V.I.D.C. Thr. Exe. Engineer vs Wamanrao Nathuji Mahajan (Dead) ...
2022 Latest Caselaw 11870 Bom

                               1                           207-FA-580-2010-J.odt




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

                 FIRST APPEAL NO. 580 OF 2010

     Vidarbha        Irrigation     Development : APPELLANT
     Corporation,     Through   its    Executive
     Engineer, Bembla Project Division No.5,
     Taq. & Dist. Yavatmal
                               VERSUS
 1   Wamanrao Nathuji Mahajan (Dead)             :
     through his L.R.s
 1A Smt. Sarswatabai wd/o Wamanrao Mahajan
    aged about 70 years, R/o Adarshnagar,
    Yavatmal
 2   Ramdas Wamanrao Mahajan
     Aged 42 years,
 3   Anil Wamanrao Mahajan
     Aged about 32 years,                            RESPONDENTS
     No.1 & 2 R/o Thalegaon, Tq. Babhulgaon,
     Distt. Yavatmal
 4   The State of Maharashtra,
     Through the Collector, Yavatmal
 5   The Special Land Acquisition Officer,
     Bembla Project, Yavatmal

Mr. A.B. Patil, Advocate for appellant
Mr. A.B. Nakshane, Advocate for Respondent Nos.1-A to 3
Mr. M.A. Kadu, A.G.P. for Respondent Nos.4 and 5

                        CORAM : AVINASH G. GHAROTE, J.

                        DATE       : 21st NOVEMBER 2022

ORAL JUDGMENT

Heard Mr. Patil, learned counsel for the appellants, Mr.

Naxane, learned counsel for respondent No. 1-A to 3 and Mr. Kadu, 2 207-FA-580-2010-J.odt

learned Assistant Government Pleader for respondent Nos. 4 and 5.

2. The present appeal questions the Award dated

17/3/2009 passed by the learned Civil Judge (Sr. Dn.), Yavatmal in a

reference under Section 18 of the Land Acquisition Act, 1894,

whereby the compensation, which was originally awarded by the

Land Acquisition Officer for the open plot bearing plot No.71 having

area 263.80 sq.mtrs. situated at Village Thalegaon, Tah. Babulgaon

District Yavatmal, which came to be acquired on account of its

submergence in the Bembla project has been enhanced, to the tune of

Rs.650/- per sq.mtr., on the ground, that the rate granted, is without

any basis whatsoever.

3. Mr. Patil, learned counsel for the appellants submits that

before the Reference Court, what was relied upon was the Report of

the PW 2 Chandrashekhar, the so called expert for determining the

market value of the open plot and though the learned Reference

Court, has held that the assessment of PW 2 was not based upon

actual figures, but, on imagination, still without there being any other

material on record, except three judgments of the Reference Court,

two of which were in respect of village Dighi and one of which was in

respect of village Pahur, the rate of Rs.650/- per sq.mtr. has been

granted. It is contended, that village Dighi, is beyond the river 3 207-FA-580-2010-J.odt

Bembla, from village Thalegaon and that apart, village Dighi is a

larger village than village Thalegaon. So also, the village Pahur, is

beyond village Dighi to the east side and is the largest village in the

locality with all facilities and therefore, the rate of village Pahur,

cannot be taken into consideration, for the purpose of determining

the market rate of the open plot at village Thalegaon. He further

submits, that in various judgments, the rate of open plot, for village

Dighi, has been determined by this Court as Rs.500/- per sq.mtr.,

considering which the rate for village Thalegaon, would obviously be

less than that for village Dighi. It is thus submitted, that the rate for

village Pahur or village Dighi cannot be considered to be the bench

mark, for determining the rate of an open plot for village Thalegaon

and therefore, the impugned Award under reference, is required to be

quashed and set aside and the rate granted be less than Rs.500/- per

sq.mtr. He places reliance upon the judgments of this Court in a batch

of First Appeals beginning with FA No. 487/2006 (VIDC Vs. Nitin

Pralhadrao Pardakhe and others) decided on 12 and 13th October

2010 by this Court, which are in respect of open plots and constructed

areas in village Dighi, which fixes the rate at Rs.500/- per sq.mtr. and

so also the judgment of this Court in First Appeal No. 836/2010,

(VIDC Vs. Manoj Dnyaneshwar Pardakhe and others ) decided on

23/7/2021 as well as the judgment of this Court in First Appeal No. 4 207-FA-580-2010-J.odt

1018/2013, decided on 16/1/2019, both of village Dighi, which also

fix the rate of open plot as Rs.500/- per sq.mtr.

