Bombay High Court
Vidarbha Irrigation Development ... vs Kishor S/O Janardan Kubde & 2 Ors on 23 January, 2018
Bench: Manish Pitale
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
First Appeal No.31 of 2007
with
First Appeal No.622 of 2008
with
First Appeal No.983 of 2008
with
First Appeal No.32 of 2008
with
First Appeal No.452 of 2009
...
First Appeal No.31 of 2007
Damodhar s/o Domaji Bhure,
Aged about 68 years,
Occupation: Agriculturist,
Resident of Krishnanagar,
Near Gadge Baba Mandir,
Wardha, Tah. & Distt. Wardha. .. APPELLANT
(Original Applicant)
.. Versus ..
1. The State of Maharashtra,
Mantralaya, Mumbai,
through The Collector, Wardha.
2. The Special Land Acquisition
Officer, Vidarbha Irrigation
Development Board, Wardha,
Tah. & Distt. Wardha.
3. The Executive Engineer, Lower
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Wardha Project, Vidarbha
Irrigation Development Board,
Wardha, Tq. And Dist. Wardha. .. RESPONDENTS
Mr. M.B. Agasti, Advocate for Appellant.
Mrs. Geeta Tiwari, AGP for Respondent Nos. 1 & 3.
Ms. Ashwini S. Athalye, Advocate for Respondent No.2.
....
First Appeal No.622 of 2008
1. The State of Maharashtra,
Mantralaya, Mumbai,
through The Collector, Wardha,
Tahsil & District Wardha.
2. The Special Land Acquisition
Officer, Vidarbha Irrigation
Development Board, Wardha,
Tahsil & Distt. Wardha.
3. The Executive Engineer, Lower
Wardha Project, Vidarbha
Irrigation Development Board,
Wardha, Tah. And Dist. Wardha. .. APPELLANTS
(Ori. Applicants on
R.A.)
.. Versus ..
Krishna s/o Raghuji Sawarbandhe,
Aged about 52 years,
Occ: Cultivator by occupation,
R/o Bhatipura, Wardha,
Tahsil & District Wardha. .. RESPONDENT
Mrs. Geeta Tiwari, Advocate for Appellants.
Mr. S.V. Sohoni, Advocate for Respondent.
....
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First Appeal No.983 of 2008
1. Vidarbha Irrigation Development
Corporation, through Executive
Engineer, Lower Wardha Project
Division, Wardha, Tah. and Dist.
Wardha. .. APPELLANT
(Ori. Resp. No.3
R.A.)
.. Versus ..
1. Krishna s/o Raghuji Sawarbandhe,
Aged about 56 years,
Occ: Cultivator,
R/o Bhamtipura, Wardha,
Tahsil & District Wardha.
2. State of Maharashtra, through
Collector, Wardha, Tah. & Dist.
Wardha.
3. The Special Land Acquisition
Officer, Vidarbha Irrigation
Development Board,
Wardha. .. RESPONDENTS
Ms. Ashwini Athalye, Advocate for Appellant.
Mr. S.V. Sohoni, Advocate for Respondent No.1.
Mrs. Geeta Tiwari, AGP for Respondent Nos. 2 & 3.
..
First Appeal No.32 of 2008
Vidarbha Irrigation Development
Corporation, through Executive
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Engineer, Lower Wardha Project
Division, Wardha, Tah. and Dist.
Wardha. .. APPELLANT
(Ori. Resp. No.3
R.A.)
.. Versus ..
1. Kishor s/o Janardhan Kubde.
2. State of Maharashtra, through
Collector, Wardha, Tah. & Dist.
Wardha.
3. The Special Land Acquisition
Officer, Vidarbha Irrigation
Development Board,
Wardha. .. RESPONDENTS
Ms. Ashwini Athalye, Advocate for Appellant.
Mr. K. R. Luley, Advocate for Respondent No.1.
