Bombay High Court
Suchetkumar Govindrao Deshmukh vs State Of Mah. Thru. Collector on 25 May, 2017
Bench: B.P. Dharmadhikari
fa669.08.J.odt 1/13
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
FIRST APPEAL NO.669 OF 2008
Suchet Kumar Govindrao
Deshmukh, Aged - 33 years,
R/o Tq. Chikli, Dist. Buldhana. ....... APPLICANT
...V E R S U S...
1] The State of Maharashtra
through Collector,
Tq. and Dist. Buldhana,
R/o Tq. Chikli, Dist. Buldhana.
2] Vidarbha Irrigation Development
Corporation, through Executive
Engineer, Minor Irrigation Division
No.II, Chikhli, Dist. Buldhana. ....... RESPONDENTS
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Ms. Radhika Bajaj, Advocate holding for Shri Anand
Jaiswal, Senior Advocate for Appellant.
Ms. N.P. Mehta, AGP for Respondent No.1.
Shri Agrawal, Advocate holding for Shri P.B. Patil, Advocate
for Respondent No.2.
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CORAM: B.P. DHARMADHIKARI, J.
DATE: 25 th
MAY, 2017.
ORAL JUDGMENT
1] Heard Advocate Bajaj holding for Advocate Jaiswal
(Senior Advocate) for appellant and Advocate P.B. Patil assisted
with Advocate Agrawal for respondent No.2. Ms. N.P. Mehta
learned Assistant Government Pleader argued the matter for
fa669.08.J.odt 2/13
respondent No.1. Matter was heard for sometime yesterday and
came to be adjourned today to enable parties to go through the
records.
2] It is not in dispute that lands admeasuring 0.81 R out
of Gat No.122 of Mouza Naygaon (Khurd), Tahsil Chikhli, District
Buldhana of appellant has been acquired for Paintakli Irrigation
Medium Project vide award dated 16.09.1999.
Gazette notification under Section 4 of Land Acquisition Act, 1894
was published on 10.08.1995. The Land Acquisition Officer
awarded compensation at the rate of Rs.65,500/- per hectare for
the land which is dry crop land. He separately awarded
compensation of Rs.1,90,737/- for various trees standing on this
land.
3] In reference proceedings, land-owner demanded
compensation of Rs.1,62,500/- for his land and amount of
Rs.2,23,800/- towards trees. Joint Civil Judge, Senior Division,
Buldhana in Land Acquisition Case No.97 of 2000 maintained
compensation as awarded for trees and increased compensation
towards land to Rs.80,000/- per hectare. Thus, for land, the
land-owner is entitled for amount of Rs.38,631/- more.
fa669.08.J.odt 3/13
4] Advocate Bajaj in this background invited attention to
the award to demonstrate that said award itself contains material
which shows situation of land on bank of river, availability of
pipeline to fetch water and two crops taken in a year by owner.
She has also strongly relied upon evidence of land-owner to urge
that he has not been cross-examined and, therefore, the fact that
he was taking two crops in a year in his field which was irrigated
needed to be accepted. She further adds that respondent had not
cross-examined the land-owner and evidence of their witness
Sadanand Lokhande only placed before Reference Court, the
record of Land Acquisition Officer. Respondent requested
Reference Court to read evidence of Land Acquisition Officer
recorded in Land Acquisition Case No.30 of 2000 as evidence in
present matter, but said witness was not made available for
cross-examination by the appellant.
5] She points out that crops like cotton, soya bean,
jawar, udid are essentially kharip crops grown between July to
October in every year, while wheat crop is rabbi crop taken in
winter i.e. between October to March. Moong (green gram) is a
crop which can be taken in either season and recognized
therefore, as inter crop. Land of appellant therefore, was yielding
fa669.08.J.odt 4/13
two crops and hence ought to have been treated as an irrigated
land. She is taking support from definition of class of land in the
Maharashtra Agricultural Lands (Ceiling on Holdings) Act for that
purpose.
6] Inviting attention to the sale instances placed on
record, she contends that sale instance at Exh.28 has been
erroneously distinguished only because it is of a small piece of
land. The other sale instance has been discarded because it is of a
date after Section 4 notification. She therefore, submits that the
material on record demonstrates that compensation as claimed i.e.
at the rate of Rs.2,00,000/- per hectare ought to have been
awarded to the land-owner.
7] Learned counsel for respondent Nos.1 and 2 are
opposing her. According to them, 7/12 extract noted by the Land
Acquisition Officer and by Reference Court do not show a
perennial source of water and hence land has been rightly treated
as dry crop land. Even Well does not find mention in revenue
records. Learned counsel therefore, state that in this situation,
contention that two crops were being taken is factually incorrect.
