Smt Sumanbai Maruti Wihire & 6 Ors vs State Of Mah. Thru Collector, ...
2017 Latest Caselaw 3211 Bom

 fa640.08.J.odt                        1



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


                      FIRST APPEAL NO. 640 OF 2008


 1]       Smt. Sumanbai Maruti Wihire,
          Aged about 69 years. Occ-Household.,
          R/o-Thalegaon, Tah-Babhulgaon,
          District - Yavatmal.

 2]       Suresh Maruti Wihire,
          Aged about 48 years. Occ-Service.
          R/o-Taluka and Dist-Chandrapur.

 3]       Ramesh Maruti Wihire,
          Aged about 46 years, Occ-Service,
          R/o-Ghadchandur, Tq. & Distt.-Chandrapur.

 4]       Bhimrao Maruti Wihire,
          Aged about 42 years, Occ-Agricultirst,
          R/o-Thalegaon, Tq. Babhulgaon,
          District - Yavatmal.

 5]       Sau. Lalita Arun Bhagat,
          Aged about 36 years,, Occ-Household,
          R/o-Mohada, Tq.  & Dist-Nagpur.

          (Applicants No.1 to 5 through their
          General Power of Attorney Vinod
          Maruti Wihire)

 6]       Ku. Vanita Maruti Wihire,
          Aged about 31 years, Occ-Household,
          R/o-Thalelgaon, Tq.-Babhulgaon,
          Distt. - Yavatmal.




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  fa640.08.J.odt                                 2


 7]       Vinod Maruti Wihire,
          Aged about 32 years, Occ-Agriculturist,
          R/o-Thalegaon, Tq.-Babhulgaon,
          District - Yavatmal.              ....... APPELLANTS.

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

 1]       The State of Maharashtra,
          Through Collector, Yavatmal,
          Tq. & Distt. - Yavatmal.

 2]       The Special Land Acquisition
          Officer, Bembala Project,
          Yavatmal, Tq. and Distt-Yavatmal.

 3]      The Executive Engineer,
         Bembla Project, Yavatmal                ....... RESPONDENTS.
 -------------------------------------------------------------------------------------
         Shri. D. A. Sonwane, Advocate for Appellants.
         Shri. M.A. Kadu, AGP for Respondents.
 -------------------------------------------------------------------------------------

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

th DATE: 15 JUNE, 2017.

ORAL JUDGMENT

1] This appeal is preferred against the judgment and

order dated 17.04.2006 passed by 4th Adhoc Addl. District

Judge, Yavatmal in L.A.C. No.06/2003. The appellants are

the original claimants and they are not satisfied with the

amount of compensation as awarded by the Reference Court

to the tune of Rs.70,000/- per hectare. Hence, they have

approached this Court.

2] Brief facts of the appeal are as follows:

In pursuance of the notification issued under

Section 4 of the Land Acquisition Act, the land bearing Gat

No.5 admeasuring 5 H situated at village Mitnapur and

belonging to the appellants came to be acquired for Bembla

Project by initiating L. A. Case No.17/47/1997-98. The Land

Acquisition Officer awarded the compensation at the rate of

Rs.55,300/- per hectare to the appellants by his Award dated

31.03.2001. Being dissatisfied with the quantum awarded by

the Land Acquisition Officer, the appellants approached the

Reference Court Under Section 18 of the Land Acquisition

Act. In support of the case, one Viniod Wihire examined

himself as Power of Attorney Holder for the appellants and

produced copies of three sale-deeds vide Exh.32 to 34, maps

Exh.36 to 38 and 7/12 extract Exh.35.

3] On appreciation of the evidence, the learned

Reference Court was pleased to hold that appellants have

failed to produce on record any evidence like sale receipts,

weight slips or even the accounts to prove that appellants

were getting net income of Rs.20,000/- to Rs.25,000/- per

acre per annum from the acquired land. The Reference Court

also found from 7/12 extract (Exh.35) showed that acquired

land was dry crop land. No evidence was laid by the

appellants to show that it was a land of black soil and highly

fertile. The Reference Court, therefore, refused to believe the

evidence of the appellants' witnesses that income of the

acquired land is of Rs.20,000/- to Rs.25,000/- per acre per

annum. Thus, having found that the capitalization method

for assessing the income of the acquired land is not useful,

the learned Reference Court considered the comparable sale

method, in view of the said three sale instances produced on

record by the appellants. As regards the first sale instance,

the copy of which was produced at Exh.32, it was found to be

of land situated at village Kolhi and thus, not of the same

village or adjacent village. Therefore, though the price of the

land sold under the said sale-deed was at the rate of

Rs.1,22,600/- per hectare, it has to be held that the Reference

Court has rightly refused to take into consideration the same

for assessing market value of the acquired land.

4] The second sale-deed (Exh.34) is of the village

Kopra Barad. It can be seen from the map produced on

record that the said village is also away from the village

Mitnapur. Therefore, sale consideration of the said sale-deed

that of Rs.1,24,000/- per hectare also came be rightly refused

to be accepted by the Reference Court.

5] The Reference Court has, in this respect properly

and rightly considered the ratio laid down by the Hon'ble

Apex Court in its various decisions to the effect that if the

lands are from different villages, unless it is proved that the

situation and potentiality of the lands in those two different

village is same, the sale instances of those village cannot be

considered as satisfactory comparable evidence.

6] The third sale instance on which the appellants

placed reliance is of the village Thalegaon. The sale-deed

thereof is produced at Exh.33 and it shows that one Gajanan

Kulkarni and others sold their 1 H 21 R out of Gat No.133 to

Pramod Mankar for Rs.99,000/-. From the sale-deed, it can

be seen that the said land is also dry crops land and the

market value of that as per this sale-deed comes Rs.81,000/-

per hectare. The perusal of the map produced in the case

shows that village Thalegaon is adjacent to village Mitnapur.

It is submitted by the learned counsel for the appellants that

village Thalegaon is at the distance of only 1 km from village

Mitnapur. In view thereof, this sale instance can be relied

upon as evidence of comparable sale instance. If in the year

1994, the land in the said village was sold at the rate of

Rs.81,000/- per hectare, then it follows that in the year 1998

when the notification was issued, at the rate of 7.5% future

growth per year, the approximate valuation of the acquired

land comes to Rs.1,05,000/-. Learned Assistant Government

Pleader has also pointed out that in respect of the land at

village Thalegaon, this Court has, in First Appeal No.342 of

2005 awarded the compensation at the rate of Rs.1,05,000/-

per hectare. Considering the said compensation and also the

evidence which is produced in this case, in the instant case,

the compensation at the rate of Rs.1,05,000/- per hectare

would be just and reasonable amount. Hence, the appeal

deserves to be allowed. Therefore, the order.

      (i)              Appeal is allowed.  

      (ii)             The impugned judgment and order of the 

Reference Court is modified to the extent that

appellants are held entitled for the compensation

for the acquired land at the rate of Rs.1,05,000/-

per hectare.

(iii) Rest of the Award stands confirmed.

(iv) Appeal is allowed in above terms with no order as

to the costs.

JUDGE

PBP