The State Of Mah. Thr. The ... vs Mohandeo S/O Rathudeo Futariya
2018 Latest Caselaw 414 Bom

                                                 1         220 Jud.FA 612&676.06.odt


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

                               First Appeal No. 676/2005

                                          with

                                  First Appeal No. 612/2006
                                            ......


                               First Appeal No. 676/2005


 Appellants/Ori. Respondent (On R.A.):-

                                 1.         The State of Maharashtra,
                                            through the Collector, Nagpur.

                                 2.         The Special Land Acquisition 
                                            Officer, S.D.O. Katol.


                                            VERSUS
 Respondents/Ori Claimant (On R.A.):-

                                 1.         Mohandeo S/o Rathudeo Futariya,
                                            Aged Adult, Occ. Agriculturist,
                                            R/o. Isapur, Tal. Katol, Dist.Nagpur.

                                 2.         Vidarbha Irrigation Development 
                                            Corporation through its Executive 
                                            Engineer, Medium Project Division, 
                                            Nagpur. (Amended as per order 
                                            dated 08.09.2008)


 Shri S. M. Ghodeswar, AGP for appellants.
 Shri R. M. Bhangde, Advocate for respondents.
 ___________________________________________________________________________
                                          With
                               First Appeal No. 612/2006

 Appellant (Original Claimant):-            Mohandeo S/o Rathudeo Futariya,
                                            Aged Adult, Occ. Agriculturist,
                                            R/o. Isapur, Tal. Katol, Dist. 
                                            Nagpur. (On R.A.)




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                                                 2            220 Jud.FA 612&676.06.odt

                                           VERSUS
 Respondents(Original Defendants):-

                               1.          The State of Maharashtra through
                                           Collector, Nagpur.

                               2.          The Special Land Acquisition 
                                           Officer, S. D. O., Katol. (On R.A.)



 Shri R. M. Bhangde, Advocate for appellant.
 Shri S. M. Ghodeswar, AGP for respondents.

 ___________________________________________________________________________

                                    CORAM :  MANISH PITALE
                                                            , J.

                                    DATE     : 15.01.2018.

 Oral Judgment :-

There are two appeals challenging the judgment and order

dated 24.08.2005 passed by the 9th Ad-hoc Additional District Judge,

Nagpur (hereinafter referred to as "Reference Court") in Land

Acquisition Case No. 274/2002. First Appeal No. 612/2006 has been

filed by the claimant/land owner, being aggrieved by the amount of

compensation granted by the Reference Court, claiming further

enhancement, while First Appeal No. 676/2006 is filed by the State

against the same order of the Reference Court being aggrieved by the

enhancement granted to the claimant. There is no dispute between the

parties that the question of enhancement is limited to the compensation

granted for fruits bearing trees in the land in question. There is no

contention raised in respect of the quantum of compensation granted

for the land acquired in the instant cases.

3 220 Jud.FA 612&676.06.odt

2. The land in question in the present case is located in Survey

No. 85/A, 85/B and Survey No. 106 at Mouza Isapur, Tahsil Katol,

District Nagpur admeasuring 2.83 H.R. The Notification under Section

4 of the Land Acquisition Act, 1894 in the present case was issued on

29.03.1998 and the Notification under Section 6 of the said Act was

issued on 19.11.1998. In pursuance of the conclusion of the land

acquisition proceedings, on 26.12.2000, the Special Land Acquisition

Office, Katol passed award granting total compensation for the land

acquired and the fruit bearing trees at Rs. 15,97,144/-. Out of this, the

amount towards compensation for the fruit bearing trees was Rs.

8,58,294/- and the balance amount was towards the land acquired.

3. Aggrieved by the amount of compensation granted by the

Reference Court, the claimant preferred reference application under

Section 18 of the said Act claiming enhancement of compensation at the

rate of Rs. 20,000/- per tree for the fruit bearing trees. By the

impugned judgment and order, the Reference Court partly allowed the

Reference and granted enhanced compensation at the rate of Rs.

5,000/- per tree for total 526 orange and mosambi trees, Rs. 1500/-

towards two lemon trees and Rs. 500/- each for three Ber trees. It is

against the said judgment and order that these two appeals have been

filed. The claimant contended that the increased compensation granted

by the Reference Court was inadequate and the State contended that

the enhanced compensation was not justified.

4 220 Jud.FA 612&676.06.odt

4. Mr. R. M. Bhangde, learned counsel for the appellant in

First Appeal No. 612/2006, who is the respondent in First Appeal No.