My attention is also drawn to same provision contained in above
fa669.08.J.odt 5/13
mentioned Ceiling Act to urge that in absence of perennial source
of water, only one crop could have been taken in subject land and
hence, compensation worked out is just. They add that the sale
instances placed on record by appellant are of a small piece of
land that always fetch more value and are rightly discarded.
8] After hearing respective counsel, I find that the
following questions arise for my determination: My answer to it is
revealed in its front.
[i] Whether the land acquired is dry crop land? - No
[ii] Whether just compensation has been awarded allegedly to
the land-owner? - No.
[iii] If not, what should be its quantum? - Rs.1,41,750/- plus
interest, solatium etc.
9] The respondents have not disputed the award dated
16.10.1999 delivered by Land Acquisition Officer in Land
Acquisition Case No.34/90-91. This award itself mentioned that
for land at Mouza Naygaon (Khurd) irrigation facilities are
available through pipeline from Painganga river and through Well.
However, in para 9 where the local situation has been dealt with,
fa669.08.J.odt 6/13
after mentioning about facility, a general remark has been put
that most of the land are dry crop land. However, by drawing
water from well and from river, fruit trees have been planted.
Thus, this material unequivocally brings on record fruit trees in
lands to be acquired and facility of irrigation either from well or
through river.
10] In paragraph 11 of the award for the purposes of
valuation, lands have been put into four groups depending upon
the land revenue fixed for the same. Gat No.124 of present
appellant falls in group No.3 where land revenue is between
Rs.2.61 to Rs.5/-. Last group is group No.4 where land revenue
was in excess of Rs.5/- and upto 7.50 only. Few lands of Mouza
Naygaon (Khurd) are mentioned in last group. Land Acquisition
Officer has determined rate of Rs.48,000/- per hectare for the last
group while rate of Rs.43,500/- for lands falling in group No.3.
Thereafter, ready reckoner rate has been looked into and for lands
falling in the group of Rs.2.51 to Rs.5/-, rate of Rs.65,500/- per
hectare has been arrived at. It has been mentioned that lands in
all groups are dry crop land.
11] In paragraph 13 of award Land Acquisition Officer
fa669.08.J.odt 7/13
has mentioned that in revenue records of past three years prior to
valuation, in column No.10, no land was shown under seasonal
irrigation and hence the compensation accordingly was not given
as irrigated land.
12] In paragraph 16, claim for compensation towards
Well has been dealt with. Name of present land-owner appears
therein and it is mentioned that the Well is situated on bank of
river in Gat No.25. In paragraph 19, compensation for pipeline
has been worked out. Name of appellant land-owner appears at
Serial No.14 therein and he has been awarded compensation of
Rs.4637/- towards pipeline.
13] Reference Court has considered this material and
after taking note of 7/12 extract, crops mentioned therein
remarked that no Well appears to be in existence in land of
appellant acquired for the project. The sale instances relied upon
by him are found to be of a date after Section 4 notification.
Sale instance at Exh.28 dated 16.09.1989 is found to be of date
prior to date of Section 4 notification, but pertaining to irrigated
land Reference Court has held subject land was not irrigated land.
It also remarked that said sale at Exh.28 dealt with only 10 R of
fa669.08.J.odt 8/13
land, and therefore, was not comparable.
14] It is in this background that in para 10, it has decided
rate of Rs.80,000/- per hectare. However, on what basis that rate
has been written is not clear.
15] The facts emerging from award itself show placement
of land in a river, availability of pipeline to draw water from it.
Apart from that, award also grants compensation for Well. In this
situation, the Reference Court ought to have taken note of these
facts and thereafter attempted to find out whether land was dry
crop land or irrigated land.
16] The award refuses to recognize that land as irrigated
land because in past three years prior to date of valuation,
revenue records do not mention any facility or source of irrigation.
When Land Acquisition Officer himself finds that land is located
on a bank of river, is paying compensation for Well as also
pipeline, non-mention of these facts in revenue records ought to
have been ignored as an error and could not have been used to
the prejudice of present appellant.
fa669.08.J.odt 9/13
17] The crops grown by appellant are deposed by him,
and there is no cross-examination about it. Reference Court also
finds in 7/12 extract crops like green gram (moong), wheat and
cotton. Wheat being rabbi crop, cannot be taken along with cotton
or jawar which are essentially kharip crops. The material on
record therefore, demonstrates two crops being taken. In his
examination-in-chief in paragraph 7(e) appellant/land-owner has
specifically asserted that he has been taking cash crops with high
yielding rate of cotton, soyabean, udid, jawar, wheat, moong and
various other plantations existed. It is not in dispute that for fruit
bearing trees, the applicant has been paid compensation
separately, which has been maintained by Reference Court.
