Pramod Sadashiv Khode vs State Of Mah. Thr. Deptt. Of ...
2021 Latest Caselaw 16842 Bom

                                                       fa no.442.2011.odt
                                          1/20



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

                 FIRST APPEAL NO. 442 OF 2011



1.          Pramod S/o Sadashiv Khodke
            Aged about 47 years, Occ. Farmer,
            R/o. Kolhi, Tah. Babhulgaon,
            Distt. Yavatmal, Presently residing at
            Near Yogashram, Karla Road,
            Tq. and District : Wardha.
                                                           .... APPELLANT

                              // VERSUS //

1.          The State of Maharashtra
            Through Department of Revenue,
            Mantralaya, Mumbai.

2.          The Collector, Yavatmal,
            Tq. & Distt. Yavatmal.

3.          The Special Land Acquisition Officer,
            Bembla Project Division, Yavatmal,
            Distt. Yavatmal.

4.          The Vidharbha Irrigation Development
            Corporation, Through the Executive
            Engineer, Bembla Project, Yavatmal .... RESPONDENTS

Shri R.S. Nagpure, Advocate for appellant.
Smt. Sangita Jachak, AGP for respondent Nos.1 & 3/State.
Shri M.A. Kadu, Advocate for respondent No.4.
_____________________________________________________________

            CORAM : A.S. CHANDURKAR, AND
                    G.A. SANAP, JJ.

Date on which arguments were heard:- 11/10/2021

Date on which the judgment is pronounced:- 04 -12-2021

JUDGMENT: (Per: G.A. Sanap, J.) fa no.442.2011.odt

1. The appellant being aggrieved by the judgment and

award dated 24.11.2008 passed in LAC No.738/2006 has come

before this Court in appeal. The learned Joint Civil Judge, Senior

Division, Yavatmal (Reference Court) had partly allowed the

reference filed by the appellant and awarded the enhanced

compensation of Rs.33,68,720/-.

2. The facts leading to the filing of the appeal are as

follows:-

The appellant was the owner of the land bearing Gat

No.82 area 4.31 H.R situated at village Mouja Kohli, Taluka

Babhulgao, District Yavatmal. The said land was acquired by the

respondents for Bembla Project vide LAC No.2/47/2002-03. The

notification, was published on 5.06.2003, under Section 4 of the

Land Acquisition Act, 1894 (herein after referred to as 'the Act of

1894'), followed by notification under Section 6 of the Act of

1894 dated 22.09.2005. The award came to be passed on

22.09.2005 and total compensation of Rs.20,29,256/- was

awarded for the agriculture land and for fruit bearing trees. The

appellant accepted the compensation under protest.

fa no.442.2011.odt

3. According to the appellant, the compensation

awarded for the land and fruit bearing trees was meager,

inadequate and insufficient. It is the case of the appellant that

the factors such as fertility of the soil, prominent and

advantageous location of the land, potential for commercial

crops, actual market value, age and condition of trees and other

relevant factors need to be considered while quantifying the

compensation. The market value of the land in question was

required to be determined by making thorough inquiry. There

must be legally admissible evidence and scientific material to

quantify the compensation of such land with fruit bearing trees.

The comparable sale instances and the yearly income needs to be

evaluated. The land of the appellant was irrigated land. The

appellant had planted the fruit trees of different varieties. The

age of the same on the date of notification under Section 4, was

9 years. The Land Acquisition Officer has not taken the above

facts and circumstances into consideration while quantifying the

compensation of the land and the fruit bearing trees. The

appellant therefore, made a reference and claimed enhanced

compensation of Rs.20,34,333/- being the market value of the

land and Rs.5,46,20,000/- being the value of the fruit bearing trees.

fa no.442.2011.odt

4. The respondents opposed the reference. The

respondents denied the material facts pleaded by the appellant

in the reference. According to the respondents, the Land

Acquisition Officer had granted opportunity of hearing to the

appellant to substantiate his claim. The claim put forth by the

appellant, at the stage of inquiry was considered. The Land

Acquisition Officer has determined the market value of the land

and the trees on the basis of the material available on record.

