Bombay High Court
Maharashtra Industrial ... vs Mohan Shriram Nimdevkar And ... on 29 June, 2017
Bench: V.A. Naik
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
FIRST APPEAL NO.54/2013
WITH
FIRST APPEAL NO.245/2012
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FIRST APPEAL NO.54/2013
APPELLANT: Maharashtra Industrial Development
Ori.Respdt.No.3 Corporation, through its Chief Executive Officer,
Marol Industrial Estate, Andheri (East), Mumbai
having its Regional Office at By-pass Road,
Amravati.
...VERSUS...
RESPONDENTS: 1. Mohan Shriram Nimdeokar,
Ori.Claimant Aged about 54 years, Occ. Agriculturist,
Resident of Ambapeth,
Amravati, Taluka & District Amravati.
Ori. Resp. 1 2. Land Acquisition Officer and Sub Divisional
Officer, Amravati.
Ori.Resp.2 3. State of Maharashtra, through Collector,
Amravati.
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Shri M.M. Agnihotri, Advocate for the appellant.
Shri S.U. Nemade, Advocate for the respondent no.1.
Mrs. Mrunal Naik, A.G.P. for the respondent nos.2 & 3.
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WITH
FIRST APPEAL NO.245/2012
APPELLANT: Mohan s/o Shriram Nimdeokar,
(Ori.Petr.on R.A.) Aged about 54 years,
Occup. Agriculturist, R/o. Ambapeth,
Amravati, Tq. and District Amravati.
::: Uploaded on - 04/07/2017 ::: Downloaded on - 06/07/2017 00:14:34 :::
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2
...VERSUS...
RESPONDENTS: 1. State of Maharashtra, Through Collector,
(Ori.Resps. On R.A.) Amravati.
2. The Land Acquisition Officer and Sub-
Divisional Officer, Amravati, District Amravati.
3. M.I.D.C., Amravati, through
its Chairman/Director, Amravati.
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Shri S.U. Nemade, Advocate for the appellant
Mrs. Mrunal Naik, A.G.P. for the respondent nos.1 & 2.
Shri M.M. Agnihotri, Advocate for the respondent no.3.
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CORAM : SMT. VASANTI A NAIK AND
ARUN D. UPADHYE, JJ.
DATE : 28/29.06.2017
ORAL JUDGMENT (PER : SMT. VASANTI A. NAIK, J.)
Since these appeals arise out of the judgment and award
passed by the reference Court in Land Acquisition Case No.239/1999 filed
by the claimant - appellant in First Appeal No.245/2012 under Section 34
of the Maharashtra Industrial Development Act, they are heard together
and are decided by this common judgment. The appellant in First Appeal
No.245/2012 is the claimant whose land was acquired by the
Maharashtra Industrial Development Corporation (M.I.D.C.) under the
provisions of the Maharashtra Industrial Development Corporation Act.
First Appeal No.54/2013 is filed by the M.I.D.C.
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Few facts giving rise to these first appeals are stated thus : -
The land of the claimant admeasuring 4.19 HR, was located
in Gat No.47 of Mouza Tuljapur. The Maharashtra Industrial
Development Corporation issued a notification under Section 32 (2) of
the Act on 2.6.1994. The Corporation secured possession of the land from
the claimant on 31.1.1996. The award was passed by the Special Land
Acquisition Officer on 20.3.1997. The Land Acquisition Officer granted
compensation @ Rs.37,900/- per hectare for the acquired land, except for
1.22 hectare of land for which the deferred amount of Rs.18,199/- was
granted. For 17 Ares of land which was stated to be Pot-kharab, the
claimant was held to be entitled to compensation of Rs.15,225/-. The
Land Acquisition Officer granted total compensation of Rs.6,03,615/- for
the orange trees. Being dissatisfied with the grant of meagre
compensation, the claimant filed a reference under Section 34 of the Act.
Before the reference Court the claimant claimed the compensation @
Rs.2,47,100/- per hectare for the irrigated land @ Rs.1,00,000/- per acre.
Rs.10,000/- was claimed by the claimant for each orange tree, Rs.500/-
for each Bamboo tree, Rs.300/- for each teak tree and certain other
ancillary claims were also made. On an appreciation of the evidence
tendered by the parties on record the reference Court partly allowed the
reference filed by the claimant and directed the State and the M.I.D.C. to
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pay compensation @ Rs.90,000/- per hectare for 2.97 hectares of land.
