Bombay High Court
State Of Maharashtra & Others vs Sou.Sushilabai W/O Gulabrao Mankar on 13 March, 2018
Author: Manish Pitale
Bench: Manish Pitale
1 fa 918.91.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.
First Appeal No.918 of 1991
with
Cross Objection No.94 of 2017
(1) State of Maharashtra.
(2) The Collector, Yavatmal
(3) The Special Land Acquisition Officer,
Minor Irrigation Works-II, Yavatmal .... Appellants
(Original respondents on R.A.)
-Versus-
Sou. Sushilabai w/o Gulabrao Mankar,
Aged about 65 years, Cultivator,
R/o.-Wai, Taluka Kelapur, District Yavatmal.
(Since deceased through Lrs.)
(1) Vasant Gulabrao Mankar (her son) (Amended as per Court's
order dated 12-03-1999)
(2) Pramod Gulabrao Mankar (her Son)
(3) Anil Gulabrao Mankar (her son) (Amended as per Court's
order dated 18-09-2017)
(Since deceased through Lrs.)
(3-a) Smt. Chhaya Anil Mankar
Aged 57 years, Occ Housewife,
(3-b) Rahul Anil Mankar,
Aged 34 Years, Occ.-Service,
(3-c) Nikhil Anil Mankar,
Aged 30 years, Occ.-Professional,
(3-d) Anurag Anil Mankar,
Aged 26 years, Opcc.-Student,
All resident of 193, Darda Nagar, Yavatmal
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2 fa 918.91.odt
(4) Dilip Gulabrao Mankar (her son).
... Respondents.
(Original Petitioner on RA)
Shri M.A. Kadu, AGP for appellant/State.
Shri R.L. Khapre, Advocate with Shri K.S. Narwade, Advocate
for respondent no.(3-a) to (3-d).
Coram : Manish Pitale, J.
DATE OF RESERVING JUDGMENT : FEBRUARY 22, 2018.
DATE OF PRONOUNCEMENT : MARCH 13, 2018.
J U D G M E N T
This appeal and cross objection were decided by this Court vide judgment and order dated 13-11-2014. But, thereafter, a review application was filed on behalf of the respondents/claimants pointing out that original respondent no.3-Anil Gulabrao Mankar had expired and that since appropriate steps in that regard were not taken, the judgment and order disposing of this appeal and cross objection were rendered a nullity in view of the death of said Anil Gulabrao Mankar. The said review application was allowed by this Court on 09-08-2017 and the said judgment and order dated 13-11-2014 disposing of this appeal and cross objection was recalled and it was directed that they would be listed for final hearing again.
2. It is in pursuance of the said order dated 09-08-2017 that the judgment and order dated 13-11-2014 was recalled and the appeal and cross objection have come up for final hearing again before this Court. The learned Counsel for the parties have been heard in detail in this appeal and cross objection. On 14-02-2018, a pursis was filed on behalf of the appellant/State and a document, being an order dated 07-04-2017 passed by the Reference Court ::: Uploaded on - 20/03/2018 ::: Downloaded on - 21/03/2018 01:14:33 ::: 3 fa 918.91.odt in Land Acquisition Case No.208 of 2009 was sought to be placed on record, which was objected to on behalf of the respondents/claimants. Subject to the objection raised by the respondents/ claimants, the said document was kept on record of the file of this appeal and the cross objection by an order dated 22-02-2018 and the judgment was reserved.
3. The subject matter of the present appeal and cross objection is the land belonging to predecessor of the respondents/claimants/cross objectors being land admeasuring 9 H 60 R in survey no. 24 and land admeasuring 10 H 36 R in survey no.25 of mouza Wai, Taluka Kelapur, District Yavatmal. Notification under Section 4 of the Land Acquisition Act, 1894, was issued for acquisition of the aforesaid land on 15-10-1987. It has been brought on record that the possession of the said land was already taken on 25-01-1987, in view of the urgency. It is claimed that a joint measurement report pertaining to the said land was prepared on 04-09-1987 by the then Land Acquisition Officer Shri A.B. Deshmukh on which the claimant had raised an objection on 30-11-1987. It was claimed that there were fruit bearing trees and other trees standing on the aforesaid land when the process of acquisition was initiated.
