Smt. Pramilabai Wd/O Manguji Ade ... vs The State Of Mah. And Another
2018 Latest Caselaw 547 Bom

                                      1               FA691-05&237-08.odt          



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



                       First Appeal No.691 of 2005

                                           with

                       First Appeal No.237 of 2008

                                              ...

First Appeal No.691 of 2005

1. Smt. Pramilabai wd/o Manguji Ade
   (Since deceased),

2. Baliram s/o Manguji Ade,
   Aged about 49 years,

3. Prakash s/o Manguji Ade,
   Aged about 43 years,

4. Manohar s/o Manguji Ade,
   Aged about 36 years,

    All R/o Dagadparwa,
    Tahsil- Barshi Takli, Dist. Akola. ..                       APPELLANTS



                               .. Versus ..


1. The State of Maharashtra,
   through Special land Acquisition
   Officer, K.P.M.P., Akola.

2. Akola Irrigation Department,
   Akola, having its office at
   Irrigation Office, near Nehru Park,
   Akola.                              ..                    RESPONDENTS




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Mr. P.R. Agrawal with Mr. Shyam Jaiswal, Advocates for
Appellants.
Mrs. M.H. Deshmukh, Assistant Government Pleader for
Respondents.
                        ...


First Appeal No.237 of 2008

1. The Special land Acquisition
   Officer, K.P.M.P., Akola.

2. Akola Irrigation Department,
   Akola.                   ..                               APPELLANTS



                               .. Versus ..


1. Pramilabai wd/o Mangu Aade
   Aged about 65 years, (Dead)


2. Baliram s/o Mangu Aade,
   Aged about 48 years,

3. Prakash s/o Mangu Aade,
   Aged about 42 years,

4. Manohar s/o Mangu Aade,
   Aged about 35 years,

    All R/o Dagad Parwa,
    Tahsil- Barshi Takli, Dist. Akola         ...         RESPONDENTS




Mrs. M.H. Deshmukh, Assistant Government Pleader for
Appellants.
Mrs. P.R. Agrawal with Mr. Shyam Jaiswal, Advocates for
Respondents.




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                               ....


              CORAM : Manish Pitale, J.

DATED : January 17, 2018.

ORAL JUDGMENT

1. There are two appeals for consideration, one filed by

the claimants and the other by the State, both aggrieved by

the judgment and order dated 08.04.2005 passed by the

District Court at Akola (hereinafter referred to as "the

Reference Court") in Land Acquisition Case No.78 of 2004. The

claimants are aggrieved by the amount of compensation

granted by the Reference Court and they seek further

enhancement while the State has approached this Court

contending that the enhancement granted by the Reference

court to the claimants is not justified and that the award

passed by the Special Land Acquisition Officer deserves to be

restored.

2. The land acquisition proceedings in the present case

concern land at Gat No.126, mouza Dagadparwa, tahsil

Barshitakli, district Akola, admeasuring 4 H 21 R for

construction of water storage dam. The notification under

Section 4 of the Land Acquisition Act,1894 in the present case

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was issued on 21.04.2000 and the section 6 notification under

the said Act was issued on 03.05.2001. Pursuant to the

completion of proceedings before the Special Land Acquisition

Officer , on 11.10.2002, the award was declared. The Special

Land Acquisition Officer granted compensation at the rate of

Rs.62,000/- per hectare for the land acquired and for the fruit

bearing trees i.e. orange trees, lemon trees and a gauva tree,

compensation was granted at specific rates, but no

compensation was granted for mango trees or the well situated

in the land in question. In this manner, total compensation of

Rs.7,89,477/- was awarded by the Special Land Acquisition

Officer.

3. Aggrieved by the said award, the claimants

(appellants in First Appeal No.691 of 2005) preferred a

reference application under Section 18 of the said Act, claiming

enhanced compensation for land @ Rs.1 lakh per acre as also

compensation for the well and mango trees with enhanced

compensation for the orange, lemon and gauva trees over and

above the compensation granted by the Special Land

Acquisition Officer in the award.

