Suryabhan S/O Sripat Kamble vs The State Of Maharashtra And 2 ...
2021 Latest Caselaw 4357 Bom

fa.196.06.jud                                                                              1/11


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

                             FIRST APPEAL NO.196 OF 2006


Appellant                :        Suryabhan s/o Sripat Kamble,
(Ori. Applicant)                  Aged - Adult, Occu. Agriculturist,
                                  R/o. Nagpur, Taluka Nagpur, Nagpur.

                                  -- Versus --

Respondents              :    1] The State of Maharashtra,
(Ori. Non-Applicant)             Through Collector,, Nagpur.

                             2] The Special Land Acquisition Ofcer,
                                Minor Irrigation Works, Nagpur.

                             3] Executive Engineer,
                                Minor Irrigation Division, Nagpur.

              =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
              Shri C.B. Dharmadhikari, Advocate for the Appellant.
                Shri M.A. Kadu, A.G.P. for the Respondents/State.
              =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=

                         CORAM                    : S.M. MODAK, J.

                         RESERVED ON              : 3rd DECEMBER, 2020.
                         PRONOUNCED ON            : 10th MARCH, 2021.



J U D G M E N T :-



                   The issues involved in this Appeal are:-

a) Whether the evidence adduced on behalf of the

claimant is sufcient to grant him compensation for

orange trees and if yes what should be the quantum?

                         And




 fa.196.06.jud                                                                               2/11

b) Whether the act of not claiming the compensation for

orange trees initially while fling reference application

debars him from claiming it at subsequent stage?

2. Some facts need to be stated:-

The special land acquisition ofcer granted compensation for land

as well as trees to the claimant. The claimant was not satisfed. He fled

a reference under Section 18 of Land Acquisition Act to the Collector,

Nagpur. It was forwarded to the District Court, Nagpur.

3. When the Reference was pending before the District Court, the

claimant sought amendment. It was allowed. The claimant was

permitted to seek additional compensation of Rs.20,00,000/- (200

orange trees x Rs.10,000/- per tree). He gave his evidence and examined

valuer Dadan Borkar whereas special land acquisition ofcer

Dhanashyam Payal also gave evidence. The Reference Court as per the

judgment dt.12.10.2005 passed in LAC No.175/2002 was pleased to

dismiss the reference. His fndings are as follows:

a) Claim for land was not accepted for want of evidence.

b) Claim for orange trees was rejected for the reason;

i) Even though reference was made in the year 1999 the said

claim was made for the frst time in 2005.

ii) And there is no acceptable evidence to show presence of

200 orange trees on 16.02.1998 (Section 4 notifcation).

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These fndings are challenged by the claimant.

4. I have heard learned Advocate Shri C.B. Dharmadhikari for the

claimant-appellant and learned AGP Shri M.A.Kadu for Respondent No.1.

It is true that in the memo of appeal, there is a challenge to the fndings

'refusing compensation for land'(ground no.2). Learned Advocate Shri

Dharmadhikari during oral arguments has conveyed that claimant is not

pressing his demand in that behalf. So the scope of appeal falls within

narrow compass. There is a reliance on the observations of Hon'ble SC

in case of Ambya Kalya Mhatre (dead) through Lrs and others v/s. State

of Maharashtra1. They are perfectly applicable to the facts of this

appeal.

Subsequent Amendment

5. The land admeasuring 1.37 hect. Bearing Suvey No.126/3 village

Malkajhari, Tal. Umred, Dist. Nagpur belonging to the claimant was

acquired. It was due to submergence of the area of Malkajhari tank

project. It is a matter of record that compensation on three heads was

offered by special land acquisition ofcer. They are;

a) Land

b) Trees

c) Well

The claimant has not accepted the offer and hence made a reference. It

1 2012(1) Mh.L.J.

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is true that enhanced compensation for land as well as trees (other than

orange) was asked. It is by way of amendment, permitted in the year

2005, compensation for orange trees to the tune of 20 lakhs was asked.

6. Before the Reference Court there was a contention raised about

not claiming orange tree compensation initially in the reference

application. While dismissing the Reference Petition this fact has

weighed the mind of the Reference Court. The law on the point of the

amendment vis-a-vis the reference petition needs to be looked into.