4. The said Land Acquisition Officer prepared a draft award dated 15-04- 1989 in respect of the said land. It was forwarded by him for approval to the Divisional Commissioner as the amount involved in the award was more than 15 lakhs. On 04-07-1989, the Divisional Commissioner sent a letter to the said Land Acquisition Officer granting approval to the said draft award. It was stated in the said letter that the approval was accorded assuming that the authenticity and correctness of all the documents and data had been personally verified by the Land Acquisition Officer and that the responsibility of any controversy or complicity arising out of the said case would be the sole responsibility of the Land Acquisition Officer. It was further stated that the Land Acquisition Officer ::: Uploaded on - 20/03/2018 ::: Downloaded on - 21/03/2018 01:14:33 ::: 4 fa 918.91.odt should check and recheck the whole award to his own satisfaction. Thus, the approval was subject to aforesaid condition mentioned in the letter.
5. Thereafter, the Land Acquisition Officer changed and one Shri Chinchole was appointed as the Land Acquisition Officer. On 09-02-1990, the said new Land Acquisition Officer pronounced award in terms of the provisions of the said Act, in respect of acquisition of the aforesaid land. In this award, the claimant was paid compensation at the rate of Rs. 8000/- per hectare and some amount was granted towards trees on the said land. It has come on record that thereafter on 03-02-1990, the Land Acquisition Officer conducted a spot inspection on the said land. It was claimed that a report was prepared as regards the trees, bunds and well located on the said land. The claimants preferred an application under Section 18 of the Land Acquisition Act, 1894, before the Court of Civil Judge, Senior Division, Yavatmal (Reference Court) and her case was taken up as Land Acquisition Case No.97 of 1990.
6. In the proceedings before the Reference Court, the claimant heavily relied upon the contents of the draft award dated 15-04-1989 and produced the then Land Acquisition Officer who had prepared the draft award i.e. Shri A.B. Deshmukh as a witness in support of its claim. The State produced Shri Chinchole, the Land Acquisition Officer, who was the author of award dated 09- 02-1990, as a witness. On 04-05-1991, the Reference Court passed the impugned judgment and award holding that the claimant was entitled to enhanced compensation at the rate of Rs. 50,000/- per hectare for dry crop land and at the rate of Rs. 75,000/- per hectare for irrigated land. It was further held that the claimant was entitled to compensation of Rs. 6156/- for bunds in survey no.24 and Rs. 1752/- in survey no.25 and an amount of Rs. 25,000/- for the well located in survey no.24. It was also held that the claimant was entitled to Rs. 1404/- for fruit bearing trees in survey no.24 and Rs. 1872/- in survey no.25 ::: Uploaded on - 20/03/2018 ::: Downloaded on - 21/03/2018 01:14:33 ::: 5 fa 918.91.odt with a further amount for other trees of Rs. 3,46,482/- in survey no.24 and Rs. 2,78,551/- in survey no.25.
7. Aggrieved by the aforesaid judgment and order of the Reference Court, the State has filed this appeal, claiming that the findings of the Reference Court were unsustainable because the claimant had only relied upon draft award dated 15-04-1989 and the evidence of the then Land Acquisition Officer in support of its claim and that no independent evidence was brought on record for claiming enhancement of compensation. Shri M.A. Kadu, learned Assistant Government Pleader appearing on behalf of the appellant/State contended that it was for the claimant to prove her case for enhancement of compensation and that the burden was completely on her. It was pointed out that the claimant could not have relied upon the contents of the draft award while claiming enhanced compensation and that it ought to have produced independent evidence in the form of expert witness and other such evidence to prove her claim. The award that was eventually passed by the Land Acquisition Officer was also only an offer and that the burden was not discharged by the claimant in the present case with cogent evidence and material on record. It was further contended that the Reference Court was not justified in relying upon the evidence of the then Land Acquisition Officer Shri A.B. Deshmukh, because he and the son of the claimant, who had appeared as a witness on her behalf were both working in the office of the Collector and it was admitted by the said witness of the claimant that they used to sit next to each other in the office. In such a situation, the valuation report and the draft award prepared by the then Land Acquisition Officer Shri A.B. Deshmukh deliberately gave inflated figures of valuation and hence they were unreliable. It was further contended that the valuation of the trees given in the report of the said Land Acquisition Officer was based on inputs of the Forest and Horticulture Department and that since the Land Acquisition Officer was not the author of the valuation reports, it could not ::: Uploaded on - 20/03/2018 ::: Downloaded on - 21/03/2018 01:14:33 ::: 6 fa 918.91.odt be said that he had proved them by appearing as witness on behalf of the claimant. It was further contended that the additional compensation granted by the Reference Court for irrigated land was not based on proper application of the law in that regard. On this basis, the learned AGP appearing on behalf of the appellant/State submitted that the impugned judgment and order of the Reference Court deserved to be set aside and the award of the Land Acquisition Officer was required to be restored. The learned Counsel placed reliance on the judgments of the Hon'ble Supreme Court in the case of Chimanlal Hargovindas vs Special Land Acquisition Officer, Poona and another, reported at (1988) 3 SCC 751, in the case of Ramanlal Deochand Shah vs State of Maharashtra and another, reported at (2013) 14 SCC 50, in the case of Kaliyappan vs State of Kerala, reported at 1989 (1) SCC 113 and in the case of Special Land Acquisition Officer vs Sri Siddappa Omanna Tumari, reported at 1995 (Supp2) SCC 168.
