Bombay High Court
Shri Naresh S/O Santosh Bhaiswar vs State Of Maharashtra, Through ... on 24 September, 2025
2025:BHC-NAG:9742
1 59.FA.J.794.2014.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
FIRST APPEAL NO.794 OF 2014
Shri Naresh s/o Santosh Bhaiswar, aged 40
years, Occ. Service, R/o Kalmeshwar, Tq.
Katol, Dist. Nagpur.
... APPELLANT
VERSUS
1. State of Maharashtra, through Collector,
Nagpur.
2. Special Land Acquisition Officer, Minor
Irrigation Work, Nagpur.
3. Vidarbha Irrigation Develpment
Corporation, through its Executive
Engineer, Medium Project Division, Civil
Lines, Nagpur.
... RESPONDENTS
_____________________________________________________________
Dr, Renuka S. Sirpurkar, Advocate for the appellant.
Shri Uday A. Gosavi, Advocate for respondent no.3.
Shri H.D. Futane, Assistant Government Pleader for the State.
______________________________________________________________
CORAM : PRAVIN S. PATIL, J.
CLOSED ON : 12.09.2025
PRONOUNCED ON : 24.09.2025.
JUDGMENT :
1. Heard the learned Counsel appearing for the parties.
2 59.FA.J.794.2014.odt
2. By this appeal, the appellant is challenging the judgment
and Award passed by the Reference Court in Land Acquisition case
No.93/2001 stating that the compensation awarded in the Reference
proceedings is not adequate, and more particularly, the calculations
towards to fruit bearing trees and forest tress are not properly
considered in the matter. Hence, the appellant is before this Court for
challenging the Award passed by the Reference Court.
3. Undisputedly, the Notification under Section 4 of the Land
Acquisition Act was published in Government Gazette on 21.03.1998
and Notification under Section 6 was published on 14.01.1999 for the
purpose of Chikhali Nala project through Special Land Acquisition
Officer, Nagpur. The land 0.66 HR out of Survey no.228/2 Mouza
Mendki P.H. No.20, Tq. Katol, District Nagpur ownand possesses by the
appellant was acquired for the said project. As per the final Award, the
Land Acquisition Officer ('LAO') granted compensation at the rate of
Rs.43,500/- to 63,500/- per Hector.
4. Against the Award of LAO, the Reference was preferred by
the appellant and Reference Proceedings was registered as Land
Acquisition Case No.93/2001. In the Reference proceeding, the
Reference Court enhanced the compensation at the rate of Rs.64,000/-
3 59.FA.J.794.2014.odt
per Hector for the land ad-measuring area 0.66 HR out of Survey
No.228/2 of Mouza Mendki, Tq. Katol, District, Nagpur. In respect of
fruit bearing trees, the compensation was granted at the rate of
Rs.5,000/- per tree.
5. By the present appeal, the submission of the appellant is
that though the amount of compensation towards the trees is correct
but there is no proper calculation of the number of trees by the
Reference Court and therefore, to that extent, the present appeal is
filed before this Court.
6. It is pointed out by the appellant that in support of his
claim for enhancement of compensation in Reference proceedings, the
evidence of appellant was recorded. The appellant was not cross-
examined by the respondent, and therefore, his evidence remain
unchallenged. It is stated that the appellant has established on record
that there were total 150 orange and Mosambi trees and 26 forest and
1 teak trees. Hence according to the appellant, there were total 177
trees but the compensation was granted only for 56 trees. The
appellant has brought on record the evidence of Valuer namely Dadan
Borkar, who has personally visited the agricultural field on 25.03.1998
and as per his evidence and report submitted on record, it is clear that
4 59.FA.J.794.2014.odt
there were total 177 trees, but said evidence is discarded by the
Reference Court in the matter. Hence, on this count, it is prayed that
judgment and order of the Reference Court requires modification
towards the number of trees in the matter.
7. Learned Counsel for the respondent no.3 stated that VIDC
being the Acquiring Body ought to have been made party while filing of
the Reference Proceedings. However, the Acquiring Body was not made
party. This Court vide order dated 02.08.2021 directed the appellant to
add the Acquiring Body as a party respondent no.3 to the present
proceedings. Accordingly, respondent no.3 added party in present
appeal by order dated 02.08.2021. Hence, it is the contention of the
respondent no. 3 that there was no reason for the Acquiring Body to
contest the Reference proceedings before the Trial Court and stated that
from the documents placed on record and the evidence laid by the
appellant his submission be considered in the matter.
