Ex. Engineer, Latur Minor ... vs Ganpat Annasaheb Chavan
2022 Latest Caselaw 4156 Bom

                                                First Appeal No.1954/2018
                                                    with connected appeals
                                      :: 1 ::


           IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                               BENCH AT AURANGABAD


                       FIRST APPEAL NO.1954 OF 2018


 Ganpat s/o Annasaheb Chavan
 Age 50 years, Occu. Agri.,
 R/o Pangaon, Tq. Renapur,
 District Latur                                  ... APPELLANT

          VERSUS

 1.       The State of Maharashtra
          through the Collector, Latur

 2.       The Special Land Acquisition Officer,
          (M.I.W.), Latur

 3.       The Executive Engineer,
          Minor Irrigation Division,
          Latur, District Latur.                 ... RESPONDENTS

                               .......
 Shri N.D. Kendre, Advocate for appellant
 Shri A.B. Chate, A.G.P. for respondents No.1 and 2
 Mrs. Chaitali Kutti Choudhary, Advocate for R.No.3
                               .......

                                      WITH

                       FIRST APPEAL NO.1955 OF 2018


 Pralhad s/o Nivrutti Motipalle
 Age 48 years, Occu. Agri.,
 R/o Pangaon, Tq. Renapur,
 District Latur                                  ... APPELLANT

          VERSUS

 1.       The State of Maharashtra
          through the Collector, Latur




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                                               First Appeal No.1954/2018
                                                  with connected appeals
                                 :: 2 ::


 2.       The Special Land Acquisition Officer,
          (M.I.W.), Latur

 3.       The Executive Engineer,
          Minor Irrigation Division,
          Latur, District Latur.               ... RESPONDENTS

                               .......
 Shri N.D. Kendre, Advocate for appellant
 Shri A.B. Chate, A.G.P. for respondents No.1 and 2
 Mrs. Chaitali Kutti Choudhary, Advocate for R.No.3
                               .......

                                 WITH

                   FIRST APPEAL NO.2387 OF 2021 WITH
                   CIVIL APPLICATION NO.2009 OF 2020


 1.       Executive Engineer,
          Latur Minor Irrigation Division,
          Latur, under Godawari Marathwada
          Irrigation Development Corporation,
          Aurangabad

 2.       The State of Maharashtra
          through District Collector, Latur

 3.       The Special Land Acquisition Officer,
          M.I.W., Latur                       ... APPELLANTS

          VERSUS

 Ganpat s/o Annasaheb Chavan
 Age 50 years, Occu. Agri.,
 R/o Pangaon, Tq. Renapur,
 District Latur                                ... RESPONDENT

                               .......
 Shri B.R. Surwase, Advocate for appellant
 Shri A.B. Chate, A.G.P. for State
 Shri N.D. Kendre, Advocate for respondent
                               .......




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                                                        First Appeal No.1954/2018
                                                           with connected appeals
                                        :: 3 ::


                                   CORAM :        R. G. AVACHAT, J.

                  Date of reserving judgment : 6th December, 2021
                  Date of pronouncing judgment : 20th April, 2022


 JUDGMENT:

These three appeals under Section 54 of the Land

Acquisition Act, 1894 (for short Act of 1894) have been filed,

taking exception to a common judgment and award dated

31/3/2018, passed by 3rd Jt. Civil Judge, Senior Division,

Latur in Land Acquisition Reference (L.A.R. Nos.83/2011 and

91/2011). The first two appeals (No.1954/2018 and

1955/2018) have been preferred by the erstwhile land owners

for enhancement of the amount of compensation awarded

under the impugned judgment and award. Whereas the

appeal being No.2387/2021 has been filed by the acquiring

body for reduction in the amount of compensation awarded

under the impugned judgment and award to the appellants in

First Appeal No.1954/2018.