Even in paragraph (c) of affidavit, the crops mentioned by him are
groundnut, sunflower, soyabean, turmeric, black gram etc. He has
also mentioned vegetables. In absence of cross-examination, this
affidavit ought to have been relied upon.
18] The perusal of Section 2(5) of the Maharashtra
Agriculture Lands (Ceiling on Holdings) Act, 1961 reveals
definition of "class of land". The land with an assured supply of
water supply for irrigation and capable of yielding at least two
crops in a year is treated as irrigated land. The other lands has
fa669.08.J.odt 10/13
been defined in Section 2(5)(b). Respondent No.2 has placed
reliance upon this sub-clause(b). Sub-clause (b) covers land which
do not have assured perennial supply of water for irrigation, but
has an assured supply of water for only one crop in a year.
Here material looked into supra does not show that land-owner
was taking only one crop in a year. The land of appellant
therefore, falls in Section 2(5)(a) which deals with land capable of
yielding at least two crops in a year.
19] The description of lands in award, other evidence
therefor proof of two crops being taken by appellant, mandate
that the land acquired therefore, needed to be treated as an
irrigated land.
20] The later sale instance at Exh.26 on which appellant
has placed reliance is of a piece of land admeasuring 40 R. This
sale has taken place in the year 1998 and sale consideration claim
is Rs.1,00,000/-. Thus, rate per hectare works out to
Rs.2,50,000/-. Sale is about 3 years after Section 4 notification.
Hence, it is necessary to scale down the sale consideration therein.
If it is scaled down by applying rate of 10% for each year, the
value per hectare in 1995 works out to Rs.1,75,000/-.
fa669.08.J.odt 11/13
21] Other sale instance at Exh.28 is dated 16.09.1989 i.e.
six years prior to Section 4 notification. There 10 R of agriculture
land has been sold at rate for Rs.12,000/-. Per hectare rate
therefore, comes to Rs.1,20,000/-. If escalation of 10% per year is
added to it, the rate per hectare on the date of Section 4
notification works out to Rs.1,92,000/-.
22] Sale-deed at Exh.28 has been rejected by Trial Court
after observing that it is for irrigated land while subject land was
not an irrigated land. This distinguishing feature is missing in
present matter. This Court has found that subject land is also
irrigated one. Other reason given by Reference Court is that
Exh.28 is a sale instance of a very small piece of land.
Though land sold vide Exh.28 is only 10 R in area (10,000 sq.ft.),
it has been sold as an agriculture land and not for any non-
agriculture purpose. In this situation, this distinguish feature is
also absent in present matter.
23] If sale-deed at Exh.28 is treated as a comparable sale
instance, when after escalation of 10% every year, rate prevailing
on date of Section 4 notification, works out to Rs.1,92,000/-
question is why the other sale instance at Exh.26 cannot be
fa669.08.J.odt 12/13
accepted as admissible one. The sales after Section 4 notification
are generally not accepted because sale consideration recorded
therein may not be true and such sale may also carry (impact) of
acquisition proceedings. These possibilities are absent in the
present matter since scaling down of sale consideration to Section
4 notification date, show rate of Rs.1,75,000/- per hectare only
even in Exh.26. This rate is less than the rate arrived at by using
sale instance at Exh.28.
24] Taking overall view of the matter, I am inclined to
accept rate of Rs.1,75,000/- per hectare for the purposes of land
of present appellant. Accordingly, for 0.81 R, appellant is entitled
to Rs.1,41,750/- as compensation. Points for determination are
answered accordingly.
25] The appellant therefore, is entitled to grant of
compensation of Rs.1,41,750/- for his acquired land with other
benefits as directed by Reference Court in impugned judgment
dated 27.11.2007. Hence, on this amount he will be paid solatium
calculated at 30%, interest at 9% for first one year and thereafter
15% till actual payment thereof to him. He is also entitled to
additional compensation under Section 23(1) as directed by
fa669.08.J.odt 13/13
Reference Court.
26] The amount already paid to him shall be deducted
from the total amount accordingly calculated and, thereafter,
balance amount shall be released to him. This exercise shall be
completed within six months from today.
27] Accordingly, First Appeal No.669 of 2008 is partly
allowed and disposed of. No costs.
JUDGE
NSN