4. In support of their claim, the claimants examined six

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witnesses while the Land Acquisition Officer was examined on

behalf of the State in support of the award. Amongst the

witnesses for the claimants, were PW1 Sharad Umale, a

retired Professor of Horticulture, who deposed in respect of the

value of trees. PW4 was the claimant- appellant no.4 in First

Appeal No. 691 of 2005, who deposed in respect of sale

instances placed on record in support of the enhanced claim

of compensation of the claimants. PW5 was the Circle

Inspector Narayan Ingole, who deposed in respect of the

location of the land and the village wherein the land was

located in the context of adjoining villages and PW6 was the

Market Inspector of the Agriculture Produce Market Committee,

who deposed in respect of the rates at which the fruits were

sold at the relevant time. The map of the village and a map

showing its location along with that of adjoining villages were

exhibited at Exhs. 31 and 32.

5. On the basis of the oral and documentary evidence

on record, by the impugned judgment and order dated

08.04.2005, the Reference Court enhanced the compensation

for the land to Rs.60,000/- per care and also granted

compensation of Rs.1,00,000/- for the well located in the land.

The compensation for the orange trees was increased from

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Rs.489/- per tree to Rs.7000/- per tree and for the lemon trees

from Rs.1489/- per tree to Rs.6000/- per tree. The Reference

Court also granted compensation for the mango trees, which

the Land Acquisition Officer had denied. In this manner, the

total compensation upon enhancement was held by the

Reference Court to be Rs.90,41,077/-.

6. Mr. P.R. Agrawal, learned counsel appearing on behalf

of the claimants-appellants in First Appeal No.691 of 2005,

submitted that the enhancement of compensation granted by

the Reference Court for the acquired land was insufficient and

that there was ample material placed on record to justify the

claim of the claimants of compensation @ Rs.1,00,000/- per

acre. Reference was made to the sale instances placed on

record pertaining to lands in adjoining villages, where the rates

fetched by dry lands demonstrated that the claim raised by the

claimants was justified. In this regard, the learned counsel

appearing for the appellants referred to the evidence of PW4

and PW5. It was submitted that no credible evidence was

placed on record on behalf of the State to demonstrate that the

findings recorded by the Reference Court were justified. It was

submitted that the sale instances relied upon in the award and

by the Land Acquisition Officer were not placed on record and

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no evidence was led in support of the same. In respect of

further enhancement of claim for fruit bearing trees, no serious

attempt was made to demonstrate any error in the findings

recorded by the Reference Court. The learned counsel

appearing for the claimants relied upon the judgment of the

Hon'ble Supreme Court in the case of Ambya Kalya

Mhatre .vs. State of Maharashtra reported in (2011) 9

Supreme Court Cases 325, in support of the contentions

raised in the appeal.

7. On the other hand, Mrs. M.H. Deshmukh, learned

Assistant Government Pleader appearing on behalf of the State

(Appellant in First Appeal No. 237 of 2008) submitted that the

enhancement of compensation granted by the Reference Court

both for the land and for the fruit bearing trees was unjustified

and that the award of the Special Land Acquisition Officer

deserved to be restored. It was submitted that grant of

compensation separately for the land and for the fruit bearing

trees and well was not justified. In this regard, reliance was

placed on the judgment of the Hon'ble Supreme Court in the

case of State of Harayana .vs. Gurcharan Singh - 1995

Supp (2) Supreme Court Cases 637.

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8. Having heard the learned counsel for the parties and

upon perusal of the pleadings, evidence and documents on

record, the point that arises for determination is, whether the

enhancement of compensation granted by the Reference Court

was justified and whether the claimants can successfully claim

further enhancement of compensation in the light of material

on record.

