Ashwin S/O. Haribhau Tone, Thr. ... vs The State Of Maha., Represented By ...
2022 Latest Caselaw 12414 Bom

                       1                                            FA 94.17 judg

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

                               FIRST APPEAL NO.94/2017
                                            with
                               Cross Objection No.3135/2020

  Ashwin Haribhau Tone,
  Aged about 40 years, R/o.2/19,
  Juhu, Vishas Road No.5, Vidyanidhi Road,
  Mumbai, through his constituted Power of Attorney
  Bhanudas Wamanrao Tone.                           ... Appellant.

                                       -Versus-


  1. The State of Maharashtra,
     represented by the Collector, Yavatmal,
     Distt. Yavatmal.

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

  3.Vidarbha Irrigation Development Corporation,
     through its Executive Engineer,
     Bembala Project Project Division, Yavatmal. .... Respondents.

  Mr. K.S. Narwade, Advocate for appellant.
  Mr. M.A. Kadu, Advocate for respondent no.3.
  Mrs. S.S. Jachak, AGP for respondents no.1 adn 2.

                                 CORAM : AVINASH G GHAROTE, J.

DATE : 30-11-2022.

  ORAL JUDGMENT




                        2                                         FA 94.17 judg

  .              Heard Mr. Narwade, learned Counsel for the appellant,

Mr. Kadu, learned Counsel for respondent no.3 and Mrs. Jachak, learned AGP for respondent nos.1 and 2.

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 details      Area of property LAO Award      Ref. Court Award
                                          dated        Dated 05-05-2015
                                          21/03/2002
 Plot No.-65        Plot Area -175 Rs.70/-per          Rs.650/- per sq.mtr.
 Village- Nagargaon Sq.Mtr.             sq.mtr.
 Tahsil -Babhulgaon Constructed area- Rs.615/-         Rs.801/-per sq.mtr.
 Dist- Yavatmal.    71.00 Sq.Mtr.     per sq.mtr.

3. The appeal challenges the judgment of the Reference Court dated 05-05-2015, 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.801/- per sq.mtr., in respect of Plot No. 65, as detailed above.

4. In FA 707/2011 (VIDC V Nivtrutta Toney and other) decided on 21-11-2022 the rate of open land for village in Nagargaon has been decided as Rs 500/- sq.mtr. and the rate of construction at Rs 2300/- per sq.mtr.

5. In the instant case, the only evidence on record, is the evidence of PW 2-Chandrashekhar Wankhade at Exh-29 ( pg 29),

3 FA 94.17 judg

who has submitted his valuation report at Exh 30. The evidence of PW-2, indicates that insofar as the land is concerned, he has not made any reference to any sale instances of the same village or the nearby villages, so as to arrive at a calculation for the rate of open land as Rs. 1076/- per sq.mtr., considering which his evidence in that regard cannot be accepted. In view of this position, the impugned award of the reference Court, which grants the rate for open land at Rs.650/- per sq.mtr., needs to be modified by reducing it to Rs. 500/- per sq.mtr. in view of what has been held in Nivutti Toney (supra).

6. Insofar as the construction is concerned, the Reference Court has awarded the rate of Rs.801/- per smtr. The construction of the land acquired was having foundation in stone and cement, partitions in bricks with plastering, G.I. tin provided as roofing, teak wood doors and windows and Shahabdi Farshi to the hall with I.P.S. flooring to other rooms for which the rate of construction is granted by the Reference Court is inadequate and required to be increased. In Nivrutti Toney (supra) the rate of construction for a similar nature of construction has been granted as Rs 2300 per sq. mtr. in view of which the same needs to be applied in the present case also.

7. Considering the above observations, the award dated 5-5-2015 by the Reference Court is hereby modified by decreasing the rate of the open land from Rs. 650 to Rs. 500 per sq. mtr and

4 FA 94.17 judg

increasing the rate of construction Rs. 801/- to Rs 2300 per sq. mtr. The rest of the judgment is maintained. The appeal as well as the cross objection are partly allowed in above terms.

8. The respondent-acquiring body in the cross objection and the claimant shall deposit the deficit Court fee on the cross objection within a period of one week from today. The respondent-acquiring body shall also calculate the amount as per this judgment and deposit it within three weeks from today.

JUDGE

Deshmukh