The State Of Mah. And 2 Ors vs Smt. Aiyashabi W/O. Abdul Karim ...
2018 Latest Caselaw 246 Bom

                                      1                FA238-96&507-97.odt          



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



                       First Appeal No.238 of 1996

                                           with

                       First Appeal No.507 of 1997
                                    ...


First Appeal No.238 of 1996


1. State of Maharashtra.

2. The Collector, Yavatmal.

3. The Special Land Acquisition Officer,
   Yavatmal.
                            ..                                   APPELLANTS


                               .. Versus ..


Smt. Aiyashabi w/o Abdul Karim,
(Dead by L.R.)

Abdul Razzak Abdul Karim,
Aged about 50 years,
R/o Digras, taluq Digras,
District Yavatmal.                                ..          RESPONDENT


Mr. M.A. Kadu, AGP for Appellants.
Mr. R.J. Mirza, Advocate for Respondent.


                               ....




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                                         2                   FA238-96&507-97.odt          


First Appeal No.507 of 1997


Smt. Aiyashabi w/o Abdul Karim,
(Since deceased)

Abdul Razzak Abdul Karim,
Aged about 50 years,
R/o Digras, taluq Digras,
District Yavatmal.
                                             ..                       APPELLANT


                               .. Versus ..


1. The State of Maharashtra,
   through Secretary, Mantralaya,
   Mumbai -32.

2. The Collector, Yavatmal.

3. Special Land Acquisition Officer,
   at the office of Collector ,
   Dist. Yavatmal.                                     ..          RESPONDENTS


Mr. R.J. Mirza, Advocate for Appellant.
Mr. M.A. Kadu, AGP for Respondents.

                                             ...


              CORAM : Manish Pitale, J.

DATED : January 10, 2018.

ORAL JUDGMENT

1. These are two appeals filed by the State of

Maharashtra and the claimant being First Appeal No.238 of

1996 and First Appeal No.507 of 1997. Both parties being

3 FA238-96&507-97.odt

aggrieved by the judgment and order dated 28.10.1995 passed

by the Court of Civil Judge, Senior Division, Pusad (hereinafter

referred to as the Reference Court) in Land Acquisition Case

No.251 of 1990 (Old L.A.C. No.77 of 1987). The State is

aggrieved by the enhancement of compensation granted to the

claimant, while the claimant has filed the appeal seeking

further enhancement of compensation.

2. In the instant case, notification under Section 4 of the

Land Acquisition Act, 1894 was issued on 04.07.1981 for

acquisition of land belonging to the claimant in Survey No.18/2,

village Ukhali, tahsil Digras, district Yavatmal admeasuring 1

hectare 87 R. Upon completion of proceedings under the

aforesaid Act, the Special Land Acquisition Officer, Yavatmal,

passed award on 23.09.1986 granting compensation to the

claimant at the rate of Rs.9,500/- per hectare. Aggrieved by

the same, the claimant filed the reference application seeking

enhancement of compensation. The claimant later amended

the reference application to seek further enhanced

compensation at the rate of Rs.5,50,000/- per hectare.

3. The claimant and the State produced documents and

presented witnesses in support of their respective stand and on

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20.10.1995 the Reference Court partly allowed the reference

application and enhanced the compensation to Rs.2,50,000/-

per hectare. The Reference Court, inter alia, took into

consideration the location of the land in question and its

proximity to Digras town to hold that there was non-

agricultural potentiality in the land and that therefore, the

aforesaid rate of enhanced compensation was required to be

granted.

4. Aggrieved by the said judgment and order of the

Reference Court, the State has filed First Appeal No. 238 of

1996. Mr. M.A. Kadu, learned Assistant Government Pleader,

appearing on behalf of the State has contended that the

findings rendered by the Reference Court granting

compensation at an extremely high rate is not sustainable and

that similar pieces of land from the same village have been

granted lesser amount of compensation. It is contended that

the claimant failed to adduce proper evidence in support of

non-agricultural potentiality of the land in question other than

oral assertion made by the witnesses. He pointed out that the

reliance placed by the Reference Court on the map (Exh.24) on

record while granting enhanced compensation was not proper

because the location of the land in question being proximate to

5 FA238-96&507-97.odt

either Digras town or the road from Digras to Chincholi was not

clear. It is contended that the findings rendered by the

Reference Court are not supported by documentary evidence

on record.

