Bombay High Court

Gangadhar Eknath Kanade vs The State Of Maharashtra on 8 March, 2022

Bench: R. G. Avachat

                                                                        FA-998-2015.odt




             IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                        BENCH AT AURANGABAD

                           FIRST APPEAL NO. 998 OF 2015

 Gangadhar s/o Eknath Kanade
 Age: 74 years, Occu: Agriculture,
 R/o At Post Borgaon, Tq. Newasa,
 Dist. Ahmednagar                                         ... Appellant
                                                          (Orig. Petitioner)
          Versus

 The State of Maharashtra                                 ... Respondent

                                   ....
 Mr. A. B. Kale, Advocate h/f Shri D. R. Adhav, Advocate for appellant
 Mr. S. S. Dande, AGP for respondent
                                   ....

                                       CORAM : R. G. AVACHAT, J.

RESERVED ON : 25th NOVEMBER, 2021 PRONOUNCED ON : 08th MARCH, 2022

J U D G M E N T :-

. This is an appeal under Section 54 of the Land

Acquisition Act, 1894 (for short 'the Act'). The challenge herein is to

the judgment and award dated 20.09.2014 passed by the learned

Civil Judge, Senior Division (Reference Court) Newasa, in Land

Acquisition Reference (L.A.R.) No.275/2010. The appellant herein is

the original land owner whose land with house/bungalow thereon,

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came to be acquired for Jayakwadi Project. The quantum of

compensation offered by the Land Acquisition Officer was accepted

by the appellant under protest and preferred L.A.R. for enhancement

therein. The Reference Court, in turn, enhanced the amount of

compensation by Rs.1,58,349/- with all consequential benefits. The

appellant feeling the enhancement of compensation to be grossly

inadequate, has preferred the present appeal.

2. Heard.

Shri A. B. Kale, learned Advocate for the appellant would

submit that there were two house properties belonging to the

appellant. Both were acquired for submerged area of Jayakwadi

Project. The Grampanchayat property numbers of both these

properties were 1 and 39. The property No.1 admeasured 833.10

square meters. The construction thereon was admeasuring 755

square meters. The property bearing No.39 admeasured 538.10

square meters, with tin shed thereon. The Land Acquisition Officer

awarded meager amount of Rs.16,454/-. The appellant had

examined himself on oath. A Civil Engineer was also examined in

proof of the construction plan and estimated cost of the bungalow

that came to be acquired. The photographs thereof have also been

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placed on record. The house property had come to the share of the

appellant in partition. A copy of deed to partition was also placed on

record. The respondent - State did not lead any evidence. Valuation

of the bungalow was Rs.5,05,367/-. When the entire construction

admeasured 755 square meters, the Reference Court ought not to

have reduced it to 303 square meters by guess work. No

compensation has been awarded for the open piece of land. The

learned Advocate relying on the judgment of the Apex Court in the

case of Ashok Kumar and another vs. State of Haryana - (2016) 4

SCC 544, would submit that the Court can grant compensation more

than claimed in the Reference. The amount of compensation

awarded by the Reference Court is contrary to the evidence on

record. The learned Advocate, therefore, urged for allowing the

appeal.

3. The learned APP would, on the other hand, submit that

there is no evidence in proof that the bungalow to have admeasured

755 square meters. The amount of compensation awarded is more

than the market value. He, therefore, urged for dismissal of the

appeal.



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4. Considered the submissions advanced. Perused the

evidence relied on. Gone through the impugned judgment. The

award (Exh.55) does indicate that two properties admeasuring

833.10 and 538.10 square meters, belonging to the appellant herein

came to be acquired. In the Reference itself, the property bearing

No.39 has been admitted to be an open space. The Reference Court

has not awarded any amount of compensation for this property. It

might be a mistake. The property bearing Grampanchayat No.1,

admittedly admeasures 833.10 square meters. According to the

appellant, almost entire piece of land was under RCC bungalow. The

building plan Exh.48 placed on record by the appellant himself does

indicate that the built up portion was admeasuring 2311 square feet.

Exh.49 is the building plan of the bungalow, that came to be

acquired. Photographs Exh.50 do indicate that it was a well built

spacious bungalow. There is, however, no concrete evidence of its

dimensions.

True, the notice Exh.55 issued by the appellant to the

Land Acquisition Officer does make mention therein about the

details of construction admeasuring 8424 square feet. The

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Grampanchayat extract Exh.51, however, disclosed the dimension as

under:

            feGdrhps o.kZu                        Ekkydkps ukao
                 caxyk
      n- Å- ykach      iq- i- :anh         xaxk/kj vsdukFk dkuMs
         68^      X       40^
                if'pesl
      n- Å- ykach     iq- i- :anh
        68^       X     38^
                  vkokj
             leksj mRrjsl
      n- Å- ykach       iq- i- :anh
        40^       X      18^
             iU;kph pkG
             leksj 60^ X 40^
                  ps iVkax.k
               R;kl daikÅaM

5. On appreciation of evidence, the Reference Court has

come to the conclusion that the built up area admeasured not more

than 3264 square feet. It, therefore, granted compensation at the

rate of Rs.600/- per square meter relying on the evidence of Civil

Engineer examined on behalf of the appellant. In short, the

Reference Court has accepted the rate of construction as was

estimated by the Engineer. It is true that the Court can grant

compensation more than claimed in the Reference. A case, therefore,

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has however to be made out. The property came to be acquired way

back in December 1990 (date of award - 04.12.1990). The

possession of the property was said to have been taken in 1988 itself.

There is no evidence as to what was really the rate of construction

per square meter. The Reference Court relied on the witness

examined by the appellant and accepted the rate given by him. This

Court, therefore, finds no reason to make enhancement in the rate of

construction per square meter.

6. The Reference Court worked out the amount of

compensation at Rs.1,82,010/- for 303.35 square meters of area @

Rs.600/- per square meter. It substracted 13% thereof towards

depreciation. The Reference Court has observed in para 15 as under:

"15. Needless to mention that this 13% depreciation is also calculated on the basis of judicial notice of the various judgment passed by this Court and the calculation made therein....."

It is reiterated that the Reference Court has not given

sound reasons as to why 13% has been deducted towards

depreciation. This Court is therefore not inclined to uphold

deduction of 13%.



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