The reference Court held that the claimant was not entitled to separate
compensation for 1.22 hectare of land on which the orange trees were
standing. The reference Court granted compensation to the claimant
@ Rs.1,900/- per orange tree for 505 orange trees. In respect of the claim
for enhancement of compensation for 190 orange trees that were
allegedly five years old and 875 orange trees that were allegedly four
years old, the reference Court held that no case for enhancement was
made out. Both the claimant and the M.I.D.C. are aggrieved by the
judgment and award passed by the reference Court. According to the
M.I.D.C., the compensation granted for the land as well as the orange
trees is excessive, whereas according to the claimant, the compensation
for the land and the trees is inadequate and needs to be enhanced further
as per the claim of the claimant before the reference Court.
Shri Agnihotri, the learned Counsel for the M.I.D.C.
submitted that the reference Court could not have enhanced the
compensation for the land to such an extent and directed the Corporation
to pay compensation to the claimant @ Rs.90,000/- per hectare for 2.97
hectares of land. It is submitted that the compensation granted by the
reference Court for the trees is excessive as there is no evidence on record
to prove that the claimant was entitled to compensation for the orange
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trees @ Rs.1,900/- per orange tree. It is submitted that the claimant
cannot rely on the judgment and award passed in First Appeal
No.734/2008 and others and First Appeal No.486/2011, wherein the
compensation was granted @ Rs.89,000/- per hectare and Rs.1,00,000/-
per hectare respectively as the acquired land in those cases was located in
Sawardi and there is no evidence on record to show that the acquired
land at Sawardi and the land of the claimant at Tuljapur were of similar
quality and had some potential. The learned Counsel relied on the
judgment, reported in (2010) 14 SCC 503 to substantiate his submission
that when the lands are situated at a considerable distance from each
other and there is no specific evidence in regard to the similarity of the
lands, the sale instances or awards passed in the cases in which the land
is located in different villages needs to be ignored. It is submitted that the
claimant would not be entitled to compensation for 1.22 hectare of land
on which the orange trees were standing as in this case the determination
of the market value of the fruit bearing trees is based with reference to its
yield. The learned Counsel relied on the judgment, reported in 2012 (1)
Mh.L.J. page 9 and the unreported judgment dated 9.1.2015 in First
Appeal No.205/2006 in this regard. It is submitted that this Court may
reverse the findings recorded by the reference Court and uphold the
award passed by the Special Land Acquisition Officer by allowing the
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appeal filed by the M.I.D.C.
Mrs. Naik, the learned Assistant Government Pleader
appearing for the State Government supported the case of the M.I.D.C.
and submitted that the award passed by the Special Land Acquisition
Officer is just and proper. The learned Assistant Government Pleader
sought for the dismissal of the appeal filed by the claimant.
Shri Nemade, the learned Counsel for the claimant has
supported the judgment passed by the reference Court insofar as the
challenge is made by the M.I.D.C. to the same. Additionally, it is
submitted that the award passed by the reference Court needs to be
modified and the State and the M.I.D.C. should be directed to grant
higher compensation to the claimant for the land as well as the fruit
bearing trees. It is submitted that in the unreported judgment dated
9.1.2015 in First Appeal No.205/2006 on which the learned Counsel for
the M.I.D.C. has relied on for canvassing some other point, it appears that
the compensation was granted for even young orange trees in thousands.
It is submitted that for some of the orange trees, in the said unreported
judgment, the order of the reference Court granting compensation for
each orange tree at Rs.4,884/- and Rs.4,777/- was upheld. It is submitted
that the grant of compensation by the reference Court for each orange
tree @ Rs.1,900/- is on a very lower side and the same needs to be
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enhanced. It is submitted by referring to the judgment in a bunch of first
appeals bearing First Appeal No.734/2008 and others dated 15.6.2012
that for the lands acquired by the same Section 32 notification, from
village Sawardi, the compensation was granted @ Rs.90,000/- per
hectare and the land in that case was dry crop land whereas the land in
the case of the claimant is irrigated land. It is submitted that considering
the quality and the potential of the land of the claimant, it would be
necessary to grant compensation to the claimant for the acquired land as
is claimed in the reference application. It is submitted that there is no
merit in the case of the M.I.D.C. that the land at Sawardi is located at a
considerable distance from the land of the claimant and the quality and
the potential of the lands is not similar. The learned Counsel for the
claimant took this Court through the evidence of the claimant to
substantiate his submission. It is submitted that the reference Court ought
to have relied on the sale-deed dated 27.12.1993 (Exh.48) by which the
land at Nandgaon Peth, which is located near the land of the claimant
was sold @ Rs.1,68,807/- per hectare. The learned Counsel sought
enhanced compensation for the land as well as the trees and also sought
compensation for 1.22 hectare of land on which the orange trees were
standing at the same rate which would be granted for the remaining 2.97
hectares of acquired land. The learned Counsel sought for the dismissal of
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the appeal filed by the M.I.D.C. and an appropriate modification of the
order of the reference Court.