The compensation awarded by the Land Acquisition Officer is

just, proper and reasonable. According to the respondents, the

enhanced compensation claimed by the appellant was excessive

and exorbitant.

5. The appellant examined himself as PW-1. PW-2

examined by the appellant is Dr. K.U. Sanghvi, an expert in the

valuation of the trees. The appellant relied upon number of

documents. The Reference Court as stated above, partly allowed

the reference. The Reference Court awarded enhanced

compensation of Rs.33,68,720/-, with the direction to deduct the

amount of compensation already determined by the Land

Acquisition Officer and accepted by the appellant.

fa no.442.2011.odt

6. Being aggrieved by the judgment and award, the

appellant has come before this Court.

7. We have heard Shri R.S. Nagpure, learned Advocate

for appellant, Smt. Sangita Jachak, learned AGP for the

respondent Nos. 1 to 3 and Shri M.A. Kadu, learned Advocate for

the respondent No.4. We have perused the record and

proceedings.

8. In view of the facts of the appeal, following point falls

for determination:-

Whether the enhanced compensation awarded by the

Reference Court is just, proper and reasonable?

9. Learned Advocate for the appellant submitted that

Reference Court has committed mistake while rejecting the

prayer for separate compensation for the land and for the fruit

bearing trees. Learned Advocate took us through the documents

on record and submitted that the Reference Court has failed to

take into consideration the quantity of the fruit bearing trees

found existing at the time of the joint measurement carried out

in the year 1999. Learned Advocate submitted that the reasons fa no.442.2011.odt

recorded by the Reference Court while rejecting the

compensation for the Awala trees are not at all sustainable.

Learned Advocate pointed out from the record that the

Reference Court has accepted the case of appellant that 1050

Awala trees were planted in the year 1994, but failed to grant

the reasonable compensation for the same. He further submitted

that the compensation in respect of other fruit bearing trees

awarded by the Reference Court is not just and reasonable.

Learned Advocate for the appellant submitted that Reference

Court has not recorded convincing reasons while discarding the

evidence of PW-1 and the evidence of expert Dr. K. U. Sanghvi

(PW-2). Learned Advocate submitted that the reference made

by the appellant ought to have been allowed in toto.

10. Shri M.A. Kadu, learned Advocate for the respondent

No.4 supported the judgment and award passed by the

Reference Court. Learned Advocate for the respondent No.4

submitted that the judgment of the Reference Court reflects

application of mind to the material placed on record by the

appellants. Learned Advocate submitted that number of trees

mentioned in the reference, could not be planted in the land fa no.442.2011.odt

admeasuring 4.31 H.R. Learned Advocate submitted that while

quantifying the market value of the trees and the land, Reference

Court has taken into consideration thick/crowded plantation of

the trees. Learned Advocate submitted that there is ample

evidence to establish that thick plantation of the fruit bearing

trees in this manner would affect the productivity and ultimately

the net yield of the trees. Learned Advocate submitted that the

land of the appellant was an orchard land and therefore, the

compensation could not have been awarded separately for the

land and for the trees. The learned advocate submitted that it

has been proved that the Awala trees were not bearing fruits and

therefore, the rejection of the claim for the enhancement of the

compensation for the Awala trees as sought to be contended in

the reference was justified.

11. Smt. Sangeeta Jachak, learned AGP for the

respondent Nos. 1 to 3 adopted the arguments advanced by the

Shri M.A. Kadu, learned Advocate for the respondent No.4.

12. The Reference Court has recorded the reasons for

not awarding separate compensation for the land and the fruit

bearing trees. The Reference Court has placed reliance on the fa no.442.2011.odt

decision in the case of State of Haryana Vs. Gurcharan Singh

reported in A.I.R.(1996) SC 106 to deny the separate

compensation for the land and the trees. In this case, the Hon'ble

Supreme Court has held that in case of granting compensation

for land with fruit bearing trees, separate compensation for the

land and fruit bearing trees cannot be awarded. The same

proposition has been laid down by High Court in the case of

Special Land Acquisition Officer Vs. Chindha Fakira Patil,

reported in 2007 (1)Mh.L.J. 130. Learned Advocate for the

appellant relied on the decision of the Hon'ble Supreme Court in

the case of Ambya Kalya Mhatre (dead) through LRs and others

Vs. State of Maharashtra, reported in 2012 (1) Mh.L.J. 9 and

submitted that the separate compensation has to be awarded in

respect of land and in respect of the fruit bearing trees. Para Nos.

