Bombay High Court
Union Of India, Ministry Of ... vs Shri Gajanan S/O Mahadeorao ... on 22 May, 2017
Bench: B.P. Dharmadhikari
Judgment fa650.06
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
FIRST APPEAL NOS. 650 OF 2006
AND 463 OF 2005.
.........
FIRST APPEAL NO. 650/2006.
Gajanan Mahadeorao Kurhade,
Aged about 55 years, Occ - Cultivator,
r/o. Prabhat Chowk, Morshi,
Tq. Morshi, District Amravati. ....APPELLANT.
VERSUS
1. The State of Maharashtra,
through its Collector, Amravati,
Tq. and District Amravati.
2. Special Land Acquisition Officer,
Benefit Zone - 2, Upper Wardha
Project, Amravati, Tq. and District
Amravati.
3. The Railway Authorities in the
Union of India, Railway Ministry,
Delhi.
4. Smt. Parvati Mahadeorao Kurhade,
Aged about 70 yeas, r/o. Morshi,
Tq. Morshi, District Amravati.
(Deleted as per order dt. 20.11.2015.) ....RESPONDENTS
.
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Judgment fa650.06
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Mr. V.A. Kothale, Advocate for the Appellant.
Ms. N.P. Mehta, A.G.P. for Respondent Nos.1 & 2.
Mr.P.H. Khobragde, Advocate for Respondent no.3.
------------------------------------
WITH
FIRST APPEAL NO. 463/2005.
Union of India,
Ministry of Railways,
through Deputy Chief Engineer,
Central Railway, Construction,
Ajani, Nagpur. ....APPELLANT.
VERSUS
1. Shri Gajanan s/o Mahadeorao Kurhade,
Aged about 56 years, Occ - Cultivator,
r/o. Morshi, Tah. Morshi, District Amravati.
2. Smt. Parvati wd/o Mahadeorao Kurhade,
Aged about 74 yeas, r/o. Morshi,
Tah. Morshi, District Amravati.
(Appeal abated against respondent no.2
as per order dt. 02.08.2014.)
3. The Special Land Acquisition Officer,
Benefit Zone No. 2, Upper Wardha
Project, Collector's Compound,
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Judgment fa650.06
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Amravati.
4. The State of Maharashtra,
through its Collector, Amravati. ....RESPONDENTS
.
-----------------------------------
Mr. P.H. Khobragade, Advocate for the Appellant.
Ms. N.P. Mehta, A.G.P. for Respondent Nos.3 & 4.
Mr. V.A. Kothale, Advocate for Respondent No.1.
------------------------------------
CORAM : B.P. DHARMADHIKARI, J.
DATED : MAY 22, 2017.
ORAL JUDGMENT.
These appeals assail judgment dated 28.04.2005 delivered by the
Civil Judge, Senior Division, Amravati in Reference Proceedings under
Section 18 of the Land Acquisition Act, 1894 in Land Acquisition Case
No.2/2001. The acquiring body namely the Union of India has filed First
Appeal No.463/2005 under Section 54 of the Act, assailing enhancement of
compensation towards land as also orange trees. Thereafter the land owner
has filed First Appeal No. 650/2006 and claimed enhancement of
compensation for both. The appeal filed by the land owner was delayed by
14 days, and that delay was condoned on 29.09.2006. Appeal filed by him
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has been admitted for final hearing on 07.12.2006.
2. First Appeal filed by Union of India was admitted on 28.04.2005.
On 16.08.2005, Union of India was asked to deposit the amount of
compensation as awarded by the Reference Court and it appears that
accordingly the said amount was deposited and by a separate order dated
29.09.2006 passed upon Civil Application No.4821/2006, the execution filed
by the land owner against Union of India was stayed. It is not in dispute
that the amount so deposited has been subsequently withdrawn by the land
owner.
3. One Parvatibai wd/o Mahadeorao Kurhade, mother of the land
owner was respondent in both the appeals. Later on her name has been
deleted from the array of respondents at the request of the land owner only.
