V.I.D.C. Thru. Executive ... vs Ashok Onkar Nandvikar & 3 Ors
2017 Latest Caselaw 3232 Bom

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


                           FIRST APPEAL NO.821/2008

          Vidarbha Irrigation Development Corporation,
          Through Executive Engineer,
          Lower Wardha Canal Division, Wardha.

                                                                   APPELLANT
                                     VERSUS
          1.       Ashok s/o Onkar Nandvikar,
                   Aged about 50 years, Occu: Cultivator,
                   R/o Rohana, Tah. Arvi Dist. Wardha.
          2.       State of Maharashtra,
                   Through Collector, Wardha.
          3.       The Special Land Acquisition Officer,
                   Vidarbha Canal and Dam Development
                   Corporation, Wardha.
          4.       The Deputy Director of Horticulture,
                   Wardha.
                                                  RESPONDENTS


 ===================================================

Shri V.G. Palshikar, Advocate for appellant Shri S.C. Bhalerao, Advocate for Respondent No.1

=================================================== CORAM : DR. SMT. SHALINI PHANSALKAR-JOSHI,J DATED : 15th JUNE 2017

ORAL JUDGMENT

1. The appellant, which is an acquiring

body, has preferred this appeal against the

judgment and order dated 8th October 2007, passed

by the Ad-hoc Additional District Judge Wardha in

LAC no. 69/2000, being aggrieved by the enhanced

amount of compensation, awarded by the Reference

Court.

2. Facts which are necessary for deciding

this appeal are to the effect that, in pursuance of

the notification issued under section 4(1) of the

Land Acquisition Act 1894, on 16.3.1998, the land

belonging to respondent no.1 and ad-measuring about

1.07 H.R. situated at village Saikheda came to be

acquired by Special Land Acquisition Officer, who

computed the compensation towards market value of

the land, the Orange Trees and the Well existing in

the land to the extent of Rs. 1,16,530/-.

Being dissatisfied with the meager amount

of compensation granted towards all the 3 heads,

the original claimant/respondent no.1 approached

the Reference Court u/s 18 of the Land Acquisition

Act. In support of his contention that the

compensation awarded on all the 3 heads was not

adequate, respondent no.1 examined himself and also

lead the evidence of on expert to prove the

construction and value of the well. He also

examined the Horticulture Expert to prove the value

of Orange trees standing in the land.

3. On appreciation of the evidence adduced

before it, learned Reference Court enhanced the

compensation amount of the land from Rs. 53,500/-

per hectare to Rs.1,07,000/- per hector. Similarly,

the compensation for the well standing in the land

was also enhanced from Rs. 5,123/-, as awarded by

the Special Land Acquisition Officer to

Rs.50,000/-. Even as regards, the orange trees, the

Reference Court found that there were totally 150

orange trees at the time of notification and

accordingly enhanced the compensation to Rs. 2500/-

per orange tree from Rs. 162/- per tree.

4. This enhancement in the amount of

compensation, as awarded by the Reference Court, on

all the 3 heads is challenged in this appeal by

learned counsel for appellant, by submitting that

without that there being any cogent, convincing

and reliable evidence on record, the Reference

Court has enhanced the compensation, that too

multiple times and hence interference is warranted

in the impugned judgment and order of the reference

court.

5. I have heard learned counsel for

appellant and respondent. On the basis of their

rival submissions, the only issue necessarily

arising for consideration is whether the Reference

Court was justified in enhancing the amount of

compensation on all the 3 heads ?

6. As regards the land, respondent no.1 has

claimed the compensation at the rate of 2,50,000/-

per hector on the ground of it being an irrigated

land . In support of his claim, he has relied upon

two sale instances produced in the case at

exhibit-44 and 45 as well as 7/12 extract of the

acquired land produced at Exhibit-42. The sale

instances at Exh. 44 and Exh. 45 are in respect of

the land situate at village Bodad and Nagpur

respectively. Respondent No.1 has examined witness

No. 3 Subhash Kamdi in respect of the sale instance

of village Bodad. As against it, Special Land

Acquisition Officer has, in his award discussed as

many as 9 sale transactions of village Saikheda

preceding 5 years of date of notification under

section 4(1) of the Land Acquisition Act.

7. Thus it is clear that for comparison of

the market value of the acquired land which is

situate at Saikheda, the sale transactions of the

same village are available. Hence reference court

has rightly held that sale instances at Exh.44 and

45, which are of the lands at adjoining villages

cannot be relied upon.

8. Perusal of the award shows that, there

are 2 sale transactions of the year 1997. The first

one is of survey no. 123 dated 6.5.1997 in which

the price of the land was shown at the rate of Rs.

57,851/- per hector. In second transaction of

survey no. 78, the price was shown at the rate of

Rs. 52,326/- per hector. It appears that Special

Land Acquisition Officer has however not considered

these two sale transactions, nor assigned any

reason for not doing so. He has considered the

third sale transaction of survey no. 173 and by

giving 5% yearly increase from 1995 to 1998, he has

fixed the price of the acquired land at the rate of

Rs. 39,600/- per hector. Special Land Acquisition

Officer also considered the ready reckoner rates

and by having regard to revenue assessment of the

acquired land, he accepted the ready reckoner

price at the rate of Rs.49,500/-per hector and it

being, higher price than the sale transaction of

survey no.173, he valued the land of the respondent

no.1 at the rate of Rs.49,500/- per hector and then

considering the ready reckoner prices he granted

the compensation towards the land at the rate of

Rs. 53,500/- per hector.