21 and 22 of the judgment 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 :

fa no.442.2011.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 fa no.442.2011.odt

determined by capitalizing the income with reference to yield, then also the question of making any addition either for the land or for the trees separately does not arise. In this case, the determination of market value was not with reference to the yield.

Nor was the determination of market value in regard to the land with reference to the value of any 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."

13. The decision in the case of Gurcharan Singh was

considered by the Supreme Court in Ambya Kalya Mhatre

(supra). In this case, it is held that if the compensation is

determined on the basis of sale statistics or compensation

awarded to the nearby land then in that event separate

compensation has to be awarded for fruit bearing trees. It is

held that if the compensation is awarded, on the basis of income

capitalization method, then in that event separate compensation

can not be awarded for the land and for the trees.

14. It is seen that the Reference Court has quantified the

compensation on the basis of income capitalization method. Two

sale deeds produced on record by the appellant were not taken

into consideration for the purpose of determining the fa no.442.2011.odt

compensation of the land. At this stage, it is pertinent to mention

that the appellant in his cross examination has admitted that he

purchased 3 hector land, out of 4.31 H R land in 1993-94. He

has admitted that 1.31 HR land was acquired in exchange with

the adjoining owner. On being confronted with this situation, he

could not state the reason for non production of the sale deed of

his land which is subject matter in this reference. It is pertinent

to note that instead of producing sale deed of this land, which

was purchased by the appellant in 1993-94, he placed reliance

on other two sale deeds of the land from the adjoining villages.

15. In our opinion, this fact goes to show that the

appellant has concealed the important document from the Court.

A reasonable judicial inference can be drawn that the said sale

deed must be reflecting less purchase price and therefore, the

same was not produced before Court. It therefore, goes without

saying that in this case, Reference Court has not taken sale

statistics/instances into consideration for the purpose of

quantifying the compensation. In our view, therefore, the

submission advanced by learned Advocate for the appellant that

though his land is an orchard land, the appellant was entitled to fa no.442.2011.odt

get a separate compensation for the land and for the fruit

bearing trees cannot be accepted.

16. Before proceeding to consider the rival submissions

on the point of the quantum of compensation in respect of fruit

bearing trees and the land, it is necessary to mention that it has

been proved on the basis of the evidence that the trees were

thickly planted. The number of trees mentioned in the Reference

application by the appellant could not have been planted in the

land admeasuring 4.31 HR. The Reference Court has taken into

consideration Ex.29, the First joint measurement report. Ex-39 is

the second joint measurement report. Ex.30 is the valuation

report of the fruit bearing trees of the year 1998-99. The second

valuation report of the fruit bearing trees is at Ex.42, which was

prepared in 2002-2003. It is pertinent to mention at this stage

that there is variance in the number of trees of different varieties

in all these documents. It is further pertinent to mention that the

Reference Court has reconciled while quantifying the number of

trees the first joint measurement report, second joint

measurement report, two government valuation reports of the

trees, evidence of PW-1 and Dr. K. U. Sanghvi (PW-2) with his fa no.442.2011.odt

valuation report at Ex.70 and 71.

