Bombay High Court
Dhanraj S/O Onkarmal Mor vs The State Of Mah. Thr. The ... on 8 November, 2017
Bench: S.B. Shukre
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
FIRST APPEAL No.457 OF 2006
Dhanraj s/o. Onkar Mor,
Aged about 30 years,
Occupation : Business,
R/o. Wardhaman Nagar,
Darwha, Tah. Darwha,
District Yavatmal. : APPELLANT
...VERSUS...
1. The State of Maharashtra,
Represented by the Collector,
Yavatmal, Distt. Yavatmal.
2. The Sub Divisional Officer,
and Land Acquisition Officer,
Darwha, Tah. Darwha,
Distt. Yavatmal.
3. The Executive Engineer,
Lower Pus Project, Pusad,
Ta. Pusad, District Yavatmal. : RESPONDENTS
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Shri Firdos Mirza, Advocate for the Appellant.
Mr. H.N. Jaipurkar, Asstt. Government Pleader for Respondent Nos.1 and 2.
Shri M.A. Kadu, Advocate for the Respondent No.3.
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CORAM : S.B. SHUKRE, J.
th
DATE : 8
NOVEMBER, 2017.
ORAL JUDGMENT :
1. This is an appeal which challenges the legality and
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correctness of the judgment and order dated 8 th November, 2005,
rendered in Land Acquisition Case No.1256/2004 by Civil Judge, Senior
Division, Darwha, District Yavatmal, on the ground that the
compensation granted by it is inadequate.
2. The appellant owned two pieces of lands bearing Gat
No.153/1 and 153/2, admeasuring 5 hectare 78 R and 1 hectare 42 R
respectively, both situated at mouza Kumbharkinhi, Tq. Darwha, Distt.
Yavatmal. Smaller portions of the land from both these Gat numbers
were compulsorily acquired by the State for the purposes of
Kumbharkinhi Dam Project. From out of Gat No.153/1 only 74 R of the
land was acquired and out of Gat No.153/2, only 76 R land was
acquired, making the total area of the acquired land to be 1 hectare 50 R.
Section 4 Land Acquisition Act (in short, "LA Act") notification was
published in Government Gazette on 24.10.1996. The Land Acquisition
Officer declared his award under Section 11 of the LA Act on 30.6.1999.
He paid compensation to the appellant at the rate of Rs.41,000/- per
hectare for the acquired land, Rs.1,21,028/- as costs of the construction
of Well, Rs.3,14,470/- for 20 orange trees (at the rate of Rs.1,530/- per
tree), Rs.920/- for two blackberry (Jambhul) trees, Rs.5,485/- for one
mango tree and Rs.4,108/- for 13 Bamboo bunches, as compensation.
The appellant, however, was not satisfied with the same and, therefore,
accepting this compensation under protest, he filed an application under
Section 18 of the LA Act for seeking enhancement in compensation. He
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also claimed compensation for severance of land, cost of pipeline and
cost of tank constructed on Gat No.153/2.
3. The application so filed by the appellant was referred to the
Court of Civil Judge, Senior Division, Darwha for adjudication. It was
contested by respondents. On merits, the Reference Court found that the
application deserved to be partly allowed and accordingly it was partly
allowed by the Reference Court by the impugned judgment and order.
The Reference Court determined the market value of the acquired land to
be at Rs.71,000/- per hectare and also evaluated 205 orange trees, one
mango tree and two jambhul trees at the rate of Rs.2,000/- per orange
tree, Rs.8,000/- per mango tree and Rs.1,500/- per blackberry tree. The
Reference Court rejected the claim in respect of compensation for
severance of the land, pipeline and other trees. Not being satisfied with
the same, the appellant is before this Court in the present appeal.
4. I have heard Shri Firdos Mirza, learned counsel for the
appellant, Ms. H.N. Jaipurkar, learned Assistant Government Pleader for
the respondent Nos.1 and 2 and Shri M.A. Kadu, learned counsel for
respondent No.3. I have gone through the record of the case including
the impugned judgment and order.
5. Now, the only point which arises for my determination is :
Whether the compensation granted by the Reference
Court is just and proper ?
