Annasaheb Sambhajirao Deshmukh vs State Of Maha & Anr
2018 Latest Caselaw 582 Bom

                                            {1}
                                                                FA 659.04 w 1258.04.odt


                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                            BENCH AT AURANGABAD

                            FIRST APPEAL NO. 659 of 2004


Annasaheb S/o. Sambhajirao Deshmukh
Age 48 years, Occ. Agri.,
R/o. Ieet, Tq. Bhoom,
Dist. Osmanabad.

                                                                  ...APPELLANT
                                                                     Original claimant

       versus

1] The State of Maharashtra
   through Collector, Osmanabad.


2] The Executive Engineer,
   Irrigation Department, Osmanabad,

                                                                    ...RESPONDENTS
                                                            original respondents.

                                            .....

Mr. V.M. Humbe, Advocate for appellant.
Mr. B.V. Virdhe, AGP for respondent State.

                                            With

                                FIRST APPEAL NO. 1258 OF 2004


1]     The State of Maharashtra
       through The Collector,
       Osmanabad.

2]     The Executive Engineer,
        Irrigation Department (Medium Project)
        Osmanabad.
                                                                    ...APPELLANTS.
                                                                Original respondents.
       VERSUS



 ::: Uploaded on - 12/02/2018                          ::: Downloaded on - 21/05/2018 00:05:14 :::
                                        {2}
                                                            FA 659.04 w 1258.04.odt


Annasaheb Sambhajirao Deshmukh
Age 45 years, Occ. Agriculture
R/o. Ieet, Tq. Bhoom, Dist. Osmanabad.

                                                        .. RESPONDENT.
                                                        Original claimant.
                                       .....

Mr. B.V. Virdhe, APP for appellant No.1.
Mr. Ruturaj Patil, Advocate for appellant No.2.
Mr. V.M. Humbe, Advocate for respondent.

                                         CORAM : K.K. SONAWANE, J.

DATE : 18th January, 2018.

JUDGMENT : ( Per : K.K. Sonawane, J.)

1] The points of controversy in both these appeals are centered on

the question of valuation of land under acquisition. There are counter

allegations relating to quantum of compensation amount determined by the

Reference Court. Therefore, these two allied appeals are dealt with

together for its adjudication on merit by this common judgment.

2] The land in question, bearing Survey No. 513 admeasuring 4

Hectare 07 R situated at village Ieet, Taluka Bhoom, District Osmanabad was

put under acquisition for "Upper Manjra Medium Project" at village Ieet,

Taluka Bhoom. The notification under Section 4 of the Land Acquisition

Act,1894 ( hereinafter referred to as "Act 1894") was published on 5.4.1990.

After compliance of procedural formalities, the Special Land Acquisition

Officer determined the compensation amount of acquired land and declared

the award on 31.12.1994 under Section 11 of the Act, 1894. The market

{3} FA 659.04 w 1258.04.odt

price for land under acquisition of the claimant was calculated @

Rs.37,000/- per Hectare. The compensation amount of Rs. 38,229/- for 10

mango trees, Rs. 8,04,263/- for 660 pomegranate trees and Rs.32,786/- for

improvement in the field, were also awarded by the Special Land Acquisition

Officer. But, the claimant/appellant did not satisfy with the quantum of

compensation amount determined by the Land Acquisition Officer.

Therefore, Reference Application was made under Section 18 of the Act,

1894. The claimant asked for enhancement of compensation amount for his

acquired land as well as for fruit bearing trees, well, bund (Tal) etc. in the

field. The Reference Court considered the evidence adduced on record and

fixed the market price of the land under acquisition @ Rs. 50,000/- per acre.