On hearing the learned counsel for the parties and on a
perusal of the record and proceedings, it appears that the following points
arise for determination in these first appeals :-
(I) Whether the reference court was justified in granting
compensation of Rs.90,000/- per hectare for the acquired
land and / or whether the amount needs to be enhanced or
reduced ?
(II) Whether the reference court was justified in granting
Rs.1,900/- per orange tree for 505 orange trees and / or
whether the amount needs to be enhanced or reduced ?
(III) Whether the claimant would be entitled to
compensation for 1.22 hectares of land on which the orange
trees were standing ?
(IV) What order ?
To answer the aforesaid points for determination, it would
be necessary to consider the evidence of the parties, both oral and
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documentary. The claimant had filed a detail affidavit in lieu of his
examination-in-chief. It was stated in the affidavit that the market value
of the acquired land of the claimant was much more than what was
granted by the Land Acquisition Officer. It was stated that the land was
located just near the 33 ft. wide road known as Sawardi-Kapustalni Road.
It was stated that National Highway No.6 was at a distance of only half
kilometer from the acquired land. It was stated that village Sawardi is
situated at a distance of one kilometer from the acquired land. It was
stated that the soil of the land was black and fertile and the land was
irrigated. It was stated that the market value of the land on the date of
issuance of section 4 notification was not less than Rs.1,00,000/- per acre.
The claimant referred to the sale transactions that took place in the
vicinity of the acquired land during the relevant time and mentioned
about the parties that had executed the sale deeds and about the nature of
the land that was sold by the same. Though an exhaustive affidavit is filed
in lieu of the examination-in-chief, there is hardly any cross-examination
of the claimant. The evidence of valuer Shri S.B.Umale was also tendered
on behalf of the claimant. Shri Umale had stated in his evidence that 505
orange trees were aged about 8 years, 190 trees were aged about 5 years
and 875 trees were aged 4 years. The valuation of the trees was made by
Shri Umale and his report was placed on record. Apart from the said
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evidence, the claimant placed four sale deeds on record at Exhibits-45, 46,
48 and 49. We may not be required to consider the sale deeds at
Exhibits-45, 46 and 49 as sale deeds at Exhibits-45 and 46 relate to the
sale that took place after the issuance of the section 4 notification in this
case. The section 4 notification was issued on 02/06/1994 in the instant
case and the sale deeds at Exhibits-45 and 46 were executed in the years
1997 and 1996 respectively. Also, though the sale deed at Exhibit-49 was
executed on 01/06/1992, the sale pertains only to 00.74 Are of land and
the land acquired in the present case was much larger as compared to the
land sold by the said transaction. Hence, in this case, it would be
necessary to consider the sale deed at Exhibit-48 for deciding as to what
compensation would be payable to the claimant towards the acquisition
of the land. The reference Court relied on the awards/judgments of the
reference Court in the other land acquisition matters that arose out of the
same section 4 notification. The lands in those cases were situated at
Sawardi. In those cases, compensation granted for the acquisition of the
land was Rs.89,000/- per hectare. It would be worthwhile to refer to the
judgment in First Appeals No.734 of 2008 and others and First Appeal
No.486 of 2011 in this regard as compensation for the land was granted
at the rate of Rs.89,000/- per hectare and Rs.1,00,000/- per hectare for
the land situated at Sawardi. On the basis of the evidence on record, the
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reference court has held that the compensation payable for the acquired
land would be at the rate of Rs.90,000/- per hectare for 2.97 hectares of
land. The reference court did not award any compensation for the
acquired land of 1.22 hectares on which the orange trees were standing as
separate compensation was paid for the orange trees. It would now be
necessary to consider as to what would be the compensation payable for
the acquired land. It could be seen from the judgments in First Appeals
No.734 of 2008 and others and First Appeal No.486 of 2011 that are
decided by this court that compensation was paid for the acquired land at
Sawardi at the rate of Rs.89,000/- per hectare and Rs.1,00,000/- per
hectare respectively. The land of the claimants at Sawardi was acquired
by the same section 4 notification by which the land of the claimant in