4. Shri Kothale, learned counsel appearing for the land owner
submits that while enhancing the compensation awarded by the Land
Acquisition Officer, Reference Court has not given full effect to sale deed at
Exh.34. That sale deed was in relation to dry crop land and material on
record demonstrated that it was deliberately undervalued to avoid payment
of stamp duty. He adds that the Land Acquisition Officer awarded rate of
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Rs. 77,500/- per hector for irrigated orchard land and Reference Court ought
to have doubled it by accepting the request of the land owner and awarded
compensation @ Rs. 1,50,000/- per hector. Figure of Rs. 1,10,000/- per
hector worked out by the Reference Court is without any logic.
5. He has also invited attention of Court to the evidence of expert
Shri Sharad, examined by the land owner as Witness no.2 at Exh.37.
Certificate Exh.38 issued by him is heavily relied upon to urge that average
yield per tree per year should have been calculated @ Rs.2000/- and
accordingly compensation should have been awarded. Our attention is also
invited to the compensation amount of Rs. 67,582/- awarded by the Land
Acquisition Officer to one Mr. Kisan for 16 Orange Trees. Shri Kothale,
learned counsel submits that the said rate adopted in Exh.35 could have
been relied upon by the Trial Court to arrive at a proper compensation to be
awarded for fruit bearing trees.
6. Learned counsel appearing for Union of India has strongly opposed
the appeal filed by the land owner. He has taken us through the relevant
evidence and discussion to urge that enhancement in compensation for land
is just for asking without assigning any reason. If no case for grant of
enhancement was made out, compensation as awarded by the Land
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Acquisition Officer needed to be maintained. He points out that reliance
upon Reference Court as also before this Court by the land owner is on sale
deed at Exh.34 which points out rate of Rs. 25,000/- per hector only. He
contends that this enhancement to Rs. 1,10,000/- per hector by the
Reference Court is arbitrary and unsustainable.
7. Similarly burden to prove yield per tree per year was upon the
land owner and according to him, the same has not been discharged. Hence,
the view taken by the Land Acquisition Officer and grant of compensation by
him for orange trees needed no interference. He therefore, submits that
Reference Court ought to have rejected the Reference under Section 18 of
the Land Acquisition Act and should have upheld the award.
Learned A.G.P. appearing for State Government and Special Land
Acquisition Officer supports the argument of Union of India.
8. Only question to be examined is whether any case for intervention
is made out in both these appeals ?
9. Acquisition of 2 H 30 R land of land owner in Land Acquisition
Case No.12/47/94-95 on 31.03.1999 is not in dispute. Though number of
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trees is claimed to be 413, in reference proceedings as also before this Court,
the land owner has claimed enhancement to compensation in relation to 406
trees only. This number and also award of separate compensation for
orange trees is not in dispute.
10. The enhancement from Rs.77,500/- per hector to Rs.1,10,500/-
per hector is after considering sale deed at Exh.34. Notification in present
matter under Section 4 of the Act was published on 26.09.1996. Exh.34 is
admittedly a sale deed of dry crop land ad-measuring 4 acres and it is dated
02.01.1995. It is therefore, submitted that for about 2 H of dry crop land,
relevant rate per hector can be worked out at Rs.50,000/- per hector. The
appellant has relied upon it as a comparable sale instance. It is apparent
from evidence of appellant - land owner that it is fallow land situated at a
distance of half kilometer from subject land. Land owner therefore, could
not and did not produce any sale instance of agricultural land with irrigation
potential. During arguments, an attempt was made to point out from award
that the Land Acquisition Officer himself had better sale instance before him.
Perusal of award delivered by the Land Acquisition Officer reveals that sale
instance relied upon by the land owner is dated 31.07.1992 and area of land
sold is .06 H i.e. 6000 sq. ft., thus, it is a sale of a plot and not a sale of
agricultural land for agricultural purpose. The Land Acquisition Officer has
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ignored this instance by putting a remark that as consideration is exorbitant,
it cannot be looked into. Though the observation is not correct, sale of a
small plot cannot be used to work out the compensation of a big piece of
land like the present one being used for agricultural purpose. The other sale
instance relied upon by Shri Kothale, learned counsel is dated 03.02.1995
and therein land sold is 0.81 H. Rate employed is Rs. 55,555/- i.e. less than
Rs. 50,000/- per hector. This sale deed therefore also does not advance the
case and cause of land owner. The Land Acquisition Officer himself has
awarded compensation at the rate of Rs. 77,500/- per hector to him.