8. In the present appeal, from Joint Measurement Report
('JMR') (Exhibit 19) it is stated that there were 50 mosambi trees of 3
years of age. There is no mention of another trees. In view of non-
inclusion of the trees, the appellant on 07.11.1998 raised protest
petition before the Special Land Acquisition Officer, Minor Irrigation
5 59.FA.J.794.2014.odt
Department, Nagpur (Exhibit 24) thereby stating that in the
agricultural field there are 105 big mango trees, 138 Mosambi trees, 20
Babhul and 11 teak trees.
9. In view of protest petition, the another JMR was prepared
in the matter. As per the data of this JMR, which was prepared on
15.06.1999, under the column "In addition to the earlier joint
measurement" it is recorded that in the agricultural field of the
appellant there were 26 forest trees and 47 fruit bearing trees.
10. After JMR dated 15.06.1999 no objection was raised by the
appellant and accordingly, the Reference proceedings was filed before
the Civil Court through the Collector. In the Reference Court, the
appellant has stated that there were 150 fruit bearing trees and 26
forest trees and 1 teak tree.
11. On the basis of this submission, the evidence was recorded
before the Reference Court by the present appellant. Admittedly, the
appellant was not cross-examined by the respondent. So also, the
Valuer who was examined by the appellant was also not cross-examined
by the present respondent. Accordingly, it is submission of the appellant
that unchallenged evidence was required to be accepted as it is in the
matter and therefore, the conclusion drawn by the Reference court
6 59.FA.J.794.2014.odt
whereby calculation of trees was shows only 57 fruit bearing trees, is
contrary to the facts established on record.
12. In support of the submission, the learned Counsel for the
appellant has relied upon the judgment of this Court in First Appeal
Nos.453/10, 1628/2008, 114/2011, 96/2012.
13. Learned Counsel appearing for respondent no. 3 pointed
out certain factual aspect of the matter. According to him, it is admitted
fact that no evidence was recorded by the Acquiring Body nor the
witnesses of the appellant were cross-examined. The calculation of the
trees can be done from the documents, which are available on record.
According to him, the appellant himself has raised an objection to the
first JMR (Exhibit 19) and after the objection raised by the appellant,
new JMR was conducted and its report dated 15.06.1999 (Exhibit 20)
is available on record.
14. Bare perusal of the same, shows that there were only 47
fruit bearing trees and 26 were forest trees. Hence, considering these
document available on record, it is crystal clear that objection raised
vide Exhibit 24 was at that time came to be decided by the authorities.
Therefore, the appellant cannot be permitted to rely on his oral
evidence which is contrary to record and more particularly when the
7 59.FA.J.794.2014.odt
said witnesses were not cross-examined.
15. It is further pointed out to me from the record that the
Exhibit 10 i.e. 7/12 extract of the agricultural field of the year 1997-98.
From the same, it is seen that there were 60 orange trees are recorded
and no mention of other trees. According to him this 7/12 extract is
crucial document as same is prepared by Revenue Officer and record
about crops, soil type, land area, agricultural activities etc.
16. According to respondent no.3 as per the deposition of
Valuer, he has visited the agricultural field on 25.03.1998 and
submitted his report (Exhibit 29). But, on that day, he was not
approved Valuer because the Institute of Valuers granted him the
certificate subsequently i.e. 11.11.2000. It is further pointed out from
Exhibit 32 that while moving application by the Valuer to the Institute
of Valuers on 25.07.2000, it was made clear to him that he can carry on
valuation of the land only in the category of Fellow Valuer and not
allowed to designate himself as a Valuer or approved Valuer. It is made
clear that he cannot practice as independent Valuer. He was only
allowed to work as Assistant under the Corporate Valuer. Hence, it is
stated that the valuation done by the Dadan Borkar cannot be said to
be a conclusive proof in the matter.
8 59.FA.J.794.2014.odt
17. Respondent no.3 relied upon the judgment of this Court in
First Appeal No.285/2022 (VIDC vs. Dnyaneshwar Sadashiv Nagpure)
dated 21.04.2025 and judgment of the Hon'ble Supreme Court in the
cases of Executive Engineer, Minor Irrigation Works, Jalgaon vs. Vitthal
Damodar Patil and anr. (1999) 7 SCC 280 and State of H.P. vs. Jai Lal
and ors. (1999) 7 SCC 280.
18. In the light of submission made by both the parties, I have
perused the record and considered the submission.
19. At the outset, the appellant has relied upon the decision of
this Court in the First Appeal No.453/2010 wherein the evidence of
Dadan Borkar was considered as a Horticulture Expert. The appellant
pointed out that in First Appeal no. 96/2012 again the valuation report
of Dadan Borkar was considered by this Court. Hence, it is the
submission of the appellant that there is no reason to disbelieve the
valuation report and the number of trees as stated by the Valuer.