2. Facts giving rise to the present appeals are as

follows :-

Agricultural lands, being Block No.720 and 745,

First Appeal No.1954/2018 with connected appeals :: 4 ::

admeasuring 1 Hector 53 R and 26 R belonged to the

appellants in First Appeal Nos.1954/2018 and 1955/2018

respectively. Both these lands came to be acquired for

construction of Patharwadi Storage Tank (submergence),

Taluka Renapur, District Latur. Notification under Section 4 of

the Act of 1894 was published on 8/11/2017 while the awards

came to be passed on 19/6/2010. The appellant land owners

claimed compensation @ Rs.20 Lakhs per acre. According to

them, the lands were perennially irrigated. The land Gut

No.720 was in the nature of an Orchard. There were

superstructures and pipeline as well on this land. The

compensation offered by the Land Acquisition Officer (LAO)

was grossly inadequate. The appellant land owners,

therefore, preferred L.A.R. Nos.83/2011 and 91/2011

respectively. The Reference Court held the land in Gut No.720

to be perennially irrigated. It, therefore, granted

compensation @ Rs.3,95,000/- per acre besides a sum of

Rs.1,32,250/- as compensation in respect of superstructure

and Rs.3,94,519/- for fruit bearing trees (pomegranate

orchard). Since the land in Gut No.745 was found to be

unirrigated, the owner thereof (appellant in First Appeal

No.1955/2018) was awarded compensation @ Rs.1,97,500/-

per acre (50% of the compensation awarded for perennially

First Appeal No.1954/2018 with connected appeals :: 5 ::

irrigated land). In addition to the award of this compensation,

the appellant land owners were held to be entitled for all

consequential benefits such as 30% solatium, 12% increase

and interest as well.

3. Heard. Learned Advocate for the appellants land

owners would submit that, both the lands were perennially

irrigated. In the land Gut No.720, there was an Orchard and

superstructure as well. The land owners had appointed the

experts for valuation of the superstructure and Orchard too.

The experts paid visit to the land and gave their valuation

reports. The Reference Court, instead of granting

compensation equal to that of the valuation made by the

valuers, granted only 25 thereof. The learned Advocate has

relied on a judgment and award dated 24/4/2019 passed by

6th Jt. Civil Judge, Senior Division, Latur in L.A.R. No.71/2018

and connected L.A.Rs., wherein the Reference Court was

pleased to grant compensation @ Rs.7,90,000/- per acre

besides 80% of the valuation made by the Valuer in respect of

fruit bearing trees. The lands comprised in the said group of

L.A.Rs. were acquired for the very purpose, although the

lands were situated in an adjoining village. The learned

Advocate, therefore, urged for grant of compensation equal to

First Appeal No.1954/2018 with connected appeals :: 6 ::

that of granted in L.A.R. No.71/2018 and connected L.A.Rs.,

on the ground of parity. He placed reliance on very many

citations as well.

4. The learned Advocate for the appellant - acquiring

body in First Appeal No.2387/2021 would, on the other hand,

submit that, the valuers' reports were false and fabricated

documents. Had the valuers really visited the subject lands

on the dates stated in the valuation reports, the appellant

land owners would have placed those reports before LAOs

before award under Section 11 was passed. According to

learned Advocate, the sale instance relied on pertained to the

land situated at a different village. According to him,

compensation awarded in respect of land Gut No.720 is

exorbitant and, therefore, needs to be scaled down to one

granted by the LAO.

5. Considered the submissions advanced. Perused

the evidence relied on. Gone through the citations.

The lands admeasuring 153 R and 26 R in Gut

Nos.720 and 745 belonging to the appellants in First Appeal

Nos.1954/2018 and 1955/2018 respectively have been

First Appeal No.1954/2018 with connected appeals :: 7 ::

acquired for construction of Patharwadi Storage Tank. Both

these lands were situated at village Pangaon. Notification

under Section 4 was published on 8/11/2007 while the awards

came to be passed on 19/6/2010. The appellant land owners

claimed compensation @ Rs.20 Lakhs per acre before the LAO

and Reference Court as well. The LAO did not grant the

owner of the land Gut No.720 any compensation towards

superstructure and fruit bearing trees. Before adverting to

appreciate the evidence in both the appeals, let us have a

look at observations in the citations relied on by the learned

Advocate for the appellant land owners.

(1) Union of India Vs. Raj Kumar Baghal Singh (Dead) through legal representatives and others [ (2014) 10 SCC 422 ]

(2) Vithal Rao & anr. Vs. Special Land Acquisition Officer etc. [ (2017) 8 SCC 558 ]

(3) Chanabasappa Vs. Karnataka neeravari Nigam Limited & anr. [ (2020) 11 SCC 370 ]

(4) State of Maharashtra Vs. Bhaskar Namdeo Wagh & ors.