5. Apart from this, the learned AGP relied upon orders

passed by this Court in First Appeal Nos. 132 of 1994, 117 of

1995 and 336 of 1994. It is pointed out that in all these orders

passed in appeals arising from acquisition proceedings

undertaken pursuant to the same notification issued under

Section 4 of the aforesaid Act dated 04.07.1981, the claimants

have been granted compensation at the rate of Rs.62,000/- per

hectare and that therefore, in the present case also

compensation at such rate ought to be granted to the claimant.

6. On the other hand, Mr. Rahil Mirza, learned counsel

appearing on behalf of the claimants has submitted that the

claimant had placed on record sufficient documentary and oral

evidence before the Reference Court to justify her claim of

compensation at the rate of Rs.5,50,000/- per hectare. It was

contended that the location of the land in question was clearly

proximate to the municipal limits of Digras town and that the

said town was rapidly developing in the direction of village

6 FA238-96&507-97.odt

Ukhali. According to the learned counsel appearing on behalf of

the claimant, there was sufficient material on record to grant

further enhancement of compensation.

7. As regards reliance placed on earlier orders of this

court on behalf of the State, it was submitted that in none of

the said orders, the aspect of non-agricultural potentiality was

discussed. It was pointed out that this Court in the said

appeals discussed the facts about nature of the agricultural

land, it being perennially irrigated and the aspect of crops

taken on the land and fruit trees existing on them. The aspect

of non-agricultural potentiality was not discussed in those

orders.

8. The counsel for the parties have also placed on

record the judgment and order dated 03.04.2009 passed by

this Court in First Appeal No. 89 of 1995. This was also an

appeal arising from acquisition proceedings undertaken in

pursuance of the same notification under Section 4 of the

aforesaid Act dated 04.07.1981 concerning Survey No. 8/3 of

village Ukhali. In this judgment, this Court has discussed the

aspect of location of the land in question and its non-

agricultural potentiality. The Reference Court in the said case

7 FA238-96&507-97.odt

had granted compensation at the rate of Rs.3,50,000/- per

hectare to the claimant. Upon considering various aspects of

the matter, this court came to the conclusion that the order of

the Reference Court was required to be modified and just and

fair compensation was at the rate of Rs.2,40,000/- per hectare.

9. On considering the documents and material on record

as also the contentions raised on behalf of the parties, the

following points arise for determination:-

Sr.No. Points                                                 Findings
(i)        Whether the impugned judgment and Yes
           order of the Reference Court granting
           compensation          at    the    rate       of
           Rs.2,50,000/- per hectare needs to be
           modified?
(ii)       What order ?                                       Appeal                of
                                                              State is partly
                                                              allowed              and
                                                              that                  of
                                                              claimant              is
                                                              dismissed.

10. A perusal of the impugned judgment and order of the

Reference Court demonstrates that oral and documentary

evidence on record has been taken into consideration. Not only

has the Reference court considered the value of the

8 FA238-96&507-97.odt

agricultural land on the basis of the crops taken by the

claimant over a period of time and the fact that it was

completely under irrigation, the aspect of non-agricultural

potentiality has also been taken into consideration. The

evidence adduced on behalf of the claimant shows that the

witnesses made specific assertions as regards the location of

the land in question and the fact that it was hardly at a

distance of about 1 km. from the residential zone of Digras

town. The witnesses also stated that due to the acquisition of

lands in and around village Ukhali, the town of Digras was

developing at a rapid rate and the land prices were increasing.

The evidence of the said witnesses also shows that the land in

question in village Ukhali was near the Digras- Darwha road.

All these assertions of the witnesses have not been shaken or

controverted in the cross-examination. Apart from this, the

map at Exh.24 on record also demonstrates that the land in

question in Survey No.18/2 is not very far from the land in

Survey No.8/3 of the same village wherein this Court has

granted compensation at the rate of Rs.2,40,000/- per hectare

while disposing of First Appeal No.89 of 1995.

11. The reliance placed on behalf of the appellant-State

on orders passed by this Court in First Appeal Nos. 132 of

9 FA238-96&507-97.odt

1994, 117 of 1995 and 336 of 1994 appears to be misplaced.

