Sukhadeo S/O. Narayan Tarte vs The State Of Maharashtra, Through ...
2021 Latest Caselaw 411 Bom

                                       1            jg.fa 1148.16 & 425.17.odt


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

                          FIRST APPEAL NO. 1148 OF 2016

Executive Engineer, (V.I.D.C.)
Yavatmal Project Construction Division,
Yavatmal, Tal. and Dist. Yavatmal                             ..... APPELLANT
                                                             (On R. A. Ori N.A. No.3)


     // Versus //

(1) Sukhdeo Narayan Tarate,
    Aged 54 yrs., Occ. Agriculturist,
    R/o Antargaon, Tal. Darwha
    Dist. Yavatmal.                                           (On R. A. Ori Applicant)


(2) The State of Maharashtra
    Through its Collector, Yavatmal,
    Tal. and Dist. Yavatmal.                                   (Ori. Resptd-1)


(3) Sub-Divisional Officer and
    Special Land Acquisition Officer,
    Darwha, Dist. Yavatmal.                                    (Ori. Resptd-2)
                                                        .... RESPONDENTS


                                      WITH
                          FIRST APPEAL NO. 425 OF 2017

Sukhadeo S/o Narayan Tarte,
Aged about yrs., Occ. Agriculturi
Presently R/o. Shindi, Tq. Darwha
Distt. Yavatmal.                                             ..... APPELLANT
                                                             (Ori. Claimant on R.A.)


     // Versus //


(1) The State of Maharashtra
    Through Collector, Yavatmal.                             (On R. A. )




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                                                      2                    jg.fa 1148.16 & 425.17.odt


(2) Sub-Divisional Officer and
    The Special Land Acquisition Officer,
    Darwha, Tah. Darwha, District - Yavatmal.

(3) The Executive Engineer,
    Medium Project Division,
    Yavatmal, District Yavatmal                                                 .... RESPONDENTS

-----------------------------------------------------------------------------------------------------
Ms. I. P. Khisti, Advocate for the appellant in FA 1148/2016 and for respondent
no. 3 in FA 425/2017
Shri S. V. Ingole, Advocate for the appellant in FA 425/2017 and for respondent
no. 1 in FA 1148/2016
Shri K. L. Dharmadhikari, AGP for the State/respondent nos. 2 and 3 in FA
1148/2016 and for respondent no. 1 and 2 in FA 425/2017
-------------------------------------------------------------------------------------------------------------

                                     CORAM : A. S. CHANDURKAR AND
                                               N. B. SURYAWANSHI, JJ.

                                     DATE        : 08/01/2021


JUDGMENT (Per :N. B. SURYAWANSHI, J.)

These two appeals filed under Section 54 of the Land

Acquisition Act, 1894 (for short 'the said Act') challenge the judgment

and award in reference L.A.C. No. 90/2010 passed by the Civil Judge

Senior Division, Darwha, hence, they are decided by this common

judgment.

2. Land Gat No. 11 admeasuring 4H 04R at Village Antargaon,

Taluka Darwha, District Yavatmal was acquired by the Government for

3 jg.fa 1148.16 & 425.17.odt

submergence area of Antargaon Project. Notification under Section 4

was published in the Government Gazette on 13-3-2008 and the award

was declared on 30-10-2009. The Land Acquisition Officer (for short

'LAO') granted compensation at the rate of Rs. 1,03,500/- per Hectare for

land and awarded total compensation of Rs. 6,70,400/- for fruit trees.

The claimant filed reference under Section 18 of the said Act and claimed

enhanced compensation of Rs. 1,72,05,000/-. The reference Court after

considering the evidence granted enhanced compensation for the land at

the rate of Rs. 2,30,070/- per Hectare and compensation of Rs. 57,517.50

was given for barren (potkharab) land of 0.05R, for 410 big orange trees,

compensation at Rs. 3500/- per tree, for 250 comparatively small orange

trees Rs. 2500/- per tree, for 90 small orange trees Rs. 1500/- per tree,

for 2 Tamarind trees Rs. 2000/- per tree and for Pomegranate tree,

Rs. 900/- compensation was awarded by the reference Court along with

statutory benefits.

3. Acquiring body has challenged enhanced compensation by

filing First Appeal No. 1148/2016. The claimant is seeking further

enhancement of compensation by filing First Appeal No. 425/2017.

4 jg.fa 1148.16 & 425.17.odt

4. Heard the learned Advocate for the acquiring body and the

learned Advocate for the claimant.