Mrs. Geeta Tiwari, AGP for Respondent Nos. 2 & 3.
..
First Appeal No.452/2009
Smt. Pushpabai alias Pushpalata
wd/o Balaramji Shende,
Age Adult, Occu: Household work
and Cultivator, R/o Wardha ,
Tah. & Distt. Wardha. .. APPELLANT
(Applicant on
R.A.)
.. Versus ..
1. State of Maharashtra, through
Collector, Wardha, Tah. & Dist.
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Wardha.
2. Vidarbha Irrigation
Development Corporation,
Wardha. .. RESPONDENTS
Mr. M.R. Joharapurkar, Advocate for Appellant.
Mrs. Geeta Tiwari, AGP for Respondent No. 1.
Ms. Ashwini Athalye, Advocate for Respondent No.2.
..
CORAM : MANISH PITALE, J.
RESERVED ON : JANUARY 09, 2018
PRONOUNCED ON : JANUARY 23, 2018
JUDGMENT
1. There are five appeals for consideration before this
Court wherein First Appeal Nos.31 of 2007, 622 of 2008, 983 of
2008 and 32 of 2008 arise from common judgment and order
dated 07.09.2006 of the District Court, Wardha, in Land
Acquisition Cases pertaining to acquisitions of land in Survey
Nos. 351, 353 and 356 of mouza Salod, district Wardha, for the
purposes of rehabilitation of project affected persons. While
First Appeal No. 31 of 2007 has been filed by the claimant/land
owner in Survey No. 356 for further enhancement of
compensation, the other appeals are filed by the State and the
Acquiring Body i.e. Vidarbha Irrigation Development
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Corporation, challenging the said common judgment and order
of the Reference Court, contending that the enhancement
granted by the said Court is unjustified and that the award
passed by the Special Land Acquisition Officer deserves to be
restored.
2. The other appeal bearing First Appeal No.452 of 2009
taken up for hearing along with the above mentioned appeals,
pertains to acquisition proceedings undertaken in pursuance of
a different and earlier notification issued under Section 4 of the
Land Acquisition Act, but since it pertains to acquisition of land
from Survey No.338 of the same mouza Salod, district Wardha,
it has been taken up for hearing along with the said appeals.
This is an appeal filed by the claimant for further enhancement
of compensation.
3. The facts pertaining to the aforesaid group of four
appeals are that notification for acquisition of lands in Survey
No. 351, 353 and 356 of mouza Salod, district Wardha, under
Section 4 of the Land Acquisition Act, 1894, was issued on
7.6.2000. On completion of the acquisition proceedings, the
Special Land Acquisition Officer passed award on 31.08.2002
granting compensation to the claimants/land owners for the
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acquired lands at the rate of Rs.48,800/- per hectare.
Aggrieved by the quantum of compensation granted in the said
award, the claimants preferred reference application under
Section 18 of the said Act before the District Court at Wardha.
These reference applications were taken up for consideration
by the Reference Court together.
4. By common judgment and order dated 7.9.2006, the
Reference Court held that the quantum of compensation
granted by the Special Land Acquisition Officer in his award
was inadequate and thereupon, the Reference Court granted
enhanced compensation to the claimants @ Rs.1,50,000/- per
hectare. The enhanced compensation at the aforesaid rate
was calculated by the Reference Court and it was directed that
the enhanced amount would be paid to the claimants along
with statutory benefits.
5. First Appeal No.31 of 2007 has been filed by one of
the claimant/land owner i.e. Damodhar Bhure for acquisition of
his land in Survey No. 356 mouza Salod, district Wardha. He
has claimed that on the basis of the material and evidence on
record, the Reference Court ought to have granted enhanced
compensation @ Rs.3,00,000/- per hectare. First Appeal No.
