V.I.D.C. Thr Its Exe. Eng. Bembla ... vs Bhanudas Amrutrao Toney Andd ...
2022 Latest Caselaw 12133 Bom

                                                                          FA 644 of 2012.odt
                                              1

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

                           FIRST APPEAL NO.644/2012

APPELLANT :               Vidarbha Irrigation Development
On. R.A.                  Corporation, Through its Executive
                          Engineer, Bembla Project Division
                          Yawatmal, Tq. & Dist. Yavatmal.

                                       ...VERSUS...

RESPONDENTS : 1. Bhanudas Amrutrao Toney
                 Aged : Major, Occ - Cultivator
                 R/o Near Manjusha Mangal Karyalaya,
                 Yawatmal, Tq. & Distt. Yavatmal.

                          2. The State of Maharashtra,
                             Through the Collector, Yavatmal.

                          3. The Special Land Acquisition Officer,
                             Bembla Project Yavatmal,
                             Tq. & Dist. Yavatmal.

-----------------------------------------------------------------------------------------------
                 Shri A.B. Patil, Advocate for appellant
                 Shri R.S. Nagpure, Advocate for respondent no.1 is absent
                 Mrs. M.H. Deshmukh, AGP for respondent nos.2 & 3
-----------------------------------------------------------------------------------------------

                                  CORAM : AVINASH G. GHAROTE, J.

DATE : 25/11/2022

ORAL JUDGMENT

1. Heard Shri A.B. Patil, learned Counsel for the appellant

and Mrs. M.H. Deshmukh, learned Assistant Government Pleader for FA 644 of 2012.odt

the respondent nos.2 and 3. Shri R.S. Nagpure, learned Counsel for

the respondent no.1 is absent.

2. The factual position in the present appeal is as under -

 Date of Notification under Section 4 of the Land               13/08/1998
 Acquisition Act
 Property          Area of property        LAO Award              Ref. Court
 details                                      Dated              Award Dated
                                            21/03/2002            28/10/2009
                                                                 ___________
 Plot No: 91       Plot Area : 518       Rs.70/- per Sq.mtr.    Rs.650/- per
 Village:          Sq.mtr.                                      Sq.mtr.
 Nagargaon
 Tahsil            Construction: 231 Rs.1812/- per Sq. Rs.2600/-             per
 Babhulgaon,       Sq.mtr.           mtr.              Sq. mtr.
 District :
 Yavatmal.

3. The appeal challenges the judgment of the Reference

Court dated 28/10/2009, whereby the learned Reference Court has

enhanced the compensation for the open plot to Rs.650/-per sq.mtr.

and has granted compensation for the constructed area at the rate of

Rs.2600/- per sq.mtr., in respect of Plot No. 91, as detailed above.

4. The evidence of PW 2 - Satish Kashinath Pathak (Pg.47)

indicates that he has suggested the rate for open plot as Rs.1076/-

FA 644 of 2012.odt

per sq. mtr. and for constructed area of Rs.3,300/- per sq. mtr.

However, the said rate is based upon the sale transaction of the

village Pahur, which admittedly is one village beyond Nagargaon and

is a larger village with all essential facilities and therefore cannot

form a reasonable basis for the rate as given by PW -2. In the cross-

examination itself PW-2 has admitted that Nagargaon is at a distance

of 6 kms. from Pahur and is on the interior side and is a smaller

village with lesser facilities. He further admits that he has neither

made any enquiries with the office of Sub Registrar to ascertain

whether there are any sale instances of village Nagargaon at the

relevant time nor any report from the Town Planning Officer has

been obtained regarding the rate. He also admits not to have

procured any sale-deed from the adjoining villages nor made any

enquiry thereof, considering which, the rate which he has quoted for

the open land has no reasonable basis whatsoever. That apart, he

has also in his cross-examination not specified the nature and quality

of construction nor the age has been specified, considering which, no

reliance can be placed upon the valuation report of PW-2. That is the

only evidence available on record. There is no other evidence

available on record except that of the respondent no.1, which does FA 644 of 2012.odt

not shed any light on the issue of valuation of the land or the

construction and is a self-serving evidence, considering which, that

also cannot be relied upon.

5. In First Appeal No. 707/2011 (VIDC Vs. Nivruttin

Deorao Toney and others) decided on 24/11/2022, the rate of open

land for the village Nagargaon, has been decided as Rs.500/- per

sq.mtr., considering which, the impugned judgment under reference

which grants the rate of Rs.650/- per sq.mtr. needs to be modified.

6. Insofar as the rate for constructed area is concerned, the

construction, is admittedly in stone and cement foundation having

brick walls. The rate of construction for village Nagargaon, has been

fixed Rs.2300/-per sq.mtr. in Nivruttin Toney (supra). However,

according to Shri Patil, learned Counsel for the appellant the policy

of the appellant permits acceptance of an increase of 30% over and

above the rate granted by the Land Acquisition Officer, which comes

to Rs.2890/- per sq.mtr. and therefore he submits, that as a

concession, based upon the aforesaid policy the respondent no.1 can

be granted rate of 2356/- per sq,mtr. in the present matter,

considering the rate which has been awarded by the Land FA 644 of 2012.odt

Acquisition Officer. As pointed out above, perusal of the material on

record, and so also the evidence of PW-2 does not indicate any

factors to arrive at a conclusion of the rate of Rs.2600/- per sq.mtr.

in view of which, the same needs to be modified to Rs.2300/- per

sq.mtr., however, considering the concession above granted by

Shri Patil, learned Counsel for the appellant in view of the policy of

the appellant, the rate for construction is granted at Rs.2356/- per

sq.mtr., in view of the concession alone.

7. The judgment of the Reference Court is therefore

modified by reducing the rate for open plot from Rs.650/- per

sq,mtr, to Rs.500 per sq.mtr. and reducing the rate of construction

from Rs.2600/- per sq.mtr to Rs. 2356/- per sq.mtr. Rest of the

judgment is maintained. The first appeal is accordingly partly

allowed in the above terms. No order as to costs.

(AVINASH G. GHAROTE, J.)

Digitally signed bySHAILENDRA SUKHADEORAO WADKAR Signing Date:29.11.2022 17:46 Wadkar