Bombay High Court
The State Of Mah. Thr. Collector, ... vs Sau. Usha W/O Jagannath Wanjari on 23 October, 2018
Author: V. M. Deshpande
Bench: V. M. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
FIRST APPEAL NO.1143/2008
1. The State of Maharashtra through
Collector, Yavatmal.
2. The Collector, Yavatmal.
3. The Executive Engineer,
Arunavati Irrigation Division,
Yavatmal.
4. The Special Land Acquisition Officer,
Small Irrigation Works No.1,
Yavatmal.
5. Vidarbha Irrigation Development
Corporation, through Executive Engineer,
Bembla Project, Yavatmal. .....APPELLANTS
...V E R S U S...
Sau. Usha w/o Jagannath Wanjari,
aged about 45 years, Occ. Cultivation,
r/o Takalgaon, Tq. Babhulgaon,
Dist. Yavatmal. ...RESPONDENT
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Mr. I. Damle,A.G.P.for appellant nos. 1, 2 and 4
Mr. M. A. Kadu, Advocate for appellant no.3.
Mr. A. Dhore, Advocate for respondent.
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AND
FIRST APPEAL NO.574/2008
1. The State of Maharashtra through
Collector, Yavatmal.
2. The Sub Divisional Officer,
Land Acquisition Officer, Yavatmal.
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3. The Collector, Yavatmal.
4. The Executive Engineer,
Arunavati Irrigation Division,
Yavatmal. .....APPELLANTS
...V E R S U S...
Sitaram Suryabhan Jambhulkar,
aged about 70 years, Occ. Chondhi,
Tq. Babhulgaon, Dist. Yavatmal. ...RESPONDENT
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Mr. I. Damle, A.G.P. for appellant nos. 1 to 3.
Mr. M. A. Kadu, Advocate for appellant no.4.
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AND
FIRST APPEAL NO.562/2007
1. The State of Maharashtra through
Collector, Yavatmal.
2. The Special Land Acquisition Officer,
Minor Irrigation Works-I, Yavatmal,
Tq. Dist. Yavatmal.
3. The Executive Engineer,
Arunavati Irrigation Division,
Yavatmal. .....APPELLANTS
...V E R S U S...
Gangaram s/o Budha Waghmare,
aged about 35 years, Occ. Agriculturist,
R/o Khadaksawanga, Tq. Babhulgaon,
Dist. Yavatmal. ...RESPONDENT
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Mr. I.Damle, A.G.P. for appellant nos. 1 and 2.
Mr. M. A. Kadu, Advocate for appellant no.3.
Mr. D. H. Sonwane, Advocate for respondent.
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CORAM:- V. M. DESHPANDE, J.
DATED :- 23.10.2018
ORAL JUDGMENT
1. First Appeal No.1143/2008 was admitted on 11.09.2008. While admitting this appeal, this Court directed that it should be heard along with First Appeal Nos.574/2008 and 562/2008; that is why these three appeals are placed before me for final hearing.
2. Though section 4 notifications are published on different dates, awards are declared on different dates but the lands were acquired for very same project i.e. Bembla Project. Therefore, though I will be disposing of all these three appeals by this common judgment, I will be discussing in my judgment separately in respect of the facts and I state my reasons separately to decide each of the above three appeals.
3. First Appeal No.1143/2008 is filed by five appellants. Today, Mr. Kadu, learned counsel states that he is appearing for appellant-acquiring body in three appeals and he has instructions to make a statement before this Court that the acquiring body- Vidarbha Irrigation Development Corporation is not pressing the ::: Uploaded on - 26/10/2018 ::: Downloaded on - 27/10/2018 01:30:15 ::: 4 fa1143.574.08.562.07.odt appeal. However, Mr. Damle, learned A.G.P. appears for appellant- nos. 1, 2 and 4-State and submits that he has no such instructions.
4. First Appeal No.574/2008 is filed by four appellants. However, for appellant no.4, Mr. Kadu submits that he has instructions not to press the appeal. However, Mr. Damle, learned A.G.P. presses the appeal for appellant nos. 1 to 3.
