Bombay High Court
Shivaji Rangrao Shinde vs State Of Mah. Thr. The Collector, ... on 5 May, 2017
Bench: N.W. Sambre
fa398.05.odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
FIRST APPEAL NO.398/2005
APPELLANT: Shivaji Rangrao Shinde,
aged about 34 years, Occupation
Agriculturist, R/o Marlegaon,
Tahsil Umarkhed, District Yavatmal.
...VERSUS...
RESPONDENTS : 1. The State of Maharashtra, through
the Collector, Yavatmal.
2. The Executive Engineer, Upper Painganga
Project No.2, Umarkhed, District Yavatmal.
3. The Special Land Acquisition Officer,
Upper Painganga Project, Pusad,
District Yavatmal.
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Shri K.S. Narwade, Advocate for appellant
Shri A.D. Sonak, AGP for respondents
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CORAM : N.W. SAMBRE, J.
DATE : 05.05.2017
ORAL JUDGMENT
1. The appeal is by the landowner seeking enhancement of
compensation. The land of the present appellant was acquired for Upper
Painganga Project by the Special Land Acquisition Officer pursuant to
Section 4 Notification dated 8.4.1999 and Section 6 Notification dated
6.4.2000. Award under Section 11 of the Land Acquisition Act came to be
passed on 31.7.2001. The appellant was the owner of 80 Ares land out of
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Survey No.78/1 at Mouza Marlegaon, which was acquired @ Rs.71,500/-
per hectare as awarded by the Special Land Acquisition Officer. The
enhancement sought was @ Rs.5,00,000/- per hectare on the ground that
the land is appurtenant to the State Highway Nagpur - Tuljapur,
adjoining a petrol-pump and adjacent to Dhaba.
2. Against the claim for enhancement @ Rs.5,00,000/- per
hectare, under Section 18 of the Land Acquisition Act the enhancement
awarded was @ Rs.90,000/- per hectare. The claim for the enhancement
was supported by the evidence of claimant P.W.1 - Shivaji Shinde at
Exh.23, P.W.2 - Vitthal Kadam who is examined at Exh.24, P.W.3 -
Uttamrao Shinde, who is examined at Exh.25, Exh.27 which is an extract
of the register of Land Acquisition Case No.525/1990, Exh.31 and 32
which are the Patwari Dakhalas, Exh.28 and 33 which are the 7/12
extracts and Exh.30 which is the copy of sale-deed. The reference Court
while enhancing the compensation has observed that the oral evidence is
not sufficient to grant enhanced compensation @ Rs.5,00,000/- per
hectare, no oral evidence is brought on record about the high yield and
also there was no evidence to draw inference about the high quality and
fertility of the land acquired.
3. The sale-deed Exh.30 is sought to be relied upon in the
present appeal alleging that P.W.2 - Vitthal Kadam has sold the land out
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of Survey No.1/1 vide sale-deed dated 3.3.2000 for Rs.30,000/- to the
extent of 2700 sq. ft. of land, i.e., around Rs.11/- per sq. ft., which
according to the appellant, is adjacent land. The appellant has also tried
to rely upon the evidence of Vitthal Kadam and Uttam Shinde in support
of the same. Apart from the location of the land adjacent to major State
Highway the 7/12 extract and the Patwari Dakhalas are also sought to be
relied upon for grant of enhanced compensation.
4. In the aforesaid background, the Court is required to
consider whether the appellant is entitled for the enhanced compensation
as claimed, i.e., @ Rs.5,00,000/- per hectare.
5. The present appellant is the owner of 1 hectare 17 Ares of
land out of Survey No.78/1 located at Mouza Marlegaon, Tq. Umarkhed,
District Yavatmal out of which 80 Ares land was acquired for the
construction of Left Distribution Canal at Isapur vide Case No.6/47/98-
99. It is not in dispute that the land in question is located adjacent to the
major State Highway No.3, Nagpur - Tuljapur and it has been brought on
record in the evidence of P.W.1 - landowner that adjacent to his land,
petrol-pump owned by Purushottam Sarda is located. It is also brought on
record in his evidence that on left of his land one Butasing is running his
Dhaba. He has then sought to canvass that he was cultivating cash crops
like, gram, sugarcane, cotton etc. It is alleged by him that his land was
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having agricultural potential and he was earning around Rs.50,000/-.
