Bombay High Court

Godhavari Marathwada Irrigation ... vs Kishan Satwaji Patil Kinhalkar ... on 23 June, 2022

Bench: R. G. Avachat

First Appeal No.31/2013
with connected appeals
:: 1 ::

IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD

FIRST APPEAL NO.31 OF 2013

Kisan s/o Satwaji Patil Kinhalkar,
Age 67 years, Occu. Agriculture,
R/o Kinhala, Tq. Bhokar, Dist. Nanded ... APPELLANT

VERSUS

1. The State of Maharashtra
through District Collector,
Station Road, Nanded,
District Nanded

2. The Special Land Acquisition Officer,
P.T.M.I.W. 1, Nanded

3. The Executive Engineer,
Minor Irrigation Works,
Nanded ... RESPONDENTS

.......
Shri K.M. Nagarkar, Advocate for appellant
Shri S.N. Morampalle, A.G.P. for respondents No.1 and 2
Shri R.D. Biradar, Advocate for respondent No.3.
.......

WITH
FIRST APPEAL NO.32 OF 2013 WITH
CIVIL APPLICATION NO.2648 OF 2019

Shaikh Farid s/o Walliji
Age 67 years, Occu. Agriculture,
R/o Kinhala, Tq. Bhokar, Dist. Nanded ... APPELLANT

VERSUS

1. The State of Maharashtra
through District Collector,
Station Road, Nanded,

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First Appeal No.31/2013
with connected appeals
:: 2 ::

District Nanded

2. The Special Land Acquisition Officer,
P.T.M.I.W. 1, Nanded

3. The Executive Engineer,
Minor Irrigation Works,
Nanded ... RESPONDENTS

.......
Shri K.M. Nagarkar, Advocate for appellant
Shri S.N. Morampalle, A.G.P. for respondents No.1 and 2
Shri R.D. Biradar, Advocate for respondent No.3.
.......

WITH
FIRST APPEAL NO.3498 OF 2019

Godhavari Maratwada Irrigation
Development Corporation, Aurangabad
through its Executive Engineer
Minor irrigation Division, Nanded,
District Nanded ... APPELLANT

VERSUS

1. Kishan s/o Satwaji Patil Kinhalkar,
Age major, Occu. Agril.,
R/o Kinala, Tq. Bhokar,
District Nanded

2. The State of Maharashtra,
through the Collector, Nanded

3. The Special Land Acquisition Officer,
P.T. Minor Irrigation Works No.1,
Collector Office, Nanded ... RESPONDENTS

.......
Shri R.D. Biradar, Advocate for appellant
Shri K.M. Nagarkar, Advocate for respondent no.1.
Shri S.N. Morampalle, A.G.P. for respondents No.2 and 3
.......

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First Appeal No.31/2013
with connected appeals
:: 3 ::

WITH
FIRST APPEAL NO.3499 OF 2019

Godhavari Maratwada Irrigation
Development Corporation, Aurangabad
through its Executive Engineer
Minor Irrigation Division, Nanded,
District Nanded ... APPELLANT

VERSUS

1. Madhukar s/o Shankarappa Deshmane,
Age major, Occu. Agril.,
R/o Kinhala, Tq. Bhokar,
District Nanded

2. The State of Maharashtra,
through the Collector, Nanded

3. The Special Land Acquisition Officer,
P.T. Minor Irrigation Works No.1,
Collector Office, Nanded ... RESPONDENTS

.......
Shri R.D. Biradar, Advocate for appellant
Shri A.N. Patale, Advocate for respondent no.1.
Shri S.N. Morampalle, A.G.P. for respondents No.2 and 3
.......

CORAM : R. G. AVACHAT, J.