9. In order to determine the aforesaid point, it would be

necessary to refer to the evidence and material on record. In

respect of grant of fair compensation for the acquired land, the

evidence of PW4 is relevant because reference therein has

been made to the three sale instances on which the claimants

have relied. The first sale instance is the sale deed dated

15.04.1997 pertaining to village Atkali wherein the land has

been sold at the rate of Rs.47,058/- per acre. This was dry crop

land. The next document is sale deed dated 03.03.2000

pertaining to sale of dry land from the village Pimpalshenda

wherein it was sold at the rate of Rs.1,34,891/- per acre. The

third sale instance is an agreement to sale dated 18.03.2002

pertaining to village Punoti wherein the dry land has been sold

at the rate of Rs.1,30,276/- per acre. In order to analyse, as to

whether the aforesaid three sale instances could be a relevant

9 FA691-05&237-08.odt

yardstick for ascertaining the fair value of the acquired land, it

is necessary to examine the location of the said villages. A

perusal of the map at Exh.32 shows that the said three villages

i.e. Atkali, Pimpalshenda and Punoti are adjoining to village

Dagadparva wherein the acquired lands were located.

10. In this context, evidence of PW5 the Circle Inspector

is also relevant because he states that the aforesaid villages

were Ujad villages i.e. where there was no residential area and

the land was dry. Apart from this, it is stated by the said

witness that the aforesaid villages were located at interior

place as compared to village Dagadparva, where the acquired

lands were located and the said village Dagadparva was near

the State highway as compared to the aforesaid three villages.

It has also come on record as per the evidence of PW3 that

there was a well located in the acquired land and that the land

in question was irrigated land. Therefore, to arrive at a proper

figure as regards the compensation payable for the acquired

land, the factors regarding the land being irrigated and its

location near the Highway ought to be taken into account.

11. In this regard, the Reference Court has discussed all

three aforesaid sale instances and it has also referred to the

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evidence of PW4 and PW5. But, while arriving at the finding as

to what should be the price that the acquired land would have

fetched in the year 2000 when the notification under Section 4

of the aforesaid Act was issued on 21.04.2000, the Reference

Court simply states that considering all aspects regarding the

sale instances and situation on record, it was of the opinion

that the acquired land was capable of fetching Rs.60,000/- per

acre. There is no discussion other than this in the impugned

judgment and order of the Reference Court as to why it arrived

at the said figure.

12. The material and evidence on record shows that the

sale instances relied upon by the claimants pertained to the

aforesaid three villages and that the lands in the said sale

instances were dry lands. Apart from this, the location of the

land in question was certainly better, since it was located near

the Highway as compared to the lands in the aforesaid three

villages. Despite the fact that the location of the said lands

was inferior to the land in question and they were dry lands,

the sale instances pertaining to the years 1997 and 2000 show

that price fetched was in one case as high as Rs.1,34,891/- per

acre. These aspects have not been taken into account properly

by the Reference Court while rendering a finding that the

11 FA691-05&237-08.odt

acquired land would have fetched @ Rs.60,000/- per acre. The

evidence and material on record particularly the locational

advantage of the land in question, shows that the finding of the

Reference Court was not accurate.

13. The learned counsel appearing for the State has

relied upon the evidence of the Land Acquisition Officer

wherein he has referred to and relied upon sale instances

showing that around the time when the notification under

Section 4 of the aforesaid Act was issued, lands were sold in

the vicinity at the rate of Rs.61,728/-per hectare. It was

claimed that this was sufficient material to justify the

conclusion of the Land Acquisition Officer in his award that the

claimants deserved compensation @ Rs.62,000/- per hectare

for the acquired land. But, a perusal of the cross-examination

of the said witness i.e. the Land Acquisition Officer shows that

he admitted in the evidence that he had not even called for a

copy of the sale deed on which he relied while rendering a

finding on the quantum of compensation. The sale instances on

which the Land Acquisition Officer has relied upon, were also

not placed on record before the Reference Court. Therefore,

there was no reliable evidence or material on record to

support the conclusion derived by the Land Acquisition Officer

12 FA691-05&237-08.odt

in the award.