4. Mr. Kadu, learned Assistant Government Pleader for

respondent Nos. 2 and 3 supports the contention of Mr. Patil, learned

counsel for the appellants.

5. Mr. Naxane, learned counsel for the respondent No.1,

opposes the submissions and supports the impugned Award,

contending, that the situation of village Thalegaon, is much more

better placed than that of village Dighi, due to which the market rate

at village Thalegaon, of an open plot is actually much more than

Rs.500/- per sq.mtr. He invites my attention, to Exh.32, the judgment

in LAC No.408/2003 dated 24/08/2006, which was in respect of

House No. 243, admeasuring 107 sq.mtr. out of which open area was

59 sq.mtr. situated at village Dighi, in which the compensation has

been granted for the open plot @ Rs.70/- per sq.ft. He also relies

upon the judgment in LAC No. 403/2003, decided on 23/06/2006 in

which the rate for open plot at village Dighi, has been granted at

Rs.70/- per sq.ft. Reliance is also placed upon judgment in LAC

No.5/2005, decided on 02/11/2006, for village Pahur in which the

rate of open plot is granted at Rs.85/- per sq.ft. He also relies upon

judgment of this Court in F.A. No.102/2008 (Narendra s/o Marotrao 5 207-FA-580-2010-J.odt

Chaudhari Vs. The State and others) decided on 16/06/2017,

whereby rate of Rs.753/- for open plot has been granted for village

Dighi and so also, the judgment in First Appeal No.131/2016, decided

on 21/2/2019, which grants the rate of Rs.750/- per sq.mtr. for open

land at village Pahur.

6. The record and proceedings has been received. The

comparative locations of the villages of Thalegaon, Dighi and Pahur

are reflected, from the map at Exh.30 on record, the relevant portion

of which is reflected as under :-

6 207-FA-580-2010-J.odt

7. A perusal of the aforesaid map would indicate, that the

Bembla river flows in between the villages Thalegaon and Dighi. It

further discloses that the village Pahur, is beyond the village Dighi, to

the east side thereof. It also discloses, that village Pahur, is a bigger

village, than Dighi or Thalegaon. The fact that village Dighi, as well as

village Pahur, are larger villages than village Thalegaon, is evident

from the evidence of PW 2 Chandrashekhar, who has been examined

as the expert witness having prepared the valuation report in respect

of the open plot. The evidence of Chandrashekhar Panjabrao

Wankhede of PW2 at Exh.35, in his cross-examination indicates

admission of the fact that village Pahur is bigger village having all

facilities. He further admits that though Dighi and Pahur are situated

on Babulgaon road, Thalegaon is not on that road and there is a

different road from Babulgaon to approach Thalegaon. He further

admits, that villages Midnapur and Pratappur are adjacent villages to

Thalegaon. He further admits, that he has not considered any sale

deed of any plot situated in village Thalegaon, for the purpose of

determining the market value. Insofar as the sale deeds upon which

he has placed reliance for his Report, he admits, that insofar as sale

deed for the village Pahur is concerned, there is a clinic and medical

shop constructed on the said land and insofar as sale deed in respect

of village Dighi is concerned, it was purchased by the adjacent owner, 7 207-FA-580-2010-J.odt

on account of which there is a possibility of he paying the higher

price. Though he admits, that the requirement of the valuation of the

plots from village Thalegaon based upon the sale deeds for the

determination thereof, is necessary, he has not obtained or seen sale

deeds in respect of the said village. It is therefore, apparent, that the

learned Reference Court, was quite correct in having discarded the

evidence of PW 2 Chandreshakhar and so also his Report at Exh.36 in

which he has stated the rate of open plot for the village Thalegaon to

be around 807 per sq.mtr. (75 per sq.ft.).