this case was acquired. There is evidence on record to show that village
Sawardi is situated only at a distance of one kilometer from the acquired
land of the claimant at Tuljapur. There is evidence on record to show that
the quality of the acquired land at Sawardi is similar to the quality of the
acquired land at Tuljapur. Though the learned counsel for the claimant
had stated that the lands of the claimant had greater potential and was
perennially irrigated land and was therefore better in quality than the
acquired lands at Sawardi, we are not inclined to accept the said
submission. We find on a reading of the judgment of this Court in First
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Appeals No.734 of 2008 and others that the acquired lands at Sawardi in
that case were also irrigated and cash crops were taken from the said
land. Be that as it may, since the land of the claimants at Sawradi was
granted compensation at the rate of Rs.89,000/- per hectare and
Rs.1,00,000/- per hectare, it would be necessary to direct the State
Government and the M.I.D.C. to pay similar compensation to the claimant
in this case also. It would be necessary for the respondents to pay
compensation to the claimant for the acquired land at the rate of
Rs.1,00,000/- per hectare. We do not find any propriety in the action on
the part of the Land Acquisition Officer in not granting any compensation
for 1.22 hectares of land on which the orange trees were standing.
Though as per the law of the Hon'ble Supreme Court that was then
followed, separate compensation was normally not granted for the land
and the trees standing thereon, the Hon'ble Supreme Court had held in
the case of Ambya Kalya Mhatre, reported in 2012 (1) Mh.L.J. 9 that
separate compensation could be granted for the land and the trees
standing thereon, in the circumstances as are mentioned in the judgment
while answering the third question of reference.
It would be necessary to consider whether the claimant
would be entitled to separate compensation for 1.22 hectares of land on
which the orange trees were standing. The Hon'ble Supreme Court has
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laid down in the case of Ambya Kalya Mhatre (supra) that separate
compensation would not be payable for the land if compensation for the
trees is determined by capitalizing the income with reference to yield. In
the instant case, we find that the reference Court has not determined the
value of the trees by capitalizing the income with reference to yield. Since
the value of the trees is not decided by capitalizing the income with
reference to yield, in view of the judgment in the case of Ambya Kalya
Mhatre the claimant in this case would be entitled to separate
compensation for 1.22 hectares of land at the rate of Rs.1,00,000/- per
hectare.
It would now be necessary to consider whether the reference
court was justified in fixing the value of the orange trees at the rate of
Rs.1,900/- per orange tree. We have perused the report of the valuer as
also the reasons recorded by the reference court for fixing the price of the
orange trees at Rs.1,900/- per orange tree that were 8 years old. In the
circumstances of the case and on the basis of the evidence on record, we
do not find that the reference court has committed any error in granting
the compensation for the orange trees at the rate Rs.1,900/- per orange
tree. Merely because in some other land acquisition cases that pertain to
the orange trees standing in Katol area which is considered to be the best
area for growing oranges, a sum of more than Rs.4,000/- was granted for
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each orange tree, it cannot be said that the claimant in this case would
also be entitled to similar compensation for the orange trees, specially
when there is nothing on record to show that the quality, the age and the
yielding capacity of the orange trees in the land of the claimant and in the
other decided matters of Katol area was similar. We, therefore, uphold the
findings of the reference court in this regard. While upholding the said
findings, we also uphold the findings of the reference court that the award
of the Land Acquisition Officer for grant of compensation for
comparatively younger orange trees was not liable to be disturbed.
Hence, for the reasons aforesaid, First Appeal No.54 of 2013
stands dismissed. First Appeal No.245 of 2012 is partly allowed. The
claimant would be entitled to compensation for the entire land, except
00.17 Are of Pot-kharab land at the rate of Rs.1,00,000/- per hectare. It is
needless to mention that the claimant would be entitled to the enhanced
compensation with the statutory benefits. In the circumstances of the
case, there would be no order as to costs.
JUDGE JUDGE
Khunte and
Wadkar