Date of reserving judgment : 14th December, 2021
Date of pronouncing judgment : 23rd June, 2022

JUDGMENT:

This group of four appeals is being decided by this

common judgment and order since common questions of facts

First Appeal No.31/2013 with connected appeals :: 4 ::

and law arise therein. Moreover, the challenge therein is to

one and the same judgment and order dated 30/9/2010,

passed by the Court of Civil Judge, Senior Division, Bhokar in

Land Acquisition Reference Nos.30/2010 (Old No.76/2003)

and 33/2010 (Old No.86/2003). The First Appeals

No.31/2013 and 32/2013 have been filed by the original land

owners, whose lands came to be acquired for Renapur Sudha

Project. The other two appeals have been preferred by the

acquiring body. The appeals preferred by the original land

owners are for enhancement of compensation granted by the

Reference Court in the aforesaid two Land Acquisition

References. While the other two Appeals have been preferred

by the acquiring body, contending the enhancement granted

by the Reference Court to have been on higher side and,

therefore, urged for reduction therein to the amount which

was offered by the Land Acquisition Officer (L.A.O.).

For the sake of convenience, the parties and

evidence in First Appeals No.31/2013 and 32/2013 are being

referred to.

2. Facts giving rise to the present appeals are as

follows :-

First Appeal No.31/2013 with connected appeals :: 5 ::

FIRST APPEAL NO.31/2013:

Land bearing Gut No.85, admeasuring 4 Hectors

57 R originally belonged to the appellant - land owner. As

stated above, the said entire land came to be acquired for the

purpose of Renapur Sudha Project. Notification under Section

4 of the Land Acquisition Act, 1894 (for short the Act) was

published on 17/2/2000. The award came to be passed on

8/6/2001. The appellant - land owner claimed compensation

@ Rs.2,40,000/- per acre. According to him, the land was

irrigated one. There was a well and pipeline in the land as

well. Moreover, there were 1300 teak trees besides fruit

bearing trees. The L.A.O. granted compensation in respect of

147 teak trees. The amount of compensation awarded was

very meagre. The appellant - land owner claimed

compensation @ Rs.10,000/- per teak tree besides

compensation for other fruit bearing trees.

FIRST APPEAL NO.32/2013:

Hectors 22 R belonged to the appellant - land owner. 3

Hectors 70 R land therefrom came to be acquired for the very

public purpose. Notification under Section 4 of the Land

First Appeal No.31/2013 with connected appeals :: 6 ::

Acquisition Act and the award under the Act came to be

passed on the same days and dates mentioned hereinabove.

The appellant - land owner claimed compensation @

Rs.2,40,000/- per acre as it was an irrigated land. According

to him, there were 400 teak trees. Compensation, however,

was awarded only in respect of 107 trees. The rate of

compensation awarded is stated to be very meagre. The

appellant claimed compensation @ Rs.10,000/- per teak tree.

It is also his case that, there were 600 sweet-lime trees. The

L.A.O. awarded compensation only for 200 trees. The

quantum of compensation awarded in respect thereto was

also meagre one.

3. Both the appellants - land owners, therefore,

preferred the respective Land Acquisition References - L.A.R.

Nos.30/2010 (Old No.76/2003) and 33/2010 (Old

No.86/2003) respectively for enhancement of compensation.

The learned Reference Court, vide impugned judgment and

award/s dated 30/9/2010, partly allowed both the L.A.Rs.,

enhancing the compensation as under :

(1) Compensation for land was granted @ Rs.2,00,000/-

per Hector.

First Appeal No.31/2013 with connected appeals :: 7 ::

(2) Compensation @ Rs.3000/- for each teak wood tree

was granted.

(3) In L.A.R. No.30/2010, compensation was granted for

183 teak trees while in L.A.R. No33/2010, it was

granted for 160 teak trees.

(4) The Reference Court also granted compensation for

400 sweet lime trees @ Rs.3000/- per tree. The

L.A.O. had granted the same rate, but only for 200

such trees.

The details of the compensation awarded by the

Reference Court are as under :

LAR 30/2010

Compensation is granted @ Rs.2,00,000/- per Hector for

the land and Rs.6,58,800/- for 183 teak trees and

Rs.12,00,000/- for 400 fruit bearing trees.

The respondents shall pay amount of Rs.27,37,276/- to

the appellant along with future interest @ 15% p.a. on the

amount of Rs.18,75,080/- till satisfaction of the entire dues.