The Reference Court also granted compensation of Rs. 18 Lakhs for 1200

pomegranate trees @ Rs. 1500 per tree, Rs. 18 Lakhs for 300 tamarind trees

@ Rs. 6,000/- per tree; Rs. 48,000/- for 10 mango trees @ Rs. 4800/- per

tree and Rs. 1,62,800/- for well and bund constructed in the field. However,

both the appellant/original claimant as well as respondent - Acquiring Body

i.e. State of Maharashtra found reluctant to accept the findings of the

Reference Court relating to quantum of enhanced compensation amount

awarded under Section 18 of the Act, 1894. The appellant/original claimant

cast allegations that the meager enhancement of compensation is granted by

the Reference Court, whereas, the Acquiring Body assailed that exorbitant

and excessive amount came to be awarded by way of enhancement under

Section 18 of the Act, 1894. These counter allegations against the findings

of the Reference Court give rise to these appeals for consideration before

{4} FA 659.04 w 1258.04.odt

this court.

3] The learned counsel for the appellant/original claimant

vehemently submits that the impugned findings of the Reference Court are

erroneous, imperfect and not justifiable one. The Reference Court did not

appreciate the evidence on record in its proper perspective and committed

error in awarding meager amount of compensation for acquired land as well

as for fruit bearing trees. The evidence of expert was also not considered in

proper manner. The Reference Court failed to appreciate the circumstances

that the land under acquisition was rich, fertile and black cotton soil, having

ample source of water for irrigation purpose. The comparable sale instance

produced on record was not taken into consideration properly by the

Reference Court to calculate the correct market value of the acquired land.

The learned counsel for the appellant explained the circumstances on

record in detail and claimed more enhancement of compensation amount for

the land under acquisition as well as fruit bearing trees and improvement

carried out in the land including well, bund (Tal) etc.

4] The learned AGP and learned counsel Shri R.C. Patil for

acquiring body assailed that the valuation determined by the Reference

Court is totally erroneous, illegal and without any substance. The Land

Acquisition Officer has correctly appreciated the facts and circumstances

and calculated the compensation amount. The Reference Court without any

cogent evidence awarded excessive compensation amount by way of

{5} FA 659.04 w 1258.04.odt

enhancement, which is not permissible under the law. The learned counsel

for acquiring body in support of his claim relied upon the ratio laid down in

the case of Chimanlal Hargovinddas vs. Special Land Acquisition Officer,

Poona reported in AIR 1988 SC 1652. According to learned counsel for

acquiring body the Reference Court unnecessarily gave much more

importance to the report of Expert/Valuer produced on record. The Land

Acquisition Officer after taking into consideration the report of the

Horticulture and PWD Departments for valuation of fruit bearing trees as

well as improvements in the acquired land, determined the compensation of

trees and improvements like well, band (Tal) etc. But, the Reference court

failed to appreciate all these circumstances and committed wrong by

granting exorbitant and excessive compensation amount in favour of

appellant/original claimant.

5] Admittedly, the market value of the acquired land as well as

valuation of fruit bearing trees and improvement carried out in the land i.e.

Band (Tal), well etc, determined by the Reference Court, are all put into

controversy in these appeals. While fixing the quantum of compensation for

land, trees and improvement, the Reference Court preferred the comparable

sale method , as well as relied upon the report of Expert.

6] There is no doubt that the market value means the price which

the purchaser is willing to pay for similar land to a willing seller. The price

fetched by similar land with similar advantages and potentialities under

{6} FA 659.04 w 1258.04.odt

bonafide transaction of sale at or about the time of the preliminary

notification under Section 4 of the Act, 1894 would be usually and indeed the

best evidence of market value. There cannot be any hard and fast or rigid

rule to arrive at the correct market value. But, common sense is the best

and most reliable guide for the same. Time and again, it has been held

that the amount of compensation cannot be ascertained with mathematical

accuracy. The evaluation of surrounding circumstances and some guess work

is permissible while calculating the compensation amount of the acquired

land. However, it is to be borne in mind that valuation of acquired land

should be assessed in proper manner so that there would neither unjust

enrichment of acquiring agency nor undue deprivation on the part of owner.