8. On the other hand, Shri R.L. Khapre, learned Counsel appearing on behalf of the respondents/claimants/ Cross Objectors submitted that the claimant was entitled to rely upon the draft award prepared by the then Land Acquisition Officer Shri A.B. Deshmukh, particularly because he had entered the witness box in support of the claim before the Reference Court and that there was sufficient material on record to show that the enhanced quantum of compensation claimed by her was based on cogent evidence and material on record. It was contended that the draft award dated 15-04-1989 had been approved by the Divisional Commissioner and that it was only aspect of calculations that were to be undertaken to grant the quantum of compensation recommended in the draft award. It was contended that subsequent Land Acquisition Officer Shri Chinchole had acted in an arbitrary manner by completely ignoring the contents of the draft award while pronouncing his award dated 09-02-1990, wherein the compensation was granted on the basis of arbitrary considerations and that the ::: Uploaded on - 20/03/2018 ::: Downloaded on - 21/03/2018 01:14:33 ::: 7 fa 918.91.odt said award could not be said to be offering a just and reasonable compensation for the acquisition of land. It was further contended that the Reference Court had erred in failing to grant enhanced compensation for land by applying recognized formula for the appreciation of value of land annually. It was further contended that the valuation report based on spot inspection conducted by earlier Land Acquisition Officer Shri A.B. Deshmukh was ignored by the Reference Court while calculating the compensation payable for the fruit bearing trees and other trees. If the report, which formed part of evidence on record, was taking into consideration, the claimant was entitled to further enhanced compensation. On this basis, the learned Counsel for the respondents/claimants/cross objectors sought further enhancement of compensation.
9. Having heard the learned Counsel for the parties and upon perusal of the material on record, the point that is required to be determined in the present appeal and cross objection is, as to whether the claimant was granted just, fair and reasonable compensation for acquisition of her land. It is required to be examined whether the Reference Court took into consideration the evidence and material on record to reach its findings and as to whether the appreciation of the material on record was proper.
10. It is settled law that the award of the Land Acquisition Officer is an offer made to the claimant as regards the quantum of compensation and that before the Reference Court it has to be proved by cogent material and evidence on record as regards the quantum of compensation which could be said to be just, fair and reasonable. In the case of Chimanlal (supra), the Hon'ble Supreme Court has stated the factors that need to be taken into consideration for determining the quantum of compensation payable to the claimant for acquisition of her land. It is laid down therein that the Reference Court has to treat the reference as an original proceeding and that the burden is on the claimant to ::: Uploaded on - 20/03/2018 ::: Downloaded on - 21/03/2018 01:14:33 ::: 8 fa 918.91.odt show how the quantum of compensation granted by the Land Acquisition Officer is inadequate. In the case of Ramanlal (supra), the Hon'ble Supreme Court has reiterated the fact that it is the claimant who has to discharge the burden of proving the claim made before the Reference Court for enhancement of compensation. It has been held that the claimant is to be considered as plaintiff in a suit requiring discharge of initial burden of proving that the amount of compensation determined in the award of the land Acquisition Officer was inadequate. Thus, in the present case also it needs to be examined as to what was the material placed on record on behalf of the claimant in support of her claim enhanced compensation before the Reference Court.
