Executive Engineer, Bembla ... vs Manik Panjabrao Kalmegh And ...
2021 Latest Caselaw 16692 Bom

                                     1              20-J-FA-492-17.odt

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

                  FIRST APPEAL NO.492 OF 2017

APPELLANTS:           1. Executive Engineer,
On R.A.                  Bembla Project Division,
Ori. N.A. No.1           Yavatmal.

Ori. N.A. No.4        2. Vidarbha Irrigation Development
                         Corporation through Executive Director,
                         Sinchan Bhawan, Civil Lines, Nagpur.

                      VERSUS

RESPONDENTS:          1. Manik Panjabrao Kalmegh,
ON R.A.                  Aged 61 years, Occ. Cultivator,
Ori Applicant            R/o Barad, Post-Pahur,
                         Tq. Babhulgaon, District Yavatmal.

Ori. N.A. No.2        2. State of Maharashtra
                         Through the Collector, Yavatmal,
                         Tq. and Dist. Yavatmal.

Ori. N.A. No.3        3. Special Land Acquisition Officer,
                         Benefited Zone, Yavatmal,
                         Tq. and Dist. Yavatmal.

                             WITH
                 CROSS-OBJECTION NO.65 OF 2017
                              IN
                  FIRST APPEAL NO.492 OF 2017

APPELLANTS:-          1. Executive Engineer, Bembla Project
                         Division, Yawatmal.

                      2. Vidarbha Irrigation Development
                         Corporation through Executive Director,
                         Sinchan Bhawan, Civil Lines, Nagpur.
                                                    2               20-J-FA-492-17.odt

                                    VERSUS

RESPONDENTS                  1. Manik Panjabrao Kalmegh,
                                Aged: 61 years, Occupation:
                                Cultivator, R/o Barad, Post-Pahur,
                                Taluka: Babhulgaon, District
                                Yawatmal.

                              2. State of Maharashtra, through
                                 Collector, Yawatmal, Taluka
                                 Yawatmal, District : Yawatmal.

                              3. Special Land Acquisition Officer,
                                 Benefited Zone, Yawatmal, Taluka:
                                 Yawatmal, District : Yawatmal.

CROSS OBJECTOR:                    Manik Panjabrao Kalmegh.
-------------------------------------------------------------------------------------------
Shri M.A. Kadu, Advocate for the appellants.
Shri Kalyan Chiwarkar, Advocate h/f Shri Anand Parchure,
Advocate for respondent No.1 / Cross-Objector.
Shri A.S. Fulzele, Addl. G.P. for the respondent Nos. 2 and 3.
-------------------------------------------------------------------------------------------
                     CORAM: A.S. CHANDURKAR AND G. A. SANAP, JJ.

ARGUMENTS WERE HEARD ON : 25/10/2021 JUDGMENT IS PRONOUNCED ON : 02/12/2021

JUDGMENT : (PER G. A. SANAP, J.)

1. In this appeal, the appellants have challenged the

Judgment and award passed by the learned Civil Judge, Senior

Division, Yavatmal in LAC No.613/2005 decided on 04/04/2015

and corrected by order dated 05/08/2015 in MJC No.61/2015,

whereby the learned Judge enhanced the amount of compensation

awarded by the Special Land Acquisition Officer (SLAO).

3 20-J-FA-492-17.odt

The respondent No.1 filed the Cross-Objection

No.65/2017 being aggrieved by the Judgment and award refusing

the claim for enhanced compensation in entirety.

The facts leading to the filing of this appeal and the

Cross-Objection are as follows :-

2. The appellant No.2 is the Acquiring Body. The

appellant No.1 is the Executive Engineer, Bembla Project,

Yavatmal. The respondent No.1 is the original applicant. The

respondent No.2 is the State. The respondent No.3 is the Special

Land Acquisition Officer. The respondent No.1 owned the land

bearing Survey No.14 admeasuring 4.32 HR, Survey No.15

admeasuring 1.40 HR and land bearing Survey No.17

admeasuring 5.87 HR situated at village Barad, Tq. Babhulgaon,

Dist. Yavatmal. The lands were acquired for construction of

Bembla Project. The notification under Section 4 of the Land

Acquisition Act, 1894 was published in the Government Gazette

on 24/07/2003. (hereinafter referred to as the "Land Acquisition

Act"). The respondent No.3 declared the award on 27/06/2005.