5. The learned Advocate for the acquiring body submitted that

the reference Court has awarded exorbitant compensation without there

being any material on record. The reference Court has granted

compensation to more number of fruit trees. Further submission is that

LAO has given proper compensation and the reference Court was not

justified in enhancing the compensation. It was, therefore, urged that the

judgment and award passed by the reference Court is liable to be

quashed and set aside and the award of the LAO is required to be

maintained.

6. The learned Advocate for the claimant on the other hand

submitted that the reference Court has committed an error in not

considering the sale instances brought on record. It is submitted that the

reference Court erred in relying upon the decision given in LAC No.22 of

2008 while arriving at the market value of the acquired land. The said

decision is challenged in a separate appeal which is subjudice before the

Hon'ble Single Bench of this Court. The reference Court, therefore, was

not justified in observing that no appeal is filed against the said decision.

5 jg.fa 1148.16 & 425.17.odt

The reference Court ought to have relied upon the market value awarded

in LAC No.60 of 2011, which was placed on record at Exhibit 59. He

further submitted that the reference Court ought to have relied upon

Joint Measurement Report at Exhibit 53 for arriving at the correct

number of fruit trees in the acquired land. However, the reference Court

has erroneously proceeded to place reliance on the award and thereby

awarded compensation for less number of trees. The valuation report

proved on record by the claimant ought to have been relied upon by the

reference Court and the compensation in terms of the valuation report

ought to have been given for the fruit trees. Though four sale instances

at Exhibit 17 and Exhibit 18 of Village Antargaon and Exhibit 19 and 20

of Darwha Taluka were brought on record, the reference Court has failed

to consider the same while arriving at correct market value of the

acquired land. He submitted that sufficient material is produced on

record justifying the claimant's claim for enhanced compensation. The

reference Court ought to have allowed the reference by awarding

compensation claimed by the claimant. He therefore submitted that the

first appeal filed by the claimant may be allowed and the compensation

claimed in reference LAC No. 90/2010 be awarded.

6 jg.fa 1148.16 & 425.17.odt

7. After hearing the rival contentions, following point arise for

consideration :

Whether the compensation awarded by the reference Court is liable to be reduced or enhanced ?

8. Heard both the sides and perused the record.

9. The claimant has relied upon following sale instances in

support of his claim.

Sr. Exhibit          Gat        Village   Extent of Consideration           Date
No. No.              No.                  land sold Amount
                                                        (Rs.)
 1 17             14/1        Antargaon 0.80R      1,10,000/-          2-2-2001
 2 18             26          Antargaon 1H 70R     2,50,000/-          2-7-2001
 3 19             155/1 Kasbe,            1H 06R   7,00,000/-          16-10-2001
                        Darwha
 4 20             121/2 Kasbe,            0.04R    4,92,750/-          19-5-2000
                        Darwha

Sale instances at Exhibit 19 and Exhibit 20 are of Mouza

Kasbe, Darwha. The distance between Kasbe, Darwha and Antargaon is

not brought on record. Exhibit 19 and Exhibit 20 appear to be of non-

agriculture land, therefore, these two sale instances are not comparable

with the acquired land for arriving at correct market value.

7 jg.fa 1148.16 & 425.17.odt

10. The claimant has proved that the acquired land was irrigated

land. Sale instances at Exhibit 17 and 18 are from same village

Antargaon, where the acquired land of the claimant was situated. These

two sale instances were taken into consideration in LAC No.22 of 2008,

which is at Exhibit 57. Holding that the acquired land and the land in

LAC No.22 of 2008 were acquired at the same time and no appeal is

preferred against the decision in LAC No.22 of 2008, the reference Court,

therefore, awarded compensation @ Rs.2,30,070/- per hectare for the

acquired land as was given in LAC No.22 of 2008. We find substance in

the argument of the learned advocate for the claimant that the reference

Court ought to have taken into consideration the decision at Exhibit 59 in

LAC No.60 of 2011, wherein also sale instances at Exhibit 17 and 18

were taken into consideration and by adding 10% increase per year, in

the year 2006 as the Notification under Section 4 was issued in that case,

the compensation for the acquired land of village Antargaon was given at

Rs.2,21,444/- per hectare. The learned advocate for the claimant

submitted that first appeal challenging the decision in LAC No.60 of 2011

was dismissed on the ground of delay. The learned advocate for the

acquiring body confirms this fact. The land in LAC No.60 of 2011 was

also acquired for submergence of Antargaon project. It is pertinent to

note here that while awarding compensation for fruit trees, the reference

8 jg.fa 1148.16 & 425.17.odt

Court has relied upon the Exhibit 59 i.e. decision in LAC No.60 of 2011.