6. So far as the land is concerned, as stated earlier, its market
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value has been evaluated by the Reference Court to be at Rs.71,000/- per
hectare at the relevant time. This appears to be done by the Reference
Court by partly relying upon the sale instance of the land at Exh.-56,
which was situated at village Kumbharkinhi. This sale instance disclosed
the value of the land in the year 1994 to be at about Rs.1,10,000/- per
hectare. But, this value was assessed on the basis that the land was
having 175 orange trees on it and, therefore, by some guesswork, the
Reference Court reduced the value to Rs.71,000/- per hectare.
7. Shri Firdos Mirza, learned counsel for the appellant submits
that in the case of Shankar Rathod, the Reference Court in old Land
Acquisition Case No.239/1999 (new Land Acquisition Case
No.1067/2004), determined the market value of the land to be at Rs.
1,50,000/- per hectare that land was from village Kumbharkinhi. So, it
is submitted by him that the Reference Court in the present case also
should have adopted the same value for making assessment as to the
market value of the acquired land. Learned A.G.P. for the State submits
that against the award so passed by the Reference Court in the said land
acquisition case, State has filed an appeal which is pending for
adjudication by this Court. Therefore, he submits that no reliance on
such determination made in another case can be made. I think, in view
of the pendency of the appeal, Shri M.A. Kadu, learned counsel for
respondent No.3 is right. But, there is one more case, which is in fact a
group of appeals starting with First Appeal no.520/2005, decided by this
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Court on 27th July, 2017 in which the market value of the lands situated
at village Kumbharkinhi, Tq. Darwha, District Yavatmal which were
acquired for the purpose of Kumbharkinhi Dam Project covered by
Section 4 of the LA Act notification dated 24.10.1996 and in which the
award under Section 11 of the LA Act was passed by the Land Acquisition
Officer on 30th June, 1999, this Court confirmed the valuation of the
land made by the Reference Court situated at village Kumbharkinhi to be
at Rs.1,50,000/- per hectare. As the land involved in this appeal is also
from the same village, has been acquired for the same project and is also
similarly a perennially irrigated land and has been covered by the same
notification under Section 4 LA Act and same award under Section 11 of
the LA Act, I am of the view that even for the present land, same rate can
be safely applied and doing so, I find that the true market value of the
land acquired in the present case is of Rs.1,50,000/- per hectare at the
time when Section 4 of the LA Act notification was issued. Therefore, I
also find that the appellant is entitled to receive compensation for his
acquired land at the rate of Rs.1,50,000/- per hectare.
8. So far as number and type of trees are concerned, there is no
dispute about the fact that on the acquired land, there were 205 orange
trees, two blackberry trees, one mango tree and 13 bamboo bunches. As
regards other trees, no evidence has been led by the appellant and,
therefore, claim of the appellant in respect of other trees cannot be
granted.
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9. However, the argument made by the learned counsel for the
appellant about the need for re-evaluating these trees on the higher side
deserves consideration. There is an evidence of an agricultural valuer
PW 5 Vishnu Gangadhar Paradkar. Although he holds licence issued by
Central Board of Director, New Delhi as an agricultural valuer, there is
no denying the fact that he has studied subject of horticulture as a part of
his degree course and, therefore, it cannot be said that this witness has
no knowledge whatsoever of the orchard or the horticultural plants. Even
the Reference Court, as seen from the impugned judgment and order, has
partly relied upon his evidence when it enhanced the valuation of the
trees done by the horticulture expert on the one hand and some what
reduced the valuation carried out by this witness on the other. According
to him, the value of each orange tree was of Rs.6,400/-, the value of
mango tree was of Rs.15,000/-, the value of blackberry tree was of
Rs.7,500/-.
10. If we take at a look of the cross-examination of this witness
carried out on behalf of State, we would find that such valuation carried
out by PW 5 Vishnu Paradkar has not been disputed at all by the State.