7] In addition to aforesaid principles of law, it would also apposite

to look into the general guidelines prescribed in regard to the mode and

manner as well as methodology for dealing with the reference petition to

determine the compensation amount for the land under acquisition. Their

Lordships of Apex Court in the case of "Chimanlal Hargovinddas Vs.

Special Land Acquisition Officer, Poone and another and Vijay Singh

Liladhar vs. Special Land Acquisition Officer and Nathumal Rajmal

Baldota vs. Special Land Acquisition Officer " reported in AIR 1988 SC

1652, observed in para.4 as below :-

4. The following factors must be etched on the mental screen : -

(1) A reference under Section 18 of the Land Acquisition Act is not an appeal against the award and the Court cannot take into account the

{7} FA 659.04 w 1258.04.odt

material relied upon by the Land Acquisition Officer in his Award unless the same material is produced and proved before the Court. (2) So also the Award of the Land Acquisition Officer is not to be treated as a judgment of the trial Court open or exposed to challenge before the court hearing the Reference. It is merely an offer made by the Land Acquisition Officer and the material utilised by him for making his valuation cannot be utilised by the Court unless produced and proved before it. It is not the function of the court to sit in appeal against the Award, approve or disapprove its reasoning, or correct its error or affirm, modify or reverse the conclusion reached by the Land Acquisition Officer, as if it were an appellate Court. (3) The Court has to treat the reference as an original proceeding before it and determine the market value afresh on the basis of the material produced before it.

(4) The claimant is in the position of a plaintiff who has to show that the price offered for his land in the award is inadequate on the basis of the materials produced in the Court. Of course the materials placed and proved by the other side can also be taken into account for this purpose. (5) XXX XXX XXX XXX XXX XXX XXX XXX"

8] It is evident from the aforesaid judicial pronouncement that the

Reference under Section 18 is not an appeal against the award passed by the

Land Acquisition Officer. The reference cannot be treated as a judgment of

the trial court open or exposed to agitate it before the court hearing the

reference. The Reference Court has to deal with it as an independent and

separate original proceeding filed before it. The position of the claimant

before the Reference Court is alike plaintiff in the civil suit and he has to

prove that price offered for his land by the Land Acquisition Officer in his

{8} FA 659.04 w 1258.04.odt

award is inadequate. The claimant has to establish his case on the basis of

material produced in the court. Moreover, the material produced and proved

on behalf of other side is also essential to be taken into consideration while

calculating the market value of the acquired land. But, the material relied

upon by the Land Acquisition Officer in his award cannot be taken into

consideration unless same is produced and proved before the Reference

Court.

9] In such backdrop, it would be justifiable to proceed further for

evaluation of evidence on record to ascertain the just and reasonable

amount of compensation for the acquired land, trees and well etc. of the

appellant/original claimant. In order to establish the claim for

enhancement, the claimant Annasaheb Deshmukh stepped into the witness

box and adduced his evidence (Exh.20). He has also produced the relevant

documents of 7 x 12 extract (Exh.24 and 25), the extract of Index-II register

(Exh.26), Certified copy of comparable sale instances ( Exh.27) and copy of

report of joint measurement survey (Exh.28). The claimant also examined

PW-2 Shri Ambadas Deshmukh (Exh.32). He was the vendor of comparable

sale instances of land Survey No. 10/D of village Ieet as shown in document

Index-II register (Exh.26). The evidence of Expert PW-3 Shri Ramhandra

Baraskar (Exh.33) Approved Valuer for civil work of well, Bund (Tal) etc. and

evidence of PW-4 Shri Nandkumar Patil (Exh.35) Horticulturist is available on

record to fortify the contentions propounded on behalf of claimant.

{9} FA 659.04 w 1258.04.odt

10] In refutal, the respondent/State of Maharashtra adduced the

evidence of DW-1 Mukund Pandav (Exh45). He produced the document of

valuation of Bund (Tal) (Exh.43) on record. The evidence of Special Land

Acquisition Officer, DW-2 Krishna Nandanwar (Exh.51)and Surveyor, DW-3

Mr.Syed. Yusuf (Exh.55), who carried out the joint measurement survey of

acquired land (Exh.51) also came to be recorded on behalf of respondent.

