Shivram Ramaji Atkari (Dead) ... vs State Of Mah. Thru. Its. ...
2017 Latest Caselaw 3584 Bom

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

                            FIRST APPEAL NO.777 OF 2008


Shivram Ramaji Atkari 
since deceased Thr. His Lrs. 

1.  Sitabai Shivramji Atkari
     Aged about 68 years. 
     R/o Dhanodi, Tq. Chandur Railway, 
     Dist. Amravati. 

2.  Purushottam Shivramji Atkari
     Aged about 58 years. 
     R/o Dhanodi, Tq. Chandur Railway, 
     Dist. Amravati.  

3.  Sushilabai Narayanrao Katole
     Aged about 48 years, 
     R/o Dhanodi, Tq. Chandur Railway, 
     Dist. Amravati.  

4.  Pushpabai Vasantrao Khavas
     Aged about 45 years, R/o Surat, 
     Gujrat. 

5.  Kantabai Vasantrao Gadhave
     Aged about 44 years, R/o Warha, 
     Tq. Tiwasa, Dist. Amravati. 

6.  Krushnarao s/o Shivramji Atkari
     Aged about 42 years, R/o Dhanodi, 
     Tq. Chandur Railway, 
     Dist. Amravati.                                   ... Appellants. 

-vs-

1.  The State of Maharashtra,
     Thr. Its Collector, 
     Amravati. 




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2.  Special Land Acquisition Officer,
     Upper Wardha Project No.IV, 
     Amravati. 

3.  Executive Engineer,
     Upper Wardha Project No.IV, 
     Amravati.                                                  ... Respondents.  


Shri S. S. Shingane, Advocate for appellants. 
Shri M. A. Kadu, AGP for respondent Nos.1 and 2. 
  

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

DATE : JUNE 16, 2017

Oral Judgment :

LAC No.182/2003 filed by the appellant before Ad-hoc District

Judge-5 at Amravati came to be dismissed vide, judgment and order dated

07/09/2007 on two counts; firstly that the Reference Petition was barred by

limitation and secondly on merits holding that the appellant has failed to

adduce sufficient evidence on record to show that Land Acquisition Officer

has not awarded fair amount of compensation for the acquisition of land and

orange trees. Hence he has preferred this appeal.

2. Brief facts of the appeal are to the effect that, appellant is owner

and occupant of land bearing field Survey No.217 admeasuring 2.40H situate

at village Dhanodi. It is the case of the appellant that there is a orchard of

300 orange fruit bearing trees and a pacca built up well in the field. The land

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was irrigated one. Out of the said piece of land, the respondents have

acquired middle strip of 0.58 hectare land, alongwith 140 orange fruit

bearing tees for the purpose of Chandrabhaga Distribution Canal. As per the

grievance of the appellant, though total 140 orange trees were standing on

the acquired piece of land, valuation agency counted only 122 orange fruit

bearing trees and dropped 18 trees. Moreover, due to acquisition of this

middle strip of land from the field of the appellant, he could not irrigate the

remaining 105 orange fruit bearing trees as the well of the instant field is

situated in eastern side of field and all these 105 orange fruit bearing trees

remained on the western side. Respondent No.3 has not granted permission

to lay the pipe line on the canal to lift water from eastern to western side.

Thus 105 orange fruit bearing trees dried and appellant sustained loss for the

same. Therefore he claimed compensation on that also. However LAO

totally granted him the compensation of Rs.2,21,722/- only holding the

market price of the fruits from the said trees @ Rs.300/- for one thousand

fruits though the actual market price was Rs.500/- per thousand fruits. The

LAO has also not calculated the correct market value of the acquired land.

The amount of compensation awarded on the said count was also

inadequate. Similarly, no amount of compensation was granted to the

appellant for the loss of 105 orange fruit bearing trees. Thus appellant

claimed total compensation of Rs.15,28,000/- but restricted claim up to

Rs.10,00,000/- along with solatium, interest, costs etc.

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3. This petition came to be resisted by the respondents denying that

LAO has not properly calculated the valuation of the acquired land. It was

also denied that 105 orange fruit bearing tees of the appellant dried as a

result of non supply of water on account of acquisition of middle strip of

land. It was also denied that LAO has not calculated either the market price

of the orange fruit bearing trees properly. It was submitted that as the LAO

has calculated the entire amount of compensation after taking into

consideration the provisions of law and also the factual situation, no

interference was warranted therein. As attempt was also made to contend

that the reference was not filed within limitation and hence it was barred by

law.

On the basis of these respective pleadings of both the parties, the

Reference Court framed necessary issues for its consideration; firstly,

whether the petition was barred by limitation and secondly, whether

appellant has received inadequate amount of compensation ? Reference

Court answered both these issues in negative and accordingly dismissed the

reference petition.