4 20-J-FA-492-17.odt

The Land Acquisition Officer granted compensation @ Rs.83,099/-

per hectare for land bearing Survey No.14 and compensation of

Rs.7,27,669/- for fruit bearing trees. The Land Acquisition Officer

granted compensation @ Rs.83,245/- per hectare for land bearing

Survey No.15 and the compensation of Rs.23,600/- for fruit

bearing trees. The Land Acquisition Officer granted compensation

@ Rs.82,904/- for the land bearing Survey No.17. The respondent

No.1 accepted the compensation under protest on 12/07/2005.

He did not agree with the compensation awarded by the Special

Land Acquisition Officer. The respondent No.1, therefore, made a

reference under Section 18 of the Land Acquisition Act.

3. The respondent No.1 inter alia contended that the

Special Land Acquisition Officer failed to determine the proper

market value of the land as well as the value of the trees. The

Special Land Acquisition Officer did not follow the procedure laid

down under Section 23 of the Land Acquisition Act. The lands

bearing Survey Nos.14 and 15 were irrigated. The land of the

respondent No.1 is situated at the distance of about 500 feet from

village locality. The Special Land Acquisition Officer has failed to

consider the quality and fertility of the land. The land was black

soil land. The compensation awarded for the fruit bearing trees 5 20-J-FA-492-17.odt

was meagre. The Special Land Acquisition Officer did not take all

the aspects into consideration. The respondent No.1 claimed

enhanced compensation of Rs.96,51,110/- for land bearing Survey

No.14 and the fruit bearing trees therein. The respondent No.1

claimed enhanced compensation of Rs.65,69,857/- for land

bearing Survey No.15 and the fruit bearing trees therein. The

respondent No.1 claimed enhanced compensation of

Rs.1,05,42,729/- for land bearing Survey No.17 and the fruit

bearing trees therein.

4. The appellants and the respondent Nos.2 and 3

opposed the reference by filing their written statement. They have

not disputed the acquisition of land with fruit bearing trees and

the compensation awarded by the Land Acquisition Officer.

According to them, the Land Acquisition Officer while passing the

award, has taken into consideration the relevant factors

mentioned in Section 23 of the Land Acquisition Act. The Land

Acquisition Officer has granted just, proper and reasonable

compensation. The Land Acquisition Officer has not committed

any mistake. They further contended that the Land Acquisition

Officer on the basis of the material, determined the market value

of the land and also the value of the fruit bearing trees. According 6 20-J-FA-492-17.odt

to them, the compensation sought to be claimed by the respondent

No.1 was excessive and exorbitant. There was no basis for

excessive and exorbitant compensation. The respondent No.1 had

been granted an opportunity of hearing before passing the award.

They accordingly pleaded for dismissal of the reference.

5. The respondent No.1 examined himself in support

of the reference. PW-2 - Dadan Borkar examined by the

respondent No.1 was the Valuer. PW-3 - Chandrashekhar

Wankhade was examined to prove the valuation of the well and

pipeline. The respondent No.1 placed on record number of

documents. The appellants did not lead oral or documentary

evidence before the Reference Court. The learned Judge on the

basis of the evidence, partly allowed the reference. The learned

Judge granted compensation @ Rs.3,40,000/- per hectare for the

acquired land bearing Survey Nos.14 and 15 and Rs.1,75,000/-

per hectare for land Survey No.17.