5. Insofar as First Appeal No.562/2007 is concerned, Mr.Kadu, learned counsel for appellant no.3 states that he is not pressing the appeal. However, Mr. Damle, learned A.G.P. states that he has no such instructions for appellant nos. 1 and 2. First Appeal No.1143/2008
6. This appeal questions correctness of judgment and decree passed by learned Jt. Civil Judge Senior Division, Yavatmal dated 15.02.2005 in Land Acquisition Case No.153/2000 by which the Court below partly allowed the reference application filed on behalf of the respondent.
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7. I have heard Mr. Damle learned A.G.P. for appellant nos.1, 2 and 4 and Mr. Anup Dhore, learned counsel for respondent-original claimant, in extenso. With their able assistance, I have also gone through the record and proceeding. After hearing them, following is the only point that falls for my determination.
"Whether the Court below has correctly fixed the market price of the acquired land at the rate of Rs.67,500/- per hectare."
8. Land Acquisition Case No.4/47/93-94 was registered on the file of Special Land Acquisition Officer. Section 4 notification under the Land Acquisition Act was published on 07.04.1994. The purpose was construction of dam wall of Bembla Project.
9. Respondent-Usha Jagannath Wanjari was holder and owner of field Gat No.28, admeasuring 2.93 HR situated at village Panas, District Yavatmal. Her entire land was acquired. The Land Acquisition Officer declared his award on 30.03.1996. He fixed the market price of the acquired land at the rate of Rs.27,750/- per hectare and also granted other statutory benefits. ::: Uploaded on - 26/10/2018 ::: Downloaded on - 27/10/2018 01:30:15 :::
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10. The respondent accepted the compensation amount under protest. However, she preferred reference application under Section 18 of the Land Acquisition Act for fixation of correct market value of her land. Reference Application was filed within the period of limitation. It was made over to the file of learned Jt. Civil Judge Senior Division, Yavatmal. It was registered as Land Acquisition Case No.153/2000.
11. Before the reference Court, it was claimed by the respondent that she is entitled to receive an amount of Rs.2,50,000/- per hectare as market value of her land. In addition to that she also claimed Rs.20,000/- for 10 trees by way of compensation and also claimed further compensation to the tune of Rs. 50,000/- since she became landless.
12. Claim of the respondent was contested before the reference Court by filing written statement (Exh.-15). In order to substantiate her plea, respondent entered into the witness box. She was thoroughly cross-examined. The State did not examine any witness by filing pursis at Exhs.41 and 42. ::: Uploaded on - 26/10/2018 ::: Downloaded on - 27/10/2018 01:30:15 :::
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13. After appreciating the evidence, pleadings and various documents available on record, the Court below found that the Land Acquisition Officer has inadequately determined the market price of the acquired land. The Court below therefore redetermined market price of the acquired land at the rate of Rs.67,000/- per hectare. However, at the same time, the Court below disallowed the claim filed by the respondent claimant in respect of compensation for trees and compensation for she becoming landless.
14. Though, part of the claim was disallowed by reference Court, the respondent claimant did not file any substantive appeal before this Court nor any cross-objection was filed in the present appeal filed by the State. Therefore, to the extent claim of the respondent was disallowed, it has attained finality.
15. Insofar as ownership of Gat No.28 of village Panas and its area to the extent of 2.93 HR is not at all disputed by acquiring and requiring body. In addition to that the respondent has filed 7/12 extract on record, which is available at Exh.-39 to show her holding over the said land.
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16. Out of three known methods for determination of market value of the acquired land, after scrutiny of available records, two methods can be simultaneously pressed into service i.e. comparison of sale instance method and income capitalization method.