7. In case of Ambya Kalya, this Court has decided two appeals at

different point of time. The claimants appeal for enhancement was

allowed in part. The claim for increase for trees and well was rejected

(para 6). It is true that in that case compensation for trees was

demanded by way of amendment in the reference application. It mean

to say that compensation on account of that head was not asked initially

when the Reference application was fled (para 4(ii)). The reference

Court allowed the amendment. Compensation for trees was also granted.

However, when the claimant went in appeal, further increase for trees

was not accepted by this Court (para 5).

8. As said above the appeal fled by the State was decided later on. In

that Appeal, this Court held that amendment was barred as per law of

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limitation and it ought not to have accepted it. This Court set aside the

compensation for trees (as well as for well).

9. Hon'ble Supreme Court dealt with the issue of amendment in the

reference petition. This Court has rejected the amendment being barred

by law of limitation (paragraph 7). While disagreeing with the said

reasoning Hon'ble Supreme Court observed thus:

"The assumption made by the High Court that when a reference is sought objecting to the amount of compensation, the claim for increase will have to be frozen with reference to the amount claimed in the application under Section 18 of the Act and therefore the quantum of the claim cannot subsequently be revised or increased is misconceived".

It has been further observed thus:

"13. Similarly, the assumption that if the claim for increase in an application for reference (relating to an acquisition involving a property consisting of land, building and trees), was only in regard to the compensation for the land, the landowner cannot thereafter make a grievance seeking increase in regard to the building or trees in the pleadings before the Reference Court and that in such a case, the Reference Court gets the jurisdiction to determine only the market value in regard to the land and not in regard to the building and trees, is also not correct."

Finally Hon'ble Supreme Court on the point of limitation observed thus:

"We, therefore, hold that the time limit under section 18 of the Act is only for seeking the reference by raising the objection to the amount of compensation or any of

fa.196.06.jud 6/11

the other three objections".

10. The above said observations are perfectly applicable to the facts

before us. Even though the claimant has not sought for compensation

for orange trees initially, he can certainly ask before the Reference Court

by way of amendment. The said observations of the Reference Court

contrary to the interpretation of law by Hon'ble Supreme Court needs to

be set aside. Now the evidence adduced and fndings thereon need to

be assessed.

Evidence Adduced

11. There was oral and documentary evidence adduced before the

reference Court. Basic issue was about existence of orange trees and

the day material for that (that is to say date of taking possession:

06.03.1995 or date of Section 4 notifcation: 16.02.1998). The Reference

Court considered the position existing as on 16.02.1998 i.e. date of

Section 4 notifcation. While interpreting the documents, reference Court

opined that there was no evidence of existence of orange trees as on

16.02.1998. The reference Court considered following documents:-

a) Panchanama prepared at the time of taking possession

dt.06.03.1995, Exhibit 16.

b) Request letter by special land acquisition ofcer Exhibit 34

addressed to Deputy Director of Horticulture dt.03.03.1998 and

report given thereon at Exhibit 37.

There is no dispute about the reference of 200 orange trees existing on

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the land acquired in the panchnama Exhibit 16. It is admitted fact that it

was prepared on 06.03.1995 prior to notifcation. It is important to note

that it was signed by all the concerned including government

representative. The reference Court compared this Exhibit 16 with the

request letter at Exhibit 34 and Report at Exhibit 37. The observation

about report at Exhibit 37 about valuation of orange trees is 'NIL'.

12. The observations (on reading Exhibit 37) of the reference Court are

not correct. It is true that the report at Exhibit 37 is a photocopy and it

is not clearly legible. But when this Court has read it with the assistance

of both the learned advocates, what emerges is "there is reference of

100 orange trees" in the said report. The reference Court ought to have

taken that much pain. So we are inclined to observe that Deputy Director

has referred 100 orange trees in Exhibit 37.

13. There is one more reason for us to opine as referred above. In the

request letter at Exhibit 34, special land acquisition ofcer has referred

above existence of 100 orange trees on acquired land. By that letter

request was made to Dy. Director to give opinion. It may be true that at

time of visit, Dy. Director may not notice any tree. Let this possibility

remain as it is. But the reference Court has not expressed any opinion

by reading Exhibit 34 and Exhibit 37 together. Merely giving reference of

Exhibit 34 is not sufcient. We need to give reasoning for accepting

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Exhibit 37 (by keeping aside Exhibit 34). This has not been done by the

Reference Court. So the factual observations cannot be said to be

correct. I fnd them to be perverse.