6. The learned Judge directed the appellants to pay

enhanced compensation of Rs.3,000/- per tree for 500 Orange

trees, Rs.4,200/- per tree for 200 Mosambi trees, Rs.2,500/- per 7 20-J-FA-492-17.odt

tree for 50 Lemon trees, Rs.2,000/- for one Guava tree, Rs.5,000/-

per tree for 5 Mango trees, Rs.3,160/- per tree for 10 Ber trees

and Rs.4,000/- per tree for 5 Chiku trees in Survey No.14 to the

respondent No.1. The learned Judge directed the appellants to pay

enhanced compensation of Rs.3,070/- per tree for 500 Awala

trees, Rs.3,160/- per tree for 100 Ber trees and Rs.2,000/- per tree

for 100 Custard Apple trees in Survey No.15 to the respondent

No.1. The learned Judge directed the appellants to pay enhanced

compensation of Rs.1000/- each for 1824 Awala trees and

Rs.40000/- for Bore Well in Gat No.17.

7. Being aggrieved by the enhancement of

compensation, the appellants have come before this Court in

appeal. The respondent No.1 after receipt of the notice in appeal,

filed the cross-objection being aggrieved by the inadequacy of the

enhanced compensation.

8. We have heard the learned Advocate for the

appellants, the learned Advocate for the respondent No.1 and the

learned Additional Government Pleader for the respondent Nos.2

and 3. We have perused the record and proceedings.

8 20-J-FA-492-17.odt

9. In view of the facts and circumstances, following

question falls for our determination :-

Whether the Judgment and award passed by the learned Civil Judge, Senior Division, Yavatmal granting enhancement in the compensation payable in respect of the lands and fruit bearing trees is just, proper and reasonable ?

10. The learned Advocate for the appellants submitted

that the learned Judge has not taken into consideration the

evidence placed on record. The learned Advocate pointed out that

the available evidence on record has not been properly

appreciated and the compensation has been enhanced without

properly appreciating and considering the evidence. As far as the

order passed in Review Application is concerned, the learned

Advocate for the appellants submitted that the learned Judge

without considering the basic provisions of law with regard to the

admissibility of the evidence has taken into consideration the

documents without proof of the contents of the same and granted

exorbitant compensation in respect of 1824 Awala trees and

Borewell in land bearing Survey No.17. The learned Advocate 9 20-J-FA-492-17.odt

took us through the evidence and urged that this part of the award

cannot be sustained at all. The learned Advocate further submitted

that the learned Judge has erred in awarding enhanced

compensation separately for the land and the fruit bearing trees.

In order to substantiate this submission, he has relied upon the

reported decision to which we will make reference at appropriate

place.

11. The learned Additional Government Pleader

appearing for the respondent Nos.2 and 3 has adopted the

submissions advanced by the appellants.

12. The learned Advocate for the respondent No.1

submitted that the learned Judge has failed to appreciate the oral

and documentary evidence placed on record and as such,

committed a mistake in denying the quantum of enhanced

compensation claimed in reference application. In the submission

of the learned Advocate, the compensation awarded in respect of

fruit bearing trees is too meagre and therefore, it needs to be

enhanced as claimed by the respondent No.1 in his application

filed under Section 18 of the Land Acquisition Act. The learned 10 20-J-FA-492-17.odt

Advocate submitted that in order to justify the claim for enhanced

compensation in respect of the land as well as in respect of fruit

bearing trees, the respondent No.1 has examined the Valuer. The

learned Advocate took us through the report of the Valuer - PW-2

and submitted that the Valuer has stated reasons in respect of the

conclusion arrived at by him vis-a-vis the market value of the land

as well as the fruit bearing trees. The learned Advocate submitted

that the learned Judge has taken into consideration the decisions

in the earlier references arising out of the same acquisition

proceedings, wherein the sale instances were considered to

determine the market value of the land. In the submission of the

learned Advocate for the respondent No.1, therefore, the learned

Judge was right in granting separate compensation for the land as

well as for the fruit bearing trees.

