The Executive Engineer Minor ... vs Gorakshan Shanstha & Another
2017 Latest Caselaw 3649 Bom

 fa758.04.J.odt                         1



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

                      FIRST APPEAL NO.758 OF 2004

          The Executive Engineer
          Minor Irrigation Department,
          Zilla Parishad, Akola.      ....... APPELLANT

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

 1]       Shri Gorakshan Sanstha, A Registered
          Public Trust No.F-144, through its
          Secretary, Vijaykumar Shivshankarji
          Jani, Adult, R/o Vijay Housing Society
          Gorakshan Road, Akola, Tq. & District
           Akola and one another.

 2]      The Land Acquisition Officer,
         Katepurna Morna Project,
         C/o Collector, Collectorate, Akola,
         District Akola. Morna Project,
         C/o Collector, Collectorate, Akola
         District Akola.                         ....... RESPONDENTS
 -------------------------------------------------------------------------------------
         Shri G.G. Mishra, Advocate for Appellant.
         Shri R.L. Khapre, Advocate for Respondent No.1.
         Shri A.R. Chutke, A.G.P. for Respondent No.2.
 -------------------------------------------------------------------------------------

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

th DATE: 27 JUNE, 2017.

ORAL JUDGMENT

1] Being aggrieved by the judgment and award

dated 30.07.2004 passed by 2nd Ad-hoc Additional District

Judge, Akola in Land Acquisition Case No.223 of 2002, the

appellant, which is an acquiring body, has preferred this

appeal.

2] Brief facts of the appeal can be stated as follows:

The land bearing Gut No.224/1 admeasuring 4 H

11 R of village Borgaon Manju was owned by respondent

No.1 herein. Out of the said land, area admeasuring 1 H 95 R

came to be acquired by the appellant for the purpose of

construction of percolation tank, by virtue of notification

issued under Section 4 of the Land Acquisition Act on

08.01.1998 and in persuasion of the award passed by the

respondent No.2 on 14.02.2000. As per the said award, the

compensation at the rate of Rs.58,000/- per hectare came to

be granted to the respondent No.1, by the respondent No.2,

considering the market value, as reflected in sale-deed dated

12.05.1996 of Gut No.41/1 of the same village, which land

according to Special Land Acquisition Officer was similar to

the acquired land and was having same market price.

3] Being dissatisfied with the said award, respondent

No.1 approached the Reference Court for enhancement of

compensation under Section 18 of the Land Acquisition Act

and sought compensation at the rate of Rs.2,58,523/- per

hectare. It was contended by the appellant before the

Reference Court that the acquired land is located in the

vicinity of sports center, sugar factory and is near to National

Highway. It is also adjacent to village Dongargaon and village

Sisamata. It was a fertile land, and therefore, according to

him, it can fetch the market value at the rate of Rs.2,05,523/-

per acre. As against it, the land bearing Gut No.41/1 is

situated at the other end of village Borgaon Manju, and

therefore, its price should not have been considered by Land

Acquisition Officer as basis for determining the market value

of the acquired land.

4] This reference petition came to be resisted by the

appellant herein, contending inter alia that the acquired land

is of low quality and in the interior part of the village. It is not

having high yielding capacity. Moreover, sugar factory is

about 6 k.m. away from the said land, whereas the National

Highway is at the distance of 5 k.m. of the acquired land.

Village Dongargaon is at the distance of 5 k.m.; whereas

village Sisamata is at the distance of ½ k.m. of village

Dongargaon. Thus, it was submitted that as the land is of

lower quality and also situated far away, the compensation

awarded by the Land Acquisition Officer being just and

reasonable, no interference is warranted wherein.

5] The Reference Court, after taking into

consideration the evidence adduced by the respondent No.1-

claimant and by the appellant, that of Circle Officer,

enhanced the amount of compensation to the extent of

Rs.2,00,000/- per acre.

6] Being aggrieved by the enhancement granted by

the Reference Court, this appeal is preferred by the acquiring

body. According to submission of learned counsel for the

appellant, the amount of compensation, as awarded by the

Reference Court, is not only exorbitant and on higher side but

it is also without having any basis in the evidence adduced

before it. It is submitted that the sale instances, on which the

Reference Court has relied upon, are not of the lands of the

same village and if some of them are of the same village,

those lands are not of the same quality, nor situate near an

adjacent to the acquired land. It is urged that the Reference

Court has thus committed an error in enhancing the amount

of compensation, as awarded by the Special Land Acquisition

Officer at the rate of Rs.22,000/- per acre to Rs.2,00,000/-

per acre and hence, it is necessary to modify or to set aside

the impugned judgment and order of the Reference Court.

7] As against it, the learned counsel for the

respondent No.1-claimant has supported the said judgment,

by pointing out that the sale instances produced by the

respondent No.1 clearly go to show market price of the

acquired land is for higher than the compensation awarded

by the Special Land Acquisition Officer, and hence the

Reference Court has rightly enhanced the said compensation.

8] In view of the rival submissions advanced by

learned counsel for both the parties, it is necessary to

re-appreciate the evidence on record in order to decide

whether amount of compensation as enhanced by the

Tribunal is just fair and legal? In this respect, as per the

observation made by the Reference Court itself, the acquired

land is located 10 k.m. away from Akola City.