4. In this appeal, I have heard learned counsel for the appellant and

learned Assistant Government Pleader for respondent Nos.1 and 2. None

was present on behalf of respondent No.3. On the basis of rival submissions

advanced by them and on perusal of the impugned judgment of the

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Reference Court and the evidence adduced before it, I am more than satisfied

that the Reference Court has committed an error on both the factual and

legal aspects.

5. It is pertinent to note that Reference Court has dismissed the

claim of the petitioner on the ground that it is barred by limitation. However,

while arriving at this finding, Reference Court has implicitly held that

reference was necessary to be filed within six weeks (42 days) from the date

of award and held, as the award in this case was passed on 16/09/2001 and

the reference was filed on 28/03/2002, the Reference was barred by

limitation. It needs to be stated that while arriving at this finding, learned

Reference Judge has clearly overlooked and neglected the provisions of

Section 12(2) of the Land Acquisition Act, according to which, only after

receipt of notice and that too accompanied with the copy of award, so that

the claimant could exercise his right of appeal effectively, the period of

limitation can start. In the instant case, it is pointed out that as per the

averments in the petition, notice under Section 12(2) of the said Act was

received by the appellant on 22/02/2002 and the reference is filed on

19/03/2002. These averments are not at all controverted. In such situation,

it can hardly be said that the reference was filed beyond the period of

limitation. Therefore the relevant finding of the Reference Court on this

issue needs to be set aside and it has to be held that the reference filed before

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the Reference Court was within limitation.

6. Now coming to the merits of the case. In the course of his

submission, in support of his case, that LAO has not properly determined

the market value of the acquired land and the orange trees, the appellant has

examined himself and also led evidence of about three witnesses, including

the concerned officer from APMC. To prove loss of orange trees on account

of acquisition of middle strip of land, he has also examined the adjoining

land owner. On behalf of respondent No.3, the witness by name Anil N.

Ladole has examined himself. Perusal of judgment of the Reference Court

reveals that Reference Court has refused to place reliance on the evidence of

the witnesses examined by the appellant on the count of certain admissions

given by them in their cross-examination. It is pertinent to note that as per

the evidence of concerned witness from APMC office, market price for orange

fruits for the relevant period was in the range of minimum rate of Rs.300/-

per quintal and maximum rate was Rs.600/- per quintal. According to him,

average rate of oranges was Rs.450/- per quintal for the year 1997-98,

whereas for the year 1998-99, minimum market rate of orange fruits was

Rs.500/- per quintal and maximum rate was of Rs. 800/- per quintal.

According to him, the said rate was increased to minimum of Rs.450/- per

quintal and maximum of Rs.1000/- per quintal in the year 1999-00. Even

if it is accepted that appellant was not selling orange fruits to the APMC as

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admitted by him, considering the fact that his field was irrigated, it can be

definitely said that the rate which awarded by the LAO at the rate of

Rs.300/- for 1000 orange fruits was too meagre. Hence at such a meagre

rate holding the appellant entitled for compensation of Rs.1125/- per orange

fruit bearing tree, cannot be called in any way as fair and just compensation.

7. In this respect, we cannot lose sight that the respondent has

acquired the middle strip of field of the appellant and as a result, appellant

is suffering in both ways as his well situated at western side. It may be true

that it is admitted by this witness for appellant that if appellant has taken

proper precautions then his orange trees in remaining land could not have

been damaged but this Court cannot close his eyes to the factual situation of

the sight. Moreover, the horticulture report filed by the appellant, even if it

is taken to be on an exaggerated side, it shows that the trees of the appellant

in Mouje Dhanodi were valued by the LAO at Rs.300/- per quintal, whereas

in respect of another award of Mouje Gava, the valuation of the orange trees

belonging to Namdeorao Narayanrao Pande was offered Rs.2149/- per tree.

It is admitted that village Dhanodi and village Gava are just adjacent. In my

considered opinion, therefore, the appellant becomes entitled to get

compensation @ Rs.2000/- per orange tree which can be called just and

reasonable amount of compensation, instead of the amount of Rs.1125/- per

tree as awarded by the LAO.

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8. The appellant has also claimed that at the time of acquisition,

there were totally 140 orange trees acquired by the LAO. However he has

been awarded compensation only for 122 orange trees. However, as the

appellant has not taken objection at the relevant time and therefore he

becomes entitled for compensation for 122 orange trees only and not 140

orange trees, as claimed by him.

Thus appeal is allowed.

9. The impugned judgment and order passed by the Reference Court

is quashed and set aside.

The reference petition filed by the appellant is allowed and the

appellant is held entitled to enhanced compensation at the rate of Rs.2000/-

per orange tree in place of Rs.1125/- for 122 trees along with all statutory

benefits.

Respondent No.3 is directed to deposit the entire amount of

compensation within three months.

On such deposit, the appellant would be entitled to withdraw the

said amount. Ordered accordingly.

Appeal is disposed of in above terms. No order as to costs.

JUDGE

Asmita