20. Per contra, learned Counsel for respondent no. 3 has
pointed out from the First Appeal No.285/2022 decided by this Court
which has thoroughly considered the aspect as to how and in which
manner the report of the Valuer is to give weightage in the matter. The
relevant paragraphs 34 and 35 of the said judgment reads thus :
9 59.FA.J.794.2014.odt
"34. The Hon'ble Supreme Court has held in the matter of
Sidappa (supra) that before placing reliance on the Valuation
Report of his Valuer the Court must satisfy itself that the
opinion formed by the Valuer is on the basis of relevant
factual data or material. Such material is required to be
produced before the Court. The material must be proved to be
genuine and reliable as any other evidence. The Court must
be satisfied with respect to authenticity and reliability of the
material on which the expert relies. It is held that the Court
must examine the data or the material, on the basis of which,
the Valuation Report is prepared before placing reliance on
the Valuation Report. Similar view is taken in the matter of
Jailal (supra). It is held that an expert is not a witness of facts
and his evidence is only advisory in nature. The Court may
seek guidance from the opinion of the expert. However, the
conclusions drawn by the expert are not binding. The opinion
must be based on relevant material and it is open for the
Court as to whether the opinion is given on the basis of any
relevant material to support the observation/
findings/conclusions arrived at by the expert.
36. In the matter of Narayanlal (supra) it is held that even in
the absence of proper cross-examination of an expert in land
acquisition cases, the Court must exercise due care and
caution in placing reliance on the evidence of expert. It is the
duty of the Court to examine whether the opinion of expert
inspires confidence, having regard to the material, on which
the opinion is based and the principles of which opinion is
formed. This Court has referred to the Judgment of the
Hon'ble Supreme Court in the matter of P. Ram Reddy and
Others V/s Land Acquisition Officer, Hyderabad Urban
Development Authority, Hyderabad and Others,9 wherein it is
held that ineffective cross- examination of the witness is a
common feature in land acquisition cases. Having regard to
the manner, in which land acquisition cases are defended by
the State, it is held that the evidence of witnesses in land
acquisition cases cannot be accepted simply because there is
no effective cross-examination or evidence in rebuttal is not
led by the State. The evidence of witnesses examined by the
land owners must be evaluated on broad probabilities. It is
10 59.FA.J.794.2014.odt
held that it is the duty of the Court to prevent public money
being fleeced only because of failure on the part of State to
contest land acquisition cases properly."
21. Coincidently, this Court while deciding the First Appeal
No.285/2025, the report of same Valuer i.e. Dadan Borkar was under
consideration before this Court. This Court has specifically recorded the
finding about the manner in which the valuation was done in that case
by Dadan Borkar. The Court recorded the finding on the report of the
Valuer i.e. Dadan Borkar that report does not inspire confidence and his
valuation report was discarded in the matter.
22. It is further pertinent to note that in respect of
consideration of valuation report, the law is well settled as held by the
Hon'ble Supreme Court in the case of State of H.P. vs. Jai Lal (Supra),
wherein in paragraph 18 and 19 observed thus :
"18. An expert is not a witness of fact. His evidence is really of
an advisory character. The duty of an expert witness is to
furnish the Judge with the necessary scientific criteria for
testing the accuracy of the conclusions so as to enable the
judge to form his independent judgment by the application of
this criteria to the facts proved by the evidence of the case.
The scientific opinion evidence, if intelligible, convincing and
tested becomes a factor and often an important factor for
consideration along with the other evidence of the case. The
credibility of such a witness depends on the reasons stated in
support of his conclusions and the data and materials
furnished which form the basis of his conclusions.
19. The report submitted by an expert does not go in
evidence automatically. He is to be examined as a witness in
11 59.FA.J.794.2014.odt
court and has to face cross-examination. This Court in the
case of Hazi Mohammad Ekramul Haq v. State of W.B. AIR
1959 SC 488 concurred with the finding of the High Court in
not placing any reliance upon the evidence of an expert
witness on the ground that his evidence was merely an
opinion unsupported by any reasons."
23. In case of P.Ram Reddy and ors. vs. Land Acquisition Officer,
Hyderabad and ors. 1995(2) SCC 305, the Hon'ble Supreme Court has
observed in paragraphs 15 and 16 as under :
"15. Non-cross-examination or ineffective cross-examination
of witnesses for the claimant. - Oral evidence is generally
adduced in the enquiry held by Court for determination of the
compensation payable for lands acquired under the LA Act.
