Bombay High Court
Executive Engineer Arunvati Canal ... vs Shri. Anandkumar Digambar Nillawar And ... on 7 January, 2025
Author: M.S. Jawalkar
Bench: M.S. Jawalkar
2025:BHC-NAG:113-DB
fa 132-2017.odt 1/12
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
FIRST APPEAL NO.132/2017
1. Executive Engineer,
Arunavati Canal Division, Tal. Yavatmal
Distt. Yavatmal
... APPELLANT
...VERSUS...
1. Shri. Anandkumar Digambar Nillawar(Dead)
Legal representatives of Respondent No.1
Anandkumar Digambar Nilawar
1-A Akshay s/o Anandkumar Nilawar,
Aged about 36 years, Occu. Agriculturist,
R/o Arni, Tq. Arni, Distt. Yavatmal
1-B Abhishek s/o Anandkumar Nilawar,
Aged about 32 years, Occu. Agriculturist,
R/o Arni, Tah. Arni, Distt. Yavatmal
1-C Rakhi Sachin Kotalwar,
Aged about 34 years, Occu. Housewife,
R/o Somesh Colony, Behind Kala-Mandir,
Nanded
(Substituted vide Court's Order Dated 03/07/2018)
2. State of Maharashtra,
through Collector, Yavatmal
Dist. Yavatmal
3. Special Land Acquisition Officer,
Minor Irrigation Work No.1, Yavatmal
...RESPONDENTS
WITH
CROSS OBJECTION NO. 110/2018
1. Shri. Anandkumar Digambar Nillawar
(Dead through its Legal Heirs)
fa 132-2017.odt 2/12
1-A Akshay s/o Anandkumar Nilawar,
Aged about 36 years, Occu. Agriculturist,
R/o Arni, Tq. Arni, Distt. Yavatmal
1-B Abhishek s/o Anandkumar Nilawar,
Aged about 32 years, Occu. Agriculturist,
R/o Arni, Tah. Arni, Distt. Yavatmal
1-C Rakhi Sachin Kotalwar,
Aged about 34 years, Occu. Housewife,
R/o Somesh Colony, Behind Kala-Mandir,
Nanded
...CROSS OBJECTORS
...VERSUS...
1. Executive Engineer,
Arunavati Canal Division, Tal. Digras,
Distt. Yavatmal
2. State of Maharashtra,
through Collector, Yavatmal
3. Special Land Acquisition Officer,
Minor Irrigation Work No.1, Yavatmal
...RESPONDENTS
WITH
CIVIL APPLICATION (CAO) NO. 685/2022
Shri. Anandkumar S/o Digamber Nilawar,
(Dead through its Legal Heirs)
Akshay S/o Anand Nilawar and others
Vs.
The Executive Engineer and others
---------------------------------------------------------------------------------------------------------------------------
Shri Tariq Mohd. Zaheer, Advocate for the appellants
Shri P.P. Deshmukh. Advocate for Cross - Objector.
Shri M.M. Agnihotri, Advocate for the respondent No.1
Ms M.H. Deshmukh, AGP for respondent Nos. 2 & 3
----------------------------------------------------------------------------------------------------
fa 132-2017.odt 3/12
CORAM : SMT. M.S. JAWALKAR, AND
M.W. CHANDWANI, JJ.
DATE OF RESERVING THE JUDGMENT : 17/12/2024
DATE OF PRONOUNCING THE JUDGMENT : 07/01/2025
JUDGMENT
1. Heard.
2. Heard learned Counsel for the appellant and learned
Counsel for the respondents.
3. During the pendency of appeal and Cross Objection,
Civil Application No. 685 of 2022 in Cross Objection No. 110 of
2018 in First Appeal No. 132/2017 came to be filed. By this
application, applicants submitted that they are owners of field
Survey No. 43 admeasuring about 11.72 hector of Mouza Arni,
Tahsil Arni, District Yavatmal. The respondents have acquired 90 R
land of the applicants for the purpose of construction of Parsoda
Minor Canal under the Arunavati Project, by it's notification under
Section 4 of the Land Acquisition Act, 1894, dated 18/06/1998.
The Land Acquisition Officer had declared an award on
22/05/2000, by which very meager compensation was granted. The
applicants/claimants have filed reference before the learned Trial
Court claiming compensation at the rate of Rs. 500/- per square
feet. Learned Reference Court had granted the compensation at the
rate of Rs.100/- per square feet, by its common judgment and
decree dated 02/09/2015. Being aggrieved by the said common
judgment, the respondents have referred the instant first appeal
before this Court.
