Smt. Pushpadevi W/O Girdharilal ... vs State Of Maharashtra, Through The ...
2017 Latest Caselaw 3325 Bom

1906 FA 884/2008                              1                        Judgment


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

                       FIRST APPEAL NO. 884/2008 


Smt. Pushpadevi W/o Girdharilal Agrawal,
Aged about 63 years, Occu: Nil,
R/o. Akola, C/o. Ashok Ghanshyam
Shravagi, Mangaldas Market, Akola,
Distt. Akola.                                           APPELLANT

                                .....VERSUS.....

1]     State of Maharashtra, through
       the Collector, Amravati.

2]     The Special Land Acquisition Officer,
       (Zilla Parishad Work), Amravati.

3]     The Executive Engineer,
       Minor Irrigation Department
       (Local Sector), Amravati, having
       its office at Mangilal Plots, Amravati.           RESPONDE NTS
                                                                     


                Shri P.R. Agrawal, counsel for the appellant.
                Ms. S. Haider, AGP for the respondents.


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

           DATE    : JUNE 19, 2017.


ORAL JUDGMENT :  

This appeal is preferred by the original claimant seeking

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modification in the judgment and award passed by the 4th Ad-hoc

Additional District Judge, Amravati in L.A.C. No. 218/2003 for

27/09/2006 seeking enhancement of the compensation amount.

2] Facts which are relevant for deciding this appeal are to

be extracted as follows :

The land bearing survey no.14/3 admeasuring 1.62 HR

of village Ghol, was owned and possessed by appellant. It came to

be acquired by the respondents for the project of Yenas Percolation

Tank. The Land Acquisition Officer vide award dated 18/10/1999

granted the total compensation of Rs.40,014/- at the rate of

Rs.24,700/- per hector.

3] Being aggrieved and not satisfied with the meager

amount of compensation, appellant approached the reference court

conteding inter alia that the Land Acquisition Officer has not

granted any amount towards the construction of the pipeline which

was to the extent of 300 meters. Moreover, compensation granted at

the rate of Rs.24,700/- per hector is also inadequate and it should

be at the rate of Rs.1,00,000/- per hector. Further it was submitted

1906 FA 884/2008 3 Judgment

that the land was furtile and appellant was taking irrigated crops

and earning income of Rs.25,000/- to Rs.30,000/- per acre, and

hence, the amount granted by the Land Acquisition Officer was not

fair and reasonable amount of compensation. It was also contended

in the petition before the reference court that as a result of

acquisition of this land, there is no access to his other adjacent

lands, and therefore, he is entitled to get Rs.5,00,000/- in lumpsum

to purchase the access. Thus, total amount of compensation claimed

before the Tribunal was Rs.17,77,150/- excluding the amount of

compensation received to the tune of Rs.66,424/- that is

Rs.17,10,726/-.

4] This claim petition came to be resisted by the

respondents contending inter alia that the amount of compensation

paid to the appellant is just and reasonable and it is arrived on the

basis of existing market price of the said land. It was denied that the

appellant was taking irrigated crops therein. It was also denied that

she is entitled for compensation under other heads.

5]              Before   the   reference   court,   the   appellant   examined 





 1906 FA 884/2008                                4                          Judgment


herself and three witnesses.



6]              On appreciation of their evidence, the reference court 

was pleased to enhance the compensation as regards the acquired

land to the extent of Rs.65,000/- per hector in place of Rs.24,700/-

per hector. As regards the other heads under which the appellant

has claimed the compensation, the reference court was pleased to

reject those claims.

7] Being agrrieved thereof, this appeal is preferred. In this

appeal, I have heard learned counsel for appellant and learned

Assistant Government Pleader for the respondents.

8] As regards the first contention raised by the appellant

that the market value of the acquired land is not assessed properly

either by the Land Acquisition Officer or by the reference court, it

should be seen that appellant herself had led the evidence of two

witnesses, namely, PW-2 Ashok and PW-3 Shanini. As regards PW-2

Ashok, he has admitted in his cross-examination that he has not

produced any document to show that in the year 1994 market value

1906 FA 884/2008 5 Judgment

of the land was Rs.75,000/- to Rs.80,000/- per acre. As regards

PW-3 Shanini, she has admitted that in the sale deed (Exh.45) the

price of the land is shown as Rs.65,934/- per hector. She has also

admitted that there is well in her field, and therefore, her field is

also irrigated. In such situation, the contention of learned counsel

for appellant that trial court has not appreciated the evidence on

record properly cannot be accepted. It is pertinent to note that the

reference court has calculated the compensation at the rate of

Rs.65,000/- per hector, which was the rate quoted by PW-3 Shanini

for her land. Even the reference court on the basis of the evidence

adduced by the appellant herself, enhanced the compensation for

the acquired land from Rs.24,700/- per hector to Rs.65,000/- per

hector. In considered opinion of this court, therefore, no interference

is warranted in the said amount of compensation, which is based on

the evidence adduced before the reference court and there is

nothing pointed out by the appellant that the said amount is meager

or not fair amount of compensation.

