Keshavrao Govindrao Avagan, ... vs The State Of Mah. Thr. Collector, ...
2021 Latest Caselaw 14772 Bom

  202FA 684-2009.odt                              1



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

                         FIRST APPEAL NO. 684 OF 2009
                                    WITH
                         FIRST APPEAL NO. 397 OF 2009
                                    WITH
                         FIRST APPEAL NO. 331 OF 2009

  Keshavrao Govindrao Avagan,
  aged about 58 years,
  Occupation Agriculturist,
  R/o Mokh, Tq. Digras,
  District Yavatmal.
                                                              ...APPELLANT
                    Versus

  1. The State of Maharashtra,
     through the Collector, Yavatmal.

  2. The Collector, Yavatmal,
     District Yavatmal.

  3. The Special Land Acquisition
     Arunawati Project Officer,
     Benefitted Zone at Yavatmal,
     District Yavatmal.

  4. V.I.D.C., through The Executive Engineer,
     Arunawati Project, Tq. Digras, Dist. Yavatmal.
                                                        ...RESPONDENTS.

  Shri S.U. Nemade, Advocate for the appellant.
  Shri A.M. Kadukar, A.G.P. for respondent Nos. 1 to 3.
  Shri A.B. Patil, Advocate for respondent No.4.
                      .....
                             CORAM : PUSHPA V. GANEDIWALA, J.
    ARGUMENTS WERE HEARD ON : OCTOBER 04, 2021.
  JUDGMENT IS PRONOUNCED ON : OCTOMBER 08, 2021.




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   202FA 684-2009.odt                                 2



  JUDGMENT :

Heard.

2. These Appeals take exception to the judgment and

award dated 22/12/2005 passed by the Civil Judge, Senior

Division, Darwha in LAC Nos. 459/2004, 492/2004 and

682/2004. In all these Appeals, the appellant Keshavrao

Govindrao Avagan is the owner of the properties, which came

to be acquired for the submergence of Arunawati Project.

3. First Appeal Nos.684/2009, 397/2009 and

331/2009 arose out of the LAC Nos. 459/2004, 492/2004 and

682/2004 respectively.

4. First Appeal No. 684/2009 is in respect of house

No. 171/1 admeasuring 444.3 sq. mtr. out of which constructed

area is 264.22 sq. mtr and open space is 180.08 sq. mtr., First

Appeal No.397/2009 is in respect of house No. 268 having

total open space of 65.9 sq. mtr., and First Appeal

No.331/2009 is in respect of house No. 306 admeasuring 50

sq.mtr having total 50 sq. mtr. as constructed area.

All these properties are situated at Village Mokh, Tq.

Digras, District Yavatmal.

5. The subject properties of the appellant/ claimant

came to be acquired by the Land Acquisition Officer ("LAO") by

issuance of notification under Section 4 of the Land Acquisition

Act, 1894 ("the said Act"), which was published in Government

Gazette on 08/06/1989, and the award came to be passed by

the LAO on 26/03/1991, thereby awarded compensation of

Rs.1,69,158/- for house No.171/1, Rs.923/- for house No.268

and Rs.14,710/- for house No.306.

6. Being dissatisfied with the amount of compensation

awarded by the LAO, the appellant/ claimant filed a reference

proceeding under Section 18 of the Act and claimed

compensation of Rs.10,26,648/- in LAC No. 459/2004,

Rs.8962/- in LAC No. 492/2004 and Rs.1,80,097/- in LAC No.

682/2004.

7. The respondents/ State filed their written

statement resisting the claim of the appellant for enhancement

of compensation and submitted that the award passed by the

LAO is adequate and proper, and therefore, deserves no

interference.

8. The Reference Court framed necessary issues and

recorded evidence as adduced by the parties. The claimant

examined himself below Exh.24 and one expert witness Shri

Abhay Patil below Exh.31 in support of his claim for

enhancement of compensation for constructed area and also

examined one Tulsiram Tukaram Thakre to prove one

comparable sale instance. The respondents/ State and V.I.D.C.

preferred not to examine any witness.

9. The Reference Court on appreciation of evidence

vide common judgment and award dated 22/12/2005 partly

allowed the claim of the appellant and enhanced the amount of

compensation as under :

For house No. 171/1, the Reference Court

enhanced the compensation of Rs.2,10,000/- along with

statutory benefits and interest against Rs.1,75,378/- as has

been awarded by the LAO.

For house No. 268, the Reference Court enhanced

the compensation of Rs.2,000/- along with statutory benefits

and interest against Rs.923/- as has been awarded by the LAO.