17. Evidence of claimant shows that she used to sow Cotton, Toor, Jowar. She used to get 8 to 10 Quintiles Cotton, 302 Quintiles of Toor and 5 Quintiles of Jowar. According to her, she used to get Rs.37,500/- per hectare per year. In the cross examination, claim of the respondent that she used to take crops as stated above is not challenged. What is challenged in the cross- examination is the exact income for want of not filing of accounts. This particular aspect, in my view, is properly considered by the learned Court below and even the said could not be disputed by the learned A.G.P. According to the Court below, by applying certain guesswork, the respondent used to get income of Rs.2,700/- per hectare per in year as net income. Maintaining of account books in strict sense, in my view, is a too high expectation from the rustic villagers. There cannot be any a straight jacket formula for exact determination of net income. Element of ::: Uploaded on - 26/10/2018 ::: Downloaded on - 27/10/2018 01:30:15 ::: 9 fa1143.574.08.562.07.odt guesswork is always there. In the present case, the entire land of the respondent to the extent of 2.93 HR is acquired. It is not the case of the appellants that it was a fallow land. Further, evidence of respondent that she used to take different crops, has gone unchallenged. Therefore, reaching to the conclusion that the respondent used to get Rs.2,700/- per Acre per year, in my view, cannot be said to be exorbitant or on higher side. The Court below thereafter has applied the multiplier of 10 and thus found that income capitalization method shows that the market value of the land was Rs.27,000/- per Acre (Rs.67,500/- per hectare).
18. The respondent has filed three sale instances on record. They are at Exhs.-35, 36 and 37. Exh.-35 is sale instance that has taken place at village Kopra, dated 18.01.1994. Exh.-35 is the certified copy of the said sale instance and therefore the said is clearly admissible in view of Section 51-A of the Land Acquisition Act. The said sale instance is for 1.21 HR land for Rs.1,50,000/-. Thus, it amounts to Rs.50,000/- per Acre. Though the said sale instance is from different village, the said village is situated within the radius of 3 to 4 Km. of village Panas. Another sale instance is Exh.-36. Though it is not a sale deed, it is a Sale Index dated ::: Uploaded on - 26/10/2018 ::: Downloaded on - 27/10/2018 01:30:15 ::: 10 fa1143.574.08.562.07.odt 19.07.1994. The said sale instance is though after Section 4 notification, is in proximity of time. Under the said sale instance, at village Kolhi 1.55 HR land was sold for Rs.1,90,000/- which is at the rate of Rs.1,22,000/- per hectare.
19. Another sale instance is brought on record and it is available at Exh.-37. This is also a certified copy of the sale deed. It is dated 08.02.1994. Thus, it is prior to Section 4 notification. The said is from village Dighi which is also within the radius of 3 to 4 Km. of village Panas. Exh.-37 shows that 2.2 HR land is sold for Rs.2,00,000/- i.e. Rs.50,000/- per hectare.
20. Here, I must mention that I may not consider the sale instance at Exh.-36 though it is in proximity of Section 4 notification but it is post Section 4 notification.
21. Considering the distance of village Dighi and village Kopra, in my view, the prevailing market price at village Panas could be different within the range of Rs.35,000/- per Acre to Rs.50,000/- per Acre. If that be so, the Court below, in my view, has not committed any mistake in reaching to the conclusion that ::: Uploaded on - 26/10/2018 ::: Downloaded on - 27/10/2018 01:30:15 ::: 11 fa1143.574.08.562.07.odt the true market price prevailing into a different Section 4 Notification was Rs.27,000/- per Acre (Rs.67,000/- per hectare). Therefore, in my view, the said redetermination as done by learned Judge of the Court below is just and reasonable.
22. Consequently, the appeal fails and it is dismissed accordingly.
At this stage, it is informed to this Court that the amount under the decree was deposited before the reference Court. However, as per the instructions of the learned counsel for the claimant, the entire amount is not withdrawn. If so, the respondent is permitted to withdraw the deposited amount towards the amount of compensation along with interest accrued thereon from the reference Court.
First Appeal No.574/2008
23. By this appeal, challenge is set up to the judgment and decree in Land acquisition Case No.98/2001, dated 24.08.2004 by learned Civil Judge Senior Division, Yavatmal. Under the said, learned Judge reference Court has fixed the price of the land acquired by the respondent at the rate of Rs.75,000/- per hectare. The said is being challenged in this appeal.
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24. I have heard Mr. Damle, learned counsel for appellant nos. 1 to 3. Learned counsel appearing for the respondent chose to remain absent when this appeal was taken up for final hearing. After hearing him, following is the only point that falls for my determination.