Both these witnesses produced the documents of Index II Register (Exh.52)

and chart of sale statistics on record.

       [A]      Valuation of the land under acquisition :-



11]             As referred supra, the appellant/original claimant adduced his

evidence on oath before the reference court at (Exh.20). He deposed that

his acquired land Gat No.513 admeasuring 4.07 R was irregated land having

ample source of water from the well. It was an black cotton soil. The village

Ieet of acquired land was located on the bank of river "Manjra". All the basic

amenities were available in the village Ieet. According to claimant, his

acquired land had an value of potentiality. He produced the certified copy of

comparable sale instance (Exh.27) and extract of Index-II Register (Exh.26)

on record. The claimant testified that the land under sale deed (Exh.27) was

located nearer to his acquired land just crossing the geographical boundary

of Districts Beed and Osmanabad. The claimant claimed enhancement of

compensation amount on the basis of document of comparable sale instances

(Exh.27 and Exh. 26).

{10} FA 659.04 w 1258.04.odt

12] The claimant examined vendor PW-2 Ambadas Deshmukh

(Exh.32) of the sale instance shown in the document of Index-II Register

(Exh.26). The PW-2 Ambadas Deshmukh deposed that he was the owner of

land Survey No.10/D. He sold the part of land Survey No. 10/D admeasuring

0.08R for a consideration of Rs. 12000/-. His land under sale was located at a

distance after 5/6 lands from the acquired land of the claimant. PW-2

Ambadas stated that the acquired land of claimant was irrigated and more

fertile land. The respondent/State also examined DW-2 Shri Nandanwar

(Exh.51). He produced the document of Index-II register (Exh.52) and chart

of sale statistic of comparable sale instances (Exh.53).

13] In view of ratio laid down in Chimanlal's case (referred supra),

the materials produced and proved before the Reference Court are only

required to be considered for valuation of the acquired land. The scrutiny of

aforesaid oral and documentary evidence led by the claimant as well as

respondent/ State would demonstrate that the enhancement of

compensation was solely claimed by the claimant on the basis of two

documents i.e. Certified copy of comparable sale deed (Exh.27) and extract

of Index-II Register (Exh.26). The respondent State also attempted to resist

the claim of the claimant for enhancement of compensation on the basis of

two documents i.e. extract of index II register (Exh.52) and chart of sale

statistics (Exh.53).

{11} FA 659.04 w 1258.04.odt

14] It is a settled rule of law that in order to enable the parties to

place reliance upon the documents like sale deed or award of any other

properties for the purpose to justify the enhancement of compensation, it is

absolutely necessary to establish the issue of comparability in between the

land under acquisition and the lands which were subject matter of such

documents. In absence of comparability being established mere production

of document relating to any other property in the form of sale deed cannot

be of any help. (Emphasis supplied on the exposition of law in the case of

Pannalal Ghosh and others vs. Land Acquisition Collector and others

reported in AIR 2004 SCW 66 and Vilubea Jhalejar Contractor (Dead) by

LRs. vs. State of Gujarat reported in (2005) 4 SCC 789.