For house No.306, the Reference Court enhanced

the compensation of Rs.30,000/- along with statutory benefits

and interest against Rs.15,014/- as has been awarded by the

LAO.

This judgment of the Reference Court is impugned

in this Appeal by the appellant - owner of the lands.

10. I have heard Shri Nemade, learned counsel for the

appellant, Shri Kadukar, learned A.G.P. for State and Shri Patil,

learned counsel for V.I.D.C.

11. On the basis of submissions made on behalf of both

the sides, following point arose for determination of this

Court :

"Whether the appellant is entitled for enhancement in

compensation for his subject lands house Nos. 171/1,

268 and 306 ?"

12. At the outset, as far as valuation for the open space

of land, ad measuring 180.08 sq. mtr. in house No. 171/1 and

65.9 sq. mtr in house No. 268, learned both the counsel are at

ad idem that this issue has been covered by the judgment of

this Court in First Appeal No. 552/2014 decided on

01/10/2021 (Shri Motiram s/o Bapurao Ingole (Dead) thr. Lrs

Vs. The State of Maharashtra & Ors.) wherein this Court on the

strength of the judgment of the Hon'ble Apex Court in the case

of Baliram Vs. The State of Maharashtra & Ors. (Civil Appeal

No(s) 5146-5147/2011 decided on 11/04/2018) so also the

judgment of this Court in the case of Deosing s/o Gobra Rathod

(dead) thr. LRs Vs. The State of Maharashtra and Ors. (First

Appeal No. 348/2003 decided on 17/10/2018), adjudicated

the enhanced compensation @ Rs.65/- per sq. mtr. for the land

situated at Village Layghavan, which is at a distance of half

kilometer from Village Mokh, Ta. Digras, District Yavatmal.

13. As the issue with regard to valuation of open space

at Village Mokh is already covered by the aforesaid judgments,

i do not see any reason to take different view of the matter.

Therefore, the appellant, in these cases, is entitled for

enhanced compensation @ Rs.65/- per sq. mtr. for the open

space area in his land surrounding house No. 171/1

admeasuring 180.08 sq. mtr. and in house No. 268

admeasuring 65.9 sq. mtr. with all statutory benefits.

14. However, as regards the valuation of constructed

portion of the houses, learned the counsel on behalf of both the

parties have argued at length. Shri Nemade, learned counsel

for the appellant, submits that the trial Court has not

considered the evidence of the expert witness for valuation of

the built-up area of the house of the appellant solely for the

reason that there is a discrepancy in the measurement of the

constructed area as claimed by the appellant and the area

reflected in the valuer's report. The learned counsel submits

that the valuer's report has to be considered along with the

map (Exh.32) of the constructed area of the house. It is the

contention of the learned counsel that in the report as well as

in the map, the built-up area is taken as carpet area alongwith

the surrounding open space in the house. The learned counsel

submit that the court is bound to treat the matter judicially and

should not be too technical and pedantic in approach. In

support of his contention, the learned counsel relied on

observation in the case Asstt. Development Officer, Trombay

Vs. Tayaballi Allibhoy Bohori, A.I.R. 1933 Bombay 361,

wherein the Division Bench of this Court has observed that the

valuation of immovable property is not an exact science and

the Court is bound to treat the matter judicially as far as

possible and it should only guess when science of common

sense will not point to a definite conclusion. It is further

observed that the Judge ought to be liberal in the sense that he

should not be too meticulous or pedantic in dealing with the

evidence and the Court is justified in taking a broad view as

favorable to the owner as the evidence permits.

The learned counsel further relied on the judgment

of this Court in the case of Pandhari s/o Dhondiba Nukulwad

Vs. State of Maharashtra and others, 2020(2) Mh.L.J. 412,

wherein the Aurangabad Bench of this Court after taking stock

of earlier decisions, in para 9 held that when the evidence of

the expert valuer has been adduced and the contents of the

valuation reports have been explained as well as proved then

there was no reason to discard such evidence.

15. Per contra, Shri Patil, learned counsel, while

supporting the impugned judgment and award submits that the

Reference Court has properly appreciated the evidence on

record and the perusal of evidence of the valuer along with the

report shows that the valuer has never visited the spot of the

inspection, and therefore, the report of the valuer cannot be

relied on.

16. I have considered the rival submissions put forth on

behalf of both the sides.

17. First and foremost, there is no dispute with regard

to measurement of the open space and the constructed area in

the subject house properties in the instant proceedings.