LAR 33/2010

Compensation is granted @ Rs.2,00,000/- per Hector for

First Appeal No.31/2013 with connected appeals :: 8 ::

the land, Rs.5,76,000/- for 160 teak trees and Rs.6,500/- for

fruit bearing trees.

The respondents shall pay the amount of

Rs.12,37,847/- to the appellants along with future interest @

15% p.a. on the amount of Rs.7,41,358/- till the satisfaction

of the entire dues.

4. Heard. Both the learned Advocates for the

appellants - land owners made submissions consistent with

the averments in the memorandums of appeals. According to

both the learned Advocates, the lands acquired were irrigated

one. The sale instance (Exh.59) relied on pertained to

unirrigated land. In view of the settled legal proposition, the

compensation for the irrigated land shall be double the rate of

compensation awardable for unirrigated land. This principle

was not relied on by the learned Reference Court in spite of

number of authorities having been relied on in that regard.

The L.A.O. found the existence of wells in both the lands and

even quantified some compensation in respect thereto. The

Reference Court, however, did not grant separate

compensation for the wells in the lands acquired. According

to learned Advocates, crops like sugarcane, papaya, banana

First Appeal No.31/2013 with connected appeals :: 9 ::

etc. were being raised. According to them, the compensation,

therefore, ought to have been granted @ Rs.2,40,000/- per

acre. It was also submitted by the learned Advocates that, in

terms of Section 25 of the Act, the amount of compensation

to be awarded in Land Acquisition Reference shall not be less

than the one offered by the Collector.

TEAK TREES

5. According to the learned Advocates, there were

1300 and 400 teak trees in the lands Gut No.85 and Survey

No.73 respectively. The compensation has, however, been

awarded only in respect of 183 and 160 trees respectively @

Rs.3600/- per tree. According to the learned Advocates the

Government of Maharashtra fixed the prices of the things

every year. The same is called D.S.R. rates. A chart of the

D.S.R. rates has been given in the appeal memo. It is in

terms of per cubic metre for the years 1992-1993 to 2007-

2008. The learned Advocates have calculated the same by

giving a chart in clause (C) of the appeal memo. According to

them, it would be Rs.10,000/- per tree. It is also their case

that, the State Government has awarded compensation for

teak tree at much more rate in Land Acquisition proceedings

in respect of the lands in District of Nanded.

First Appeal No.31/2013 with connected appeals :: 10 ::

NUMBER OF TREES

6. According to the learned Advocates, there were

1300 and 400 teak trees in both the lands. The possession of

the lands were taken before the notification was published.

The project work commenced immediately. While the

authorities went to the site for counting of trees, the lands

were under water. The counting could not be made. The

Talathi, however, could count the trees in terms of the number

of trees claimed by the appellants - land owners. He also

took entry thereof in the 7/12 extract. The compensation,

therefore, ought to have been granted in respect of 1300 and

400 teak trees respectively.

SWEET-LIME TREES

7. According to the appellants - land owners, though

there were 600 sweet-lime trees, the L.A.O. granted

compensation only in respect of 200 trees. The Reference

Court granted the same for 400 trees without there being any

change in the rate of compensation offered by the L.A.O.

According to the learned Advocates, each tree would give

yield of not less than 1000 fruits per year. The life expectancy

of the trees was not less than 20 years. The compensation,

First Appeal No.31/2013 with connected appeals :: 11 ::

therefore, ought to have been awarded @ Rs.15,000/- per

tree. There were other fruit bearing trees as well such as

custard apple, jujabi, tamarind, lemon etc. No separate

compensation, however, has been awarded in respect thereto.

Both the learned Advocates placed on record the authorities

which were relied on before the Reference Court as well.

They ultimately urged for allowing the appeals with

enhancement of compensation as prayed for.

8. Shri Biradar, learned Advocate for the respondent

- acquiring body would, on the other hand, submit that, the

amount of compensation offered by the L.A.O. was quite

reasonable and as per the market value prevailing on the date

of notification under Section 4 of the Act. According to him,

no separate compensation could have been awarded for land

on one hand and the trees thereon on the other. According to

him, interest has also been awarded in breach of judgment of

Full Bench of this Court in case of State of Maharashtra Vs.