14. As I have found that the claimants had placed on

record sufficient oral and documentary evidence to justify their

claim of compensation for the lands at Rs.1,00,000/- per acre , I

hold that the Reference Court committed an error in limiting

the enhanced compensation at Rs.60,000/- per acre.

Accordingly, I hold that the claimants are entitled to further

enhanced compensation and that the fair value of

compensation for the acquired land payable to the claimants is

Rs.1,00,000/- per acre.

15. As regards the quantum of compensation granted for

the fruit bearing trees, as noted above, no serious effort was

made by the learned counsel appearing on behalf of the

claimants for further enhanced compensation. Therefore, it

needs to be examined as to whether the enhanced

compensation granted by the Reference Court for the fruit

bearing trees was justified, particularly when the State has also

come up in appeal against the impugned judgment and order.

16. In order to examine this aspect of the matter, the

evidence of PW1 Sharad Umale, a retired Professor of

13 FA691-05&237-08.odt

Horticulture, is significant. He has been produced as a witness

by the claimants in support of their claim. The said witness in

his deposition has elaborated upon the valuation certificate

issued by him in respect of recommended compensation for

various fruit bearing trees standing on the land when it was

acquired. A perusal of the deposition of the said witness shows

that a detailed analysis has been made in respect of the age of

the orange trees and other trees standing on the land. A

projection has been made as to what would be the value of the

yield from the fruit bearing trees based on proper yardstick of

valuation. Nothing much has been elicited in the cross-

examination of this witness. The learned counsel appearing on

behalf of the State could not point out any discrepancies in the

findings of the Reference Court in this regard. The Reference

Court has discussed the aforesaid evidence of PW1, as also the

valuation report on record and it shows that although the

claimants had claimed compensation for the orange trees at

Rs.10,000/- per tree and that in the valuation report

recommendation at Rs.12,536/- per tree was made, the

Reference Court has factored in the aspect of age of the fruit

trees to arrive at a reasonable conclusion that the claimants

deserved compensation @ Rs.7000/- per orange tree. The

findings in respect of enhancement of compensation for the

14 FA691-05&237-08.odt

other trees is also based on proper analysis of the evidence on

record.

17. The other aspect of the matter is compensation

granted for the well located on the acquired land. In this

regard, the claimants have produced PW3 in support of their

claim and the Reference court has taken into account the

evidence of the said witness to arrive at a finding that the Land

Acquisition Officer was not justified in not granting any

amount towards compensation for the well. It is found on the

basis of the evidence and material on record that the acquired

land was irrigated land on which as many as 725 orange trees

were standing, along with mango and lemon trees and a gauva

tree. The land was irrigated with the help of the well located on

the land and that it cannot be said that the compensation

granted by the Reference Court for the well was not justified.

18. The learned counsel appearing on behalf of the State

relied upon the judgment of the Hon'ble Supreme Court in the

case of State of Haryana .vs. Gurcharan Singh (supra),

particularly paragraphs 3 and 4 thereof to contend that the

Reference Court was not justified in granting separate

compensation for the land and the fruit bearing trees. In this

15 FA691-05&237-08.odt

regard, the reliance placed by the learned counsel appearing

for the claimants on the judgment, of the Hon'ble Supreme

Court in the case of Ambya Kalya Mhatre (supra) is correct.

