Shri Sudam Shriram Dobale vs State Of Maharashtra Through ...
2022 Latest Caselaw 12921 Bom

                                                                 1                 44fa191.21.odt


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

                              FIRST APPEAL NO. 191 OF 2021

APPELLANT :                                    Sudam Shriram Dobale,
                                               aged 74 years, Occ. Agriculturist
                                               R/o. Kumbharkinhi, Tq. Darwha
                                               Dist. Yavatmal
                                               Versus.
RESPONDENTS                       1]           The State of Maharashtra, through
                                               the Collector, Yavatmal
                                  2]           Special Land Acquisition Officer,
                                               Darwha, Tq. Darwha, Dist. Yavatmal.
                                  3]           The Chief Executive Engineer,
                                               Kumbharkinhi Dam Division,
                                               Pusad, Tq. Pusad Dist. Yevatmal,

Office Notes, Office Memoranda                         Court's or Judge's orders
of Coram, Appearances, Court's
orders     or    directions and
Registrar's orders


                                  Mr. I.M.Ghongade, Advocate for the appellant
                                  Mr. M.A.Kadu, AGP for Respondent Nos. 1 & 2
                                  Mr. N.M.Gaidhane, Advocate for Respondent No.3

                  Oral Judgment

                                  CORAM: AVINASH G. GHAROTE, J.

DATED : 13th DECEMBER, 2022.

1] Heard learned counsel appearing for the

parties.

2] Mr. Ghongade, learned counsel for the

appellant submits, that the matter is covered by the

judgment of this Court in Ganesh Pundlik Deeve Vs. 2 44fa191.21.odt

Executive Engineer and others, First Appeal

No.364/2016, decided on 22/02/2021, in which for

the acquisition of the property for the same project,

from the same village Kumbharkinhi, from the same

Notification dated 06/11/1998, which was in respect

of Plot No.10, admeasuring 138.4 sq.mtr. with a

house standing thereupon, having a built up area

58.04 sq.mtr. as per Award of the Reference Court

dated 15/6/2013, which has been made available to

this Court, a rate of Rs.240/- per sq.mtr. was

granted for the land and that of Rs.3200/- was

granted for the construction, based upon the report

of the Valuer namely Mr. Sunil K. Chandkapure. It

is submitted, that the reasons which have weighed

with this Court in enhancing the compensation for

the constructed area from Rs.2150/- to Rs. 3200/-

per sq.mtr.; the similarity of the construction in

Ganesh Pundlik Deeve (Supra) are the same reasons

which are also available in the present matter. The

judgment in Ganesh Pundlik Deeve (supra) is not

disputed by Mr. Gaidhane, learned counsel for the 3 44fa191.21.odt

respondent No.3 which is the acquiring body, and he

states that the same has been accepted.

[




3]             A perusal of the judgment in Ganesh

Pudlik Deeve (Supra) indicates the following nature

of construction.

"The Claimant relied upon the valuation report at Exh.45, prepared by PW-2 - Sunil Chandkapure. PW-2 has deposed that the area of the structure was 58.50 sq. mtrs. He has deposed that the property is situated in village Kumbharkinhi, at a distance about 10 k.m. from Darwha Tahasil, a well developed village with all civic amenities available in an around the vicinity. He has deposed that it was a load bearing structure with foundation and plinth in U.C.R. masonry, flooring of cement concrete/ shabadi tiles and that the super structure was of brick masonry. His evidence further indicates that the structure had teak wood doors and windows and the roof was of G.I. sheets. The structure had electricity and water connection. The expert witness has classified the construction as class-3 construction and has stated that the structure was well maintained. It consisted of a sitting room, living room, store room, kitchen, dining and bathroom. The age of the structure was stated to be 9 years. The expert witness has based the valuation on PWD schedule of rates and as per the market rate for the year 1997-98. Upon deducting 10% towards depreciation salvage value etc., he valued the structure at the rate of Rs.3,200/- per sq. mtr.

05] It may be mentioned that the Reference Court has rejected the report of the expert witness mainly on the ground that he had not seen the bills and receipts of the construction material in respect of the subject structure. The evidence on record indicates that subject structure was constructed over ten years prior to the acquisition. It is, indeed, unreasonable to expect the Appellant or any other person to retain the bills in respect of the construction material in anticipation that the property would be acquired in future. The Reference Court, in my considered view, was not justified in rejecting the report when nothing has been elucidated in the cross- examination to impeach credibility of this witness.