Kailash Shiva Rangari [2016 (3) Mh.L.J. 457].

9. Considered the submissions advanced. Perused

the award/s passed by the L.A.O. and the Reference Court as

First Appeal No.31/2013 with connected appeals :: 12 ::

well. Admittedly, the lands came to be acquired for Renapur

Sudha Project. The date of publication of notification under

Section 4 of the Act is 17/2/2000 while the date of award is

8/6/2001.

FIRST APPEAL NO.31/2013:

10. Land admeasuring 4 Hectors 57 R of Gut No.85

belonging to the appellant - land owner came to be acquired.

The L.A.O. offered the compensation separately i.e. one for

the land and other for the trees standing thereon. The L.A.O.

considered only some of the land to be irrigated one. He

awarded compensation amounting to Rs.91,500/-. The

Reference Court enhanced it to Rs.2,00,000/- per Hector. The

question is, whether the amount of compensation enhanced

by the Reference Court is grossly inadequate and not in terms

of the market value of the land on the date of notification

under Section 4 of the Act. The appellant - land owner gave

his oral evidence on affidavit. In response to the notice under

Section 9 of the Act, he claimed compensation @

Rs.1,50,000/- per acre. It appears that, the appellants - land

owners amended their Reference applications before the

Reference Court, seeking enhancement in compensation

First Appeal No.31/2013 with connected appeals :: 13 ::

manifold. In view of this Court, Order VI Rule 17 of the Code

of Civil Procedure may not have application to the proceedings

of L.A.Rs. Be that as it may. In his oral evidence, particularly

paragraph No.8, the appellant - land owner relied on three

sale instances. Two of them pertained to the lands situated at

the village whereat the acquired lands were located. The

other sale instance relied on pertained to the land situated at

village Somthana. The Reference Court appears to have

placed reliance on the sale instance of Somthana. Under the

said sale instance, land admeasuring 33 R was sold for

Rs.90,000/- in February 1998. The said land was unirrigated

one.

11. Admittedly, there were other other sale instances

pertaining to the lands situated in the village Kinhala, in which

village the lands acquired were situated. It appears that, the

land owners have consciously withheld those sale instances.

It has, therefore, to be assumed that those sale instances are

not favourable to them. In paragraph No.9 of the

examination-in-chief, the two sale instances relied on

pertained to the lands situated at village Kinhala were

referred to. One sale instance is of the year 1995 while

another is of the year 1996. Thereunder, land admeasuring

First Appeal No.31/2013 with connected appeals :: 14 ::

81 R and 62 R were sold for Rs.60,000/- and Rs.50,000/-

respectively. By making additions thereto as an increase @

10% p.a., the same would not be more than Rs.1,10,000/-,

one for two acres of the land and the other for 1 ½ acre. The

learned Advocates for the land owners had urged before the

Reference Court that compensation @ Rs.3,00,000/- per

Hector may be awarded. When the sale instances from the

very village were relied on, in the examination-in-chief itself

reliance on the sale instance pertaining to the land from

village Somthana was unwarranted. We take one of the two

sale instances from the very village which is higher in value

i.e. Rs.60,000/- for 81 R. The rate of Rs.50,000/- for 62 R

relating to the land sold by one Maruti Santuka to Baburao

Ade in February 1996 comes to little over Rs.80,000/- per

hector. If the said land is considered to be unirrigated, and

making addition of at least 10% p.a. towards increase in cost

up to the date of notification under Section 4 of the Act and

even accepting the case of the learned advocate for the

appellants - land owners that for irrigated land the rate shall

be double the one grantable for unirrigated land, the

compensation awarded by the Reference Court @

Rs.2,00,000/- per acre is found to be in terms of the market

First Appeal No.31/2013 with connected appeals :: 15 ::

value of the lands acquired on the date of notification.

12. Each case has to be decided on its own facts and

circumstances. The authorities relied on by the learned

Advocates for the appellants that the rate of compensation in

respect of the irrigated land, shall be double the one grantable

for unirrigated land cannot be considered to be a precedent.

