount towards the compensation of the

cement pipeline laid in the acquired land. The said pipeline is

running 1900 sq.ft. and at the rate of Rs.150/- per feet the

compensation of Rs.2,85,000/- should be awarded, which

was not awarded by the Land Acquisition Officer.

The appellant has also claimed compensation of Rs.32,000/-

towards 8 teak wood trees at the rate of Rs.4000/- per tree

and Rs.7500/- for 5 hybrid bor trees. According to the

learned counsel for appellant, without considering the

situation, location and potentiality of the acquired Land

Acquisition Officer has awarded the compensation, hence it

needs to be enhanced. Reference Court allowed the petition

partly enhancing the compensation amount by Rs.2,64,390/-

as against the claim of Rs.1,26,199/-.

4] Before the Reference Court, in support of his case,

the appellant has examined himself and two more witnesses

to bring on record the evidence relating to sale instances.

According to him, in the year 1989 the market price of the

land was Rs.1,25,000/- per hectare. His field was just near to

the limit of the Municipal Council and it was on

Deoli-Wardha road and Deoli-Pulgaon road. Moreover, it had

non-agricultural potential. The area nearby was occupied by

the offices of Agricultural Produce Market Committee,

Ginning and Pressing Factory, Tahsil Office, Government Rest

House. The weekly bazaar of Deoli town was just at a

distance of 1 km. Further, the quality of the land was fertile

and the field was irrigated with water from the well.

The appellant also examined witness No.2-Ravindrakumar to

prove the sale-deed executed in the year 1983. He has further

examined witness No.3 to prove another sale transaction of

the year 1995.

5] The learned Reference Court did not consider the

second sale transaction, it being of the year 1995, and

therefore, post notification.

6] As regards the sale instance produced and proved

through the evidence of witness No.2-Ravindrakumar,

learned Reference Court found that it was of the year 1983

and the plot purchased was admeasuring 2340 sq.mt. for the

amount of Rs.7,55,334/-. The learned Reference Court

therefore held that this sale instance is of a much smaller

portion of the land than the acquired land. Secondly though it

was stated by this witness that the land purchased by the

Bank is near the land acquired, the map (Exh.50) produced

on the record, nowhere showed that this land purchased by

the Bank was adjacent to the acquired land. The Reference

Court has considered this aspect in para 8 of its judgment.

It has also considered that the description of this plot, as

given in the sale-deed made it clear that the said plot was

near the residential area and Survey No.125 of that plot

must be far away from the acquired land of the appellant,

which was bearing Survey No.495. The Reference Court also

found that in the map Exh.50, the said survey number of the

land purchased by the Bank was not appearing. In this appeal

also on perusal of the map (Exh.50) it is noticed that the

Survey No.125 of the plot acquired by Bank, is not at all

appearing either adjacent or near the field of the appellant.

In such a situation, the said sale instance is rightly not relied

upon by the Reference Court as comparable sale instance.

7] Learned counsel for the respondent has in this

respect rightly placed reliance on the judgment of the Apex

Court in Shaji Kuriakose and another vs. Indian Oil Corpn. Ltd.

and others reported in (2001) 7 SCC 650, in para 3 of this

judgment which is reproduced below:

3. It is no doubt true that courts adopt comparable sales method of valuation of land while fixing the market value of the acquired land. While fixing the market value of the acquired land, comparable sales method of valuation is preferred than other methods of valuation of land such as capitalization of net income method or expert opinion method. Comparable sales method of

valuation is preferred because it furnishes the evidence for determination of the market value of the acquired land at which a willing purchaser would pay for the acquired land if it had been sold in the open market at the time of issue of notification under Section 4 of the Act. However, comparable sales method of valuation of land for fixing the market value of the acquired land is not always conclusive. There are certain factors which are required to be fulfilled and on fulfillment of those factors the compensation can be awarded, according to the value of the land reflected in the sales. The factors laid down inter alia are: (1) the sale must be a genuine transaction, (2) that the sale deed must have been executed at the time proximate to the date of issue of notification under Section 4 of the Act, (3) that the land covered by the sale must be in the vicinity of the acquired land, (4) that the land covered by the sales must be similar to the acquired land, and (5) that the size of plot of the land covered by the sales be comparable to the land acquired. If all these factors are satisfied, then there is no reason why the sale value of the land covered by the sales be not given for the acquired land. However, if there is a dissimilarity in regard to locality, shape, site or nature of land between land covered by sales and land acquired, it is open to the court to proportionately reduce the compensation for acquired land than what is reflected in the sales depending upon the disadvantages attached with the acquired land.

8] In the present case, if the above criteria as laid

down by the Apex Court are applied, it can be seen that the

appellant has failed to bring sufficient evidence on record to

show that the land under the sale-deed of the Bank was in the

vicinity of the acquired land. Moreover, there is also no

evidence to show that the land covered by the said sale-deed

is similar to the acquired land. The said land was also

comparatively of much smaller size. In such a situation, the

sale instance proved through the evidence of witness No.2 by

the appellant cannot be used for awarding the compensation,

at the rate mentioned in the said sale-deed.