There is not a single suggestion of denial of this evidence put to him by
the learned A.G.P., who cross-examined PW 5 Vishnu Paradkar. But, that
would not mean that such valuation deserves to be accepted by the Court
in a blind manner. On the face of it, one can see that this valuation
insofar as the orange trees and mango tree are concerned, is somewhat
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on the higher side. This can be said on the basis of knowledge acquired
by the Court while conducting various appeals involving similar lands
from the same village, covered by same notification and acquired for the
purposes of same project. In a group of appeals, starting with First
Appeal No.520/2005, decided on 27 th July, 2017, on which reliance has
been placed in this very appeal for determining the true market value of
the acquired land earlier by both sides, this Court has confirmed the
valuation of the big and small orange trees respectively to be at
Rs.3,500/- and Rs.2,500/- carried out by the Reference Court. As the
land involved in the present case is similar to the land involved in the
said appeals, same valuation can also be adopted to evaluate the orange
trees in the present case.
11. The evidence of PW 5 Vishnu Paradkar discloses that the
orange trees were of age 8 and that would mean that they were all big
trees. Therefore, for these trees the valuation would be at Rs.3,500/- per
tree which I hold to be so. About the mango tree, I do not find that any
error could be found in the evaluation done by the Reference Court. The
mango tree has been found to be carrying value of Rs.8,000/- by the
Reference Court which I confirm in this order. However, this may not be
so in respect of two blackberry trees, each of which has been valued by
the Reference Court to be at Rs.1,500/-. This valuation is extremely on
the lower side but at the same time, it can also not be taken that
whatever valuation has been carried out of these trees by PW 5 Vishnu
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Paradkar is correct. His valuation goes towards the other end of the scale
which is the higher side. This would call for balancing of both
extremities. That would be possible by making some reduction in a
reasonable manner. Considering the average size of full-grown and
mature blackberry tree, which must be forming a canopy having an
average diameter of 20 feet, it can be safely inferred that such a big tree
would certainly have immense commercial value for it's fruits and wood.
Even if we take it's value as yielding just fire-wood, still, it cannot be
evaluated at Rs.1,500/- in the year 1996. It's value will be much higher
and by making some estimate it can be said that the value of the two
blackberry trees would be no less than of Rs.4,000/- per tree in the year
1996. This is the value at which compensation for two blackberry trees
must be given to the appellant.
12. The Land Acquisition Officer has evaluated all the 13 bamboo
bunches in lump-sum at Rs.4,108/- and I am of the view that such
evaluation being reasonable, deserves to be confirmed, which I do so.
13. The Land Acquisition Officer has also granted separate
compensation of Rs.1,21,028/- towards cost of construction of Well,
which has not been granted by the Reference Court. But, considering the
fact that the cost is always involved in digging out and constructing a
Well, compensation for the same deserves to be granted to the land
owner. In the present case, the evidence of an expert, PW 4 Rahul
Sangle, is available on this point. There is nothing in his
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cross-examination to entertain any doubt about the methodology
adopted and the valuation made by him in respect of construction of
Well. His valuation stands at Rs.1,91,700/- after deducting depreciation
value. This can be accepted as it is and compensation to the appellant
towards cost of construction of the Well at this stage deserves to be
granted, which I do so. The claimant has also sought additional
compensation on account of severance of the land and pipeline and also
for the additional 45 orange trees. However, no specific evidence has
been led in this regard in order to prove that additional amount on
account of damages or cost of the pipeline and value of the trees affected
by the severance of the land has been led by the appellant and, therefore,
no additional compensation under these head can be granted to the
appellant. His claim in respect of compensation under these heads is,
therefore, rejected.
14. In the result, I am of the view that this appeal deserves to be
partly allowed and it is allowed accordingly.
15. It is declared that the appellant is entitled to receive
compensation for the acquired land at the rate of Rs.1,50,000/- per
hectare. It is further declared that the appellant is also entitled to receive
additional compensation as follow :
(a) For 205 orange trees, at the rate of Rs.3,500/-
per tree;
(b) For 1 mango tree which is granted by it at the
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rate of Rs.8,000/-.
(c) For 2 blackberry (jambhul) trees at the rate of
Rs.4,000/- per tree.
(d) For Well, towards cost of construction, at the rate
of Rs.1,91,700/-.
16. The compensation as detailed above shall be paid by the
respondents to the appellant along with all statutory benefits at the same
rates as given by the Reference Court in the impugned Judgment and
award.
17. The impugned judgment and order stand modified in the
above terms.
18. Additional Court fees, if any, be paid expeditiously.
19. Appeal is disposed of accordingly.
20. Parties to bear their own costs.
JUDGE
okMksns