15] The respondent State examined the Special Land Acquisition

Officer DW-2 K.N. Nandanwar. He produced the document Index II register

(Exh.52) and chart of sale statistics (Exh.55). The mode and tenor of

evidence of Shri Nandanwar reflects that he had no occasion to deal with the

present acquisition proceedings as a Special Land Acquisition Officer. He

adduced the evidence before the Reference Court being a custodian of the

original record of present matter. Be that as it may, he produced Index II

register (Exh.52) and chart of sale statistics (Exh. 53) to ascertain the

market value of the acquired land. The document of chart of sale statistics

appears to be of no avail as the material i.e. sale instances referred in the

chart were not produced and proved in this matter. Therefore, mere

producing document of list of sale transactions would not sub-serve the

{12} FA 659.04 w 1258.04.odt

purpose to ascertain the market value of the acquired land. Another

document of Index II register (Exh.52) is relating to the sale transaction of

land Survey No. 597/A and 497/A. The DW-2 Shri Nandanwar categorically

stated before the Reference Court that the sale instances from the Index II

register were considered by the Land Acquisition Officer while determining

the market value of the acquired land under his award. He added that the

land survey No. 597A under sale was located nearer to the acquired land of

the claimant. But, he did not unfurl the relevant factor of comparability of

land survey No. 597A with the land under acquisition of claimant except its

proximity. The DW-2 Shri Nandanwar did not make reference of another

land survey No. 497/A or any other sale instances, in his evidence to

establish the comparability with the acquired land. Therefore, the sale

transaction of land survey No. 497/A referred in the document Index II

register (Exh.52) could not be taken into consideration as useful guide to

determine the market value of the acquired land.

16] It is worth to mention that after perusal of the valuation

column scribed in the impugned award of the Land Acquisition Officer , it

reveals that the Land Acquisition Officer did not consider the valuation of

land survey No. 597/A or 497/A, as mentioned in the document index-II

register (Exh.52). In contrast, the concerned LAO has considered another

sale instance of land Survey No. 96 admeasuring 0.36R out of total area of

1.66 R of village Ieet, sold for a consideration of Rs. 12,000/-. The relevant

portion of the Valuation Column from award is essential to be reproduced

{13} FA 659.04 w 1258.04.odt

here :-

"For fixation of fair and reasonable valuation we have considered sale transactions collected from Tahsildar Bhoom out of sale transactions Sr. No. 1 to 7 are from Group No.I and sale transactions from Sr. Nos. 8 to 18 are from Group No.II. From Group No.1 sale transaction at Sr.No.7 in respect of Survey Nos. 117/2A and 117/2-B seems to be reasonable for fixdation of price of the acquired land from Group No. I comparatively with the sale transactions at Sr.Nos. 1 to 6. Hence, the reasonable price of the acquired land from Group No.I is fixed at Rs.32,000/- per hector.

From perusal of the transactions from Group No. II i.e. from Sr.Nos. 8 to 18 the rate Rs.33,333 comes from the sale transactions of Survey No. 96 at Sr.No.14 is seems to be fair and reasonable for fixation of price of acquired land of group No. II. This sale transaction took place in 1989 i.e. approximately two years prior to date of publication of notification under section 4 of the Land Acquisition Act. Taking into consideration this fact and also day to day increase in the price of the land as well as considering the land rate of acquired land from Group No.I, the reasonable land rate from group II is fixed at Rs.37,000/- per hector."

17] The aforesaid factual aspect demonstrate that the LAO has not

considered the sale instances of land Survey No. 597/A or 497/A as referred

in the document of index II register (Exh.52) but he relied upon the sale

transaction of land Survey No. 96. The circumstances belies the evidence of

DW-2 Nandanwar that the sale instances referred in the Index II register

(Exh.52) i.e. Survey No.597/a and 497/A being comparable sale deeds, were

taken into consideration by the LAO for determining the market value of

acquired land. Therefore, once the Land Acquisition Officer has discarded

the sale instances of land Survey No. 597/A as well as 497/A, there is no

propriety to take into account the market price reflects in Index-II register

{14} FA 659.04 w 1258.04.odt

(Exh.52) meant for land Survey No. 597/a and 497/A. It is to be noted that

The Land Acquisition Officer considered the sale deed of land Survey No. 96

but the respondent State did not take effort to produce the sale transaction

of Survey No. 96 which was the sole basis for awarding market value @

Rs.37,000/- Per Hectare for the acquired land from Group II by the Land

Acquisition Officer. Therefore, there was no reliable documentary evidence

available on record on the behalf of respondent/State to provide the basis

for calculation of market value of the land under acquisition.