In that view of the matter, we are of the considered view that the

reference Court ought to have taken into consideration the rate of

Rs.2,21,444/- given in LAC No. 60 of 2011 to the land in that case

acquired from the same village and for the same project. The

Notification under Section 4 in that case was of the year 2006. In the

present case, Notification under Section 4 was issued on 13.03.2008,

therefore, adding 10% increase per year, we hold the market value of the

acquired land in the present case to be Rs.2,65,000/- per hectare.

11. While awarding compensation for fruit trees, it appears from

the record that the reference Court has taken into consideration less

number of orange trees by placing reliance on the award Exhibit 58. The

Joint Measurement Report is placed on record at Exhibit 53. At the time

of joint measurement, 800 big and 95 small orange trees were found in

the acquired land of the claimant. The reference Court without assigning

any reason has failed to place reliance on the Joint Measurement Repot,

which was a reliable piece of evidence. According to us, the reference

Court, therefore, has erred in awarding the compensation for less number

of orange trees. The reference Court ought to have awarded

compensation for 800 big and 95 small orange trees, which were found

9 jg.fa 1148.16 & 425.17.odt

in the acquired land at the time of joint measurement and were

accordingly recorded in the Joint Measurement Report. This Report is

accepted by both sides.

12. The claimant has examined Dadan Borkar, Horticulturist as

valuer of the orchard. He valued the orange trees at rate of Rs. 7618/-

per tree in his valuation report, Exhibit 39. In the cross-examination, he

admitted that the weather of Nagpur, Warud and Morshi is more suitable

for orange fruits than the area of Darwha. He also admitted that from

medium soil, best quality of oranges are produced than from black soil.

He could not say the distance between two plants of Santra and total

number of Santra plants from the acquired land. He further admitted

that the claimant had not produced any receipt of sale of any of the fruits

from his orchard. He further admitted that for arriving at the exact age

of a tree, Cortex Ring Method is a proper method, but he did not apply

the said method.

13. The reference Court placed reliance on Exhibit 59 i.e.

decision in LAC No. 60/2011 to arrive at a conclusion that for big orange

trees, Rs. 3500/- compensation per tree needs to be awarded, for

comparatively smaller size of orange tree, Rs. 2500/- per tree and for

10 jg.fa 1148.16 & 425.17.odt

small orange trees, Rs. 1500/- per tree compensation must be granted.

The said valuation, according to us is correct valuation as the same is

given to the similarly situated claimants whose agriculture lands from

Village, Antargaon were acquired for the same project. In the Joint

Measurement Report, Exhibit 53, 800 big orange trees are recorded for

which the claimant would be entitled for compensation at Rs. 3500/- per

tree, since 95 small orange trees are also recorded, the claimant would be

entitled for compensation at Rs. 1500/- per tree for said 95 small orange

trees.

14. For the aforestated reasons, we hold that the claimant is

entitled to receive compensation at Rs. 2,65,000/- per Hectare for the

acquired land, an amount of Rs. 3500/- per orange tree for 800 trees and

Rs. 1500 per tree for 95 orange trees. The point is answered accordingly.

Hence, the following order.

(i) The judgment of the reference Court in L.A.C. No. 90/2010

dated 5-8-2015 is partly modified. It is held that the claimant is entitled

to receive compensation at the rate of Rs. 2,65,000/- per hectare for the

acquired land, amount of Rs. 3,500/- per orange tree for 800 trees and

Rs. 1500 per tree for 95 trees.

                                           11              jg.fa 1148.16 & 425.17.odt


(ii)               The benefit shall be admissible to the claimant in accordance

with the provisions of Section 28 of the Land Acquisition Act, 1894.

(iii) The additional amount of compensation be deposited by the

acquiring body within a period of twelve weeks from today before the

reference Court.

(iv) Accordingly First Appeal No. 1148/2016 stands dismissed

and First Appeal No. 425/2017 is partly allowed in aforesaid terms.

(v)                Parties to bear their own costs.




                     (N. B. SURYAWANSHI, J.)          (A. S. CHANDURKAR, J.)


TAMBE