A perusal of the aforesaid orders shows that in the order dated

24.11.2010 passed in First Appeal No.132 of 1994, this Court

has granted compensation at the rate of Rs.62,000/- per

hectare by simply relying upon the judgment and order dated

22.06.2010 passed by this Court in First Appeal No. 117 of

1995 and the connected appeals. A perusal of the said

judgment and order dated 22.06.2010 in turn shows that

reliance has been placed on an earlier judgment and order

dated 08.04.2010 passed in First Appeal No.336 of 1994. The

judgment and order dated 08.04.2010 passed in First Appeal

No. 336 of 1994 shows that this Court has granted

compensation at the rate of Rs.62,000/- per hectare by

analysing value of the land on the basis of the crops taken by

the claimant, report of the Horticultural Department and the

fact that the land was perennially under irrigation. There is no

reference or discussion on the aspect of non-agricultural

potentiality of the land in question, although it is located in the

same village Ukhali and it has been acquired in pursuance of

the same notification under Section 4 of the aforesaid Act

dated 04.07.1981.

12. A perusal of the aforesaid orders dated 24.11.2010

10 FA238-96&507-97.odt

passed in First Appeal No.132 of 1994 and the order dated

22.06.2010 passed in First Appeal No. 117 of 1995 and

connected appeals, shows that apart from relying on the

judgment and order dated 08.04.2010 in First Appeal No. 336

of 1994 , the discussion is again on the aspects of the land

being perennially irrigated and the types of crops taken by the

claimants on the said land. All the said orders passed by this

court do not discuss the non-agricultural potentiality of the

lands in question although there is a passing reference made in

the orders to the effect that the lands in question are by the

side of Digras- Darwha road.

13. On the other hand, perusal of the judgment and order

dated 03.04.2009 passed by this Court in First Appeal No. 89 of

1995 shows that there is an elaborate discussion on the non-

agricultural potentiality of the land. It has been found by this

Court that the land situated in the said village Ukhali is on the

old Digras-Darwha road where there are colleges, bus-stand,

bank, petrol pump and office of the Panchayat Samiti. The fact

that there is non-agricultural potentiality is found to have been

established by the claimants therein. In the instant case also,

the claimant has pleaded and proved with the evidence on

record regarding the non-agricultural potentiality of the land in

11 FA238-96&507-97.odt

question. Apart from this, the judgment and order of this Court

dated 03.04.2009 passed in First Appeal No.89 of 1995

granting enhanced compensation on the ground of non-

agricultural potentiality of the land, was not brought to the

notice of this Court when subsequent orders were passed in

First Appeal Nos.132 of 1994, 117 of 1995 and 336 of 1994.

14. Therefore, I find that the appellant-State is not

justified in relying upon the subsequent orders passed by this

Court wherein compensation has been granted at the rate of

Rs.62,000/- per hectare. At the same time, the claimant is also

not justified in contending that the Reference Court erred in

enhancing the compensation only at the rate of Rs.2,50,000/-

per hectare. The basis of the claim of the claimant for

enhanced compensation is essentially the non-agricultural

potentiality of the land in question. This aspect has attained

finality as per the aforesaid judgment and order dated

03.04.2009 passed by this Court in First Appeal No. 89 of 1995

wherein this Court has granted compensation at the rate of

Rs.2,40,000/- per hectare. In the said appeal also this Court

was very much concerned with the land from the same village

which was acquired pursuant to the same notification dated

04.07.1981 issued under Section 4 of the aforesaid Act.

12 FA238-96&507-97.odt

15. Therefore, I am of the opinion that even if the aspect

of non-agricultural potentiality as raised by the claimant is

taken into consideration, the appropriate compensation would

be at the rate of Rs.2,40,000/- per hectare. Therefore, First

Appeal No.238 of 1996 filed by the appellant-State is partly

allowed and the impugned judgment and order of the

Reference Court is modified and it is held that the claimant is

entitled to compensation at the rate of Rs.2,40,000/- per

hectare. The appeal filed by the claimant is dismissed as no

case is made out for further enhancement of compensation.

The points indicated above are decided in above terms. The

appeals are disposed of without any order as to costs.

(Manish Pitale, J. )

...

halwai/p.s.