Spl.Land Acquisition ... vs Ramkrishna S/O Dashrath Nagpure
2017 Latest Caselaw 6795 Bom

(Judgment) 0509  FA 786-2004                                                                                1/8

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


                                     FIRST APPEAL NO. 786/2004


                1]   Special Land Acquisition Officer
                       (Pench Project), Nagpur.

                2]   Executive Engineer,
                       Lower Wana Project, Wardha.                                      APPELLANTS

                                                   .....VERSUS.....


                      Ramkrishna S/o Dashrath Nagpure,
                      Aged about 45 years, Occu: Agriculturist,  
                      R/o. Kanhalgaon, Tq. & Distt. Nagpur.                              RESPONDE NT


                                Mrs. M.S. Naik, AGP for appellant no.1.
                                Shri M.A. Kadu, counsel for appellant no.2.
                                Shri A.S. Dhore, counsel for respondent.


                                CORAM:  S.B. SHUKRE, J.

                                DATE    : SEPTEMBER 05, 2017.
                 

                                ORAL JUDGMENT :  

This appeal challenges the judgment and

order dated 18/04/2001 rendered in Land Acquisition

Case No. 90/1998 by the Joint Civil Judge (Sr.Dn.),

Nagpur.

                                     2]              By   the   impugned   judgment   and   order,   the




 (Judgment) 0509  FA 786-2004                                                                             2/8

reference application filed under Section 18 of the Land

Acquisition Act (in short, "L.A. Act") by the respondent

has been partly allowed. The reference court enhanced

the compensation, payable for the acquired land and

also for the fruit bearing trees. The value of the land

determined by the reference court was of Rs.1,50,000/-

per hector. It was based on its assessment that the land

was a semi-irrigated land. But, such determination of the

market value of the land has been done only for 92 R of

the total acquired land admeasuring 1.92 HR. For the

remaining portion of the acquired land, which was of 1

HR, no compensation based upon value of the land was

awarded by the reference court and the compensation

was granted by determining the value of 304 Orange

trees and 25 Bor trees standing on this 1 HR portion of

the acquired land. Orange trees numbering 304, were

assessed as carrying value of Rs.2,500/- per tree and Bor

trees 25 in number, were evaluated at the rate of

Rs.1,000/- per tree by the reference court as against the

assessment of Rs.1,121/- per tree for the Orange trees

and Rs.322/- per tree for the Bor trees, made by the

Special Land Acquisition Officer. The appellant felt that

(Judgment) 0509 FA 786-2004 3/8

such valuation was on the higher side and so the

appellant is before this Court in the present appeal.

3] I have heard Mrs. Naik, learned AGP for the

appellant no.1, Shri M.A. Kadu, learned counsel for the

appellant no.2 and Shri Dhore, learned counsel for the

respondent.

4] I have gone through the record of the case

including the impugned award. Now, the only point that

arises for my determination is :

"Whether the compensation granted by the

reference court is just and proper?".

5] In order to answer the question, it would be

proper for us to consider the evidence available on

record.

6] The reference court, by considering

applicable sale instances, has determined the market

value of the acquired land to be at Rs.1,50,000/- per

hector, it being a semi-irrigated land. So far as such

(Judgment) 0509 FA 786-2004 4/8

determination is concerned, there is no dispute. The

question is, whether such valuation could have been

applied only to 92 R land from out of total acquired land

admeasuring 1.92 HR or not? Admittedly, the

determination of the market value of the acquired land

was neither based upon income capitalization method

nor the sale instances of orchards. Therefore, by

following the ratio of Ambya Kalya Mhatre and others

-Vs- State of Maharashtra, 2012(1) Mh.L.J. 9, the

reference court could not have granted compensation

only for 92 R of the land, holding that on the remaining

portion of the land, fruit bearing trees being present and

compensation for fruit bearing trees based upon their

valuation was being granted, there was no need to

include, for grant of compensation based upon valuation

of the acquired land, the entire piece of the acquired

land. The compensation at the rate of Rs.1,50,000/- per

hector, therefore, ought to have been granted by the

reference court for the entire area of the acquired land

which was of 1.92 HR and not just 92 R of the acquired

land. This is an error which is manifest from the face of

the record and has arisen by not applying the settled law

(Judgment) 0509 FA 786-2004 5/8

and so it needs to be corrected by this Court in this

appeal, in order to do complete justice in the matter, by

invoking its power under Order 41 Rule 33 of the C.P.C.