11. The evidence and material on record in the present case shows that the claimant initially relied upon the draft award dated 15-04-1989 prepared by the then Land Acquisition Officer Shri A.B. Deshmukh and his evidence as a witness in support of her claim. The son of the claimant has also appeared as a witness in support of the claim of enhanced compensation. While on behalf of the State, subsequent Land Acquisition Officer Shri Chinchole, who actually pronounced the award impugned appeared before the Reference Court, as a witness. The claimant did not produce any expert witness or any valuation report in support of her claim for enhanced compensation.
12. A perusal of evidence of witness no.1 for the claimant, being her son Anil Gulabrao Mankar, shows that he has admitted about the fact that the then Land Acquisition Officer Shri A.B. Deshmukh was working with him in the office of the Collector where he was working as Accounts Officer. It is further admitted by him that they were sitting together in the office. He has further stated in his evidence that he had produced no documents to show the existence of trees in the said land except the document prepared by Land Acquisition Officer Shri A.B. Deshmukh. He has further deposed about the value of the land and the fact ::: Uploaded on - 20/03/2018 ::: Downloaded on - 21/03/2018 01:14:33 ::: 9 fa 918.91.odt that there was a well located therein, showing that it was irrigated land.
13. The claimant has examined earlier Land Acquisition Officer Shri A.B. Deshmukh as another witnesses in support of her claim. This witness has supported the recommendations made by him in his draft award dated 15-04- 1989 and he has claimed that a joint measurement was prepared and that a spot inspection report pertaining to the land in question was prepared, wherein the valuation of the trees was also given. But, he has admitted in cross examination that unless the draft award was approved by the competent authority, it had no legal value. He has also admitted that he never accompanied Forest Officer at the time of spot inspection and further that the valuation of the fruit bearing and other trees given by him was based on the reports and estimates of the Forest Department.
14. A perusal of evidence of Shri Chinchole, the land Acquisition Officer, who pronounced the award dated 09-02-1990, shows that he had conducted a spot inspection on 03-02-1989 that is much after issuance of notification under Section 4 of the Land Acquisition Act dated 15-10-1987. He has claimed that he prepared a report as regards the number of trees, bunds and well located in the land in question and that on the basis of such report he had arrived at the figure for grant of compensation in respect of acquisition of the land in question.
15. The aforesaid evidence available on record demonstrates that the claimant has failed to examine any independent witness or expert witness in support of her claim as regards the quantum of compensation, particularly compensation towards fruit bearing trees and other trees. Since the burden was entirely on the claimant to prove her claim by placing on record the relevant documents in support of her claim, it is clear that no such positive evidence was produced on her behalf. The claimant has entirely relied upon the evidence of ::: Uploaded on - 20/03/2018 ::: Downloaded on - 21/03/2018 01:14:33 ::: 10 fa 918.91.odt Shri A.B. Deshmukh, earlier Land Acquisition Officer, and the valuation report as also the draft award prepared by him. The evidence of said Shri A.B. Deshmukh, earlier Land Acquisition Officer, is rendered seriously doubtful as it is found that he and the son of the claimant were working in the office of the Collector and that as per the admission given by the son of the claimant, who appeared as a witness, that they used to sit together in the office. It appears that evidence has been given by said Land Acquisition Officer Shri A.B. Deshmukh in order to favour the claimant and her son. It appears that he has given inflated figures in respect of existence of number of trees and their valuation in order to favour the claimant. This is evident from the fact that the Divisional Commissioner has specifically stated in the aforesaid letter dated 4.7.1989 that the Land Acquisition Officer should check and recheck the whole award. It was also stated that he would be responsible for any controversy or complicity. In such a situation, where evidence of this witness and the material produced at his behest were rendered suspicious, it was necessary for the claimant to have produced independent evidence like an expert witness and a valuation report by such expert, in support of her claim for grant of enhanced compensation. In the absence of producing such cogent evidence and by placing reliance only on the draft award and the evidence of earlier Land Acquisition Officer Shri A.B. Deshmukh, the claimant has failed to discharge the burden of proving her case of enhanced compensation. In this context, the learned AGP appearing on behalf of the appellant/State is justified in contending that the draft award and evidence of the said Shri A.B. Deshmukh could not be relied upon as the sole basis for grant of enhanced compensation.