9] As regards the amount of compensation claimed by the

appellant towards the construction of pipeline, as rightly held by the

1906 FA 884/2008 6 Judgment

reference court, absolutely no evidence was produced on record by

the appellant to that effect, and hence, the claim to that effect is

rightly rejected by the reference court.

10] The main grievance of the appellant is in respect of the

reference court not considering or granting any claim of

compensation towards the alleged damage caused to her as the

access to her remaining land is cut off on account of the acquisition

of the land in dispute. It is submitted that appellant has produced on

record the evidence to show that on account of the acquisition of the

land, her other land bearing survey no.14/2 has become land locked

and having no access at all. To prove this fact, appellant has

examined one witness by name, Brijesh Tiwari, who has prepared

the map after going through J.M.R. Sheet and according to him, the

remaining portion of survey no.14 is locked from all the sides and

no access remains to the other land. Appellant herself has also

deposed that her land bearing survey no.14/2 is now having no

access and she will have to purchase the access for the said land.

11]             It is true that, there is no discussion on this point in the 





 1906 FA 884/2008                                 7                          Judgment

impugned judgment of the reference court and reference court has

not awarded any amount for the same. The provisions of Section

23(1) clause (3) of the Land Acquisition Act provides that in

determining the amount of compensation to be awarded for land

acquired under this Act, the court shall take into consideration the

damages, if any, sustained by the person interested at the time of

Collector taking possession of the land by seperation of acquired

said land from his other land. Therefore, this clause makes it clear

that what is required to be proved by the claimant to get

compensation under this case or clause is that he has sustained the

damage on account of seperation of such acquired land from her

other land.

12] In this case, the burden was obviously on the appellant

to show that she had sustained such damage on account of

seperation of acquired land from other land bearing survey no.14/2.

Though the appellant has produced the evidence on record to show

that on account of acquisition of survey no.14/3, her other land

bearing survey no.14/2 has become land locked, she has not

produced any evidence to show that she had sustained damages

1906 FA 884/2008 8 Judgment

because of it. She has also not produced any evidence to show that

what will be approximate amount of consideration for which she

had to purchase the access from the adjacent land. Merely stating

that she has to incur the amount of Rs.5,00,000/- for purchasing the

access from other adjacent land, is not sufficient. There has to be

evidence to that effect, as it can be seen even on bare perusal that

the amount of compensation of Rs.5,00,000/- claimed on this count,

is exorbitant and high and it cannot be considersed as fair.

Moreover, if one considers the fact that the land of appellant is

acquired by the State, appellant can approach the Mamlatdar Court

for access to her other land. Only upon succeeding in proving that

she was unable to get such access even before the Mamlatdar Court

and she has to purchase the said access and therefore, she has

sustained any damage, she will be entitled for the compensation

amount under such head. However, no such evidence is produced on

record, therefore, her claim in that respect is also required to be

rejected.

13] The last submission advanced by learned counsel for

appellant is that in this case the possession of the acquired land was

1906 FA 884/2008 9 Judgment

taken on 05/04/1994, whereas the notification under section 4 was

issued on 14/03/1994. It is submitted that the reference court has

awarded the interest from the date of award and it should have

been from the date of taking possession. However, in this respect

also legal position is now well settled by the decision of the Full

Bench of this court in the case of State of Maharashtra Vs. Kailash

Shiva Rangari, 2016(3) Mh.L.J. 457, wherein it was clearly held

that,

" 33(a) If the possession is taken before the notification under section 4(1) of the Land Acquisition Act is published and/or before the award is passed, the landowner would be entitled for interest as per section 34 necessarily from the date of passing of the award under section 11 of the said Act, except in cases where the possession is taken in accordance with section 17 of the said Act, and in that situation only, the provision of section 34 of the said Act shall start operating from the date of possession."

14] In the present case, no evidence is adduced to show

that the possession was taken in accordance with section 17 of the

Act. In such situation, appellant become entitled to get interest from

the date of award.

 1906 FA 884/2008                                  10                          Judgment


15]             As a result, the impugned judgment and order passed 

by the reference court does not call for any interference in this

appeal.

16] Appeal holds no merits, hence, stands dismissed with

no order as to costs.

JUDGE Yenurkar