Accordingly, I declare that the respondent is entitled to

receive compensation at the rate of Rs.1,50,000/- per

hector for the entire portion of the acquired land

admeasuring 1.92 HR and same shall be given to the

respondent by the appellants.

7] About the assessment of the value to the fruit

bearing trees, I must say that the dispute is restricted

to only Orange and Bor trees and not the other trees.

This dispute is further restricted to the valuation of the

trees, Orange and Bor, and not to their numbers.

Without any doubt, there were 304 number of Orange

trees and 25 number of Bor trees, which were adult

trees, standing on the portion of the acquired land.

Although, the valuation done by the Special Land

Acquisition Officer is based upon the valuation report of

the Horticulturist, I find that this valuation has been

proved by the respondent to be on the lower side.

Evidence of one of the witnesses of the respondent,

(Judgment) 0509 FA 786-2004 6/8

PW-3 Ramesh Nagpure, is relevant in this regard. He is

gardener and he has stated that the Orange trees and

Bor trees that were standing on the portion of the

acquired land, were healthy and that they used to be

regularly watered by lifting the water from the nearby

river. This witness has not been subjected to any cross

examination by the appellants. This would enable this

Court to accept the evidence of PW-3 Ramesh as reliable

and throwing useful light on the issue involved in this

case. When, PW-3 Ramesh says that Orange and Bor

trees were healthy, one has to understand it by

considering the quality of these trees as standing

somewhere between average and very good. If, the

Special Land Acquisition Officer, based upon the opinion

of the Government Horticulturist, had found the quality

of these trees to be average and the reference court

found the same to be very good by drawing support from

the evidence of PW-3 Ramesh, one has to say that, the

valuation to be done by this Court can be somewhere

between the valuation of the Special Land Acquisition

officer and the reference court. The Special Land

Acquisition Officer had valued each Orange tree at

(Judgment) 0509 FA 786-2004 7/8

Rs.1,121/- and each Bor tree at Rs.322/-, while the

reference court evaluated these trees to be at Rs.2,500/-

and Rs.1,000/- per tree respectively. If a middle path is

to be adopted, this valuation would be like Rs.1,500/-

per Orange tree and Rs.500/- per Bor tree. In this

manner, I find that proper valuation of Orange and Bor

trees should be at Rs.1,500/- per Orange tree and

Rs.500/- per Bor tree, which I do so now.

8] In this view of the matter, I find that the

respondent is entitled to receive compensation for the

entire portion of the acquired land admeasuring 1.92 HR

at the rate of Rs.1,50,000/- per hector and further

compensation on account of 304 Orange trees and 25

Bor trees at the rate of Rs.1,500/- per Orange tree and

Rs.500/- per Bor tree, from the appellants and same be

given to the respondent.

9] Appeal, is thus, partly allowed and the

impugned award stands modified in terms of this order.

10] The interest and other benefits awarded by

the reference court shall also be given at the same rate

(Judgment) 0509 FA 786-2004 8/8

to the respondent on the compensation hereby allowed.

11] The interest to be given at the rate of 9% per

annum, shall be so given, from the date of award of the

Special Land Acquisition Officer for one year and

thereafter at the rate of 15% per annum till actual

realization.

                                12]           Parties to bear their own costs.  

                                 

                                                                                JUDGE       

                                Yenurkar