Respondent No.1 has filed certified copy of the sale-deed at

Exh.33 by which one Vinodkumar and Radheshyam Agrawal

had sold 1 H 47 R land from field Survey No.301 of village

Borgaon Manju in favour of Mohanlal Lohia at the rate of

Rs.1,65,000/- per acre. Respondent No.1 has also relied upon

another sale-deed at Exh.34 in which consideration amount

is shown to Rs.4,50,000/- and this land was sold by one

Vimala Bahel in favour of Bhaskar and Sandhya Girdhar of

village Masa. The land sold therein is bearing Survey No.176

and having the area of 1 H 95 R. The sale-deed is dated

19.08.1998 and it was at the rate of Rs.93,253/- per acre.

Another sale-deed on which the respondent-claimant has

placed reliance is at Exh.36 dated 12.10.1999 by which the

land admeasuring 44 R from field Survey No.311/1(B) was

sold at the rate of Rs.1,84,600/- per acre. Both these

sale-deeds are post notification, and therefore, not of

much help to determine the market value of the acquired

land.

9] The next sale instance relied upon by the

respondent No.1-claimant is sale-deed at Exh.37 in which the

land is sold for consideration of Rs.1,01,543/- per acre. But it

pertains to the land bearing Survey No.176 of village Masa

and therefore, not of the land from the village Borgaon in

which acquired land is situated. The sale-deed produced at

Exh.38 also pertains to Survey No.81 to the land situate at

village Babhulgaon and therefore, again not relevant as the

acquired land is at village Borgaon Manju. Sale-deed at

Exh.39 is of the land at village Borgaon Manju, bearing

Survey No.299/1 and it is dated 18.12.1998 therefore, post

notification. It is apparent that the market value of the land is

of Rs.81,782/- per acre as shown in the sale-deed. The next

sale-deed relied upon by the respondent No.1 at Exh.40 again

pertains to the post notification, dated 10.12.1998 in which

the market value is calculated at the rate of Rs.81,394/- per

acre. The sale-deed at Exh.41 is post notification as of

03.02.1999 though, it is of Survey No.6/3 of village Borgaon

Manju. Therefore, both these sale-deeds are not of much use

for determining market value of the acquired land.

10] Land Acquisition Officer has relied upon the sale

transaction of Gut No.41/1 dated 12.05.1996 according to

which the land was sold at the rate of Rs.58,000/- per hectare

which comes to Rs.22,000/- per acre. The Reference Court

has refused to place reliance on this sale transaction on the

count that Gut No.41/1 is situated at a distant place from the

acquired land. Hence, the Reference Court has considered the

sale-deed at Exh.41 dated 03.02.1999 of Survey No.6 of

village Borgaon Manju, which was at the rate of

Rs.2,05,000/- per acre and accordingly fixed the

compensation for the acquired land at Rs.2,00,000/- per acre.

11] However, in this respect, it has to be held that the

Reference Court has failed to take into consideration that this

sale-deed Exh.41 is of post notification period and there is

nothing on record to show that the land covered under the

sale-deed is similar to the acquired land. There is also nothing

to show that it is adjacent to the acquired land.

The comparable sale instances can be taken into

consideration and relied upon only when the land covered

under the sale-deed are similarly placed to the acquired land.

12] According to learned counsel for the respondent-

claimant, price paid in the sale or purchase of the land in the

neighborhood within a reasonable time from the date of

acquisition of land in question or in or about the time of

notification under Section 4 of the Land Acquisition Act

would be the best piece of evidence and would apply as data

to assess the market value. In support of this submission, he

has relied upon the judgment of this Court in the case of

Osman Khan Abdul Majid Khan and another vs. State of

Maharashtra reported in 1994 Mh.L.J. 1103. It is submitted

by learned counsel for respondent that in the instant case, the

sale-deeds on which the respondent-claimant has relied upon,

are within a reasonable time from the date of acquisition of

land in question, either preceding the acquisition or

subsequent to the acquisition and therefore, they being

relevant sale-deeds, they have been rightly considered by the

Reference Court.

13] In my considered opinion even if this legal

position is accepted and post notification sale-deeds are also

taken into consideration, in that case also the necessary

requisite is that the lands sold under those sale-deeds should

be similar to the acquired land. There is no such evidence

adduced on record in this case. Hence, merely because the

lands under those sale-deeds are situate in the same or near

by villages is not sufficient to grant or award the same

amount of compensation for which, for the acquired land.

14] The next submission advanced by the learned

counsel for the respondent No.1 is that, on account of

construction of percolation tank by appellant in the major

portion of his field, land admeasuring 1 H 2 R, is submerged

constantly under water and this fact also should be taken into

consideration, while awarding and determining the amount

of compensation.

15] In my considered opinion, having regard to all

these facts and the sale instances, which are considered by

the Reference Court and by the Special Land Acquisition

Officer the fact remains that the compensation cannot be

enhanced from Rs.22,000/- per acre as awarded by the Land

Acquisition Officer to Rs.2,00,000/- per acre which is

definitely exorbitant, and unreasonable. Having regard to the

entire evidence on record, the compensation at the rate of

Rs.1,00,000/- per acre would be a just and reasonable

amount of compensation. Hence, to this limited extent the

interference is warranted in the impugned judgment and

decree of the Reference Court.

16] Accordingly the appeal is allowed partly.

17] The judgment and order of the Tribunal is

modified to the extent of holding that respondent No.1-

claimant is entitled to get compensation at the rate of

Rs.1,00,000/- per acre in-stead of Rs.2,00,000/- per acre.

18] Rest of the judgment and award order of the

Reference Court stands confirmed. As the entire amount is yet

not paid to respondent-claimant. The appellant is entitled to

withdraw the excess amount deposited in the Court or in the

Bank.

Appeal is disposed of in above terms.

JUDGE

NSN