8 FA31-07&ors.odt
622 of 2008 has been filed by the State of Maharashtra against
the common judgment and order of the Reference Court in
respect of enhanced compensation granted in the case of land
in Survey No. 351 belonging to the claimant/land owner
Krishna Sawarbandhe. First Appeal No. 983 of 2008 has been
filed by the acquiring body i.e. V.I.D.C. as against the same
land owner i.e. Krishna Sawarbandhe. First Appeal No. 32 of
2008 has been filed by the acquiring body V.I.D.C. against the
same common judgment and order of the Reference Court
pertaining to land in Survey No. 353 belonging to claimant/land
owner Kishor Kubde.
6. I have heard the learned counsel appearing for the
parties in these appeals. Mr. M.B. Agasti, learned counsel
appearing on behalf of the appellant/claimant in First Appeal
No. 31 of 2007 has submitted that the enhancement granted
by the Reference Court for compensation @ Rs.1,50,000/- per
hectare is inadequate because sale instances pertaining to
lands in the vicinity of his acquired land in Survey No.356
showed that the said lands had fetched price upto
Rs.4,58,455/- per hectare. According to the learned counsel
appearing for the appellant, it was evident that compensation
at least @ Rs.3,00,000/- per hectare ought to have been
9 FA31-07&ors.odt
granted. It was further contended that the Reference Court
completely failed to appreciate the aspect of non-agricultural
potentiality of the land in question, particularly when the
surrounding areas had already been developed and even the
land in question had been acquired for residential purpose of
rehabilitation of project affected persons. It was contended
that these factors clearly demonstrate that the enhancement
of compensation granted by the Reference Court was much
below the fair market value of the land in question. It was
emphasised that the appellant/claimant was not only claiming
enhancement on the basis of the sale instances but also on the
potentiality of development of the said land, taking into
consideration the entirety of the material and evidence on
record. The learned counsel for the appellant relied upon the
judgments of the Hon'ble Supreme Court in Thakur Kuldeep
Singh .vs. Union of India- (2010) 3 Supreme Court Cases
794, Special Land Acquisition Officer .vs. Karigowada
and others- (2010) 5 Supreme Court Cases 708 and
Digambar .vs. State of Maharashtra -AIR 2013 Supreme
Curt 3532.
7. The learned counsel appearing for the State of
Maharashtra and the acquiring body V.I.D.C. in First Appeal
10 FA31-07&ors.odt
Nos. 622/2008, 983/2008 and 32 of 2008 contended that there
was no substance in the contentions raised on behalf of the
claimant/appellant in First Appeal No.31 of 2007 for further
enhancement and that, in fact, the Reference Court had
committed a grave error in enhancing the compensation from
Rs.48,800/- per hectare to Rs.1,50,000/- per hectare. It was
claimed that the Special Land Acquisition Officer was justified
in relying upon sale instances of land from Survey No. 352,
while granting compensation as the said land was similarly
circumstanced like that of the claimants/land owners and that
Reference Court had committed a grave error in relying upon
the sale instances pertaining to land located in Survey No.
362.
8. Ms. Athalye, learned counsel appearing on behalf of
the acquiring body V.I.D.C. in First Appeal Nos. 983 of 2008 and
32 of 2008 submitted that a perusal of the map on record
showing the location of various survey numbers relevant for
the present case would show that the finding of the Land
Acquisition Officer in the award while granting compensation @
Rs.48,800/- per hectare was wholly justified. It was contended
that when a sale instance is taken as a basis for rendering a
finding regarding fair market value of the acquired land, it
11 FA31-07&ors.odt
must be ascertained that the land which is subject matter of
the sale instance under consideration is adjacent to the
acquired land and that it possesses similar advantages. For
this purpose, the learned counsel has relied upon the judgment
of the Hon'ble Supreme Court in the case of Karnataka Urban
Water Supply & Drainage Board .vs. K.S.
Gangadharappa - (2009) 11 Supreme Court Cases 164.