6. Application Exh.20 came to be moved by him for clubbing
his own case, i.e., Land Acquisition Case No.635/2002 along with Land
Acquisition Case No.656/2002, which was allowed. The claimant in his
examination-in-chief at Exh.23 stated that Vitthal Laxman Kadam, who is
the owner of adjoining land, got compensation of Rs.36,000/- for 20 Ares
land in Land Acquisition Case No.525/1990 on 30.4.1991. He has also
brought on record about the sale-deed referred supra which was sold to
Bapurao Shinde by Laxman Kadam and his family members. P.W.2 -
Vitthal Kadam, who is examined at Exh.24, in his deposition, has stated
about receipt of Rs.36,000/- for compensation for 20 Ares land which was
acquired for the Gaothan purpose. He has stated about the quality of land
of the appellant to be the same as that of same of his land. He has then
stated that there was an irrigation facility as the water for irrigation was
drawn from Painganga river. He has then stated about sale of 2700 sq. ft.
of land on 3.3.2000 out of Survey No.1/1 to Bapurao Shinde. He has then
stated that there is an increase in the cost of the land to the extent of 5
to 6 times from 1983 till 1998, which are the years for acquisition of his
own land at the relevant time and that of the land of the appellant
respectively. In his cross-examination, he has not supported the case of
the appellant for enhancement. P.W.3 - Uttamrao Shinde is examined at
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Exh.25, who has alleged that land Survey No.45/1 is owned by Satish
having area 43 Ares of which 18 Ares land was acquired for Left Canal.
He has stated about the cropping pattern and claimed that per acre net
income of Rs.25,000/- was drawn. His land Survey No.45/2 is adjacent to
the land of Satish bearing Survey No.45/1 and both these lands were
irrigated by drawing water from Painganga river. He has stated about the
existence of primary school, Gram Panchayat and location of sugar factory
in the Umarkhed Taluka which are the causes for increasing the cost of
the land.
7. In his evidence, he has brought on record that the acquired
land in 1988 was of the value of Rs.2,00,000/- per hectare and the cost of
18 Ares land was Rs.90,000/-.
8. Exh.28 is the 7/12 extract which demonstrates that in 2003-
2004 the nature of crop cultivation was sugarcane, wheat, Soyabean etc.
Exh.29 is the location map of the land Survey No.78 depicting that the
land was adjacent to Nanded-Umarkhed road. Exh.30 is the sale-deed for
an amount of Rs.27,000/- for sale of 2700 sq. ft. of land executed on
3.3.2000 which is out of Survey No.1/1, Mouza Marlegaon. Exh.31
and 32 are the certificates issued by Patwari certifying the land revenue.
Exh.33 is the 7/12 extract which speaks of the nature of cropping pattern
for the year 2001-2002.
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9. If the above referred evidence is to be analyzed, it is
required to be noted that Section 4 Notification was issued on 8.4.1999
for the land of the present appellant bearing Survey No.78/1. The said
land, as could be inferred from the map Exh.29, is located adjacent to the
major State Highway Nagpur - Tuljapur. As such, the claim of the
appellant that the land in question has a non-agricultural potential is
required to be accepted, particularly when he has brought on record in his
evidence that adjacent to his land on left side there is a Dhaba and on
right side there is a petrol-pump of Sarda. It is to be noted that sale-deed
Exh.30 is dated 3.3.2000 by which land out of Survey No.1/1 was sold for
having non-agricultural potential to the extent of 2700 sq. ft., i.e.,
@ Rs.11/- sq. ft., however, from map Exh.21 it is difficult to infer that
land Survey No.1/1 is located to nearby the land of the present appellant.
At least, no such evidence is brought on record.