17. According to the appellant, in his land there were

1300 bori trees, 1200 Awala trees, 560 orange trees, 40 sweet-

lime trees, 20 Lemon trees and 1442 Bamboo clumps. The

witness Dr. K.U. Sanghvi (PW-2) was thoroughly cross examined

in view of such claim of the appellant. He has admitted that as

per horticulture recommendation, the distance between the trees

of orange/sweet lime and lemon should be 6 x 6 mt. and the

distance between Awala and Bori trees should be 5 x 5 mts. The

Reference Court has found that for the purpose of plantation of

these many trees 5.20 HR land would be required. The learned

Judge as can be seen from the judgment accepted the case of the

appellant to the extent of 20 to 30% more plantation of the trees

inasmuch as, the valuer Dr. K.U. Sanghvi has stated that the

plantation was made in hexagonal manner and therefore, 20 to

30% more trees could be planted in the same area of land. After

analyzing the material on record and considering the area of the

acquired land, learned Reference Court has recorded a finding

that by giving weightage of 20 to 30% extra plantation by

adopting scientific method, 400 orange trees, 1150 Bori trees, fa no.442.2011.odt

1050 Awala trees, 40 Sweet-lime trees, could be planted in the

acquired land. The Reference Court has quantified the

compensation on the basis of income capitalization method for

the above mentioned trees. The Reference Court recorded a

finding that the appellant would be entitled to get the

compensation in respect of the above mentioned trees only.

18. The perusal of the judgment of the Reference Court

would show that while quantifying the market value of the land

and fruit bearing trees, the Reference Court has taken into

consideration, the fact that the plantation was made in crowded

manner. The Reference Court found that thick/crowded

plantation of the fruit bearing trees would definitely affect the

proper growth, production and productivity of the trees. It is

pertinent to mention that if the plantation is thick/crowded, then

for want of sufficient space and proper sun light, the growth of

the fruit bearing trees would definitely get affected. The

Reference Court has taken into consideration, the notification

issued by the Horticulture Department of the Government of

Maharashtra bearing No.H.O.R.-1090/P381/C-4 dated

27.12.1990, wherein the average yield statement of fruit trees fa no.442.2011.odt

has been provided for the purpose of valuation of the fruit trees

existing on the land acquired for public purpose. The Reference

Court found the said notification, a reliable piece of evidence. In

this case, it has been proved that all the trees were planted in the

year 1993-94 and as such, on the date of notification were nine

years old. It is mentioned in the said Government Resolution that

the average yield of nine year old Sweet-Lime trees would be 50

to 100 kg., Orange trees would be 40 to 90 kg., Bori (grafted)

trees would be 50 to 80 kg., Citrus group trees including Lemon

would be 40 to 70 kg. and the average yield of Awala trees

would be 15 to 25 kg. The Reference Court considering the

thick/crowded plantation of the trees and for want of any

concrete evidence, on the aspect of price etc. took the yield of

Orange trees as 40 kg., Sweet Lime trees as 50 kg., Bori trees as

50 kg. and Lemon tree as 40 kg. The Reference Court on the

basis of average yield, the market rate of the fruits and the

deduction of the maintenance charges quantified the value of

each tree of the different varieties. The Reference Court relied

upon the valuation report given by Dr. K.U. Sanghvi (PW-2) for

deciding the market rate of the fruits of the different varieties.

Dr. K. U. Sanghvi (PW-2) in his report, quoted the market rate of fa no.442.2011.odt

the different varieties of fruits per quintal. The Reference Court

made this report a basis for quantifying the market rate of the

fruits of different varieties per quintal by making a deduction of

40% from the said rates on given weightage to the relevant

factors. The Reference Court applied the multiplier of 10 and

came to the conclusion that value of each Orange tree would

come to Rs.2100/-, the value of each Bori tree would come to

Rs.1620/-, the value of Lemon tree would be Rs.1510/- and the

value of Sweet Lime/Orange tree would be Rs.1670/-. The

Reference Court added Rs.30/- per tree towards the fuel cost.

The Reference Court by adopting this method/formula

quantified the compensation of the fruit bearing trees. The

Reference Court considering the thick plantation of the Bamboo

clumps, awarded Rs.300/- per Bamboo clump. In our opinion, to

the above extent, the judgment and award passed by the

Reference Court does not warrant interference inasmuch as the

respondent No.4 has not challenged the said part of the

judgment by filing the separate appeal or by filing the cross

objection.