13. In order to appreciate the rival submissions, we

have carefully perused the material placed on record and

particularly, the order passed by the Reference Court in Review

Application No.61/2015. The learned Judge, as can be seen from

the order passed in Review Application, reviewed the Judgment

and order dated 04/04/2015 and awarded compensation in 11 20-J-FA-492-17.odt

respect of 1824 Awala trees and one Borewell. The compensation

awarded is @ Rs.1,000/- each for 1824 Awala trees and

Rs.40,000/- for Borewell situated in land bearing Gut / Survey

No.17. Perusal of the award dated 04/04/2015 passed by the

learned Judge would show that the claim for enhancement of

compensation for 1824 Awala trees and Borewell in Gut No.17

was rejected for the reasons recorded in Paragraph No.16 of the

Judgment and award. The learned Judge on the basis of 7/12

extract recorded a finding that the plantation of 1824 Awala trees

was new plantation done in the year 2003-2004 onwards. The

learned Judge recorded finding that there is no substantive

evidence to prove the existence of 1824 Awala trees in Gut /

Survey No.17. It is seen that for want of substantive evidence, this

claim was initially rejected. The order was passed on 05/08/2015

in Review Application. The learned Judge has relied upon second

Joint Measurement Report and three representations made by the

respondent No.1 before the Land Acquisition Officer at the stage

of acquisition proceedings. The second Joint Measurement Report

and the representations submitted to the Land Acquisition Officer

were not part of the record when the award was passed. The

respondent No.2 produced those representations / reply to the 12 20-J-FA-492-17.odt

notices received from the Land Acquisition Officer and the copy of

the second Joint Measurement Report prepared in the year 2003-

2004 with the Review Application.

14. In order to satisfy ourselves about real factual

position, we have called record and proceedings of the Review

Application. On going through the record and proceedings of the

Review Application, it is seen that the documents as mentioned

above, were simply filed with the Review Application. The

documents were not proved. The documents were not given

Exhibit Numbers. No evidence was adduced to prove the contents

of the documents. The learned Judge despite the strongest

possible objection on the part of the appellants and the respondent

Nos.2 and 3 took those documents into consideration and granted

compensation / enhancement in respect of 1824 Awala trees and

Borewell. It is seen that while deciding Review Application, there

was no substantive evidence on record. The learned Judge

without having substantive evidence on record made a self-

contradictory observation in the Review order. In this respect, the

learned Judge ought to have ensured that the evidence sought to

be relied upon is legally admissible evidence. In our opinion, the 13 20-J-FA-492-17.odt

documents would have become legally admissible evidence

provided the contents of the same have been proved or the

opponent has admitted the contents of the same. In this case on

both the counts, the documents could not have been taken into

consideration. Perusal of the order passed in Review Application

would show that the learned Judge has not followed the

provisions of the substantive and procedural law. The exercise was

carried out by the learned Judge mechanically. The compensation

granted / enhanced was Rs.18,00,000/- to Rs.19,00,000/- on this

count. It is settled legal position that the finding based on

inadmissible evidence cannot be sustained. Such finding has to be

termed as erroneous finding and as such a patent illegality. In our

considered opinion, on this point, we are fully agree with the

learned Advocate for the appellants. In our opinion, the order

passed by the learned Judge was without evidence. It is also seen

that the case was not at all made out to warrant the review of the

order earlier passed by the learned Judge in the reference. We,

therefore, conclude that this part of the award passed by the

learned Judge, cannot be sustained.

14 20-J-FA-492-17.odt

15. In order to satisfy ourselves about the sustainability

of the award, we have gone through the record and the evidence

afresh. The learned Advocate for the appellants relying upon the

decision in the case of State of Haryana Vrs. Gurcharan Singh and

another, reported in 1995 Supp (2) SCC 637 submitted that the

separate compensation cannot be awarded for the land and the

orchard planted on the said land. The learned Advocate for the

respondent No.1 relied upon the decision in the case of Ambya

Kalya Mhatre (dead) through LRs and others Vrs. State of

Maharashtra, reported in 2012(1) Mh.L.J.9 and submitted that the

Hon'ble Supreme Court has explained and clarified the decision in

the case of the State of Haryana (supra) and held that awarding

the compensation separately for the land and fruit bearing trees is

permissible. In order to appreciate the rival submissions, it would

be necessary to reproduce the relevant portion of the Judgment of

the Hon'ble Supreme Court in the case of Ambya Kalya Mhatre

(supra). Paragraph Nos.21 and 22 read thus :-

"21. 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 :

15 20-J-FA-492-17.odt

"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 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."

