Vithal Kisan Gadbail & Anor vs The Collector, Nagpur & Anor
2017 Latest Caselaw 9200 Bom

        J-fa77.07 &747.06.odt                                                                                            1/6


                    IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                          NAGPUR BENCH, NAGPUR


                                      FIRST APPEAL No.77 OF 2008
                                                 AND
                                     FIRST APPEAL No.747 OF 2006
                                            =========

                                      FIRST APPEAL No.77 OF 2008


        1.    Vithal Kisan Gadbail,
               Aged 61 years.

        2.    Bhimrao Kisan Gadbail,
               Aged 55 years, 
               Both by Occ. Cultivator.

               Both R/o. RUI, Post RUI, Tah. Nagpur,
               Distt. Nagpur.                                                      :      APPELLANTS

                          ...VERSUS...

        1.    Collector, Nagpur, Special Land
               Acquisition Officer, General, Nagpur.

        2.    Maharashtra Industrial Development
               Corporation, Through Regional Officer,
               Civil Lines, Nagpur.                                                 :      RESPONDENTS


        =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
        Shri Anand Parchure, Advocate for the Appellants.
        Shri M.A. Kadu, Asstt. Government Pleader for Respondent No.1.
        Shri M.M. Agnihotri, Advocate for the Respondent No.2.
        =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-


                                                              AND

                                     FIRST APPEAL No.747 OF 2006

        Maharashtra Industrial Development
        Corporation, having its office at Marol
        Industrial Estate, Andheri East,




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        Mumbai and having its Regional
        At Udyog Bhavan, Civil Lines, Nagpur,
        Through its Chief Executive Officer.                                       :      APPELLANT

                          ...VERSUS...

        1.    Vithal Kisan Gadbail,
               Aged 61 years,
               Occupation : Agricultural.

        2.    Bhimrao Kisan Gadbail,
               Aged 55 years, 
               Occupation : Agriculturist.

               Both 1 and 2 Resident of Rui at Post- Rui, 
               Tah. Nagpur, Distt. Nagpur.

        3.    Collector, Nagpur,
               (Special Land Acquisition Officer, General) 
                Nagpur.                                     :      RESPONDENTS


        =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
        Shri Anand Parchure, Advocate for the Appellants.
        Shri M.A. Kadu, Asstt. Government Pleader for Respondent No.1.
        Shri M.M. Agnihotri, Advocate for the Respondent No.2.
        =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-


                                                     CORAM  :   S.B. SHUKRE, J.

th DATE : 30 NOVEMBER, 2017.

ORAL JUDGMENT :

1. Both these appeals are being disposed of by this common

judgment as they arise out of the same judgment and order dated 29 th

April, 2006, rendered in Land Acquisition Case No.398/1993 by 2 nd Joint

Civil Judge, Senior Division, Nagpur.

2. The land of the claimants bearing Survey No.112,

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admeasuring 1.86 HR, situated at village Rengapar, tahsil and district

Nagpur was acquired for the purpose of development of industrial area

by respondent No.2, the Maharashtra Industrial Development

Corporation (hereinafter referred to as, "MIDC") by the State-respondent

No.1. Notification under Section 32(1) of the MIDC Act was published in

Government Gazette on 22.2.1990.

3. The Reference Court, while deciding reference application

considered two sale instances vide Exhs.-59 and 72, as comparable and

accordingly fixed the market value of the acquired land to be at

Rs.1,25,000/- per hectare. The Reference Court, however, did not grant

the claim for enhancing the compensation granted by the then Land

Acquisition Officer for Well and trees. The impugned judgment and

order was passed on 29.4.2006.