9. Perusal of the impugned judgment of the

Reference Court reveals that, the sale transaction

referred by S.L.A.O was having less land revenue

than the land revenue of the acquired land but its

price was much higher. The Reference Court has

considered in detail as to how the land having less

land revenue was given more price than the land

having more land revenue such as transaction dated

6.5.1997 having land revenue of Rs. 3.72 per hector

but valued at the rate of Rs. 57,851/-. Similarly

in the case of other 2 sale transactions dated

6.11.1993 and 28.4.1996, though the land revenue

was between Rs.4.16 to 4.37, it s market value was

ranging from Rs.12,871/-to Rs.31,666/-P.H. Hence

Reference Court has rightly held that fixing the

price of the acquired land at the rate of

Rs.49,500/-per hector on the basis of the land

revenue was not proper and SLAO should have, at

least fixed the price on the basis of ready

reckoner rate at the rate of Rs.53,500/-per hector,

even if sale instances relied upon by claimants are

ignored.

10. Reference Court has even considered the

fact that the acquired land is irrigated one as

admittedly a well is situate therein. Moreover the

7/12 extract of the acquired land clearly goes to

prove that irrigated crops were being cultivated in

the said land. In view thereof, the Reference Court

has by placing reliance on the judgment of this in

the case of State of Maharashtra V/s Baliram

2006(6) Mh.L.J. 82 rightly held that market price

of irrigated land would be double the market price

of non-irrigated land. Accordingly, considering the

ready reckoner rate of Rs.53,500/-per hector for

non-irrigated land, the Reference Court doubled the

said price and hence held respondent no.1 claimant

entitled to get the compensation at the rate of Rs.

1,07,000/- per hector for acquired land as it was

admittedly irrigated one. If one considers the

detail- reasoning and the legal position considered

by the Reference Court, it has to be held that the

finding arrived by the Reference Court, as regards

the price of the acquired land, being based on the

evidence on record, no interference is warranted

therein.

11. Even as regards the compensation awarded

towards construction of the well, it can be seen

that Special Land Acquisition Officer has awarded

meager amount of Rs. 5,123/-. The claimant/

respondent No.1 has examined witness no.4 Diwakar

Bedarkar who has valued the construction of the

well and submitted valuation report, stating

therein that valuation of the well can be assessed

to Rs. 1,05,846/- by deducting deprecated value.

Considering the admissions giving by him in his

cross examination, the Reference Court has awarded

the compensation to the tune of Rs. 50,000/-

towards the construction of the well. In this

respect the Reference Court has also taken into

consideration the fact that, as the area comprising

of the well has been acquired, after acquisition

respondent no.1 is left with no water for his

remaining portion of land and this factor needs to

be considered, because after the acquisition of the

land to the extent of 1.07 R out of total area 2.53

R, respondent no.1 the claimant still remains in

possession of 1.76 R and in view thereof, as the

said land is now not having any source of

irrigation, due to the acquisition of the land

comprising of well, the cost or the value awarded

to the tune of Rs. 50,000/- towards the well by the

Reference Court cannot be faulted.

12. Lastly, the Reference Court has enhanced

the amount of compensation in respect of the price

of Orange trees. Special Land Acquisition Officer

has valued the orange trees at Rs. 162 per tree and

granted only Rs. 24,416/-. However, respondent no.1

has examined the horticulture expert,who has valued

the orange trees for Rs. 4,050/- per Orange tree.

According to him, there were 150 fruit bearing

orange trees, out of which 80 were in canal and 70

were on the boundary of canal. He found from

history of the trees that they were of good quality

and were in good condition. Hence he fixed the

value of the trees at the rate of Rs. 4,050/-.

Respondent no.1 has claimed the value at the rate

of Rs. 4,000/- per tree.

13. However, this court has to consider the

various admissions given by the Horticulture Expert

in his cross examination. He has admitted that he

had not examined the soil and hence he cannot say

exactly the quality of the Orange trees. Further he

has admitted that he has assessed the value of the

trees on the basis of yearly income from claimant,

however, he did not enquire about the yearly income

of the claimant. Further, he has admitted that he

does not know how much produce was sold by claimant

each year. The claimant himself has not given any

details of the yield of the trees or the income

from the trees. He has further admitted that orange

trees generally start giving fruits 5 to 6 years

after the plantation of the trees; they give fruits

for further 5 to 6 years and thereafter the

capacity to give the fruits reduces. Hence it was

necessary for respondent claimant to state what was

age of his orange trees, what was their approximate

yield and the income therefrom. No receipts are

produced by the respondent claimant nor any

responsible officer is examined from APMC to prove

the income received from the orange fruits. The

Horticulture expert has also admitted that 70 trees

which were on the boundary of the canal were dried

due to the excavation of land for canal and due to

other construction work. Having regard to these

facts on record, in my considered opinion, the

enhanced amount of compensation, as awarded by the

Reference Court to the orange trees at the rate of

Rs. 2500/- per tree appears to be on higher and

excessive side and to that limited extent, the

inference is warranted in the impugned judgment and

order of the Reference Court. Considering the

evidence on record, the true and correct value of

the orange trees can be Rs. 1,000/- per tree.

                   In     the        result,      the    appeal         is      allowed

 partly.

The impugned judgment and order of the

Reference Court is accordingly modified to the

extent that the amount of compensation towards the

orange trees is reduced to Rs. 1000/- per tree.

Rest of the judgment and order of the

Tribunal stands confirmed.

Appeal is disposed of in above terms with

no order as to costs.

JUDGE

NANDURKAR