4. The present applicants also have filed cross objections
for enhancement of compensation at the rate of Rs.300/- per square
feet vide Cross Objection No.110 of 2018. It is pointed out that
grandmother of the applicant is owner of land admeasuring 1
hectare 41 R of Survey No. 7/1-A of Mouza Arni. The State
Government had acquired 23 R of land for the purposes of Arni
Bypass road vide its Notification under Section 4 dated
02/07/1998. The Land Acquisition Officer passed its award on
05/08/2000. Being aggrieved by the same, reference was filed
before Civil Judge, Senior Division, Darwha. The Reference Court
had granted compensation at the rate of Rs. 250/- per square feet
and had directed deduction of 35% towards development charges.
Being dissatisfied with the said judgment and award, State
Government as well as land owners have filed First Appeal No.
1071 of 2013 and Cross Objection Stamp No. 3574 of 2019. Issue
involved in various first appeals and cross objections were one and
the same and arose out of same notification. Hence, this Court by
its common judgment dated 20/06/2019, had dismissed the
appeals filed by the State Government and had allowed the cross
objections filed by the claimants. This enhanced compensation at
the rate of Rs. 275/- per square feet along with all statutory benefits
with further direction not to deduct development charges.
5. It is submitted by the learned Counsel for
applicants/original claimants that issue involved in this matter is
squarely covered by the judgment dated 20/06/2019, passed in
Cross Objection No. 32/2012. Though, the land of the applicants is
acquired by two different acquiring bodies for different
development purposes, but the land of applicants is acquired in the
same year i.e. 1998 under different notification. Therefore, the
claimant is entitled for the same compensation and benefits
awarded. Learned Counsel for applicants also placed on record map
showing land acquired for bypass road and land acquired for canal.
There is no dispute over the said map.
6. Learned Counsel for the applicants relied on following
citations :
1. C.R. Nagaraja Shetty Vs. Special Land Acquisition
Officer and Estate Officer and another, (2009) 11 SCC 75
2. M. Chandra Sekhar Reddy Vs. Special Dy. Collector,
(LAO) A.P., 2001(3) SLT 203
3. Ali Mohammad Beigh and others Vs. State of Jammu
and Kashmir, (2017) 4 SCC 717
7. Learned Counsel for the appellant/state vehemently
opposed the application and submitted that the purpose for which
land was acquired in the judgment relied on by the applicants is for
the purpose of constructing a bypass road, whereas, in the present
matter it is construction of Parsoda Minor Canal under the
Arunavati Project. Moreover, Acquiring Bodies are also different.
8. We have heard both the parties at length. Perused
application and record. Admittedly, the Notification under Section 4
in the present Land Acquisition Case was issued on 18/06/1998,
whereas, notification under Section 4 for Acquisition of land for the
purpose of Arni bypass road is dated 02/07/1998. Land Acquisition
Officer had declared an award on 22/05/2000, in respect of
construction of Parsoda Minor Canal under the Arunavati Project,
whereas, Land Acquisition Officer passed it's award on 05/08/2000,
in land acquired for the purpose of Arni bypass road. In so far as
cross objections in the land acquisition case, wherein, land was
acquired for purpose of constructing a bypass road, there were in all
about 357 R land was acquired from the various Gat numbers. Land
Acquisition Officer passed award on 05/08/2000, which was
challenge by filing reference seeking compensation at the rate of
Rs.500/- per square feet. Thereafter, claim was restricted to
Rs.300/- per square feet. The Reference Court has awarded
compensation at the rate of Rs.250/- per square feet.
9. In the backdrop of the fact that State Government
withdrawn many of the first appeals filed by it, as a result of which,
the award of compensation of Rs.250/- per square feet stands
accepted by the State, therefore, first appeals were not entertained
by this Court. This Court after considering the sale instances at Exh.
18 and 19 in Cross Objection No. 32/2012, awarded compensation
at the rate of Rs.275/- per square feet with all statutory benefits.
The sale instance at Exh. 18 is dated 27/04/1998, wherein, land
was sold at the rate of rupees Rs.277/- per square feet. Admittedly,
the sale instance is prior to the date of Notification under Section 4
i.e. dated 18/06/1998.