"Whether the Court below has correctly fixed the market price of the acquired land at the rate of Rs.75,000/- per hectare."
25. Section 4 notification was issued on 23.07.1998 by which intention was disclosed by State authorities for acquisition of various lands for rehabilitation work of Bembla Project. Accordingly, acquisition proceedings were commenced on the file of Special Land Acquisition Officer vide Proceeding No.5/65/97- 98, village Chondi.
26. Respondent is owner and holder of field survey no. 23 admeasuring 1.66 HR situated at village Chondi, Tq. Babhulgaon, Dist. Yavatmal was put to compulsory acquisition. The Land Acquisition Officer declared award on 15.04.1999 and under the said award, he fixed the price at the rate of Rs.39,500/- per hectare along with other statutory benefits. The said compensation was accepted by the respondent-claimant, however, chose to file ::: Uploaded on - 26/10/2018 ::: Downloaded on - 27/10/2018 01:30:15 ::: 13 fa1143.574.08.562.07.odt reference as provided under Section 18 of the Land Acquisition Act within the period of limitation. The said was registered as Land Acquisition Case No.98/2001 and was made over to the file of Civil Judge Senior Division, Yavatmal.
27. Before the reference Court, claim of the respondent was that his land value is Rs.1,00,000/- per Acre i.e. Rs. 2,50,000/- per hectare. He also claimed that since the land is acquired for residential purpose namely; for rehabilitation, it is having non agriculture potentiality and therefore the land compensation shall be given at the rate of Rs.5/- per square feet. Appellant nos. 1 to 3 filed their written statement at Exh.11 while appellant no.4 filed its written statement at Exh.-13. To test the claim put forth by respondent-claimant, the Court below appreciated the evidence filed on record by the respondent. The State did not enter into the witness box through any of its officer. After appreciating the evidence and various documents on record, the Court below granted compensation at the rate of Rs.75,000/- per hectare.
28. Here it is to be mentioned that the respondent also put forth his other claim in respect of well, bandh and for loss and ::: Uploaded on - 26/10/2018 ::: Downloaded on - 27/10/2018 01:30:15 ::: 14 fa1143.574.08.562.07.odt change of his business. Under the impugned order and decree, interest was granted in that behalf in favour of the respondent and his claim that his land could fetch price at the rate of Rs.2,50,000/- per hectare was also not fully granted. In spite of disallowing the claim to the extent it was prejudicial to the interest of the respondent, the respondent did not file any substantive appeal nor any cross-objection was filed in the present appeal filed by the State.
29. The respondent tried to prove his case by pressing into service income capitalization method and also relied on sale deed Exh.-31. The Court below, in my view, has rightly rejected the claim sought to be proved by the respondent on the basis of income capitalization method and also on the basis of sale deed Exh.-31 since the said sale instance was from village Karalgaon and the respondent did not file any village map to show the proximity of village Karalgaon vis-a-vis village Chondi.
30. It is to be mentioned here that the respondent also filed certified copy of judgment of reference Court in Land Acquisition Case Nos.115/2000 and 121/2000. Land in these two references ::: Uploaded on - 26/10/2018 ::: Downloaded on - 27/10/2018 01:30:15 ::: 15 fa1143.574.08.562.07.odt were also acquired for rehabilitation of Bembla Project and these land acquisition cases were arising out of the Land Acquisition Case i.e. LAC No.5/65/97-98 of village Chondi. The lands involved in these two reference proceedings were also situated at village Chondi itself and in the said reference, Jt. Civil Judge Senior Division, Yavatmal found that the true market value prevailing on the date of notification i.e. 23.07.1998 was Rs.75,000/- per hectare.
31. Land involved in the present case and in the aforesaid two land acquisition cases are from the same village Chondi. Not only that, Section 4 notification was one and the same and were arising from very same land acquisition proceedings under the same award. In my view, the Court below has not committed any mistake in placing reliance on the decided case by the reference Court itself and therefore in my view has granted market price at the rate of Rs.75,000/- per hectare, warranting no interference from this Court. The appeal is therefore dismissed. No order as to costs.