9] The learned Reference Court has thus in the

absence of any cogent evidence regarding the sale instances,

rightly relied upon the earlier judgment in L.A.C.

Nos.51/1995, 54/1995, 55/1995 and 63/1995. The said

judgment pertains to the lands acquired from the same area

and the survey numbers of those lands are found reflected in

the map Exh.50. The Reference Court therefore, held that

those plots are similarly situated and hence the market price

of the said lands as assessed by the Reference Court for those

lands at the rate of Rs.30,000/- for dry crop land and

Rs.45,000/- for irrigated land can be made applicable to the

instant case also. In para 10 of its judgment the learned

Reference Court held that there was no evidence to show that

entire acquired land was irrigated because the field is big one

admeasuring 3 H 8 R and the total orange trees cultivated

therein were only 277. Therefore, it reflects that only portion

of the field was under irrigated crop of orange trees. In the

absence of any evidence relating to laying down pipeline in

the field, the Reference Court found it would not be proper to

grant compensation at the rate of Rs.45,000/- per hectare, as

was granted in the reference in one of the case and hence,

granted the compensation at the rate of Rs.30,000/- per

hectare.

10] In my considered opinion the Reference Court

should not have reduced the amount of compensation in this

case, which was awarded to the other lands acquired under

L.A.C. Nos.51/1995, 54/1995, 55/1995 and 63/1995.

The compensation awarded in those references at the rate of

Rs.30,000/- for dry crop land and Rs.45,000/- for irrigated

land should be awarded in this case also and to that extent

the modification is required in the impugned judgment and

order of the Reference Court. Accordingly, it is directed that

the compensation for the acquired land be calculated at the

rate of Rs.30,000/- for non-irrigated land and Rs.45,000/- for

irrigated land.

11] As regards the claim, made by the appellant

towards the cost of pipeline, learned counsel for respondent

Nos.1 and 2 has relied upon the definition of the 'land' as

given in Section 3 sub-clause (a) which states that "the

expression 'land' includes benefits arising out of land, and

things attached to the earth or permanently fastened to

anything attached to the earth." Herein in the case it is

submitted by learned counsel for the respondent Nos.1 and 2

that the pipeline being attached to the earth or permanently

fastened to anything attached to the earth, price of the said

pipeline is included in the benefits arising out of the land.

Therefore, no separate amount of compensation can be

awarded towards the construction of pipeline.

Learned counsel for respondents has also pointed out that

absolutely no evidence is produced on record by the appellant

to prove the construction of the pipeline. This Court also finds

that Reference Court has considered this aspect in para 10 of

its judgment, and has specifically observed that there is no

evidence that pipeline was laid down in the field to supply

water from the well. In such a situation, in the absence of any

sufficient material produced on record merely on the vague

statement of the appellant that he has laid the pipeline, the

amount of compensation cannot be awarded towards the

construction of the pipeline.

12] As regards the compensation for orange trees,

though according to appellant, the amount awarded is not

sufficient, again no evidence was produced on record by the

appellant as regards the yield of the orange trees or the

approximate income which he was getting from those trees

or even as to the age of those trees. In the absence thereof,

the valuation arrived at by the Land Acquisition Officer and

confirmed by Reference Court cannot be disturbed with.

13] Learned counsel for appellant has placed reliance

on the judgment of the Apex Court in Digamber & Ors. vs.

State of Maharashtra & Ors. reported in AIR 2013 SC 3532

and State of Orissa vs. Brij Lal Misra and others reported in

(1995) 5 SCC 203 to submit that while assessing the market

value of the land, future development in the nearby area is

required to be considered. It is submitted that in the instant

case, as the land was acquired for the non-residential purpose

and the surrounding lands were also being used for non-

residential purpose, the market price of the land has to be

calculated at commercial rate.

14] However, in this respect learned counsel for

respondents has relied upon the judgment of Apex Court in

Special Land Acquisition Officer vs. Karigowda and others

reported in (2010) 5 SCC 708, wherein reliance is placed on

its own decision in the case of State of Orisa vs. Brij Lal Misra

and others reported in (1995) 5 SCC 203 and it was held in

para 48 "that the increase in the amount awarded by way of

compensation keeping in view the potentiality of the land and

further increase on future potentiality would be contrary to

the provisions of Clauses "fifthly and sixthly" of Section 24 of

the Act. The provisions of the Act require the Court to take

into consideration various other factors including increase in

the value of the acquired land likely to accrue from the use

for which it was acquired may be put to on a subsequent

stage in regard to layout or important scheme etc."

Admittedly, in the instant case, the appellant's land was used

for agriculture purpose and he has not applied for

non-agricultural use or for laying out plots. In such

circumstances, merely because other nearby lands are used

non-agricultural purposes or after acquisition, appellant's

land was to be used for non-agricultural purposes, the

compensation cannot be granted at the commercial rate.

15] As a result, the appeal is allowed partly to the

extent that the compensation is awarded at the rate of

Rs.30,000/- per hectare for non-irrigated land and

Rs.45,000/- per hectare for irrigated land. To this limited

extent only, the impugned judgment and order of the

Reference Court is modified.

16] The appeal stands disposed of in above term.

JUDGE NSN