10. It is then to be noted that the 7/12 extracts Exh.28 and 33,
i.e., for the year 2001-02 and 2003-04 speak of cultivation of cash crops
like, sugarcane, Soyabean, Beet etc., which need irrigation facility. It is
brought on record in the evidence of the appellant that there was an
irrigation facility available with him. The appellant has filed certified copy
of the register of Land Acquisition Case No.525/1990 decided on
30.4.1991 at Exh.27 which is at page No.26 of the record and
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proceedings, wherein compensation of Rs.36,000/- was awarded for
acquisition of 20 Ares land. It is brought on record in his evidence that the
land was acquired in the said proceedings in 1983 and there is almost
sixfold rise in the land, particularly when Section 4 Notification in the
present case is dated 8.4.1999, i.e., after lapse of around 16 years of
period. Though he has not brought on record that the land acquired in
Land Acquisition Case No.525/1990 is similar to his land, however, the
perusal of the said document at Exh.27 demonstrates that the land of
Vitthal Kadam was acquired which was of Marlegaon and compensation
of Rs.36,000/- was awarded under Section 18 of the Land Acquisition Act.
The said enhancement was granted pursuant to the proceedings for
enhancement initiated on 15.6.1990 as his land to the extent of 16340 sq.
ft. for Survey No.214 was acquired. He was awarded compensation as
stated therein. If the said Survey No.214 is to be examined from map
Exh.29 by certain guesswork, it could be easily inferred that the said land
was located on the North-East side of the acquired land. Even if the said
land is presumed to be similarly situated, i.e., on the major State
Highway, then the said amount of award could be taken into account for
calculating the enhanced compensation by granting appropriate rise. Even
if it is presumed that the said land is located in appurtenant to the State
Highway as like that of appellant's land and the same was on the inner
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side of the State Highway, in my opinion, the minimum that was expected
of the Authorities is to grant similar compensation by taking the base rate
as stated in Exh.27.
11. Exh.27, as discussed herein above, has granted rate of
Rs.30,009/- for 16340 sq. ft. land out of Survey No.214 of the same
village. As such, the said land was granted compensation of Rs.2,00,000/-
per hectare on 30.4.1991.
12. The Special Land Acquisition Officer examined 27 sale
transactions for the period from 1995 to 2000 and noticed minimum sale
price of 41,072/- per hectare to Rs.2,00,000/- per hectare and estimated
the market price at Rs.60,500/- per hectare based on the land revenue of
Rs.1.26 to 2.50 and Rs.71,500/- per hectare for the land revenue between
Rs.2.51 to 3.75. The reference Court did some guesswork and awarded
compensation of Rs.90,000/- per hectare to the present appellant.
13. The guesswork as is considered is based on the land revenue
and not the sale instance or Exh.27 the extract of Land Acquisition Case
Register. The Land Acquisition Case Register speaks of award of
compensation of Rs.2,00,000/- per hectare as on 30.4.1991. The Location
of the land on the major State Highway as is reflected in map Exh.29 is
not disputed by the respondents by leading any cogent evidence. The
claim of the appellant that his land is entitled for similar compensation as
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that of the one covered under the acquisition of land Survey No.214 of
same village which is covered under Exh.27 is required to be appreciated
as it is not denied or disputed. Admittedly, the respondents have not
brought on record any evidence.
14. As a consequence of above, relying on Exh.27 the certified
copy of Land Acquisition Case Register of Survey No.214 of the same
village which is decided on 30.4.1991 and the location map Exh.29, in my
opinion, the same could be considered for granting enhanced
compensation. It will not be out of place to mention here that the Special
Land Acquisition Officer though has considered sale instance upto
Rs.2,00,000/- per hectare, however, without any lawful reasons has not
awarded the same.
O R D E R
(i) It is ordered that the appellant is entitled for
enhanced compensation for the acquired land @ Rs.2,00,000/- per
hectare.
(ii) The appellant would be entitled for solatium @ 30%
on the enhanced amount of compensation.
(iii) The appellant would be entitled additional
component @ 12 % per annum on enhanced compensation from the date
of Notification under Section 4 of the Land Acquisition Act to the date of
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Award or date of possession, whichever is earlier.
(iv) The appellant would be entitled interest on enhanced
compensation under Section 28 of the Land Acquisition Act @ 9% per
annum from the date of possession for first year and @ 15% per annum
for subsequent period till realization.
(v) The award passed the reference Court stands
modified accordingly.
(vi) The appeal is partly allowed in aforesaid terms with
no order as to costs.
Decree be drawn accordingly.
JUDGE
Wadkar