4. In the First Appeal being First Appeal No.74/2006, decided

on 29th November, 2017, this Court took the view for the land acquired

therein for the purpose of same project and covered by the same

notification as in the present case, the market value of the land could not

be more than Rs.90,000/- per hectare. In that case, such finding was

recorded by this Court by considering the same sale instances, vide Exhs.-

59 and 72, as has been considered in the present case by the Reference

Court. But, the result of such consideration given by this Court was that

while the sale instance vide Exh.-59 was not found to be of a comparable

land, the other sale instance vide Exh.-72 was found to be so and

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therefore, reliance on the price of the land reflected by that sale deed

was placed by this Court. That sale deed reflected the price of the land

to be at Rs.90,000/- per hectare and so, same price was given to the land

which was situated about half a kilometer away from that land but with

better quality of soil. In the process, this Court also observed that for the

factor of better quality of soil some additional compensation deserved to

be granted. But, as the land involved in that appeal was situated about

half a kilometer away from the comparable sale instance of Exh.-72, this

Court thought that the distance between the two lands would offset the

price difference between them arising from the quality of the land of

those two lands. This Court also observed that had the land in that

appeal been situated adjacent to the land of sale instance vide Exh.-72,

this Court would have given 10% more to the land owner.

5. In the present case, as stated earlier, the sale instance vide

Exh.-72 has been resorted to by the Reference Court as a comparable sale

instance. The Reference Court has also placed reliance upon another sale

instance Exh.-59. But, the evidence available on record would show that

Exh.-59 land is not at all comparable to the land involved in the present

case rather, the land comparable with acquired land almost in all respect,

barring the quality of the soil, is the one involved in the other sale

instance vide Exh.-72. Therefore, determination of the market value of

this land would have to be done by adopting the same view as has been

taken by this Court in First Appeal No.745/2006. Learned counsel for

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the MIDC in these appeals also does not dispute this. Therefore, both

these appeals would have to be disposed of on the same lines as has been

done by this Court in First Appeal No.745/2006, insofar as the

determination of the market value of the acquired land is concerned.

6. As regards the claim for enhancing the compensation granted

for the Well and the trees I must say that as regards trees, absolutely no

evidence has been adduced by the claimants to enable this Court to make

a fresh evaluation of the trees. As such, the compensation granted by the

Land Acquisition Officer of Rs.2,198/- for the trees must be confirmed

and it is confirmed accordingly. However, this may not be so in case of

the compensation granted by the Land Acquisition Officer for the Well,

which is of Rs.2,241/-. Something more would have to be granted to the

claimants for the reason that the evidence of the claimants shows that

there was a Well in existence and it was of a medium size. Admittedly,

its diameter was of 17 to 18 feet and that its' depth was of 25 ft. Even if

it is assumed that this Well was not in pakka construction, still the cost of

digging such a Well, in the year 1990 would not be as low as Rs.2,000/-.

Therefore, by approximation, its assessment would have to be made and

doing so I find that an amount of Rs.10,000/- can be taken as the just

and reasonable cost of construction of the Well in the year 1990.

7. In the result, both the appeals deserve to be partly allowed by

determining the market value of the acquired land to be at Rs.1,00,000/-

per hectare (Rs.90,000/- + Rs.9,000/-, rounded off to Rs.1,00,000/- per

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hectare) and additional compensation for the Well at the rate of

Rs.10,000/-.

8. Both the appeals are allowed partly.

9. It is declared that the claimants are entitled to receive

compensation for their acquired land at the rate of Rs.1,00,000/- per

hectare and are also entitled to receive compensation of Rs.10,000/- as

cost of construction of Well, which is inclusive of amount of Rs.2,241/-

granted by the Land Acquisition Officer.

10. Such enhanced compensation shall be payable to the

claimants together with same statutory benefits at the same rates as are

granted by the Reference Court.

11. The impugned judgment and order stand modified in the

above terms.

12. Appeals are disposed of accordingly.

13. The M.I.D.C. is permitted to withdraw the amount which is

found to be in excess of the amount determined as compensation under

this order and which is lying in deposit with this Court, provided a joint

Pursis in this regard is filed on record by the M.I.D.C and the claimants.

JUDGE okMksns