In the said judgment relied upon by the learned counsel

appearing on behalf of the claimants, the relevant portion of

the earlier judgment of the Hon'ble Supreme Court in the case

of State of Haryana .vs. Gurcharan Singh has been

referred to and it has been explained and clarified. The

relevant portion of the judgment of the Hon'ble Supreme Court

in the case of Ambya Kalya Mhatre (supra) reads as follows:-

"34. The High Court has also held that once the compensation is awarded for the land, there cannot be additional or separate compensation for the trees. For this purpose, the High Court has relied upon the following observations of this Court in State of Haryana vs. Gurcharan Singh - 1995 Supp (2) SCC 637 :

"It is settled law that the Collector or the court who determines the compensation for the land as well as fruit bearing trees cannot determine them separately. The compensation is to the value of the acquired land. The market value is determined on the basis of the yield. Then necessarily applying suitable multiplier, the compensation needs to be awarded. Under no circumstances the court should allow the compensation on the basis of the nature of the land as well as fruit- bearing trees. In other words, market value of the land is

16 FA691-05&237-08.odt

determined twice over; once on the basis of the value of the land and again on the basis of the yield got from the fruit-bearing trees. The definition of land includes the benefits which accrue from the land as defined in section 3(a) of the Act. After compensation is determined on the basis of the value of the land as distinct from the income applying suitable multiplier, then the trees would be valued only as firewood and necessary compensation would be given."

35. We are afraid that the High Court has misread the said decision in regard to valuing the land and trees separately. If the land value had been determined with reference to the sale statistics or compensation awarded for a nearby vacant land, then necessarily, the trees will have to be valued separately. But if the value of the land has been determined on the basis of the sale statistics or compensation awarded for an orchard, that is land with fruit-bearing trees, then there is no question of again adding the value of the trees. Further, if the market value has been determined by capitalizing the income with reference to yield, then also the question of making any addition either for the land or for the trees separately does not arise. In this case, the determination of market value was not with reference to the yield. Nor was the determination of market value in regard to the land with reference to the value of any

17 FA691-05&237-08.odt

orchard but was with reference to vacant agricultural land. In the circumstances, the value of the trees could be added to the value of the land. "

19. The above quoted portion of the said judgment

clarifies that if the value of the land has been determined with

reference to sale statistic or compensation awarded for nearby

vacant land, then the trees will have to be valued separately. In

the instant case, the sale instances relied upon by the

claimants pertained to dry land of adjoining villages and it has

come in the evidence of PW5, the Circle Inspector, that the sale

instances pertained to lands located in adjoining villages that

were Ujad villages i.e. where there was minimal agricultural

activities. The material on record shows that the sale

instances pertained to lands that were absolutely dry and that

therefore, there was no question of the lands having been

valued as lands bearing fruits bearing trees. Thus, the learned

counsel appearing on behalf of the claimants is justified in

contending that the compensation in the present case was

correctly granted by the Reference Court for the land and the

fruit bearing trees separately.

20. In the light of the above, I find that the impugned

18 FA691-05&237-08.odt

judgment and order passed by the Reference Court needs to be

modified. While the quantum of compensation granted for fruit

bearing trees and other heads of compensation does not

deserve any interference, but the compensation granted by the

Reference Court for the acquired land deserves to be enhanced

further. I hold that on the basis of material and evidence on

record, the claimants deserve compensation for the acquired

land @ Rs.1,00,000/- per acre. The impugned judgment and

order of the Reference Court is, therefore, modified to that

extent. It is clarified that the claimants would be entitled to

other statutory benefits on the enhanced component of the

compensation as granted by this Court. Accordingly, First

Appeal No.691 of 2005 filed by the claimants is partly allowed

and First Appeal No.237 of 2008 filed by the State is dismissed.

No orders as to costs.

21. It is submitted by the learned counsel appearing on

behalf of the claimants that they were permitted to withdraw

50% of the compensation granted by the Reference Court,

which was deposited in this Court by the order dated

07.01.2008. In the light of the fact that I have partly allowed

the appeal of the claimants and further enhanced the

compensation, the claimants are permitted to withdraw the

19 FA691-05&237-08.odt

balance 50% amount lying in this Court along with accrued

interest.

(Manish Pitale, J. )

...

halwai/p.s.