Needless to mention that if the amount of enhanced compensation is not yet received by the respondent-claimant. It ::: Uploaded on - 26/10/2018 ::: Downloaded on - 27/10/2018 01:30:15 ::: 16 fa1143.574.08.562.07.odt shall be open for the respondent-claimant to receive the same along with interest accrued thereon.
First Appeal No. 562/2007
32. Heard Mr. Damle, learned A.G.P. for appellant nos.1 and 2-State and Mr. Sonwane, learned counsel for respondent.
By the present appeal, the appellants are challenging judgment and decree dated 23.09.2004 in Land Acquisition Case No.184/2000 passed by learned Jt. Civil Judge Senior Division, Yavatmal by which the learned Judge of the Court below has fixed price at the rate of Rs.62,500/- per hectare as true market price of the land which was compulsorily acquired.
33. After hearing learned counsel and after perusing the impugned judgment, following is the only point that arises for my determination.
"(i) Whether the Court below has correctly fixed the price at the rate of Rs.62,500/- as true market price of the land under acquisition?"
34. On 18.03.1993, Section 4 notification of the Land Acquisition Act was published for acquisition of various lands for ::: Uploaded on - 26/10/2018 ::: Downloaded on - 27/10/2018 01:30:15 ::: 17 fa1143.574.08.562.07.odt construction of Bembla Project main dam wall. The land acquisition case was registered as Land Acquisition Case No.8/47/1992-93 of mouja Thalegaon. The Land Acquisition Officer declared his award on 02.03.1996.
35. The respondent was owner and holder of land Gat No.16/1-97 having total area of 1.85 HR situated at village Thalegaon, District Yavatmal. His land was compulsorily acquired. The Land Acquisition Officer has awarded fixed price at the rate of Rs.14,000/- per hectare. He also granted other statutory benefits. The respondent accepted the amount so granted in his favour by Land Acquisition Officer however under protest and filed reference proceedings.
36. Before the learned reference Court, he claimed that he is entitled to receive compensation at the rate of Rs.1,00,000/- per hectare as true market price of his land. In order to support his case, he entered into the witness box and also filed various documents on record. The State has contested the claim by filing written statement, Exh.-11, however did not adduce any evidence. ::: Uploaded on - 26/10/2018 ::: Downloaded on - 27/10/2018 01:30:15 :::
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37. Though it was the claim of the respondent that he used to earn Rs.1,00,000/- per year from his agricultural field as net income he could not prove it and therefore to that extent his claim was disallowed. Similarly, though respondent no.1 placed on record certified copy of sale deeds Exh.-23 and 24, those sale deeds were not considered by Court below for comparing sale instances since those sale deeds took place after publication of Section 4 notification. Here, it is to be mentioned that though the claim of the respondent was partly allowed, he did not file any substantive file nor cross-appeal was filed in the present appeal.
38. The impugned judgment shows that compensation was fixed by Court below by applying income capitalization method. There is no dispute that respondent was holder of the land which was acquired. It is also not in dispute that the said was not agricultural land. It is also not in dispute that the respondent used to take various crops from the said field. However, at the same time, respondent could not file any document to show exact income of his from the said land. In view of facts of this case, it will be too much of expectation from the rustic villager like the respondent that he will maintain day-to-day account book or ::: Uploaded on - 26/10/2018 ::: Downloaded on - 27/10/2018 01:30:15 ::: 19 fa1143.574.08.562.07.odt "Kird". However, it is clear that the respondent must be getting income from his agricultural field and the learned Judge of the Court below found that it would be Rs.2500/- per Acre as net income and then he had applied multiplier of 10. In my view, in order to give proper compensation to the respondent, the method adopted by the Court below cannot be faulted in the given circumstance and given facts of the case. Therefore, by the pressing into service the aforesaid method, Court below found that the market price of Rs.62,500/- per hectare and accordingly granted the same, warranting no interference in the same. Hence, the appeal is dismissed. No order as to costs.
JUDGE kahale ::: Uploaded on - 26/10/2018 ::: Downloaded on - 27/10/2018 01:30:15 :::