It is contended that the sale instance relied upon by the
Reference Court pertained to a land which was not comparable
to the acquired land and that the acquired land did not possess
the same advantages of facility of irrigation etc. Mrs. Geeta
Tiwari, learned Assistant Government Pleader appearing on
behalf of the State in First Appeal No. 622 of 2009 made similar
submissions and contended that the impugned judgment and
order of the Reference Court was unsustainable and that the
award passed by the Special Land Acquisition Officer was
required to be restored.
9. Mr. S.V. Sohoni, the learned counsel appearing on
behalf of the respondent/claimant in First Appeal No. 622/2008,
whose land at Survey No. 351 was also the subject matter of
acquisition in the present case, submitted that the contentions
raised on behalf of the acquiring body and the State were not
12 FA31-07&ors.odt
justified and that the findings rendered by the Reference Court
were reasonable and based on proper appreciation of the
evidence and material on record. The learned counsel invited
my attention to the map on record to demonstrate that the
location of the acquired land was such that the compensation
granted by the Reference Court was justified. Mr. Sohoni, the
learned counsel contended that there was non-agricultural
potentiality in the land in question and he also placed reliance
upon judgment of the Hon'ble Supreme Court in the case of
Digambar (supra).
10. Mr. K.R. Luley, learned counsel appearing on behalf of
the respondent/land owner in First Appeal No. 32 of 2008
concerning acquisition of land in Survey No.353, also submitted
that the judgment and order of the Reference Court did not
deserve interference and that apart from the value of the land
calculated on the basis of sale instance, the development
potentiality of the land was also required to be taken into
consideration. He relied upon judgment of the Hon'ble
Supreme Court in the case of General Manager, ONGC .vs.
Rameshbhai Jivanbhai Patel - (2008) 14 Supreme Court
Cases 745.
13 FA31-07&ors.odt
11. In First Appeal No. 452/2009, which has been heard
along with the aforesaid appeals, although pertaining to an
acquisition proceeding initiated earlier but pertaining to the
same mouza Salod, district Wardha, Mr. M.R. Joharapurkar,
learned counsel appearing for the appellant, has submitted
that the compensation granted by the Reference Court in the
said case @ Rs.48,383/-, was on the lower side and that taking
into consideration the location of the land, further
enhancement ought to be granted. In support of his
contention, the learned counsel relied upon, judgments of the
Hon'ble Supreme Court in the case of Union of India .vs.
Harinder Pal Singh- AIR 2006 Supreme Court 447, and
Sagunthala (Dead) through L.Rs. .vs. Special Tahsildar
((L.A.) - 2010 (2) Civil L.J. 748. In the said appeal Mrs.
Geeta Tiwari, learned AGP appearing on behalf of the State
opposed the contentions raised on behalf of the appellant and
she submitted that the impugned judgment and order of the
Reference Court did not deserve interference.
12. Having heard learned counsel for the parties and
upon perusal of the pleadings, evidence and documents on
record, the point that arises for determination in all these
appeals is:
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"As to whether the Reference Court was
justified in granting enhancement of about
three times in the quantum of compensation
for acquisition of the lands and whether the
is justified in claiming further enhanced
compensation?
13. I am first considering the appeals filed by the
claimant and the acquiring body as also the State in respect of
common judgment and order dated 7.9.2006 passed by the
Reference Court pertaining to acquisition of lands in Survey
Nos. 351, 353 and 356 of mouza Salod, district Wardha. While
considering the question as to whether the quantum of
compensation granted by the Special Land Acquisition Officer
in his award to the claimants/land owners in these appeals @
Rs.48,800/- per hectare, the Reference Court has arrived at a
finding that the compensation so determined by the Special
Land Acquisition Officer was very inadequate. The Reference
Court found that there were as many as 49 sale instances
taken into consideration by the Special Land Acquisition Officer
while considering the claims of the land owners. It is evident
from the list of the said sale instances that they pertained to
the period between January 1996 and May 2000. Out of all
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these sale instances , the Special Land Acquisition Officer has
chosen the sale instance at Serial No.6 pertaining to Survey No.