[ 2009 (1) Mh.L.J. 299 ]

(5) Nelatur Sampoornamma w/o Srinivasulureddy Vs. Special Deputy Collector, Land Acquisition, Telugu Ganga Project, Podalakur at Nellore, Andhra Pradesh & anr. [ (2017) 12 SCC 835 ]

(6) Raghunath Baba Pathare & ors. Vs. State of Maharashtra [ 2009(4) Mh.L.J. 288 ]

First Appeal No.1954/2018 with connected appeals :: 8 ::

(7) Vitthal Lakadaji Gawande & ors. Vs. State of Maharashtra & ors. [ 2010(4) Mh.L.J. 578 ]

(8) State of Maharashtra Vs. Shantaram Govind Tendel & ors.

[ 2011(4) Mh.L.J. 179 ]

(9) Vidarbha Irrigation Development Corporation, Pusad Vs. Prakash Namdeo Dive & ors. [ 2017(6) Mh.L.J. 904 ]

(10) Shaikh Noor s/o Shaikh Shabu Vs. State of Maharashtra & anr. [ 2020(6) Mh.L.J. 501 ]

(11) Vidarbha Irrigation Development Corporation, Nagpur Vs. Laxman Seetaram Neulkar & anr. [ 2021(2) Mh.L.J. 198 ]

(12) Dhirajbhai Premjibhai Patel & anr. Vs. Collector, Nagpur & anr. [ 2021 DGLS (Bom.) 275 ]

6. In case of Raj Kumar (supra), the Hon'ble

Supreme Court held :-

"Factors to be considered - Sale instance should be adjacent to acquired land, proximate to date of acquisition, possessing similar advantages - In absence of of evidence of similar transaction, it is permissible to take into account transaction of nearest land around date of notification by making suitable allowance - However, no fixed criteria as to what would be suitable addition/ subtraction from value of relied upon transaction - Further held - other methods of valuation like opinion of experts and yield method, may also be used - On facts held, reliance on sale instances subject matter of which was situated within 20 kills or less from land under acquisition was justified.

First Appeal No.1954/2018 with connected appeals :: 9 ::

In case of Vitthal Rao (supra), the Hon'ble

Supreme Court held :-

Sale instance to be of land nearby/ adjacent to acquired land, and sale to be proximate to date of acquisition, possessing similar advantages - 17 principles laid down in Chimanlal Hargovinddas, (1988) 3 SCC 751 and Raj Kumar Baghal Singh, (2014) 10 SCC 422 reiterated and applied.

In case of Chanabasappa (supra), the Hon'ble

Supreme Court held :-

Original height of newly constructed dam later on raised, without proper survey of land to be submerged - Date of entitlement to damage for submergence of the land, and, entitlement to interest on compensation to be awarded under 1894 Act.

In case of Nelatur Sampoornamma (supra), the

Hon'ble Supreme Court held :-

Compensation of - Orchard land - Fruit-bearing trees - Planting, raising and making commercial use of fruit-bearing trees is a painstaking affair and cost of same is consistently on rise as years are passing by which is to be kept in view - Award of compensation in relation to fruit-bearing trees depends on facts and circumstances of each case - Claim on yield basis is relevant for determining amount of compensation payable in such cases.

First Appeal No.1954/2018 with connected appeals :: 10 ::

In case of Bhaskar Namdeo Wagh (supra) the

Division Bench of this Court held :-

The consideration in terms of price received for land under bona fide transaction on the date of notification issued under Section 4 of the Act or a few days before or after the issue of notification generally shows the market value of the acquired land and the value of the acquired land has to be assessed in terms of those transactions - A transaction immediately preceding or succeeding would afford a good guidance to determine the market value of the acquired land. 1997(8) SCC 186 relied.

Categorisation of land as Bagayat and Jirayat - Depends upon the nature of the crops, having wherein Jawar, Bajari etc. are shown to have been cultivated, such lands have been treated as Jirayat lands; lands wherein sugarcane, onion, groundnuts etc. are cultivated by irrigation, such lands have been treated as Bagayat lands - Such classification of lands into Bagayat and Jirayat was proper.

In case of Raghunath Pathare (supra), this Court held :-

Land in question though had a well and being irrigated held a dry land on the basis of 7/12 extract - Order of Reference Court granting compensation at Rs.12,950/- set aside - Instead the claimants held entitled to receive Rs.46,500/- as compensation as irrigated land.

First Appeal No.1954/2018 with connected appeals :: 11 ::

In case of Vitthal Gawande (supra), this Court held :-

Lands notified under the same notification and for the same project without any differentiation in the quality - Must be treated alike in awarding compensation.