16. The draft award dated 15-04-1989 could not have been relied upon by the claimant because it was yet to attain finality. The contention raised on behalf of the claimant that the said draft award had been approved by the Divisional Commissioner and that it ought to have been simply pronounced, ::: Uploaded on - 20/03/2018 ::: Downloaded on - 21/03/2018 01:14:33 ::: 11 fa 918.91.odt cannot be accepted because a perusal of letter of approval dated 04-07-1989 shows that the Divisional Commissioner has accorded approval subject to the Land Acquisition Officer checking and rechecking the whole award to his satisfaction and further it has been stipulated therein that the Land Acquisition Officer must check the authenticity and correctness of all the documents and data. This clearly demonstrates that the draft award dated 15-04-1989 could not be said to be evidence, which could be relied upon by the claimant for enhanced compensation. It was only the award dated 09-02-1990 that was pronounced by subsequent Land Acquisition Officer Shri Chinchole in terms of the provisions of the said Act. Therefore, the quantum of compensation that may have been recommended in the draft award could not solely be the basis for the claimant to claim enhanced compensation.
17. As regards the evidence of earlier Land Acquisition Officer Shri A.B. Deshmukh and the valuation report relied upon by him, it is evident from the material on record that such valuation has been arrived at by the said Land Acquisition Officer Shri A.B. Deshmukh, on the basis of spot inspection and reports of the Forest Department. This clearly shows that he is not the author of the valuation report and that therefore he could not be treated as a witness to have proved the said valuation reports. In fact, when the entire evidence of the said witness is found to be suspicious and seriously doubtful, the said valuation reports could not have been relied upon by the claimant for claiming enhanced compensation for the fruit bearing trees and other trees said to have been existing on the land when it was acquired.
18. The Reference Court has erred in failing to take into consideration this aspect of the matter. While the Reference Court has discarded the evidence of subsequent Land Acquisition Officer Shri Chinchole holding that his behaviour was abnormal, the Reference Court has failed to appreciate that the evidence of ::: Uploaded on - 20/03/2018 ::: Downloaded on - 21/03/2018 01:14:33 ::: 12 fa 918.91.odt earlier Land Acquisition Officer Shri A.B. Deshmukh was also seriously doubtful and suspicious. Therefore, reliance placed by the Reference Court on the evidence of said Land Acquisition Officer Shri A.B. Deshmukh has rendered the impugned judgment and award erroneous to the extent of findings rendered on the quantum of compensation payable for fruit bearing trees and the other trees said to have been existing on the land in question.
19. Therefore, it needs to be examined as to whether the quantum of compensation granted for the land as also the fruit bearing trees and other trees by the Reference Court is justified or not. As regards the determination of market value and hence the quantum of fair compensation payable for acquisition of land in question, the Reference Court has relied upon the judgment and order passed by the Reference Court itself in another land acquisition proceeding, pertaining to a land in the same village, which was acquired pursuant to Notification under section 4 of the Land Acquisition Act dated 06-01-1986. In the said case, the claimant was granted enhanced compensation at the rate of Rs. 50,000/- per hectare for dry crop land. Although, the Reference Court took into consideration the fact that the Notification under Section 4 of the Land Acquisition Act in the present case was 1 year and 9 months after the Notification issued in the said case pertaining to Exhibit-51 i.e. about 2 years thereafter, appropriate benefit of further enhancement was not granted to the claimant herein. The learned Counsel appearing on behalf of the respondents/cross objectors, is justified in relying upon the judgment of the Hon'ble Supreme Court in the case of Pehlad Ram and others vs Haryana Urban Development Authority and others, reported at AIR 2014 SC 793, wherein the Hon'ble Supreme Court has taken note of various earlier judgments holding that the annual increase in assessment of market value could be granted ranging from 7.5 % to 20%. On this basis, the learned Counsel appearing on behalf of the respondents/cross objectors contended that at least 10% cumulative annual ::: Uploaded on - 20/03/2018 ::: Downloaded on - 21/03/2018 01:14:33 ::: 13 fa 918.91.odt increase in the rate of compensation for the acquisition of land ought to have been granted by the Reference Court. There is merit in the aforesaid contention raised on behalf of the respondents/cross objectors.
