The State Of Mah. Thr. Collector, ... vs Vitthal Devising Rathod & Anor
2017 Latest Caselaw 7882 Bom

FAs  730,765,791,792-06&1030/08                               1              Common  Judgment

          IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                    NAGPUR BENCH, NAGPUR.
     FIRST APPEAL NO. 730/2006 @ CROSS OBJECTION NO.4/2008
1.     The State of Maharashtra,
       Through Collector, Washim.
2.     The Executive Engineer,
       Minor Irrigation Division,
       Washim, Distt. Washim.                                                       APPELLANTS
                                        .....VERSUS.....
1.     Vitthal Devising Rathod.
2.     Kesarbai Ramdas Rathod,
       By Occ:-Cultivator, R/o Wai-Gaul,
       Tq.Manora, Distt.Washim.                                                      RESPONDE
                                                                                              NTS
                                              WITH
     FIRST APPEAL NO. 765/2006 @ CROSS OBJECTION NO.7/2008
1.     The State of Maharashtra,
       Through Collector, Washim.
2.     The Executive Engineer,
       Minor Irrigation Division,
       Washim, Distt. Washim.                                                       APPELLANTS
                                        .....VERSUS.....
Savitribai Narsing Rathod,
By Occ:-Cultivator, R/o Wai-Gaul,
Tq.Manora, Distt.Washim.                                                                 RESPONDE NT

                                              WITH
     FIRST APPEAL NO. 791/2006 @ CROSS OBJECTION NO.3/2008
1.     The State of Maharashtra,
       Through Collector, Washim.

2.     The Executive Engineer,
       Minor Irrigation Division,
       Washim, Distt. Washim.                                                       APPELLANTS
                                        .....VERSUS.....
Devising Lachchhu Rathod. (DEAD)
Thr. Legal Representatives.
1.     Noor Singh Devi Singh Rathod.
       Aged about 60 years.
2.     Suresh Devi Singh Rathod,
       Aged about 55 years.
3.     Ramdhan Devi Singh Rathod,
       Aged about 50 years.



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 FAs  730,765,791,792-06&1030/08                              2              Common  Judgment

4.     Vitthal Devi Singh Rathod,
       Aged about 40 years.
All I to iv r/o Wai-Gaul, Tq.Manora, Distt.Washim.
5.     Sau.Vimal w/o Rajram Chavan,
       Aged about 45 years,
       R/o Karod, Tq. Pusad, Distt.Yavatmal.                                          RESPONDE NTS

                                             WITH
     FIRST APPEAL NO. 792/2006 @ CROSS OBJECTION NO.6/2008

1.     The State of Maharashtra,
       Through Collector, Washim.
2.     The Executive Engineer,
       Minor Irrigation Division,
       Washim, Distt. Washim.                                                       APPELLANTS

                                        .....VERSUS.....

Uttam Narsingh Rathod,
By Occ:-Cultivator, R/o Wai-Gaul,
Tq.Manora, Distt.Washim.                                                                RESPONDE NT

                                             WITH
 FIRST APPEAL NO. 1030/2006 @ CROSS OBJECTION NO.5/2009

1.     The State of Maharashtra,
       Through Collector, Washim.
2.     The Executive Engineer,
       Minor Irrigation Division,
       Washim, Distt. Washim.                                                       APPELLANTS

                                        .....VERSUS.....
Babusingh Ramdhan Rathod,
Minor represented by Natural Guardian
Mother Kesarbai Ramdhan Rathod,
R/o Wal-Gaul, Tq.Manora, Distt.Washim.                                                   RESPONDE NT


Shri A.D. Sonak and Shri M.A. Kadu, Assistant Government Pleader for the appellants in
                                 all the first appeals.
         Shri R.M. Bhangde, counsel for the respondents in all the first appeals.



                                                CORAM    :         S.B. SHUKRE,  J.

DATE : 6 TH OCTOBER, 2017.

FAs 730,765,791,792-06&1030/08 3 Common Judgment

ORAL JUDGMENT

These five appeals are preferred by the State and the

acquiring body challenging the common judgment and award dated

19.04.2005 rendered by 3rd Ad-hoc Additional District Judge, Washim in

Land Acquisition Case Nos.92 of 2004, 93 of 2004, 95 of 2004, 105 of

2004 and 108 of 2004 along with some more land acquisition cases.

There are also cross objections filed against a part of the said common

judgment and award by the claimants. The parties to the appeals and the

cross objectors are being hereinafter referred to as 'the State' and 'the

claimants' respectively, for the sake of convenience. The cross objections

have been filed to claim higher compensation in respect of the orange

trees and other trees. As these appeals and cross objections arise from the

same common judgment and award delivered by the reference Court,

they are now being disposed of by this common judgment.

