Harish Ratanlal Bhansali vs State Of Maha & Anr
2018 Latest Caselaw 282 Bom

                                         1                               FA-1350-04




           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      BENCH AT AURANGABAD

                        FIRST APPEAL NO. 1350 OF 2004

 Harish Ratanlal Bhansali,
 Age : 40 years, Occu. Agriculturist,
 & Business, R/o Goregaon,
 Tq. & Dist. Hingoli.                                      ...APPELLANT

 V E R S U S.

 1.       The State of Maharashtra,
          Through the Collector, Parbhani,
          (Now Hingoli)

 2.       The Special Land Acquisition Officer,
          Upper Penganga Project, Parbhani No. 2
          Parbhani.                                        ... RESPONDENTS

                                     ...
 Mr. P.S. Agrawal, Advocate for appellant.
 Mr. S.R. Yadav, AGP for respondents
                                   ....

                                       CORAM : K.K. SONAWANE, J.

                               RESERVED ON :      4th DECEMBER, 2017.

                          PRONOUNCED ON :         11th JANUARY, 2018.


 JUDGMENT :-

1. The appellant - original claimant, taking recourse of section

54 of the Land Acquisition Act, 1894 (For short "Act of 1894")

preferred present appeal, agitating the quantum of compensation

amount determined under section 18 of the Act of 1894 by the Civil

Judge, Senior Division, Hingoli, (for short "Reference Court") vide

impugned judgment and award dated 31-03-2004 in Land

2 FA-1350-04

Acquisition Reference No. 36 of 1989. It has been alleged that

Reference Court determined the inadequate, unreasonable and

meagre compensation amount for the land of the appellant acquired

by respondent-State for construction of percolation tank at village

Gotewadi.

2. The relevant facts in present case are that, the agricultural

land Survey No. 312/B ad-measuring 4 Hectare, 90 R., located at

village Goregaon, Tahsil Hingoli, belonging to the appellant was

acquired by the respondent - State for construction of percolation

tank at village Gotewadi. A notification under section 4 of the Act of

1894 was published in Government Gazette on 06-02-1986. After

compliance of procedural formalities, Special Land Acquisition

Officer (for short "SLAO") declared the award under section 11 of

the Act of 1894 and determined the market value of the land under

acquisition @ Rs. 6500/- per hectare. The SLAO also awarded Rs.

7907/- for the trees and Rs. 19,428/- towards Well and other

improvements carried out in the acquired land. Being dissatisfied

with quantum of compensation amount determined by the SLAO,

appellant-original claimant preferred Reference Application under

section 18 of the Act of 1894 and claimed enhancement of

compensation amount. It has been alleged that the SLAO awarded

very meagre and inadequate compensation for acquired land as well

as trees, well and other structures located in it. The amount of

Rs.3,79,265/- was claimed towards enhanced compensation amount

in the reference application.

                                             3                                  FA-1350-04

 3.       In    response          to   notice,    respondent-State          caused        its

appearance in the Reference application and denied the entire

contentions propounded on behalf of claimant by filing written

statement (Exhibit-7). The respondent - State contends that the

SLAO has correctly appreciated the factual aspects as well as

potential value of the lands under acquisition in proper manner.

Therefore, there was no merit in Reference Application filed under

section 18 of the Act of 1894 on behalf of claimant. In order to

establish the claim, appellant-claimant examined himself on oath at

(Exhibit-52). He has also examined P.W. 2-Suhas Pingalikar,

Consulting Engineer to prove the valuation of improvements carried

out in the acquired land. The valuation report prepared by the

Valuer Shri. Suhas Pingalikar was produced on record at (Exhibit-

34). In addition, the claimant also produced certified copies of

comparable sale instances (Exhibit-30 and 32) on record to facilitate

for fixing the market value of the acquired land. He has also

produced on record the documents i.e. bills issued by Cotton

Federation, 7/12 extracts of the acquired land, permission for

digging the well by Tahsildar etc. The respondent - State did not

lead any evidence to traverse the contentions propounded on behalf

of claimant. The Reference Court after appreciation of entire

evidence adduced on record, arrived at the conclusion that market

value of the acquired land of claimant would be Rs.15,000/- per

hectare. The Reference Court also awarded Rs.30,572/- towards

well and other improvements in the field. The amount of

4 FA-1350-04

Rs.33,712/- was granted for trees in addition to compensation

awarded by the SLAO in his Award. Accordingly, Reference Court

passed the impugned judgment and award, which is the subject-

matter of present appeal.