20. Thus, upon grant of 10% cumulative annual increase in the present case for period of 2 years, for dry crop land, the amount of compensation would come to Rs. 60,500/- per hectare and for irrigated land it would come to Rs. 90,750/- per hectare. To that extent, the cross objection of the respondents deserves to be allowed.
21. The other aspect pertaining to compensation in respect of fruit bearing trees and other trees on the land in question, it was for the claimants/respondents/cross objectors to have placed convincing evidence and material on record to show, firstly, that the trees existed on the land in question and secondly, that there was a valid basis for their valuation placed on record. Being the claimant, it was a burden that she had to discharge by placing on record appropriate evidence. In the present case, the claimant has not examined any expert witness to prove her claim in respect of valuation of the trees and there is insufficient material brought on record to come to the conclusion that the trees claimed by her to be existing on the land at the time of acquisition did actually exist. The only evidence that the claimant has relied upon is the evidence of earlier Land Acquisition Officer Shri A.B. Deshmukh and the valuation reports relied upon by him. Reliance is also placed on the draft award prepared by the said person, which never attained finality.
22. In the absence of any expert witness or evidence brought on record, there is lack of material for the Court to reach a conclusion as regards the existence of trees on the land in question and its valuation, as claimed by the claimant herein. The evidence relied upon by the claimant is rendered ::: Uploaded on - 20/03/2018 ::: Downloaded on - 21/03/2018 01:14:33 ::: 14 fa 918.91.odt suspicious, as stated above, because the said earlier Land Acquisition Officer Shri A.B. Deshmukh appears to be an interested party and, in any case, he was not the author of the valuation report, which was prepared by the Forest Department. The entire evidence and material on record cannot be said to be enough to prove the claim of compensation raised on behalf of the claimant in respect of the fruit bearing trees and the other trees.
23. In the absence of cogent material and evidence on record, the Reference Court fell in error in concluding that the claimant herein was entitled to compensation for fruit bearing trees and other trees to the extent that it granted compensation. The discussion on this aspect and the findings rendered by the Reference Court are not satisfactory because the said Court has failed to appreciate that there was no independent material or evidence placed on record by the claimant, except the statement and evidence of earlier Land Acquisition Officer Shri A.B. Deshmukh. The burden was not discharged by the claimant satisfactorily in respect of the quantum of compensation payable to her for fruit bearing trees and other trees. Thus, to that extent, the appeal filed by the State deserves to be allowed. As regards the order sought to be placed on record by the State with Pursis dated 14.02.2018, the learned counsel appearing on behalf of the claimant is justified in pointing out that it is irrelevant for the present case.
24. Accordingly, the appeal and cross objection are disposed of in the following manner :-
(a) The appeal filed by the State is partly allowed to the extent that the compensation granted by the Reference Court for fruit bearing trees and other trees in survey nos.24 and 25 of mouza Wai, Tahsil Kelapur, District Yavatmal, is quashed and set aside. The compensation granted by the Land Acquisition ::: Uploaded on - 20/03/2018 ::: Downloaded on - 21/03/2018 01:14:33 ::: 15 fa 918.91.odt Officer in his award for trees is restored.
(b) The cross objection is partly allowed to the extent
that the compensation for the acquired land is increased
to Rs. 60,500/- per hectare for dry crop land and for irrigated land, it is increased to Rs. 90,750/- per hectare.
(c) Compensation granted on all other aspects by the
Reference Court is maintained.
(d) The consequential benefits as awarded by the
Reference Court shall be paid to the claimant on the aforesaid modified amount towards the compensation determined in this judgment and order.
25. Accordingly, the judgment and order of the Reference Court stands modified in above terms. The appellant-State shall be entitled to take steps for recovery of excess compensation amount disbursed, if any, to the claimant after three months from the date of this order.
26. The appeal and cross objection are disposed of with no order as to costs.
JUDGE Deshmukh ::: Uploaded on - 20/03/2018 ::: Downloaded on - 21/03/2018 01:14:33 :::