18] Now, turning to the evidence of claimant adduced before the

Reference Court for valuation of acquired land, the claimant solely relied

upon the two sale instances referred in the documents (Exh.26 and 27)

produced and proved before the Reference Court . The claimant produced

the certified copy of sale transaction of land survey No.99/1 admeasuring

0.40 R of village Wadwana, taluka and District Beed. The land was sold for a

consideration of Rs.40,000/- in the year 1989. No doubt, as per Section 51-A

of the Act, 1894, the certified copy of sale transaction registered under the

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

recorded in such documents. Therefore, there is no impediment to

appreciate the certified copy of sale deed (Exh.27) produced on record as

part of evidence in this case. After appreciating the surrounding

circumstances of the land under alleged sale transaction, it appears that It

could not be considered as a comparable sale instance for basis to calculate

the just and proper market value of the acquired land. The land under sale

{15} FA 659.04 w 1258.04.odt

was found located in the territorial area of another District Beed, having

distinct potentialities and advantages. Moreover, the land under sale was

appears to be a dry land located far away from the land under acquisition.

19] In addition to the aforesaid sale transaction (Exh.27), the

claimant produced, document of Index II register (Exh-26) for the sale

transaction of land survey No. 10-D located at village Ieet, nearby the land

of the claimant under acquisition. The claimant also examined vendor

Ambadas Deshmukh (Exh.32) to establish comparability and genuineness of

sale transaction. He stated that the land Survey No. 10-D was located at a

distance of 5-6 lands from acquired land of the claimants. He sold the

portion of land admeasuring 0.8R on 10.3.1989 for a consideration of

Rs.12,000/-. The vendor PW-2 Ambadas stated that the land Survey No.513

of the claimant under acquisition was more fertile and irrigated land.

20] It has been alleged that the sale instance of land survey No.

10-D from the Index II register (Exh.52) was a sale deed of small area and,

therefore, it cannot be considered as a comparable sale instance for

assessment of market value of large area of land under acquisition. In this

context, it would be profitable to refer to the observations of Their

Lordships of Hon'ble Apex Court in the matter of Ravinder Narain and

another vs. Union of India, reported in AIR 2003 SC 1987, in para.6 and 7

it has been elucidated as under :-

{16} FA 659.04 w 1258.04.odt

"6. Where large area is the subject matter of acquisition, rate at which small plots are sold cannot be said to be a safe criteria. Reference in this context may be made to three decisions of this Court in The Collector of Lakhimpur vs. Bhuban Chandra Dutta (AIR 1971 SC 2015). Prithvi Raj Taneja (dead) by LRs vs. The State of Madhya Pradesh and another ( AIR 1988 SC 1560) and Smt. Kausalya Devo Bogra and others etc. Vs. Land Acquisition Officer, Aurangabad and another (AIR 1984 SC 892).

7. It cannot, however, be laid down as an absolute proposition that the rates fixed for the small plots can not be the basis for fixation of the rate. For example, where there is no other material it may in appropriate cases be open to the adjudicating Court to make comparison of the prices paid for small plots of land. However, in such cases necessary deductions/adjustments have to be made while determining the prices".

21] In the light of aforesaid observations of Their Lordships, there is

no impediment to consider the sale instance of land survey No. 10-D for

computing the market value of the acquired land, subject to some sort of

deduction in price money. The land under sale was located within the

vicinity of land under acquisition. The vendor PW-2 Ambadas stated about

the genuineness of the transaction as well as comparability of land under

sale with the acquired land of the claimant. It was a sale transaction within

reasonable time of notification under section 4(1) of the Act, 1894 and

appears to be a bonafide transaction of land having similar advantages.