22. We are afraid that the High Court has misread the said decision in regard of 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 16 20-J-FA-492-17.odt

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 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."

The above quoted paragraph in the said Judgment

would show that if the value of the land has been determined with

reference to the sale statistics or the compensation awarded to the

nearby vacant land, then the trees will have to be valued

separately. In order to consider the applicability of proposition to

the facts of the appeal before us, it would be necessary to go

through the Judgment of the Reference Court as well as evidence

on record. The learned Judge has awarded separate compensation

for the land and for fruit bearing trees. The learned Judge while

determining the market value of the lands, bearing Survey Nos.14

and 15 relied upon the Judgment in LAC No.48/2007. It is at

Exh.68. The land covered in Exh.68 has been acquired for the

same project and the said land is situated at village adjoining to

the village of respondent No.1. The learned Judge found that the

Judgment at Exh.68 would be the proper guide to determine the

compensation of the land / real market value of the land bearing 17 20-J-FA-492-17.odt

Survey Nos.14 and 15. The learned Judge on the basis of the

Judgment at Exh.68 quantified market value of the land bearing

Survey Nos.14 and 15 @ Rs.3,40,000/- per hectare. It would be

necessary for us to see basis for deciding the compensation in LAC

No.48/2007 by the concerned Reference Court. Perusal of this

Judgment at Exh.68 and particularly, Paragraph No.7 would show

that the sale deed of the year 1994 which was marked as Exh.35

in the said reference was taken into consideration for the purpose

of quantifying compensation of the land. In the said reference, the

market price of the irrigated land situated adjoining to the village

of the respondent No.1 was determined at Rs.3,40,000/- per

hectare. In the Judgment at Exh.68, number of Judgments arising

out of the references of the village Kolhi were considered and the

compensation @ Rs.1,70,000/- was awarded for the dry crop

lands. It is therefore, apparent that in the Judgment at Exh.68, the

basis for deciding the compensation was the sale instance. The

Reference Court while deciding the reference at Exh.68 granted

10% rise per year from 1994 for the purpose of determining the

market value of the land. The learned Judge on consideration of

the Judgment at Exh.68 found that the sale instances relied in the

said references are comparable and as such, accepted the same.

18 20-J-FA-492-17.odt

It is therefore, apparent on the face of record that the learned

Judge determined the market value of the lands on the basis of

the sale statistics referred in the Judgment at Exh.68. Therefore, it

could not be said that in this case, income capitalization method

was adopted by the learned Judge while determining the market

value of the land Survey Nos.14 and 15.

16. The land Survey No.17 was dry crop land. The

learned Judge relying upon the Judgment in LAC No.165/2006 at

Exh. 66 has quantified the market value of the land bearing

Survey No.17 @ Rs.1,75,000/- per hectare. The learned Judge

found that the Judgment in LAC No.165/2006 at Exh.66 is the

best evidence to determine the market price of the land Survey

No.17. We have perused the Judgment in LAC No.165/2006 at

Exh.66. In LAC No.165/2006, the sale deeds produced on record

were not found comparable with the land in question. The learned

Judge relied upon the Judgment in LAC No.167/2006, which

pertains to the agricultural land situated at Village Barad and

acquired for the said project. The land in question was dry crop

land. The land bearing Survey No.17 and the lands from the

Judgment in LAC No.167/2006 were found identical and similarly

situated. The learned Judge in our case while determining the 19 20-J-FA-492-17.odt

compensation in respect of dry crop land Survey No.17 accepted

this Judgment as the best evidence. In our view, on this count, the

Judgment of the Reference Court cannot be set aside. Even if it is

assumed for the sake of argument that no sale instance was relied

upon in LAC No.165/2006, the respondent No.1 would be entitled

to get the enhanced compensation @ Rs.1,75,000/- per hectare

being dry crop land, inasmuch as it would be 50% less than the

enhanced compensation awarded for the irrigated land bearing

Survey Nos.14 and 15.