Such oral evidence, generally, comprises of either of the
claimants or their witnesses examined in support of the
claims of claimants for grant of enhanced compensation,
which in its very nature, would be referable to matters of
situation of the acquired lands, their surroundings, their value
or the like. Several statements would be made by such
claimants or their witnesses when they are examined-in-chief
in Court, on matters that may bear on the market value of
acquired lands. If the witnesses who make such statements
arc not subjected to cross-examination or effective cross-
examination or no contrary evidence is adduced, is the Court
obliged to accept such statements to be true in determining
the market value of the acquired lands ? It is, no doubt true,
that whenever oral evidence is adduced by parties on certain
matters in controversy, it may become difficult for Court to
overlook such evidence, if it is not shown by effective cross-
examination of such witnesses who have given such evidence
or by adducing contra-evidence, that the oral evidence was
unreliable or the witnesses themselves are not credit worthy.
But, in land acquisition references before Civil Courts, when
witnesses give oral evidence in support of the claims of
claimants for higher compensation the ineffective cross-
examination of such witnesses, is not an uncommon feature if
regard is had to the manner in which claims for enhanced
compensation in land acquisition cases are defended in courts
12 59.FA.J.794.2014.odt
on behalf of the State. Indeed, when a question arose before
this Court whether the Court is bound to accept the
statements of witnesses only because they have not been
effectively cross-examined or evidence in rebuttal has not
been adduced, it was observed by this Court in Chaturbhuj
Pande and Others v. Collector, Raigarh, [AIR 1969 SC 255,
thus :
"It is true that the witnesses examined on behalf of
the appellants have not been effectively cross-
examined. It is also true that the Collector had not
adduced any evidence in rebuttal; but that does
not mean that the court is bound to accept their
evidence. The Judges are not computers..... they
are bound to call into aid their experience of life
and test the evidence on the basis of probabilities."
16. Hence, we are unable to think that whenever the
statements made by claimants' witnesses in courts are not got
over on behalf of the Collector or the LAO by subjecting the
witnesses to effective cross-examination or by not adducing
evidence in rebuttal, the courts are obligated to accept such
statements of witnesses as true, if tested on the basis of
probabilities, become unreliable. If the courts were to accept
such statements of witnesses as true merely because they are
not subjected to cross-examination or effective cross-exam
nation or because evidence in rebuttal thereof has not been
adduced, it would amount to doling out public money to the
claimants far in excess of their legitimate entitlement for just
compensation payable for their lands. If such situation is
prevented by courts dealing with claims for compensation by
testing the statements of witnesses for claimants on the basis
of probabilities, the Court will have performed the duty justly
expected of them. Hence, no Court which tests the oral
evidence of the claimants on the touch-stone of probabilities
calling into aid, its experience of life, men and matters and
find such evidence to be untrustworthy, the same cannot be
found fault with."
24. In the light of law laid down by the Hon'ble Supreme Court,
it becomes necessary to consider the evidence of Valuer in the matter.
According to me, from the perusal of the record and submission made
13 59.FA.J.794.2014.odt
by the respondent no.3, prima facie, it is clear that the Valuer namely
Dadan Borkar was not approved Valuer at the time of preparing the
JMR in the matter. However, he wrongly stated that at the time of
valuation of land, he was approved valuer. He has not given the details
of scientific valuation and method he has applied to count the trees. It
is not stated along with him who were present in the field at the time of
valuation. Hence, evidence of this witness, do not found trustworthy.
25. The record shows that the appellant immediately after the
1st JMR (Exhibit 19) has raised objection vide Exhibit 24. Bare perusal
of the objection shows that he has stated the number of trees in excess.
This fact is fortified because in the second JMR (Exhibit 20), the proper
valuation is done, and accordingly, it is found that there are 26 forest
trees and 47 fruit bearing trees. This document is not disputed in the
matter. Hence, considering the fact of the present appeal, I do not find
any perversity or illegality in the findings recorded by the learned
Reference Court while deciding the reference proceedings.
26. According to me, the calculation towards the trees in
respect of fruit bearing trees is found to be correct in the matter, and
therefore, finding in this regard, requires no interference. Only the
Reference Court has not considered the compensation towards the
forest trees while awarding the compensation. From the 2 nd JMR
14 59.FA.J.794.2014.odt
(Exhibit 20), it is clear that in addition to the fruit bearing trees there
were forest trees are also recorded which were available in the
agricultural field of the appellant. Hence, the appellant is entitled for
additional compensation for the forest trees in the matter.
27. Accordingly, the First Appeal is partly allowed.
28. The judgment passed by the Reference Court dated
11.09.2012 in L.A.C. No.93/2001 is partly modified. It is held that in
addition to fruit bearing, the appellant is entitled for compensation of
Rs.15,000/- towards entire forest trees and Rs.5,000/- towards one
teak tree, as claimed in the reference application.
29. Rest of the Award passed by the Reference Court stands
confirmed.
30. The First Appeal stands disposed of accordingly.
(PRAVIN S. PATIL, J.)
Trupti
Signed by: Trupti D. Agrawal
Designation: PA To Honourable Judge
Date: 25/09/2025 17:26:27