11. Before this Court support has been taken only from Exh.34 and
after realizing distinguishing feature above mentioned two sale instances
looked into by the Land Acquisition Officer were pressed into service.
12. The Land Acquisition Officer has granted compensation of
Rs.77,500/- per hector and Reference Court has looked into the oral
evidence in relation to Exh.34. After rejecting Exh.34 as irrelevant
document, the Reference Court has declared land owner entitled to
compensation @ Rs.1,10,000/- per hector. Discussion in this respect is
contained in paragraph no.11 of the impugned judgment. In what situation
and in what circumstances the Reference Court has arrived at this figure of
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Rs. 1,10,000/- per hector, is not clear. Suddenly in a single line at the end
of this paragraph and this entitlement and rate has been declared.
13. In so far as the compensation of 406 Orange Trees are concerned,
the land owner has relied upon the evidence of expert Sharad Umale. This
expert has spoken of a visit to the field of land owner on 11.08.1999 i.e.
after Section 4 Notification. He has then given breakup of trees age wise,
however, he does not speak of actual yield of those threes. He then shifts to
his experience and deposes that good quality of tree usually produce 1200 to
1300 Oranges per year. He does not speak of actual yield from any
particular tree, age group of trees in the orchard of land owner. He proves
his report and states that price of each orange tree is Rs. 4224/-. Before this
Court, land owner has claimed Rs. 2000/- per tree. His cross-examination
shows that he had put questions to land owner at the time of spot inspection
about use of insecticides, fertilizers etc., but, he did not mention it in his
certificate Exh.38. Land owner himself has deposed that about 500 to 600
oranges per tree was average yield for every six months. Thus, the trees
were producing 1000 to 1200 oranges per year. He has further states that
orange trees of 6 years of age were producing about 1000 fruits half yearly.
There is no such evidence by expert. Expert has given his opinion only
based upon his expertize. Why expert has avoided to speak specifically
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about trees standing on the field of the land owner is not apparent. Land
owner thereafter has pointed out that for 16 orange trees of Kisan Bajirao
Isal, Kisan was paid Rs. 67,584/- by the Land Acquisition Officer. How this
payment to Kisan constitutes a precedence has not been brought on record.
Reference Court has looked into this aspect and found that it did not
advance the case of the land owner. In paragraph no.12, it has made
relevant observations. It is therefore, obvious that this piece of evidence is
also looked into and commented upon by that Court.
14. In the face of this material on record, the Reference Court has
awarded compensation of Rs. 250/- per tree for Orange trees. Its discussion
in this respect is contained in paragraph no.14. In paragraph no.13 it has
taken note of the fact that the petitioner could not place on record necessary
documents to prove actual yield from his field for the years 1997, 1998 and
1999. i.e. after date of Section 4 notification.
15. This award by the Reference Court is delivered on 28.04.2005 i.e.
about 12 years back. Accordingly the amount of enhanced compensation
has also been deposited by the acquiring body and it has been withdrawn by
the land owner. Though there is substance in the contention of learned
counsel representing Union of India that without any adequate material
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enhancement has been awarded for land as also for orange trees, in the
wake of the fact that in 2013, new law has come into force and in it
compensation at a higher rate has been provided for, at this juncture
considering the total enhancement received by the land owner at the hands
of Reference Court, I am not inclined to intervene and disturb the judgment
under challenge. Accordingly, judgment and award dated 28.04.2005 in
Land Acquisition Case No.2/2001 delivered by the Civil Judge, Senior
Division, Amravati is maintained. Both the First Appeals are dismissed.
Rule discharged. No cost.
JUDGE
Rgd.