fa no.442.2011.odt

19. The Reference Court has awarded Rs.120/- for each

Awala tree. This compensation has been quantified on the basis

of the valuation report at Exhibit 42. The Reference Court has

taken the admission given by Dr. K.U. Sanghvi, (P.W.2) into

consideration. Dr. K.U. Sanghvi (P.W.2) in his cross-examination

has admitted that in the government valuation report, the

reference was made that none of the Awala trees existing at the

spot were fruit bearing. In our opinion, this admission has been

read by the Reference Court out of the context. The evidence of

Dr. K. U. Sanghvi (PW-2), his valuation report and the valuation

statement (Ex.42) would be required to be seen. The valuation

report of government valuer at Ex.42 and Ex.30 are self

contradictory. In the valuation report at Ex.30 the value of each

Awala tree was quantified at Rs.1242. The valuation report at

Ex.30 was prepared in the year 1999. The Awala trees were

planted in the year 1993-94. It is undisputed that on the date of

second joint measurement report as well as second fruit

valuation report, the Awala trees were nine years old. It is

pertinent to mention that the reference Court has not taken

these facts into consideration while determining the enhanced

compensation for the Awala trees. The Awala trees bears fruits in fa no.442.2011.odt

winter season and that too once in a year. A farmer would not

spent his money and energy for maintaining the barren trees.

The Reference Court has awarded the compensation at the rate

of Rs.120/- per Awala tree for 1050 Awala trees.

20. In our opinion, the submission advanced by the

learned Advocate that the Reference Court has committed the

serious mistake on this point deserves acceptance. In our

opinion, the Reference Court ought to have enhanced the

compensation by applying the ratio and formula applied while

awarding the compensation in respect of other fruit bearing

trees. We are therefore, inclined to adopt the method and

formula adopted by the Reference Court while quantifying the

enhanced compensation for 1050 Awala trees. As mentioned

above, the minimum yield of the single Awala tree would be 15

kg per year. The price of the same mentioned in the valuation

report by Dr. K.U.Sanghvi (PW-2) is Rs.1,000/- per quintal. 40%

deduction would be required in view of thick plantation. After

deducting 40% from Rs.1,000/- the price per quintal would

come to Rs.600/-. Per kg. Price would come to Rs.6/-. The total

price of 15 kg x Rs.6/- would come to Rs.90/-. 10% would be fa no.442.2011.odt

required to be deducted towards the maintenance charges. After

deducting 10%, the total price of the yield of one tree would

come to Rs.81/-. Rs.81 x 10 would give us the price of one tree.

It would come to Rs.810/-. Rs.30 would be required to be added

towards the fuel cost of one Amal tree. The total cost of one tree

would come to Rs.840/-. The price 1050 trees multiplied by

Rs.840/- would come to Rs.8,82,000/-.

21. In our view, adoption of any other method or formula

while quantifying the value of the Awala trees would be unjust

and improper. This in our view would meet the ends of justice.

In our view, the award and judgment passed by the learned

Reference Court needs to be modified to this extent. Hence the

following order:-

ORDER

(i) The Appeal is partly allowed.

(ii) The judgment and award passed in L.A.C.

No.738/2006 by the Reference Court dated 24.11.2008 to the

extent of fruit bearing trees and Bamboo clumps other than the

Awala trees is up held. The appellant would be entitled to get

enhanced compensation of Rs.8,82,000/- for 1050 Awala fa no.442.2011.odt

trees.

(iii) The respondents to deduct the amount of

compensation already accepted by the petitioner in LAC

No.2/47/2002-2003 in above Reference, out of the enhanced

amount of compensation quantified for 1050 Awala trees.

(vi) The respondents to pay component @ 12% p.a. from

the date of publication of notification till the date of passing of

award over the enhanced compensation by deducting the

amount which is already paid.

(v) The respondents to pay a solatium 30% on the

enhanced compensation by deducting the amount which is

already paid.

(vi) The respondents to pay interest @ 9% p.a. on

enhanced compensation, component and solatium for the first

year from the date of award and @ 15% p.a. for subsequent year

till the date of realization of entire amount.

(vii) The First Appeal is disposed of in above terms.

                              JUDGE                                    JUDGE

manisha



           Digitally signed
MANISHA    by MANISHA
ALOK       ALOK SHEWALE
           Date: 2021.12.04
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