06] As it has been held by Apex Court in Special Land Acquisition Officer & Another Vs. Sidappa Omanna Tumari & Others reported in 1995 Supp (2) SCC 168, the Courts can act on expert witness in 4 44fa191.21.odt

determining the value of the land or structure. Nevertheless, considering the fact that such expert witnesses are engaged by the Claimant, the Court is required to be cautious while granting the report and evidence in support thereof. The Apex Court has held that the valuation report is of no assistance, if the same is not based on factual data or material, which is proved to be genuine and reliable. Therefore, when a report of an expert is produced before the Court, the Court may choose to act upon such report, if the data or the material on the basis of which such report is produced before the Court and the authenticity of the same is made good and the method of valuation adopted therein is correct.

07] In the instant case, the evidence of the expert witness indicates that the structure was stable in good condition. He has valued the structure based on the condition of the structure and the area, age, estimated costs, depreciation value etc. Apart from bare denials, the evidence of this witness has virtually gone unchallenged. Hence, the Reference Court was not justified in discarding the valuation report prepared by an expert witness.

08] Under the circumstances, the appeal is partly allowed. The rate of the structure admeasuring 58.80 sq. mtr is held to be Rs.3,200/- (Rupees Three Thousand Two Hundred Only) per sq. mtr. The impugned judgment and award is modified to that extent."

4] In the instant matter, the following

position is not disputed.

Kumbharkinhi Project, Tq. Darwha, District Yavatmal Date of Notification under Section 4 of the Land 6/11/1998 Acquisition Act.

Property           Area of          LAO Award         Ref. Court
details            property            Dated         Award Dated
                                   30/12/2000        01/03/2016
Plot/House         Plot Area : Rs.29,030/-          Rs.240 per
No: 150            34.00 Sq.mtr. lumpsum for        Sq.mtr. for plot
Village:           Construction: the entire plot Rs.1682/- per
Kumbharkinhi       31.28 Sq.mtr. +                  Sq. mtr. For
Tahsil Darwha                     construction      construction
Dist. Yavatmal
                       5                      44fa191.21.odt


5]        In so far as the rate awarded by the

learned Reference Court for acquisition of the land is

concerned, learned counsel for the appellant does

not dispute that rate. The only contention is that the

rate for construction has been granted on a lower

side, considering the nature of the construction

which is similar to that as has been considered in

Ganesh Pundlik Deeve (supra) for which a

compensation at the rate of Rs. 3200/- has been

granted, which according to him ought to be the rate

for the construction in the present matter too.

6] The evidence in the instant matter is also

that of Sunil K. Chandkapure, who has given the

valuation report dated 30/08/1999 at Exh.32, in

which it has been stated that the house was having

a living room, sitting room, kitchen and bathroom.

The structure was a load bearing structure, the

foundation and plinth being in UCR masonry, the

flooring being of cement concrete / Shabadi stones

and the super structure was in brick masonry, the 6 44fa191.21.odt

doors and windows of teak wood and the roof tin

was of GI sheets with the electrification and water

supply, so also it is a class-III construction.

7] Perusal of the judgment of the Reference

Court indicates (para 23 & 29) that the report has

been partly accepted by the learned Reference Court,

on the basis of which, it has been held that the

compensation for construction needs enhancement.

Though it has observed that the rate of construction

was not supported on the ground that the rough

notes were not placed on the record or the receipts

of the material used for the construction were not

seen by the Valuer, the same as rightly held in

Ganesh Pudlik Deeve (Supra), is a clear

impossibility. It is therefore, apparent that the

valuation of the expert, done in respect to the

construction has been partly accepted by the learned

Reference Court and therefore, the position, as

indicated therein, regarding the nature and quality

of construction having not been controverted in the 7 44fa191.21.odt

cross-examination of the PW-2 / Valuer, the learned

Reference court, was not justified in relying upon the

report of the Valuer in part regarding the

construction, but discarding it so far as the rate is

concerned. The factual position, therefore, as was

occurring in Ganesh Pudlik Deeve (Supra) insofar as

the construction is concerned, is synonymous with

the one prevailing in the instant matter.

8] Thus, considering the nature of

construction in Ganesh Pudlik Deeve (Supra) which

is similar to the construction in the present case, the

rate of construction as awarded by the learned

Reference Court is enhanced to Rs.3100/- per

sq.mtr.

9] The judgment and award of the learned

Reference Court is accordingly modified as indicated

above.

10] The respondent No.3 to calculate the

appropriate compensation and ancillary benefits and 8 44fa191.21.odt

deposit in this Court within six weeks from today. In

case any additional court fees is to be paid, it be

paid.

11] It is made clear that the appellant shall not

be entitled for the interest for the period of delay of

1367 days which had occurred in filing the first

appeal as per order dated 15/02/2021 on Civil

Application No. 887/2020.

12] The appeal is accordingly allowed in above

terms. No costs.

JUDGE Rvjalit

Digitally sign byRAJESH VASANTRAO JALIT Location:

Signing Date:16.12.2022 15:42