13. In case of Baliram Patil (supra), it has been

observed :-

"Market price of dry crop land and irrigated land - If the market price of dry crop land is worked out, for working out the market price of irrigated land, in absence of any other evidence on record, double the market rate of jirayat land has to be awarded."

14. On the contrary, there are Apex Court judgments

particularly one in case of State of Haryana Vs. Gurucharan

Singh & Anr. [ AIR 1996 SC 106 ], wherein it has been

observed that, compensation for the land acquired and for the

trees standing thereon may not be separately granted. The

land value can be ascertained from its yield giving capacity.

True, in this case the L.A.O. has granted separate

compensation, one for the land and other for the trees

standing therein. This Court is not inclined to upset the same.

First Appeal No.31/2013 with connected appeals :: 16 ::

The fact, however, remains that grant of compensation @

Rs.2,00,000/- per Hector is found to be in terms of the

market value of the land on the date of notification under

Section 4 of the Act.

15. The L.A.O. has quantified separate compensation

in respect of the wells in both the lands. For the well in land

Gut No.85 (First Appeal No.31/2013) Rs.1,34,732 and

Rs.43,843/- in land Gut No.73 (First Appeal No.32/2013).

This Court is inclined to grant that much compensation as

enhancement since the same was not considered for grant by

the L.A.O. and the Reference Court as well.

TEAK TREES

16. The L.A.O. has granted compensation in respect of

147 teak trees. The Reference Court enhanced it to 160 teak

trees. According to appellants - land owners, there were

1300 and 400 teak trees in both the lands. The possession of

the lands were acquired before the notification was published.

The project work commenced immediately. While the

authorities went to the site for counting of trees, the lands

were under water. The counting could not be made.

First Appeal No.31/2013 with connected appeals :: 17 ::

17. In view of this Court, the case of the appellant -

land owner that there were 1300 teak trees, is found to be

untrue. True, in the Reference, the appellant claimed that

there were 1300 trees. In the joint measurement report

(Exh.31), which was prepared in the presence of the appellant

- land owner, there were only 160 teak trees. The appellant -

land owner could have very well objected to the joint

measurement report then and there. In the award, there is

reference that the appellant - land owner had joined hands

with the village Talathi to bring on record some more teak

trees. In view of this Court, the joint measurement report

and the report submitted by the T.I.L.R. undoubtedly indicate

that there were 160 trees only. In para 12 of his

examination-in-chief, the appellant - land owner made a

following statement :

"Initially on 14/01/1999 Govt. has done joint measurement. At that time Govt. has not considered Sagwan trees and to that I have filed application towards Govt. Accordingly as per letter of Respondent, 2nd joint measurement was held on 10/08/2000 in which Govt. has recorded my 167 Sagwan trees. Later on for its valuation Forest Office Bhokar had visited my land on 14/03/2001 & 15/03/2001 but at that time there was full project water in acquired land and therefore Forest Office had made valuation of

First Appeal No.31/2013 with connected appeals :: 18 ::

167 Sagwan trees only which was outside the water and this fact was also mentioned in award itself and therefore compensation to all trees i.e. 167 Sagwan trees may kindly awarded to me. I have filed document of trees to that effect."

18. There can be no dispute about the legal

proposition that entries in the revenue record carry

presumptive value. There can, therefore, be no two views

over the authorities relied in this regard. The fact, however,

remains that, in the joint measurement map and the T.I.L.R.

report, the teak trees found at the site were not more than

160 trees. The entries in the revenue record are not the

conclusive proof. Admittedly, the land was under water and

counting of the trees could not be made post joint

measurement.

19. The land owner restricted his claim in respect of

not more than 167 trees. There is no concrete and reliable

evidence to suggest that there were 1300 teak trees.

RATE PER TREE

20. The appellant - land owner first relied on the

D.S.R. issued by the State Government year to year. A look

First Appeal No.31/2013 with connected appeals :: 19 ::

thereat would indicate that the same pertains to finished

product of teak trees. The same cannot be resorted to for

grant of compensation. The appellant - land owner then

relied on chart calculating compensation per cubic metre.