353, where the land fetched a price of Rs.33,333/- per hectare.
The map on record shows the location of the lands in various
survey numbers, including the lands that were subject matter
of acquisition. It is the contention raised on behalf of the State
and the acquiring body that since the said Survey No. 352 was
in proximity to the survey numbers wherein the lands of the
claimants/land owners were located, the reliance placed by
the Special Land Acquisition Officer on the said sale instances
was fully justified.
14. On the other hand, the Reference Court has chosen
to rely upon sale instance at Serial No.17 in the list of sale
instances recorded in the award of the Special Land Acquisition
Officer. In the said sale instance , the price fetched by the land
was Rs. 1,23,684/- per hectare. The aforesaid sale instance is
dated 20.06.1997. The map on record shows that the said
Survey No. 362 is located on the other side of Wardha-
Yavatmal road as compared to survey numbers in which the
lands of the claimants/land owners are located. The Reference
Court has discussed this aspect of the matter in paragraph nos.
13 to 20 in the impugned judgment and order. It has been held
16 FA31-07&ors.odt
that since the aforesaid sale instance at Serial No. 17 in the list
pertained to the year 1997, by calculating an increase @ 10 %
from 1997 to the year 2000, the price of the land would come
to Rs.1,64,622/-. Thereafter, the Reference Court has reduced
the amount of Rs.14,622/- per hectare, as Survey No. 362
touched upon the Wardha-Yavatmal road while the survey
numbers in which the lands of the claimants were located,
were at a little distance away from the road. On this basis, the
Reference Court has arrived at the figure of Rs.1,50,000/- per
hectare as a reasonable price or fair market value of the lands
in question. The learned counsel appearing for the State and
the acquiring body have failed to demonstrate as to why the
aforesaid finding of the Reference Court can be held to be
erroneous.
15. In fact, the Reference Court has also held that the
acquired lands were having non-agricultural potentiality as
they were near the Wardha-Yavatmal road. This was a factor
not considered at all by the Special Land Acquisition Officer
while granting compensation @ only Rs.48,800/- per hectare.
The contentions raised on behalf of the claimant/land owner in
First Appeal No. 31/2007 that the aspect of non-agricultural
potentiality was ignored by the Reference Court is not correct
17 FA31-07&ors.odt
because specific reference to this aspect is found in the
impugned judgment and order. The learned counsel appearing
for the appellant in the said appeal has contended that the
appellant had relied upon sale instance at Exh.28 pertaining to
land at Survey No. 340 wherein the price fetched was
Rs.4,58,455/- and that, therefore, further enhanced
compensation was required to be granted. But, a perusal of
the impugned judgment and order, shows that the said sale
instance was also taken into consideration by the Reference
Court and it was found that the land in Survey No. 340 was
absolutely touching the Wardha-Yavatmal road and further that
the said land had a well, two electric pumps, G.I. pipeline,
standing teak trees and tin shed of three rooms. This was
found to be a distinguishing feature by the Reference court as
regards the higher price fetched by the land located in Survey
No.340. The Reference Court also noted that the acquired land
belonging to the said appellant in Survey No. 356 was not
comparable to the land in Survey No. 340. Thus, there was
consideration of this aspect in the impugned judgment and
order.
16. As regards the judgments of the Hon'ble Surpeme
Court relied upon by the counsel appearing for the
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claimants/land owners pertaining to the question of non-
agricultural potentiality, it is necessary that the claimants/land
owners place on record cogent material to show the extent at
which compensation is required to be enhanced for such
potentiality. In the impugned judgment and order, the
Reference court has indeed taken this factor into consideration
and, therefore, it has granted enhancement in the quantum of
compensation, which is more than three times than the
amount granted by the Special Land Acquisition Officer.
Therefore, the appellant in First Appeal No. 31 of 2007 cannot
be said to have made out a case for further enhancement of
compensation.