4. Learned counsel for appellant-original claimant vehemently

submitted that Reference Court did not appreciate the evidence on

record in its proper perspective. The Reference Court committed

error while determining the very meagre and inadequate amount of

compensation. The acquired land was fertile and irrigated land

having water source from well. The sale instances produced on

record were not considered in proper manner by the Reference

Court. The acquired land was located within precincts of village

Goregaon and all basic amenities were available in the village. The

acquired land had an future potential value, but the Reference Court

did not appreciate all these relevant factors while ascertaining its

market value. The Reference Court failed to determine the valuation

of the trees and improvements made in the land, resulting into

awarding meagre amount to the claimant. Learned counsel for

appellant explained the circumstances in detail and urged that the

compensation @ Rs. 25,000/- per acre be awarded to the claimant

for his acquired land. He has also solicited enhancement of

compensation of Rs.40,000/- as well as Rs.92,200/- for fruit bearing

trees, well and other improvements made in the acquired land.

5. In refutal, learned AGP raised objection and contends that

5 FA-1350-04

the Reference Court considered all the factual aspects in proper

manner. There were no legal infirmities or imperfection in the

findings expressed by the learned Reference Court. The document of

sale-deeds produced on record were not comparable sale instances.

However, the Reference Court considered these sale instances and

granted enhanced compensation @ Rs. 15,000/- per hectare for the

acquired land. According to learned AGP, compensation for trees

were also allowed to be enhanced without any proof. The evidence

of P.W. 2 Shri. Pingalikar, Civil Engineer was cryptic and slender in

nature and it would not render assistance for determining value of

structures raised in the land. He further added that amount granted

by Reference Court for structures, well etc. in the land itself is

exorbitant and excess one. Eventually, he prayed not to nod in

faovur of appellant-original claimant for any further enhancement of

compensation amount in this appeal.

6. At this juncture, it is worth to mention that the Reference

Court considered the comparable sale method to ascertain the

market value of land under acquisition. The comparable sale

instances have to be identified on the basis of its proximity with

crucial period of notification under section 4 of the Act of 1894 and

also with situation of the lands under acquisition. The law

postulates that market value means price that willing purchaser

would pay to willing seller for the property. The disinclination of the

vendor to part with land and urgent necessity of the purchaser to

buy should be disregarded. It is also settled principle of law that

6 FA-1350-04

there is no straight jacket formula provided under law to resolve the

controversy on market value of land under acquisition, but some

guess work is permissible while computation of market value of the

acquired land. However, the parties have to lead evidence to show

that lands have greater value and potential to ascertain the market

value prevailing during the period of notification under section 4 of

the Act of 1894. Onus to prove entitlement to higher compensation

is upon the claimant.

7. In the instant case, the appellant claimant examined himself

on oath before the Reference Court. He deposed that the acquired

land was irrigated and fertile land. He was taking yield of cotton,

sugar cane, wheat, banana etc. He produced 7/12 extract of the

land under acquisition. He has also relied upon the receipts of cotton

federation on record. The claimant also relied upon the sale

instances of land located in villages Sawna as well Goregaon itself.

These sale deed were executed in the year 1986 and 1981 for

consideration of Rs.25,000/- and Rs.38,000/- respectively. The area

of the land under sale was 0.39 R. and 0.53 R. respectively. The

appellant-claimant claimed Rs. 25,000/- per acre towards market

value for his acquired land on the basis of these comparable sale

instances produced on record.

8. Admittedly, the provision of Section 51-A of the Act of 1894

prescribed that the certified copy of the sale instances registered

under Registration Act, 1908 has to be accepted as evidence of

7 FA-1350-04

transaction recorded in such document. The extract of comparable

sale-deeds and certified copy of deposition of vendee from these

sale transactions recorded in proceeding of LAR No. 42 of 1990

came to be produced on record in this case on behalf of claimant.

These documents are at (Exhibits-30 to 33) in the record of trial

Court. In view of section 80 of the Evidence Act, these documents

have an presumptive value being part of record or memorandum of

evidence given by witness in judicial proceeding i.e. LAR No. 42 of

1990. It would be presumed that these documents are genuine one

being part of evidence duly recorded in the judicial proceedings.

Therefore, there is no impediment to appreciate these documents of

sale transactions for computation of market value of the land under

acquisition.

9. While appreciating the sale instance of land survey No. 51/1

of village Sawna Ta. Hingoli, it reveals that the said sale-deed was

executed on 17-04-1986 i.e. after publication of notification under

section 4 of the Act of 1894 in the Government Gazette on 06-02-

1986 in this case. Moreover, notification under section 4 of the Act

of 1894 was published in daily news paper circulated in area of

village Goregaon in the month of December, 1985. Therefore, it is

cumbersome to appreciate that sale instance of land survey No.