Therefore, the sale transaction would provide useful guide for determining

the market value of the acquired land. It would be reiterated that the land

under sale was of a small area admeasuring 0.8R sold for a consideration @

Rs. 12,000/- i.e. Rs. 15,00/- per R. As mentioned above, there has to be

{17} FA 659.04 w 1258.04.odt

some deduction on account of large size of the acquired land. After

deducting 20 % amount from the cost of Rs. 15,00/- per R of the land under

sale (Exh.52), it would accrue to Rs.1200/- per R (i.e. Rs.1500 - 300 =1200)

and consequently, the acquired land of claimant would fetch market price

of Rs. 48,000/- per acre. The Reference Court considered all these factual

aspects and calculated the market value of the acquired land @ Rs. 50,000/-

per acre, which appears to be reasonable and fair market value for the land

under acquisition. Therefore, there would not be any enhancement of

compensation of acquired land at the behest of appellant/claimant nor it

can be considered that the Reference Court granted exorbitant and

excessive compensation by way of enhancement under section 18 of the Act,

1894. In contrast, the market value @ Rs. 50,000/- per acre determined by

the Reference Court appears to be most reasonable,appropriate and

justifiable one. Therefore, the findings of the Reference Court relating to

valuation of acquired land @ Rs.50,000/- per acre, needs no interference

and deserves to be upheld.

        (B)     Valuation of Fruit Bearing Trees :-



22]    The appellant claimant also claimed enhancement of compensation

for his acquired fruit bearing trees.           The learned counsel for the

appellant/claimant submits that the Reference Court did not consider the

report of the horticulturist in proper manner. The more compensation

amount for 1200 pomegranate trees 300 tamarind trees and 10 mango trees

{18} FA 659.04 w 1258.04.odt

ought to have been awarded by the Reference Court. The appellant

claimant examined PW-4 Nandkumar Patil - Horticulturist for assessment of

value of fruit bearing trees acquired by the respondent State. According to

PW-4 Nandkumar Patil, being Horticulturist, he had visited to the land of the

claimant under acquisition and after due inspection, he prepared the

valuation report of fruit bearing trees (Exh.36 to 38). The claimant produced

the document of joint measurement survey (Exh.28) on record. During the

course of joint measurement survey of the acquired land , the Government

personnel came across with 1200 pomegranate trees, 300 tamarind trees in

the acquired land. The LAO awarded compensation to the claimant only for

10 mango trees and 660 pomegranate trees. Admittedly, the Joint

Measurement Survey Report (Exh.28) shows the existence of 1200

pomegranate trees and 300 tamarind trees in the acquired land. It was also

confronted with the Special Land Acquisition Officer, DW-2 Shri Nandanwar

and DW-3 Mr. Sayyad Yusuf, surveyor of joint measurement report (Exh.28).

These circumstances are sufficient to perceive that the appellant/claimant

was entitled to get reasonable compensation for all these fruit bearing trees

found in existence in the acquired land .

23] The Reference Court considered the report of the Horticulturist

PW-4 Shri Patil and after adopting some sort of practical approach,

determined the value of fruit bearing trees under acquisition. The findings

in regard to valuation of fruit bearing trees calculated by the Reference

Court cannot be faulted being a meager or inappropriate one. Moreover,

{19} FA 659.04 w 1258.04.odt

the findings also cannot be assailed on the ground of exorbitant and

excessive amount of compensation granted by the Reference Court for the

fruit bearing trees of the claimant from land under acquisition. Therefore,

the contention put forth on behalf of appellant/claimant as well as

respondent State appears to be unsustainable and incomprehensible one.

The Special LAO DW-2 Nandanwar in his evidence before the Reference Court

ventured to produce the report of horticulturist (Exh.54). It was the report

of the fruit bearing trees under acquisition. But, there was no endeavour to

cross-examine the concern horticulturist who prepared the valuation report

to prove its contents. Obviously, mere production of valuation report of

horticulturist would not itself sufficient to rely upon the same for calculating

the price of 10 mango and 660 pomegranate fruit bearing trees. There was

no opportunity to examine the concern horticulturist who prepared the

valuation report (Exh.54) on the material aspect of number of trees found in

existence in the acquired land as well as its age, fruit bearing capacity,

yield etc. In such circumstances, the evidence of PW-4 Shri Patil is required

to be taken into consideration. The report of the horticulturist produced on

record on behalf of appellant/claimant would required to be appreciated

for valuation of trees. Therefore, there is no propriety to cause any

interference in the conclusions drawn by the Reference Court in regard to

valuation of fruit bearing trees from the land under acquisition. The

arguments canvassed on behalf of both sides on this aspect requires to be

turned down and discarded.