8. Having so done, the only material left with the learned

Reference Court, were the judgments, in LAC No.408/2003 and LAC

No.403/2003, both of village Dighi and the judgment in LAC

No.5/2005 of village Pahur, which appear to have been relied upon by

him for the purpose of enhancing the compensation from Rs.70/- per

sq.mtr., as awarded by the Land Acquisition Officer, to Rs.650/- per

sq.mtr.

9. As is already been pointed out, the village Pahur is at a

considerable distance, from village Thalegaon, and that too beyond

the Bembla river, on a different road from village Babulgaon, and is

also, a village which is bigger in size with all facilitates available,

considering which, the reliance upon the judgment in LAC No.5/2005 8 207-FA-580-2010-J.odt

for village Pahur, is clearly misplaced.

10. The next two judgments are for the open plots at village

Dighi which has granted rate of Rs.70/- per sq.ft. What is however,

material to reiterate, is the position, that even Dighi, is a bigger

village than Thalegaon, and is also beyond the river Bembla from

Thalegaon. That apart, this Court, in the batch of petitions, bearing

First Appeal No.487/2006 (VIDC Vs. Nitin Pardakhe) decided on 12th

and 13th October 2010, First Appeal No.1018 of 2013 (VIDC Vs.

Ramesh Govinda Meshram), decided on 16/1/2019 and First Appeal

No.836/2010 (VIDC Vs. Manoj Dhyaneshwar Parlakhe) decided on

23/07/2021, has already fixed the rate of open plot for village Dighi,

at Rs.500/- per sq.mtr. Considering, that village Dighi and village

Thalegaon are situated on the opposite banks of river Bembla,

opposite to each other, the rate of Rs.500/- fixed for village Dighi can

be considered to be a reasonable rate for the open plot at the village

Thalegaon too.

11. In First Appeal No. 02/2008 (Narendra Marotrao

Chaudhary Vs. State), decided on 16/6/2017, the judgment which is

also in respect of open plot at village Dighi, which is the admitted

position as per the statement of learned counsel for respective parties,

though the compensation has been granted @Rs.753/-, it appears that 9 207-FA-580-2010-J.odt

the judgment of this Court in VIDC Vs. Nitin Pralhadrao Pardakhe

(supra) was not brought to the notice of the learned Court. That

apart, it is merely based upon, judgments, in LAC Nos.403/2003 &

98/2003 and no other material whatsoever. I therefore, do not

consider it appropriate to rely upon the same considering the

factuality of the present matter as discussed above regarding the

comparative locations of village Thalegaon in comparison to villages

Dighi and Pahur and the fact that they are bigger and better equipped

villages, than Thalegaon.

12. Thus, taking into consideration, that there is no other

evidence or material placed on record by Mr. Naxane, learned counsel

for respondent No.1 to indicate, anything about the rates of open land

/ plot, prevailing in village Thalegaon at the relevant time, and no

sale deed or any other document indicating, the rates have also been

placed on record, and in view of the comparative position of village

Thalegaon with that of village Dighi, in my considered opinion the

rate granted for village Dighi could be taken as the basis for

compensation of open plots in village Thalegaon also.

13. In view of this position, the Award dated 17/3/2009,

passed by the learned Civil Judge (Sr. Dn.) Yavatmal in LAC No.

304/2006 (page 6) is hereby modified and since there is no dispute 10 207-FA-580-2010-J.odt

about the area of the open plot which is 263.80 sq.mtr., it is directed

that the respondents No. 1A to 3 shall be entitled to enhanced

compensation @Rs.500/- per sq.mtr. Rest of the Award remains the

same. The appeal is therefore, partly allowed in the above terms. No

costs.

JUDGE

MP Deshpande

Digitally signed by:MILIND P DESHPANDE Signing Date:24.11.2022 10:36