State Of Mah. Thru. Collector & 2 ... vs Waman Sampat Gadge & Anor
2017 Latest Caselaw 7416 Bom

fa.406.08.jud                          1


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

                       FIRST APPEAL NO.406 OF 2008


01]    State of Maharashtra,
       Through Collector, Amravati.

02]    Special Land Acquisition Officer,
       Minor Irrigation Works, Amravati.

03]    Executive Engineer,
       Irrigation Division, Amravati.                             .... Appellants

       -- Versus -

01]    Waman Sampat Gadge,
       Aged 45 years, Occupation : Cultivator

02]    Ramesh Sampat Gadge,
       Aged 40 years, Occupation : Cultivator.

       Both r/o Loni, Taluqa Warud,
       District Amravati.                                     .... Respondents

Ms. H.N. Jaipurkar, A.G.P. for the Appellants.
None for the Respondents.

                CORAM           : KUM. INDIRA JAIN, J.

                DATE            : SEPTEMBER 21, 2017.


ORAL JUDGMENT :-

This appeal by State of Maharashtra takes an

exception to the judgment and award dated 15/12/2005 passed

by the learned Civil Judge Senior Division, Amravati in Land

Acquisition Case No.66/2000. By the said judgment and award,

Reference Court awarded additional compensation of Rs.58,000/-

to claimants for the land along with consequential benefits.

Being aggrieved thereof, State has preferred this appeal

challenging enhancement.

02] The facts giving rise to the appeal may be stated in

nutshell as under :

i. Respondents were the owners of Survey No.292/1

admeasuring 1.45 H.R. situated at Mouza Loni. The

said land was acquired for Jamalpur irrigation tank.

Notification under Section 4 of the Land Acquisition

Act ('the Act' for short) was published on 22/02/1994.

Land Acquisition Officer determined compensation at

the rate of Rs.35,000/-. Having found the

compensation fixed by Land Acquisition Officer as an

inadequate, claimants challenged the same in

reference under Section 18 of the Act.

ii. It was the contention of claimants before the the

Reference Court that the land was fertile and irrigated

land having facility of well water. Claimants were

taking several crops and yields from the said land.

The submission was that without considering the

fertility and potentiality of the land, meager

compensation came to be determined. They,

therefore, claimed additional compensation to the

tune of Rs.1,80,500/- and the consequential benefits

thereof.

iii. Petition was resisted vide written statement [Exh.28].

It was submitted that Land Acquisition Officer

awarded compensation on the basis of prevailing

market value of the land at the time of notification

under Section 4 of the Act. It was denied that the

land was fertile and having potentiality as stated by

claimants. According to respondents, just and fair

compensation was determined by the Land

Acquisition Officer based on material available on

record and claimants are not entitled to

enhancement.

iv. On the basis of rival pleadings of the parties,

Reference Court framed issues at Exh.29. Claimants

examined PW-1 Waman Sampatrao Gadge-petitioner

no.1 and PW-2 Haribhau Daulatrao Agarkar, a witness

on sale-deed [Exh.38]. In rebuttal, respondents

examined Dinkar Janardhan Kale as a solitary witness,

who was working as Land Acquisition Officer at the

relevant time. Considering the evidence, oral and

documentary, Reference Court came to the conclusion

that the amount of compensation determined by Land

Acquisition Officer was not correct and enhanced the

same to Rs.75,000/- per hectare. It is this order,

which is the subject matter of challenge in the

present appeal.

03] Ms. H.N. Jaipurkar, learned Assistant Government

Pleader for appellants submits that sale instances produced by

claimants were not relied upon by the Reference Court.

According to learned A.G.P., Reference Court placed sole reliance

on the admission brought in cross-examination of Land

Acquisition Officer and came to the conclusion that claimants are

entitled to enhancement. She submits that in the absence of

evidence and particularly sale-deeds showing market value,

reliance should not have been placed on solitary admission and

reference should have been answered in the negative.

04] With the assistance of the learned A.G.P., perused

impugned judgment and award, pleadings of the parties and

evidence adduced in the matter. The following points would arise

for determination in this appeal.

i. Whether enhancement of compensation determined by Reference Court is just, fair and reasonable ?

ii. Whether impugned judgment and award calls for interference in this appeal ?

05] On the careful scrutiny of the material placed on

record, this Court records its findings to Point No.1 in the

affirmative and Point No.2 in the negative for the reasons to

follow :

06] So far as the evidence of claimant Waman Gadge is

concerned, it can be seen that he supports his claim. Against

the evidence of claimant Waman Gadge, Respondents examined

Land Acquisition Officer. The evidence of duo is word against

word. In this situation, it would be necessary to see whether

claim for enhancement of compensation is substantiated by

other evidence.

07] Two sale instances relied upon by claimants i.e.

Exhs.38 & 39, have been kept out of consideration by Reference

Court for the reason that the lands under the sale-deeds were

not of the same village and they were of post notification period.

Reference Court basically relied upon the facts elicited in cross-

examination of Land Acquisition Officer to enhance

compensation at the rate of Rs.75,000/- per hectare.

08] DW-1 Dinkar Kale had not awarded compensation.

The award was passed by Land Acquisition Officer Shri R.D.

Deshmukh. As Shri R.D. Deshmukh expired, DW-1 Dinkar Kale,

working as Land Acquisition Officer at the relevant time, was

examined in support of defence. The testimony of Dinkar Kale

rests on the record.

09] In cross-examination, DW-1 Dinkar Kale admitted that

price of land is increasing day by day. He admits that in case

land is irrigated by well water, it is termed as irrigated land. The

award passed by Land Acquisition Officer no where indicated

that report of irrigated land was collected. It is admitted by the

witness that there was a well in the land of claimants. He also

admits that valuation of land of claimants was after considering

the land as dry crop land. There is an unequivocal admission by

DW-1 Dinkar Kale that on 31/01/1992, rate of the land was

Rs.75,000/- per hectare and claimants were paid compensation

for dry crop land at the rate of Rs.35,000/- per hectare.

10] The above material admissions elicited in cross-

examination of witness of respondent no.2 would clearly

establish that the land having facility of well water belonging to

claimants was not a dry crop land, but an irrigated land.

Reference Court considering this aspect. enhanced

compensation at the rate of Rs.75,000/- per hectare (-)

Rs.35,000/- per hectare already granted by Land Acquisition

Officer. In view of admissions of the witness of respondents

examined before the Reference Court, submission of appellant

that enhancement of compensation should not have been based

on the facts brought in cross-examination has no substance.

Reference Court has legally appreciated the evidence and the

reasons recorded in the impugned judgment and award are

consistent with the evidence adduced by the parties. As such,

no fault can be found with the impugned judgment and award.

Hence, the following order :

ORDER

I. First Appeal No.406/2008 stands dismissed.

II. No costs.

*sdw                                     (Kum. Indira Jain, J)