{20} FA 659.04 w 1258.04.odt

[C] Valuation of improvements including Well, Bund (Tal) etc.:-

24] It is to be noted that the appellant./claimant adduced evidence

of valuer PW-3 Shri Ramchandra Bawaskar (Exh.33). He produced the

valuation report prepared by him on record (Exh. 34). The respondent State

also examined the Government Valuer DW-1 Mukund Pandav (Exh.45). He

produced the valuation report (Exh.46) on record. But the evidence of DW-1

Mr. Pandav appears to be cryptic and slender in nature. He had not visited to

the concerned site at any point of time nor taken any measurement for

calculation of its valuation. But, he prepared the valuation report in the

Draft Format on the basis of measurements taken by the Sectional Engineer

Shri Kittod. These details can be seen from the title clause of the valuation

report (Exh.46). However, the Sectional Engineer, Shri Kittod, who had

taken the measurement after actual visit to the concerned site, did not

come forward for evidence before the Reference Court. In such

circumstances, it is unsafe to place implicit reliance on the valuation report

(Exh.46) prepared by DW-1 Shri Pandav. The circumstances also created

doubt about the genuineness of the report, therefore, It would unjust and

improper to act upon such report. The Reference Court relied upon the

report of valuer of claimant Shri bawaskar to determine the valuation of

improvements carried out in the field. In absence of any cogent evidence on

the part of respondent/State. It can be concluded that there was no error

on the part of Reference Court to grant enhancement of compensation for

improvement in the field on the basis of valuation report (Exh.34) scribed by

{21} FA 659.04 w 1258.04.odt

the PW-3 Shri Bawaskar.

25] In view of aforesaid discussion, there is no impediment to arrive

at the conclusion that the findings of the Reference Court for awarding

enhancement of compensation to the appellant/claimant under Section 18 of

the Act 1894 appears to be reasonable and justifiable in all circumstances

mentioned above. There are no errors or infirmities in the mode and manner

in which the Reference Court determined the market value of the land and

trees under acquisition. The allegations about excessive and exorbitant

amount awarded under section 18 of Act 1894 by way of enhancement found

not sustainable and acceptable one. Moreover, it can not be said that the

inappropriate and meager amount of compensation was granted to the

claimant by the Reference Court. The exercise of Reference Court while

appreciating the circumstances for enhancement of compensation in this

case cannot be faulted. In contrast, the Reference Court adopted the

practical approach and determined the compensation amount, and,

therefore,findings are essential to be made confirmed. Hence, both the

appeals being devoid of merit deserve to be dismissed. In sequel, both

the appeals stand dismissed. No orders as to costs.

As both the appeals are disposed of on merit, Civil Applications

No. 3691 of 2005 and 4321 of 2017 in First Appeal No. 1258 of 2004 also

stand allowed and disposed of. The appellant/original claimant in F.A. No.

659 of 2004 is hereby allowed to withdraw the decretal amount deposited in

{22} FA 659.04 w 1258.04.odt

F.A. No. 1258 of 2004 with interest accrued thereon, subject to condition

that the appellant/original claimant shall furnish an undertaking before

Registrar (Judicial) of this Court that in case any contingency arises, he

would refund the entire enhanced compensation amount received to him,

forthwith as per the direction of this court.

Accordingly, both the appeals and civil applications No. 3691 of

2005 and 4321 of 2017 stand disposed of.

[K.K.SONAWANE] JUDGE

grt/-