51/1 of village Sawna would be comparable sale instance. In

addition to aforesaid circumstances, the claimant produced certified

copy of deposition of vendee of sale deed, namely, Bhikaji Thorat,

who was examined in the proceeding of LAR No. 42 of 1990. He

8 FA-1350-04

deposed that the land under sale was located at the distance of 2

k.m. away from the land under acquisition. In such circumstances,

the sale instance of village Sawna could not be considered as a good

guide for computation of value of the land under acquisition.

10. The another sale-deed produced on record is from village

Goregaon itself executed on 19-06-1981. The land admeasuring 00.

53 R. from survey No. 182 was sold for consideration of Rs.

38,000/- including right to avail water facility from the well. The

extract of evidence of vendee Shri. Gyanoji Kawarkhe recorded in

the proceeding of LAR No. 42 of 1990 was produced in this case on

behalf of claimant. The evidence of vendee Shri. Gyanoji proved the

recitals of sale-deed (Exhibit-32) for sale transaction of land Survey

No. 182 admeasuring 00.53 R. for consideration of Rs. 38,000/-.

Unfortunately, vendee Gyanuji did not whisper about proximity of

the land under sale with land of the appellant-claimant under

acquisition. He had also not verbalized about identical characteristic

and potential of land under sale and land under acquisition.

Therefore, in absence of material evidence about identicalness of

land under acquisition as well as land under sale, it would unsafe to

conclude that the land under acquisition would fetch similar market

value at par with the price shown in the document of sale-deed

(Exhibit-32).

11. It is also worth to mention that minute scrutiny of recitals of

the sale instance (Exhibit-32) reflects that sale transaction of

9 FA-1350-04

agricultural land survey No. 182 admeasuring 00.53 R. land was

executed in between both the real brothers inter-se as vendee and

vendor. The recitals also adumbrates that vendor Shri. Limbaji s/o

Ganpati Kawarkhe ventured to sale the land to his real brother

owing to acute need of money for refund of loan liability as well as

to toil the remaining part of his land etc. Therefore, necessity of sale

by vendor would be crucial factor, liable to be disregarded for

appreciation being comparable sale instance. In such circumstances,

sale-deed of land Survey No. 182 being transaction in between the

real brothers inter-se and executed in acute need of money would

not be an comparable sale instance to determine the market value

of land under acquisition. It would not render any guidance for

calculating the fair and reasonable market value of the land under

acquisition.

12. It is to be noted that the Hon'ble Apex Court in the case of

Chimanlal Harigovind Vs. Special Land Acquisition Officer,

Pune reported in 1988 SC 1652 delineated the ratio that

Reference under section 18 of the Act of 1894 is not an appeal

against award declared by the SLAO under section 11 of the Act of

1894. The Court cannot take into consideration the material relied

upon by the SLAO in his award unless these materials are produced

and proved before the Court. As referred above, the claimant in the

instant case produced the documents of sale-deed on record being

comparable sale instances, but after examination of all relevant

factors, it reveals that these sale instances cannot be considered as

10 FA-1350-04

comparable sale-deeds to ascertain market value of the acquired

land.

13. The intense scrutiny of findings expressed by the Reference

Court reflects that the Reference Court adopted superficial approach

instead of examining all the ramifications of evidence available on

record to ascertain the just and fair market value of the acquired

land. Moreover, it cannot be overlooked that the claimant also

failed to establish that the price of his acquired land would fetch

more than Rs. 25,000/- per annum in the year 1986. Be that as it

may, the Reference Court on some guess work calculated the

market value of the acquired land @ Rs. 15,000/- per hectare. The

respondent - State did not agitate the findings of the Reference

Court while calculating the market value of the acquired land @

Rs.15000/- per hectare. The respondent/State did not ventilate any

grievance against it, in any appellate forum. In such peculiar

circumstances, it would be perceivable that market value

determined by Reference Court appears to be a reasonable, fair and

proper one. Moreover, the appellant-claimant is also not entitled for

any further enhancement of compensation in this case.

14. Now, in regard to valuation of trees, well and other

improvements etc. carried out by claimant in the field, it reveals

that SLAO has awarded total sum of Rs.7907/- for trees and

Rs. 19,428/- for other structures and improvements in the land.

 However,        the     Reference     Court       allowed     the   enhancement            of




                                                  11                                        FA-1350-04

compensation to the tune of Rs.30,572/- for well, plat form, pipe-

line, temple, farm house and cattle shed etc. In addition, enhanced

amount of Rs. 33,712/- came to be awarded for trees excluding

amount of Rs.6288/- already paid by the SLAO.