In case of Prakash Dive (supra), this Court held :-

Value of land and trees enhanced by Reference Court - Validity - Relevant sale instances considered by Reference Court - Claimant has given details of number of trees, kind of trees, their age and their overall health and also yields given out per annum by them - No effective cross- examination of claimant in this regard by acquiring body as well as State - Therefore, evidence of claimant accepted as reliable and inspiring confidence - Reference Court considered cumulative effect of evidence of claimant and expert witness in ascertaining valuation of trees - These conclusions cannot be said to be suffering from any factual or legal error - Compensation awarded by Reference Court is just and proper.

In case of Shantaram Tandel (supra), thisCourt held :-

Market value - determination of - When sale instances from the same village wherefrom land is acquired are not available, the Court can always consider the sale instances of the lands in the surrounding villages.

First Appeal No.1954/2018 with connected appeals :: 12 ::

Lands in question from village 'K' acquired for setting up satellite city of New Bombay - Notification under Section 4(1) published on 24-9- 1986 - In February 1970, vast tracts of lands in 96 villages including the village 'K' were notified for the same purpose - Market value fixed by the High Court in other cases as of 1970 is in range of Rs.10/- to Rs.15/- per square metre - Taking base value as Rs.12/- per square metre in the year 1970 and adopting cumulative method, by giving escalation of 10%, the market value for the year 1985 would be Rs.50.08 per square metre - Market value to be fixed @ Rs.50/- per square metre. (2008) 14 SCC 745 relied.

In case of Shaikh Noor (supra), this Court held :-

Compensation for acquired land - Determination - Nature of land - Existence of well in acquired land - Absence of entries of sugarcane, wheat etc. in 7/12 extract - Not sufficient to draw inference that acquired land was not perennially irrigated land - Appellant-claimant has proved that acquired land was essential to be classified as (Bagayat) Perennially land for calculation of market price - Reference Court fallaciously drew inference that as there were no entries of crops like sugarcane, wheat, etc., in 7/12 extract, nature of acquired land would be seasonally irrigate land.

Compensation for acquired land - Perennially irrigated land - Determination - In acquired land appellant constructed well having ample source of water - Reference Court found found that entries in cultivation column of 7/12 extract during relevant period showed that claimant had sown

First Appeal No.1954/2018 with connected appeals :: 13 ::

crops like bajra, jawar, cotton and groundnuts - Absence of entries of sugarcane, wheat etc. in cultivation column of 7/12 extract would not be sufficient to draw inference that acquired land was not perennially irrigated land.

In case of Laxman Neulkar (supra), this Court held:-

Acquisition of land - Claim of compensation - Duty of Court - It is duty of Court to award just and fair compensation taking into consideration true market value and other relevant factors, irrespective of claim made by claimant.

In case of Dhirajbhai Patel (supra), this Court held:-

In absence of any material on record to indicate that appellants had knowledge about acquisition process and they had entered into transaction only with intention of creating evidence as to claim higher compensation, sale instance of acquired land cannot be denied.

Sale instance of acquired land - Non- consideration of - On ground that sale-deed was entered into after authority had taken joint measurement of acquired land - Sale transaction was executed more than a year prior to publication of Section 4 notification - Nothing came in evidence which shows that measurements were taken prior to publication of notification or internal communication was within public domain - No material on record to indicate that appellants had knowledge about acquisition process and they had entered into transaction only with intention of creating

First Appeal No.1954/2018 with connected appeals :: 14 ::

evidence as to claim higher compensation - Further respondent had not challenged the genuineness of sale transaction - Reference Court not justified in doubting genuineness of sale transaction and discarding best available evidence to assess market value of acquired land

- Non-consideration of sale instance of acquired land improper.

7. The Apex Court, in case of State of Haryana Vs.

Gurcharan Singh & anr. [ AIR 1996 SC 106 ], observed that,

"Section 23 - Compensation - Land with fruit bearing trees - Separate compensation for land and fruit trees cannot be awarded - Compensation is to value of acquired land and land includes benefits to arise from land."

8. Keeping on mind the legal position, let us

appreciate the evidence in the matters. Following points arise

for my determination.

(1) Whether the appellant land owners prove the amount of compensation awarded under the impugned awards to be inadequate and therefore entitled for enhancement therein ? ...No

(2) If yes, to what extent ? As per final order

First Appeal No.1954/2018 with connected appeals :: 15 ::

9. Admittedly, the land Gut No.720 was perennially

irrigated land. A well and two borewells were in the said land.