Admittedly, constructed area in house No. 171/1 is 264.22 sq.

mtr. and constructed area in house No. 306 is 50 sq. mtr.

18. I have minutely perused the testimony of the valuer

and the report submitted by him along with the map showing

construction. The valuer assessed the valuation for house No.

171/1 showing built up aera 444.3 sq. mtr. at Rs.11,73,126/-.

This amount is inclusive of including electrification and after

depreciation. If this amount is divided by 444.3 per sq. mtr,

the built up area as per valuer's report, the sum comes to

Rs.2640.39 per sq. mtr. Therefore, as per valuer's report, the

rate for constructed area is 2640.39 sq. mtr. The valuer in his

examination in chief has deposed that the houses of the owner

were load bearing structures consisting of bricks masonry. The

doors and windows of the house were of country teak wood.

One house was having roof of Dhaba in some portion. With

regard to house No. 306, he says that the said house was in a

good condition and was in use. He has given details with

regard to technical aspects of construction in his testimony. In

the cross-examination of this witness, some questions were

asked on technical aspects in order to impeach the testimony of

this witness. I do not find it necessary to go into those technical

aspects. The question is, whether, the valuation report needs to

be discarded altogether. Admittedly, there is no other evidence

for valuation of the construction except the valuer's report. The

LAO has not granted any separate amount towards

construction. Admittedly, the acquired properties are houses

alongwith open spaces.

19. The Reference Court has completely ignored the

valuation report. No doubt there are some discrepancies in the

owner's testimony and the valuer's evidence with regard to the

age of construction, the date of his visit for inspection the

properties of and on some technical aspects, as pointed out by

the learned counsel Shri Patil. However, in the opinion of this

Court, in the absence of any other evidence with regard to

valuation of construction, the evidence of this witness cannot

be ignored altogether, in the teeth of the fact that admittedly,

there was no dispute with regard to the constructed portion in

the aforesaid houses and one of the house No. 171/1 is double

storied house.

20. In this context, it would be worthwhile to note

that for the similarly situated land, this Court in the case of

Shri Motiram s/o Bapurao Ingole (supra) wherein the open

plot area along with constructed area of the appellant therein

came to be acquired by issuance of notification under Section 4

of the Act dated 26/01/1989 situated at Village Layghavan, Ta.

Digras, Dist. Yavatmal, wherein this Court relied on the

judgment of the Hon'ble Apex Court in the case of Prabhakar

Raghunath Patil And Ors. Vs. State of Maharashtra, (2010) 13

SCC 107, so also the judgment of the co-ordinate Bench of this

Court in the case of Gunwant Mahadeo Gulhane Vs. State of

Maharashtra & Ors. (First Appeal No. 1264/2013 decided on

15/06/2015) adjudicated the compensation for constructed

area @ Rs.1,000/- per sq. mtr. against the valuation as has

been done by the expert witness therein @ Rs.1,716/- per sq.

mtr.

21. Considering the quality of construction, in the

instant case, i.e., house No.171 is double storied building and

house No. 306 which was in residential use at the relevant

time, in the opinion of this Court, Rs.1,200/- per sq. mtr. for

the constructed area of the aforesaid houses would be just and

reasonable compensation as against the rate of Rs.2640.39/-

per sq. mtr. fixed by the valuer.

22. Considering the aforesaid facts and circumstances

so also considering the law laid down by the Hon'ble Apex

Court, this Court is of the opinion that ends of justice would

meet if the appellant would be held entitled to receive

compensation for the constructed area @ Rs.1,200/- per sq.

mtr. Hence, the following order :

ORDER

i. The Appeals are partly allowed.

ii. The judgment and award dated 22/12/2005 passed

by the Civil Judge, Senior Division, Darwha in LAC Nos.

459/2004, 492/2004 and 682/2004 is modified to the extent

that the respondents shall pay enhanced amount of

compensation to the appellant @ Rs.65/- per sq. mtr. for open

plot area admeasuring 180.08 sq. mtr. in house No.171/1 and

admeasuring 65.9 sq. mtr. in house No.268 and Rs.1,200/- per

sq. mtr. for constructed area admeasuring 264.22 sq. mtr. in

house No.171/1 and admeasuring 50 sq. mtr. in house No.306

along with all statutory benefits and interest.

iii. Needless to say, that the respondents are entitled to

deduct the amount, which has already been paid by them.

23. The Appeals stand disposed of. No costs.

JUDGE ****** Sumit