17. As regards the contentions raised on behalf of the
State and the acquiring body that the impugned judgment and
order deserves to be set aside and the award of the Special
Land Acquisition officer deserves to be restored, I do not find
any substance in the same. The reliance placed on the
judgment of the Hon'ble Surpeme Court in the case of
Karnataka Urban Water Supply (supra) by the learned
counsel appearing on behalf of the acquiring body does not
further its case, because the Reference Court in the instant
case has indeed applied the principles laid down by the Hon'ble
19 FA31-07&ors.odt
Supreme court in the said case, as it has been found by the
Reference Court by analyzing the material on record that the
land in respect of which the sale instance is relied upon, is in
the vicinity of the acquired land and that it possesses similar
advantages.
18. Insofar as First Appeal No.452/2009 is concerned, the
notification under Section 4 of the aforesaid Act was issued on
2.4.1998 and the acquired land was located in Survey No. 338
of mouza Salod, district Wardha, admeasuring 1 H 18 R. The
Special Land Acquisition Officer in the said case granted
compensation @ Rs.49,000/- per hectare and upon the
appellant approaching the Reference Court, the compensation
was increased to Rs.90,000/- per hectare. Since the acquired
land is located in the same village, the quantum of
compensation awarded by the Reference Court in the common
judgment and order dated 7.9.2006, which is a subject matter
of challenge in the above mentioned four appeals, can be a
relevant factor to be taken into consideration. The notification
under Section 4 in the said cases was dated 7.6.2000, while the
notification under Section 4 of the said Act in the instant First
Appeal No. 452 of 2009 was 2.4.1998. As the lands in all these
cases pertained to the same village and they were acquired for
20 FA31-07&ors.odt
the same purposes of rehabilitation of project affected
persons, by taking that the quantum of compensation granted
in the aforementioned cases at Rs.1,50,000/- per hectare in the
acquisition proceedings initiated on 7.6.2000, it can be
concluded that the enhanced compensation granted by the
Reference Court in its judgment and order dated 14.11.2008
which is subject matter of challenge in First Appeal No. 452 of
2009 at Rs.90,000/- per hectare is slightly on the lower side.
Therefore, considering the aforesaid factors, I find that the
compensation payable to the appellant/claimant in First Appeal
No. 452 of 2009 deserves to be enhanced to Rs.1,00,000/- per
hectare.
19. The counsel for the respective parties have referred
to a number of judgments of the Hon'ble Supreme Court in
respect of principles for ascertaining non-agricultural
potentiality of land, comparability of the sale instances and
other factors to be taken into consideration, while deciding the
quantum of compensation. I find that the said principles have
been applied by the Reference Court in the impugned
judgment and order dated 7.9.2006, which is subject matter of
First Appeal Nos. 31/2007, 622/2008, 983/2008 and 32/2008.
Insofar as First Appeal No. 452/2009 is concerned, since I have
21 FA31-07&ors.odt
found that the Reference Court granted compensation at a
slightly lower side, it is directed to be enhanced as aforesaid.
In this light, the aforesaid judgments relied upon by the
respective parties have not been discussed in detail in this
judgment.
20. In the light of the above, First Appeal Nos. 31/2007,
622/2008, 983/2008 and 32/2008 are dismissed and the
common judgment and order dated 7.9.2006 passed by the
Reference Court in L.A.C. Nos. 116/2003, 117/2003 and
118/2003, stands confirmed. First Appeal No. 452/2009 is
partly allowed and the impugned judgment and order of the
Reference Court therein dated 14.11.2008 is modified to the
extent that the enhanced compensation payable to the
appellant therein is fixed at Rs.1,00,000/- per hectare. The
appellant in this appeal shall also be entitled to statutory
benefits on such enhanced component of compensation.
21. Accordingly, the appeals are disposed of with no
orders as to costs.
(Manish Pitale, J. )
...
halwai/p.s.