2. The State acquired the lands of the claimants for the purpose

of construction of minor irrigation works then initiated by the Executive

Engineer, Minor Irrigation Division, Washim. The notification under

Section 4 of the Land Acquisition Act was published on 30.04.1998 in the

Government Gazette. After complying with the procedural requirements

of Sections 5, 6 and 9 of the Land Acquisition Act, the Special Land

Acquisition Officer passed a common award on 16.12.2000. The Special

FAs 730,765,791,792-06&1030/08 4 Common Judgment

Land Acquisition Officer determined the market value of the acquired

lands to be at Rs.23,000/- per hectare. The Special Land Acquisition

Officer accordingly granted compensation for the value of the acquired

lands. In some cases, he also additionally granted compensation for the

fruit bearing trees standing on the acquired lands while denying the same

to the claimants in some other cases. The claimants not being satisfied

with the award of the Special Land Acquisition Officer, filed applications

under Section 18 of the Land Acquisition Act, which were referred for

adjudication to the Court of 3 rd Ad-hoc Additional District Judge, Washim.

On merits of the case, the reference Court determined the market value of

the acquired lands to be at Rs.89,500/- per acre and also evaluated the

fruit bearing trees and accordingly granted compensation to the claimants.

Accordingly, the reference Court passed the common award. This time,

the State was aggrieved by the common award passed by the reference

Court and even the claimants were not completely satisfied with the

award feeling that the assessment of the fruit bearing trees done by the

reference Court was somewhat on the lower side. This is how the present

appeals and cross objections have been preferred before this Court.

3. I have heard learned Assistant Government Pleaders for the

State-appellants and learned counsel for the claimants. I have gone

through the record of the cases including the common judgment and

award. Now, following points arise for my determination.

FAs 730,765,791,792-06&1030/08 5 Common Judgment

I) Whether the market value of the acquired lands determined by the reference Court at Rs.89,500/- per acre is just and proper? II) Whether the compensation granted by the reference Court for the fruit bearing trees is just and proper?

4. Answer to both the points can be given by considering the

observations of this Court made in First Appeal No.581 of 2007 along

with Cross Objection No.1 of 2008, decided on 23.03.2016. This was the

case which arose out of the same notification, same project and same

award, involved in the present appeals and the cross objections. The land

involved in First Appeal No.581 of 2007 was also similar to the acquired

lands in the present cases. There is no difference between the situation of

the lands as well as soil of the lands involved in First Appeal No.581 of

2007 and the present matters. Learned Assistant Government Pleaders

for the State also could not show to me existence of any distinguishing

factors between the land involved in First Appeal No.581 of 2007 and the

acquired lands in the present cases. Therefore, the valuation of the lands

as well as the valuation of the trees carried out by this Court in First

Appeal No.581 of 2007 would have to be adopted as it is, for the purpose

of determining the market value of the acquired lands as well as the

valuation of the fruit bearing trees.

5. Apart from what is stated above, it is noticed that there is also

a view taken by the reference Court in another case bearing Land

FAs 730,765,791,792-06&1030/08 6 Common Judgment

Acquisition Case No.41 of 2004. This case arose out of the same

notification, same project and same award as involved in the present

matters. In that case, the reference Court granted compensation at the

rate of Rs.4,000/- per orange tree and this rate has been accepted by the

State Government. Then, it is also not the case of the State Government

that the lands acquired along with the trees in the present cases were

different in any way than those covered by Land Acquisition Case No.41

of 2004. This rate of Rs.4,000/- per orange tree has also been accepted

by this Court in First Appeal No.581 of 2007, decided on 23.03.2016.

6. In the circumstances, I am of the view that all these matters

are squarely covered by the rates determined by this Court in First Appeal

No.581 of 2007, decided on 23.03.2016. That would mean that this Court

would be required to maintain the compensation awarded by the

reference Court at the rate of Rs.89,500/- per acre for the acquired lands

and it is so maintained. It would further mean that this Court would also

have to determine the value of the orange trees to be at the rate of

Rs.4,000/- per tree and accordingly, it is found that the correct value of

the orange trees would be at the rate of Rs.4,000/- per tree.

7. There are also other fruit bearing trees, such as Mango and

Bor. The reference Court has evaluated these trees at the rate of

Rs.5,000/- per Mango tree and Rs.500/- per Bor tree. Considering the

FAs 730,765,791,792-06&1030/08 7 Common Judgment

evidence on record, I do not think that there is any reason for me to take

a different view in the matter and accordingly, these rates need to be

confirmed and they are confirmed accordingly.