676/2006, submitted that the Reference Court had taken into

consideration the valuation reports placed on record on behalf of the

claimant. One of the valuation reports was by an expert produced by

the claimant himself, one Dadan Borkar, who was retired Associate

Professor of Horticulture from the college of Agriculture, Nagpur and

other report was a report relied upon by the Special Land Acquisition

Officer in another acquisition case pertaining to Hingna area of the

same district. The valuation report of the expert produced by the

claimant was marked as Exhibit-17, wherein the expert had shown the

value of orange and mosambi trees at Rs. 6211/- per tree. The other

report which was relied upon in other acquisition proceedings of

Hingna area of the same district which was marked as Exhibit-28, the

valuation was given at Rs. 5825/- per tree, which was accepted by the

Collector. The learned counsel on behalf of the claimant took me

through relevant portions of the judgment of the Reference Court to

show the reason given by the Reference Court in granting enhancement

of compensation as regards fruit bearing trees. It was contended that

since the findings of the Reference Court were based on cogent

documentary and oral evidence on record, the enhanced compensation

granted was justified. On a query as to what specific material was on

record to justify the claim of further enhanced compensation @ Rs.

5 220 Jud.FA 612&676.06.odt

20,000/- per fruit bearing tree, the learned counsel for the claimant

fairly stated that such material was not available on record.

5. On the other hand, Mr. S. M. Godeswar, learned Assistant

Government Pleader appearing on behalf of Appellant - State in First

Appeal No. 676/2006 and respondent in First Appeal No. 612/2006

stated that increased of compensation from Rs. 1800/- per tree to Rs.

5000/- per tree granted by the Reference Court was not justified. It was

also submitted that the report at Exhibit-28 relied upon by the

Reference Court pertained to a different area and that there was

evidence on record to suggest that in the year 1998 when the

Notification under Section 4 of the said Act was issued in the present

case, in Katol area of the district, where the land was situated, the fruit

bearing trees were afflicted by black fly disease (commonly known as

"Kolsi") which certainly had an effect on valuation of the fruit bearing

trees. Learned Assistant Government Pleader submitted that

enhancement of compensation granted by the Reference Court was not

justified and the impugned judgment and order deserved to be set

aside.

6. Having considered the contentions raised on behalf of

respective parties and having perused the impugned judgment and

order and the facts on record, the following points arise for

determination in these appeals:

6 220 Jud.FA 612&676.06.odt

(i) Whether enhancement of compensation granted by the Reference Court in the impugned judgment and order is justified?

(ii) Whether the claimant is entitled for further enhancement as claimed by him?

7. In support of the claim of enhancement of compensation in

respect of trees, the claimant has placed on record valuation report of

the expert who also appeared as witness in support of the contention

raised by the claimant. Perusal of the evidence on affidavit of the said

expert witness at Exhibit-13 and the cross-examination of the said

witness show that the expert had visited the land in question on

15.03.1998 which is very close to the date of issuance of the

Notification under Section 4 of the said Act and that he had taken into

consideration various aspects including the total productive life of the

trees in question, as also the selling rate of the fruits. On this basis, the

said witness had prepared his report recommending a valuation of Rs.

6,211/- per tree. There is nothing shown by the learned Assistant

Government Pleader from the evidence available on record as to why

the Reference Court could not have relied upon the evidence of the said

expert witness.

8. Apart from this, it is brought on record that the Collector,

Nagpur had accepted a report at Exhibit-28 granting valuation of trees

at the rate of Rs. 5825/- per tree in the Hingna Area of the same

7 220 Jud.FA 612&676.06.odt

district. The Reference Court has referred to the said report at Exhibit-

28 and it has also taken into consideration the fact that the orange trees

grown in Katol tahsil i.e. the area where the land in question is located,

have higher quality of yield and therefore, the valuation recommended

by the expert in the instant case and the report at Exhibit-17 were

justified. Therefore, it is clear that there was proper application of mind

to the material placed on record and analysis of the evidence to arrive

at logical findings by the Reference Court. There was nothing that the

learned Assistant Government Pleader could demonstrate from the

record as to why this Court requires to interfere in the findings given by

the Reference Court.

9. Since, the learned counsel for the claimant has fairly

conceded that there is no significant material on record to support his

claim of further enhancement of compensation at Rs. 20,000/- per tree,

the First Appeal No. 612/2006 deserves to be dismissed. I have also

considered the grounds raised in First Appeal No. 676/2016 filed on

behalf of the State challenging the findings of the Reference court. In

this context, the learned Assistant Government Pleader referred to the

ground that the expert who appeared in support of the claim was only

an expert approved valuer for valuation of land and that he was not

qualified to give evidence as regards the valuation of trees. The said

contention raised on behalf of the learned Assistant Government

Pleader deserves to be rejected. It is evident from the material on

8 220 Jud.FA 612&676.06.odt

record that the said expert witness was retired Associate professor of

Horticulture, College of Agriculture, Nagpur and therefore, he was

qualified to give evidence in respect of valuation of trees. Hence, I do

not find any substance in the said submission raised on behalf of the

State and First Appeal No. 676/2006 deserves to be dismissed.

Accordingly, both the appeals are dismissed and the judgment and

order passed by the Reference Court is confirmed.

No order as to costs.

JUDGE Gohane