The appellant land owners placed reliance on a sale instance

(Exh.29) pertaining to the land situated at village Manus-

Marwadi, Taluka Renapur. Village Pangaon and village Manus-

Marwadi are said to be adjoining villages to each others. The

sale deed (Exh.29) was executed in April 2007 i.e. just 6 - 7

months before notification under Section 4 of the Act of 1894

was published. From the recitals of the sale deed, it does

appear that, land admeasuring 83 R, i.e. little over 2 acres

was sold for Rs.8,20,000/-. Only a sum of Rs.2,20,000/- was

paid to the vendor in the presence of the Sub-Registrar.

Remaining amount of consideration of Rs.6,00,000/- is

admitted to have been received some days before the sale

deed was executed. Since no issue in this regard was raised

by any of the parties, this Court will assume the sale

transaction to have been executed for consideration of

Rs.8,20,000/-. The rate per R comes to Rs.9879/-. The

appellant land owners in their Reference and oral evidence as

well, had relied on the sale instance and urged for grant of

compensation at par therewith. It is their contention that the

lands acquired were similar to the land comprised in the sale

instance (Exh.29). The land owners did not place on record

First Appeal No.1954/2018 with connected appeals :: 16 ::

any evidence to indicate that land comprised in the sale

instance was unirrigated and, therefore, they were entitled to

compensation at double the rate.

10. I have perused the judgment dated 24/4/2019

passed by the Reference Court in L.A.R. No.71/2011 and

connected L.A.Rs. It is not shown that the said judgment has

attained finality. Although this Court is not sitting in appeal

over the judgment and award passed in the said L.A.R., this

Court did not find anything therein to hold the land comprised

in the very sale instance (Exh.29 herein) which was relied on

those LARs. as well that it was unirrigated land.

11. There is another aspect of the matter. When the

land Gut No.720 was in the nature of an Orchard, the

Reference Court ought not to have granted compensation

separately for the land and the Orchard as well.

12. Due to existence of well and borewell in the land

Gut No.720, compensation has been awarded considering it to

be perennially irrigated land. The Reference Court, therefore,

ought not to have granted separate compensation on account

of existence of well and borewell. Be that as it may.

First Appeal No.1954/2018 with connected appeals :: 17 ::

13. The appellant - owner in First Appeal

No.1954/2018 has relied on evidence of C.W.2 Vilas, so called

Horticulturist. It is in his evidence that he had paid visit to

the land on 8/7/2008 to find 178 pomegranate trees, one

tamarind tree and 30 Bel trees. He made valuation thereof at

Rs.15,78,076/-. It is in evidence that, he considered age,

annual fruit production, market rate, cost of cultivation etc.

for arriving at his conclusion.

Admittedly, no representative of the acquiring

body or the respondent - State was present when the valuer

paid visit to the land. No rough notes or data of what the

valuer noticed during his visit has been placed on record. This

Court is, therefore, not inclined to rely on the valuer's report

in toto. Granting compensation @ 80% of the valuer's report

could not be termed to be a law of precedent although in

some of the cases compensation has been awarded at 80% of

the valuer's report. Each case has to be decided on its own

facts and merits. If we consider the details of compensation

awarded by the Reference Court, it would come to 9879 x 153

= Rs.15,11,487 + Rs.1,32,252 towards superstructure +

Rs.3,94,519 towards fruit bearing trees. As such, the total

compensation comes to Rs.20,38,258/-. Even if this Court

First Appeal No.1954/2018 with connected appeals :: 18 ::

grants the appellant - land owner in First Appeal

No.1954/2018 the compensation equal to that of valuation of

the Orchard, still the compensation awarded by the Reference

Court is more than that. This Court is, therefore, not inclined

to grant the appellant any enhancement in the amount of

compensation awarded under the impugned judgment and

award. In view of this Court, the compensation awarded by

the Reference Court is more than the market value of the

acquired land. It is again observed herein that the Reference

Court, under the judgment in L.A.R. N.71/2021 ought not to

have granted separate compensation, one for the land and

then 80% of valuer's report. This Court is, therefore, not

inclined to interfere with the impugned judgment and awards.

14. In the result, all the three appeals fail. The

appeals are dismissed. The amount in deposit with this Court

be paid to the land owners - claimants, along with interest

accrued thereon.

Pending Civil Application is disposed of.

( R. G. AVACHAT ) JUDGE fmp/-