According to them, it comes to Rs.10,000/- per tree.

21. A reference to grant of compensation in respect of

teak trees in the land belonging to one Pralhad Surnar of

village Loha, District Nanded was made, whereunder the

Government has awarded approximately Rs.22,000/- per

cubic metre to this farmer as compensation. The learned

Reference Court was justified in discarding the said piece of

evidence since according to the learned Reference Court, the

quality of teak trees with their age, circumference was not

before the Court for grant of equal compensation. The

Reference Court, therefore, relied on the rate of compensation

awarded in some other land acquisition proceedings pertaining

to the land of the same village, whereunder rate per teak tree

was not more than Rs.1405=83 ps. The L.A.O., considering

the height and width of the teak trees, granted the

compensation in the range of Rs.5000/- to 9000/- per cubic

metre with deduction of Rs.1000/- per cubic metre towards

First Appeal No.31/2013 with connected appeals :: 20 ::

cutting charges. The Reference Court found that the sizes of

the acquired trees ranged from 0.30 cubic metre to 1.36 cubic

metre and above. The rate awarded comes to on and average

Rs.1005/- per tree. The Reference Court, therefore, relied on

land acquisition proceedings of the adjoining land wherein the

L.A.O. granted compensation @ Rs.3600/- per teak tree. On

the principle of parity, the Reference Court granted the same

rate of the teak trees herein. This Court finds no reason to

take a different view to enhance the same.

FIRST APPEAL NO.32 OF 2013:

22. For the very reasons given hereinabove, the

findings recorded by the Reference Court in respect of amount

of compensation for the land and teak trees is maintained. So

far as regards number of teak trees are concerned, the joint

measurement reports indicate the number of trees was (In

First Appeal No.31/2013 L.A.R. No.33/2010) - 183 in First

Appeal No.32/2013 (L.A.R. No.30/2010) - 160.

SWEET-LIME GRAFTS

23. The L.A.O. granted compensation @ Rs.3000/- per

tree for 200 trees. The Reference Court granted the same

First Appeal No.31/2013 with connected appeals :: 21 ::

rate, finding it to be 400 grafts/ plants. The same is evident

from the joint measurement report. Section 4 notification

dates back to the year 2000. In his examination-in-chief,

Shaikh Farid has categorically admitted as follows :-

"It is true that, as per T.I.L.R. report below Exh.36, the total small and big Sagwan (teak) trees were 107 and there were 50 custard appeal trees, 50 jujabi trees, 2 tamarind trees, 5 mango trees 3 bel trees. Except these trees, there were no other trees."

24. Still, in view of reliance on another report

indicating existence of 400 sweet-lime trees, the Reference

Court has granted compensation @ Rs.3000/- per tree. This

Court, therefore, finds that the amount of compensation

enhanced by the Reference Court may be more than the

market price of the lands and the trees on the date of

publication of Section 4 notification.

25. It appears that, the Reference Court has awarded

interest from the date of taking possession of the land i.e.

from 15/2/2000. The date of Section 4 notification is

17/2/2000. while date of award is 8/6/2001. Interest,

therefore, ought to have been awarded from the date of

First Appeal No.31/2013 with connected appeals :: 22 ::

award and not from the date of notification under Section 4.

To that extent, modification in the impugned award is required

besides grant of compensation on account of well which was

quantified by the L.A.O. in land Gut No.85 (First Appeal

No.31/2013) Rs.1,34,732 and Rs.43,843/- in land Gut No.73

(First Appeal No.32/2013). With this, all the four appeals are

disposed of in terms of the following order :

ORDER

(i) The respondent - State and the acquiring body shall

pay the respective appellants - land owners

compensation in respect of the wells in land Gut

No.85 (First Appeal No.31/2013) Rs.1,34,732 and

Rs.43,843/- in land Gut No.73 (First Appeal

No.32/2013) with consequential benefits.

(ii) The interest shall be payable on the amount of

compensation from the date of award/s and not from

the date of notification under Section 4 of the Land

Acquisition Act.