8. So far as the number of trees involved in all these matters are

concerned, I do not think that there is any need for this Court to record

any different findings than those given by the reference Court. The reason

being that there is sufficient evidence brought on record by the claimants,

which highly probabilizes the case of the claimants. This evidence is in the

nature of a Joint Measurement Report, dated 23.10.1996 as well as 7/12

extracts for the years 1990-91 to 1997-98 from Exhibits 34 to 40. There

is also evidence of a registered valuer and agricultural expert, PW2, which

is consistent with the number of trees shown in the Joint Measurement

Report as well as 7/12 extracts. Ofcourse, in respect of one of the

acquired lands bearing Gat No.114 involved in Land Acquisition Case

No.93 of 2004, not a single tree has been shown to be existing thereon in

the Joint Measurement Report but, the reason for this could be found in

the fact that admittedly possession of this land was taken in November-

1994 and this portion of land had already come under submergence of

the minor irrigation project on the date on which joint measurement was

taken, which was sometime in October-1996 in respect of which a report

is issued on 23.10.1996. This fact has also been noted in the impugned

FAs 730,765,791,792-06&1030/08 8 Common Judgment

judgment and award, and rightly so. Therefore, absence of trees in the

Joint Measurement Report in respect of Gat No.114 has not adversely

affected the claim raised in Land Acquisition Case No.93 of 2004. Thus,

I find that the findings recorded by the reference Court in respect of the

number of orange trees deserve to be confirmed and they are confirmed

accordingly.

9. Learned Assistant Government Pleaders have pointed out from

the award dated 16.12.2000 passed by the Special Land Acquisition

Officer that out of acquired land bearing Gat No.114, only 11R of the land

was acquired and not the entire land admeasuring 3.85 HR, as claimed by

the land owner. According to them, the land owner of this land has

completely misled the reference Court and has made it believe that not

only 11R of the land but, the entire piece of land bearing Gat No.114 was

acquired. Learned counsel for the land owners-claimants has invited my

attention to the findings recorded by the reference Court in paragraphs 14

and 15 of the impugned judgment and award, as an answer to the

argument of the learned Assistant Government Pleaders. Going through

the observations made in these paragraphs followed by the specific

findings made by the reference Court, I am of the view that even though

the award passed under Section 11 of the Land Acquisition Act makes a

mention of acquisition of only 11R of the land from out of Gat No.114,

FAs 730,765,791,792-06&1030/08 9 Common Judgment

the admissions given by the State, in particular the acquiring body in the

written statement as well as letter vide Exhibit 135, cumulatively go to

prove the claim of the land owner that his entire land from out of Gat

No.114 was acquired by the State for public purposes. The reference

Court, relying upon these admissions, particularly admission given in the

communication vide Exhibit 135, has found that the acquiring body has

acquired Gat No.114 admeasuring 3.63 HR and accordingly has held that

what has been acquired actually in the present case from out of Gat

No.114 is the land admeasuring 3.63 HR. Considering the evidence

discussed earlier, this finding deserves to be confirmed and it is confirmed

accordingly. It would then follow that there is no force in the argument

of the learned Assistant Government Pleaders canvassed in this regard. In

the circumstances, the appeals deserve to be dismissed and the cross

objections deserve to be partly allowed.

10. The appeals stand dismissed. The cross objections are partly

allowed. The compensation awarded by the reference Court at the rate of

Rs.89,500/- per acre for the acquisition of the lands involved in these

matters is maintained. It is declared that the claimants are entitled to

receive compensation for their orange trees at the rate of Rs.4,000/- per

tree. The compensation awarded by the reference Court for Mango trees

and Bor trees is confirmed.

FAs 730,765,791,792-06&1030/08 10 Common Judgment

11. If the claimants have already received the amount of

compensation, then on the balance outstanding, the claimants would be

entitled to receive interest at the rate of 9% per annum under Section 28

of the Land Acquisition Act from the date of the award, i.e. 16.12.2000,

for a period of one year and thereafter at the rate of 15% per annum till

actual realization.

12. The other statutory benefits as are granted by the reference

Court are also confirmed. If the State has already deposited the entire

amount, the claimants shall be permitted to withdraw the same along

with interest and other benefits as are granted under this order and the

surety furnished for withdrawal of the amount shall stand discharged.

The impugned award stands modified in the above terms. The appeals as

well as the cross objections stand disposed of accordingly. No order as to

costs.

JUDGE

APTE