15. The claimant adduced evidence of P.W. 2 -Suhas Pingalikar to

prove the valuation report of structures erected in the land (Exhibit-

34). His evidence appears to be cryptic and scanty in nature. He

has not described any detail particulars or mode and manner in

which he proceed to calculate the value of each and every item

shown in the report (Exhibit-34). At this juncture, it is profitable to

make a reference of observations made by the Division Bench of

this Court (Principal seat) in paragraph No. 20 of the case- State of

Maharashtra and another Vs. Chandrakant Mangilal

Samdadia and another reported in 2013(1) Mh.L.J. 397 as

under:

"........................................................................ .................... As regards the market value of the structures and wells on the lands, the Claimants have examined one Hemant Haribhau Dhatrak who is the Civil Engineer. He has set out the market value of the wells, houses, gobar gas plant, water storage tank, etc. He has merely stated the figures of the market value in his evidence without stating the basis for coming to the conclusion as to why that a particular structure or a particular well was having the said market value. It is a mere opinion evidence without disclosing the basis for forming opinion. Therefore, his evidence will have to be kept out of consideration."

12 FA-1350-04

16. The P.W.2 Shri. Suhas Pingalikar, Valuer was the Diploma

holder in Civil Engineering. He prepared the report (Exhibit-34) in

the year 1986 on visiting to suit site at the behest of claimant. The

impugned award under section 11 was declared by SLAO in the

month of December, 1988. The claimant produced the extract of

application dated 25-02-1987 filed in the office of SLAO. The

claimant ventilated the grievance in regard to survey and joint

measurement carried out on behalf of Government Agency. But, in

the said application dated 25-02-1987 there was no reference about

valuation Report (Exhibit-34) prepared by P.W.2 - Suhas Pingalikar

in the year 1986. It remains a conundrum that for what reason

claimant did not disclose about the valuation report of P.W.2- Suhas

Pingalikar anywhere before the SLAO till filing of Reference

Application under section 18 of the Act of 1894. The evidence of

P.W.2-Suhas Pingalikar did not inspire confidence and appears not

free from blemish.

17. The claimant produced document of permission granted by

the Tahsildar for digging the well. But, it would not prop-up THE

weak edifice of the claimant's case for the reason that valuation

report of well prepared by the valuer, namely, Shri. Suhash

Pingalikar found not credible and believable one. Apart from all

these circumstances, Reference Court was pleased to award

enhanced compensation of Rs. 30,572/- to the claimant on account

of improvements carried out in the acquired land. It would be

reiterated that, respondent-State did not raise any objection about

13 FA-1350-04

quantum of compensation awarded by Reference Court towards

improvements made in the acquired land. Therefore, it would be

unjust and improper to cause any interference in the findings

recorded by the Reference Court. In the result, no any further

enhancement of compensation is permissible in favour of claimant in

addition to the amount granted by the Reference Court.

18. The claimant also ventilated the grievance about quantum of

compensation awarded for fruit bearing trees located in the acquired

land. It is to be noted that except the bare version of claimant,

there is no any other sustainable evidence available on record to

evaluate the costs of fruit bearing trees of the appellant located in

the acquired land. In absence any report of expert from

Horticulture Department, it would unsafe to proceed for assessment

of the costs of fruit bearing trees. Nodoubt, while ascertaining the

value of fruit bearing trees, it is imperative to take into

consideration the age of trees, its fruit bearing capacity, income per

annum from the trees, costs of fire wood etc. Unfortunately, all

these statistical particulars are not available in the matter in hand.

Hence, there is no alternative but to arrive at the conclusion that

the claimant failed to discharge his onus to establish the costs of

fruit bearing trees located in his acquired land.

19. In view of aforesaid discussion, it appears that appellant-

original claimant is not entitled for any further enhancement of

compensation than the amount awarded by Reference Court. There

14 FA-1350-04

are no circumstances favourable to the claimant for granting

enhancement of compensation amount in this case. The document

of sale-deeds produced on record from village Sawna and Goregaon

cannot be considered as comparable sale instances for

determination of market value of the acquired land. The evidence of

valuer Shri. Suhas Pingalikar adduced on behalf of claimant in this

case found incredulous and not free from blemish. It cannot be

relied upon for inference to favour the claimant in this matter. In

absence of report of expert from Horticulture Department, as well as

detail particulars about age of fruit bearing trees, its fruit bearing

capacity, income of the trees etc., it would difficult to determine just

compensation for the fruit bearing trees allegedly located in the

acquired land. It cannot be overlooked that the Reference Court

adopted superficial approach while granting enhanced compensation

amount in favour of claimant. Unfortunately, respondent- State did

not raise any objection against impugned award passed by the

Reference Court. In such backdrop, there is no propriety to cause

any interference in the findings expressed by the Reference Court at

the behest of claimant. In the result, present appeal being devoid

of merit deserves to be dismissed.

20. Accordingly, appeal stands dismissed. No order as to costs.

Sd/-

[ K. K. SONAWANE ] JUDGE MTK.

**