17. It is, therefore, apparent that the market value of

the lands in this case has not been decided on the basis of income

capitalization method. The same has been determined on the basis

of earlier decisions in the land reference cases. In those cases, the

sale deeds were referred to arrive at or determine the market

value of the land. It is pertinent to mention that number of land

references arose due to acquisition of lands for the same project. It

is seen that by and large, the compensation awarded by the

Reference Courts is Rs.3,40,000/- for irrigated land and

Rs.1,75,000/- for dry crop land. In view of this position, it is seen

that the Judgment relied upon by the learned Advocate for the 20 20-J-FA-492-17.odt

appellants is of no help and assistance to substantiate his

submission.

18. We have minutely perused the evidence of the

respondent no.1 and the evidence of the Valuer - PW-2. We have

perused the cross-examination of the Valuer. The report of the

Valuer is at Exh.76. In the report, the Valuer has stated that the

soil of the land was medium black, porous in texture, rich in

organic matter, well drained and fertile. He has further stated

that the land is ideal for fruit growing. He has further stated that

the general condition of the trees found in the land at the time of

inspection was good and they were healthy. Perusal of the cross-

examination would show that there was no challenge to this part

of evidence and report. It is seen that the PW-1 / respondent No.1

has categorically deposed about the quality of the land and the

management of the land by him. In our view, considering this

evidence, the market value of the land quantified by the learned

Judge could not be said to be excessive and exorbitant. We do not

find any reason to disturb the finding of fact recorded by the

Judge. This finding is supported by the evidence. The learned

Judge has recorded the reasons in support of his finding to

quantify the market value of the land.

21 20-J-FA-492-17.odt

19. It would now be necessary to consider the

challenge to the part of the award which deals with the

enhancement of the compensation in respect of the fruit bearing

trees. The learned Advocate for the appellants submitted that the

Land Acquisition Officer has taken into consideration the first

Joint Measurement Report at Exh.64 to count the number of fruit

bearing trees and awarded the compensation for the same. Before

we proceed to appreciate the submissions on merits with regard to

the quantification of compensation for the fruit bearing trees, it

would be necessary to take into consideration the observations

made by the Land Acquisition Officer in his award at Ext.65. The

relevant observation is under caption "value of the trees". A

specific reference has been made to Survey Nos.14 and 15. The

Land Acquisition Officer has recorded reasons for taking into

consideration the number of trees for the purpose of determining

the compensation of the same. The learned Advocate for the

appellants has not made serious grievance about the facts noted

down in the Joint Measurement Report at Exh.64 with regard to

the number of trees found existing in the land bearing Gut Nos.14

and 15. This Joint Measurement Report was prepared in June, 22 20-J-FA-492-17.odt

1999. The second Joint Measurement Report which was produced

on record with the Review Application was prepared in 2003-

2004. Perusal of the Judgment of the Reference Court would show

that the Reference Court has taken into consideration the number

of fruit bearing trees found existing at the time of preparation of

the first Joint Measurement Report. Therefore, it is not possible to

accept the submissions made on behalf of the appellants with

regard to the number of trees and the age of the trees. As noted

above, the compensation has been awarded for fruit bearing trees

of different varieties. On this count, we are not prepared to take a

different view from the one taken by the learned Judge.

20. The next important point is with regard to the

sustainability of the order with regard to the quantum of

compensation awarded by the Reference Court. In order to prove

the valuation of the fruit bearing trees, the respondent No.1 has

deposed in his evidence about the quality of the land, the

management of the land and the irrigation facility for the land.

PW-2 Valuer has deposed extensively about the quality of the land,

the management of the land and the modern technique used by

the respondent No.1 for getting maximum yield from the trees.