Position as on 06.03.1995

14. It is a matter of record that Panchanama was prepared at the time

of taking possession on 06.03.1995 (Exhibit 16). The attention of special

land acquisition ofcer was brought to Exhibit 16 during cross-

examination. It was prepared by the acquiring body. The contents of

Exhibit 16 are as clear as that of rays of the sun. There is a reference of

200 orange trees existing on the acquired land on that date.

Law

15. It is true that the Court will have to consider the market value of

the land as existing on the date of Section 4 notifcation. So also the

interest component has to be paid from the date of Section 4 notifcation

but it may happen that in a particular case possession may be taken

prior to issuance of the notifcation. Similar thing has happened in this

case. But as per the law interpreted by Hon'ble SC in various judgments

(though interest has to be paid from the date of notifcation) the Court

will have to consider 'the damage sustained by the interested person

due to taking of crop/tree at the time of taking of possession' (Section

23).

16. Hence, the Reference Court was partially wrong in considering the

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date of Section 4 notifcation as relevant date. The Court has to consider

'the position as existing on the land at the time of taking of possession

for considering the damage whereas the date of Section 4 notifcation

will be relevant so far as interest component is concerned (when

possession is taken earlier).

Quantum

17. We have got the evidence of the Valuer Shri Borkar on this aspect.

He admits he has not visited the site prior to giving the opinion but he

gave the opinion on the basis of instructions given by claimant and on

the basis of the panchanama at Exhibit 16. He had given the

explanation for non-visit. The digging work was started by the acquiring

body. There is a submission on behalf of the claimant that 200 orange

trees were 2 years old in the year 1995 and they had become 5 years

old in the year 1998. There is a reason to believe that 200 orange trees

were existing when the panchanama was made on 06.03.1995. So the

trees would be of 5 years old in the year 1998 when the notifcation was

issued in the year 1998. There is a reason to believe that in the year

1998 it is (not the 200 orange trees) 100 oranges trees which were

existing. Reference Court has not at all considered existence of any of

the number of orange trees.

18. The fact of not producing 7/12 extract by the claimant is

considered against the claimant by the Reference Court. No doubt, 7/12

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extract is one of the material for ascertaining the truth but it does not

mean that Court can overlook the material which is already produced

before the Court. The reference Court has taken strict and hyper

technical approach and has overlooked the fact that matter arising out of

social welfare legislation is being looked into. While exercising appellate

jurisdiction, it needs to be corrected.

Amount of Compensation

19. Valuer Borkar has given details about total life/productive life of

orange trees, the year from which fruits can be fetched per tree

production and market rate prevailing. If we read his evidence (as it is),

we may fnd that trees started fetching fruits once they become 4 years

old (full grown fruits from 7 years). He has considered all relevant factors

including 2 seasons, rate per kg, total fruits per tree per year, weight,

life of orange trees.

20. But the issue is when possession was taken on 6/3/1995 200

orange trees have not started fetching oranges. They were too young.

Trees without fruits does not fetch any amount except value for frewood.

So evidence of valuer is not useful to the appellant. This Court has no

alternative but to consider valuation of 200 orange trees as that of

frewood. There is no material to that effect on record. So Court has to

just estimate how much will be the weight of 200 orange trees if they are

cut ? How much was the rate per kg of frewood at that time. In absence

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of these materials, Court values the frewood of 200 orange trees to

Rs.10,000/- The appellant ought to have receive that amount.

21. So the appeal has to be allowed to that extent. The appellant will

get all statutory benefts on that amount. As said earlier, the appellant

can get interest on that amount from date of notifcation i.e. 16/2/1998

(and not from 6/3/1995 i.e the date of taking possession). Hence order:

ORDER

1. Appeal is partly allowed.

2. Respondent Nos. 1 to 3 are directed to pay Rs.10,000/- to the

appellant (towards valuation of 200 orange trees as frewood)

within 2 months from today.

3. The appellant is entitled to get all statutory benefts as per

observations made in the body of judgment.

4. The respondents to pay all these amounts within a period of three

months from today.

5. Respondents to pay costs to the appellant.

(S.M. MODAK, J.) *sandesh