10. This Court further placed reliance on C.R. Nagaraja
Shetty (supra). This Court held that as regard deduction for
development charges the facts in C.R. Nagaraja Shetty (supra), are
somewhat similar to the case in hand, as land was acquired for
widening of the highway in C.R. Nagaraja Shetty (supra), there was
no question of any development and, therefore, deduction on that
count was not necessary. Accordingly, that part of the award
directing deduction of 33% was set aside.
11. Learned Counsel for applicants also relied on the said
judgment of C.R. Nagraja Shetty (supra), wherein, the Hon'ble
Apex Court held that regarding deduction for development charges,
High Court did not discuss any reason nor relied on any piece of
evidence for the purpose. Evidence must be laid for the need of
development contemplated and possible expenditure for it. Land
acquired was only for widening National Highway, therefore, no
question arises for any such development for any cause therefore. It
is held that High Court, hence, erred in directing deduction on
account of development charges.
12. Learned Counsel for applicants also relied on M.
Chandra Shekhar Reddy (supra), wherein, Hon'ble Apex Court held
as under :
"3. It is not in dispute the developing charges being
charged in this case, where acquisition is only for the
excavation of canal. Nothing is brought on record to
justify this deduction. The obligation is cast on the State
to place on the record any material before claiming such
deduction, specially when it pertains to excavation of
canal. Learned counsel for the respondent made
submission that fixation of compensation based on small
piece of land is not justified. State cannot raise this
submission in claimant appeal. In this case the State has
not preferred any appeal as against the High Court
order.
4. So far deduction by 1/4th, learned counsel for the
respondent could not bring to the notice any material or
submission to substantiate the reason for such deduction
of 1/4th, except referring to the Ex.A-2 to be of small
piece of land. Hence, we do not find any merit in the
submission. Accordingly for the aforesaid reasons we
find that the deduction of 1/4th by the High Court from
the quantum of amount fixed by the referring court
cannot be sustained accordingly the same is quashed.
The appeal is accordingly allowed. Costs on the parties."
13. Learned Counsel for acquiring body relied on judgment
in First Appeal No. 571/2017 along with cross objections, wherein,
land was acquired as it was falling under the submerges areas of
Arunavati project, wherein, reliance on judgment of Trishala Jain
and another Vs. State of Uttaranchal 2011 (6) SCC 47 , wherein,
paragraph 82 it is held by the Hon'ble Apex Court as under :
"82. It is a well established principle that the value of
sale of small pieces of land can be taken into
consideration for determining even the value of a large
tract of land but with a rider that the Court while taking
such instances into consideration has to make some
deduction keeping in view other attendant
circumstances and facts of that particular case. We have
already held that keeping in view the surrounding
developed areas and location and potential of the land,
it will meet the ends of justice if 10% deduction is made
from the esteemed market value of the acquired land."
14. Relying on the same ratio, this Court held that
deduction of 10% on account of acquired land being large in size
would meet the end of justice. This Court deducted 20% amount
towards development and 10% on account of size.
15. It is pointed out by the learned Counsel for acquiring
body that review in the said First Appeal No. 571/2017, also
dismissed by observing by this Court that substitution of the amount
of deduction would not be permissible in exercise of review
jurisdiction.
16. In our considered opinion, as there is no materials/
evidence on record placed by the acquiring body in respect of
expected expenses for development, it would not be proper to
deduct the amount on account of development. Moreover, the land
acquired is a small portion and for Parsoda Minor Canel under
Arunawati Project. The analogy applied in Cross Objection No.
32/2012, can be applied while deciding acquisition matter in
respect of Parsoda Minor Canal under Arunavati Project. The
issuance of notification under Section 4 are of the same period.
17. As such, we are inclined to allow the application. In the
light of above said discussion, the judgment of the Reference Court
is hereby partly modified as under :-
ORDER
1. Civil Application No. 685/2022 is allowed.
2. First Appeal No. 132/2027 is dismissed in terms of judgment
in cross objection 32/2012 along with other Cross Objections dated
20/06/2019.
3. The Cross Objection no. 110/2018 is allowed in aforesaid
terms.
4. It is held that claimants are entitled to compensation at the
rate of Rs.275/- per square feet with all statutory benefits. There
would be no deduction of amount towards development charges.
5. The compensation be disbursed after requisite Court fees is
paid by the claimants, if not already paid.
6. The balance amount of compensation be deposited in this
Court within a period of 6 months from today, after which the
claimants are entitle to withdraw the same in terms of this
judgment.
(M.W. Chandwani,J.) (Smt. M.S. Jawalkar, J.)
Jayashree..