The report of the Valuer is at Exh.76. At this stage, it is necessary 23 20-J-FA-492-17.odt

to mention that the learned Judge of the Reference Court has not

accepted this report in toto. The enhancement of the

compensation for the trees sought by the respondent No.1 was

higher than the one granted by the learned Judge. Perusal of the

Judgment and report of the Valuer together would show that the

learned Judge has awarded enhancement of compensation for

fruit bearing trees 40 % less than the one quantified by the Valuer.

In our view, therefore, the report of the Valuer cannot be

discarded in toto. The report with regard to the quality of the land

and other related aspects has not been challenged in the cross-

examination. We are, therefore not prepared to discard the

evidence of the Valuer in toto. The report of the Valuer, therefore,

has been rightly made a basis for determining the enhanced

compensation in respect of the fruit bearing trees. The learned

Judge as can be seen from the Judgment has taken into

consideration the award of the Reference Court in LAC

No.519/2007 at Exh.70 for determining the compensation for fruit

bearing trees. The Judgment at Exh.70 was found by the learned

Judge the best guide to determine the compensation for fruit

bearing trees. It is seen that the said Judgment was in respect of

the land of the same village Kopra Barad acquired for the same 24 20-J-FA-492-17.odt

project. The Reference Court in the Judgment of LAC

No.519/2007 at Exh.70 has quantified the compensation for fruit

bearing trees of the variety of fruit bearing trees similar to the one

in this case. On minute scrutiny and appreciation of the evidence,

we are of the view that as far as the compensation for fruit bearing

trees is concerned, the learned Judge has not committed any

mistake. The learned Judge has recorded the reasons. The finding

on this point is based on the evidence. The enhancement of

compensation granted in respect of fruit bearing trees, in our view

is just, proper and reasonable. It does not warrant interference. It

is needless to state that while quantifying the market value of the

land and fruit bearing trees, based on the material placed on

record and the circumstances in totality, some guess work would

be required to be done. The fundamental principle needs to be

borne in mind in such cases is that the compensation awarded to

the land loser for the acquired land as well as for the trees which

is source of his livelihood must be just, fair and reasonable. In our

opinion, even subjecting the material placed on record and the

circumstances in totality to the robust guess work, enhanced the

compensation awarded by the Reference Court for the land as well

as fruit bearing trees could not be said to be excessive. In our 25 20-J-FA-492-17.odt

view, on this count, the award passed by the Reference Court does

not warrant interference. Similarly, the grievance made by the

respondent No.1 on the point of inadequacy of the enhanced

compensation also cannot be sustained. The evidence on record

does not warrant enhancement of compensation at the rate

claimed by the respondent No.1 in the cross-objection.

21. In view of the above, we conclude that initial

Judgment and award dated 04/04/2015 does not require

interference and modification. The Judgment and award to the

extent of grant of compensation pursuant to the review order

dated 05/08/2015 in respect of 1824 Awala trees and one

borewell in Gut No.17 cannot be sustained and is required to be

set aside. We accordingly, proceed to pass the following order.

                               ORDER


      i]    The appeal is partly allowed.


      ii]   The Judgment and award to the extent of

compensation awarded for 1824 Awala trees and one Borewell from Survey No.17 is set aside. The appeal is partly allowed to this extent.

26 20-J-FA-492-17.odt

iii] The cross-objection filed by the respondent No.1 is dismissed.

iv] The appellants have paid the amount of compensation with all consequential benefits to the respondent No.1. The respondent No.1 is directed to refund the amount of compensation paid by the appellants in respect of 1824 Awala trees and for one borewell from land bearing Survey No.17 within four months from today.

v] Since the respondent No.1 was permitted to withdraw the entire amount of compensation without furnishing any security in view of the order dated 27/04/2017, we have not directed refund of the excess amount of compensation with interest. However, the excess amount of compensation if not repaid within four months would carry interest from expiry of said period at 7.5% per annum till its payment.

vi] Decree be drawn accordingly.

       (G. A. SANAP, J.)                       (A.S. CHANDURKAR, J.)



 Choulwar




              Digitally signed by
VITHAL        VITHAL MAROTRAO
MAROTRAO      CHOULWAR
              Date: 2021.12.02
CHOULWAR      17:22:24 +0530