Bombay High Court
The Collector vs Laxman Tanba Jumle on 10 March, 2010
fa443.92.odt
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR.
FIRST APPEAL NO. 443 OF 1992
1. The Collector,
Yavatmal.
2. The Land Acquisition Officer,
Benefited Zones,
Yavatmal. :: APPELLANTS
-: Versus :-
Laxman Tanba Jumle
Aged about 55 yrs.,
Occ. Agriculturist, R/o Dewarwada,
Tq. Digras, Distt. Yavatmal. :: RESPONDENT
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Smt. Archana Wasnik, A. G. P. for the appellants.
Mr. S. R. Deshpande, Advocate for the respondent.
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CORAM: F. M. REIS, J.
DATED : 10th March, 2010.
ORAL JUDGMENT
1. Heard the learned Counsel for the appellants and the respondent.
2. This appeal challenges the judgment and order dated 9/4/1991 passed by the Civil Judge, Senior Division, Pusad in Land Acquisition Case No. 231 of 1990. The parties shall be referred to in the manner as they appear in the impugned judgment.
3. The land of the petitioner (the respondent herein) was acquired by the respondents (appellants herein) ad measuring 1.77 H. R. from the property ::: Downloaded on - 09/06/2013 15:41:52 ::: fa443.92.odt 2 / 8 survey No. 53/3 of village Khandapur by a notification issued under Section 4 of the Land Acquisition Act dated 24/4/1982. By an award passed by the Land Acquisition Officer dated 11/12/1985 the compensation for the land of the petitioner was fixed @ Rs. 9,000/- per hectare. Being aggrieved by the said award, the petitioner sought a reference for enhancement of compensation under Section 18 of the Act. After framing of issues and recording the evidence, by the impugned judgment dated 9/4/1991 the learned Civil Judge, Senior Division awarded the compensation @ Rs. 22,500/- per hectare for the land of the petitioner beside other statutory benefits. Being aggrieved by the said judgment and order, the present appeal has been preferred by the respondent. The petitioner filed cross objection on 02/11/1992 claiming that the amount payable to the petitioner should be enhanced to Rs. 25,000/- per hectare.
4. The learned A. G. P. has contended that there is no material on record for the Reference Court to come to the conclusion that the market value of the land as on the date of Section 4 notification was @ Rs. 22,500/- per hectare.
The learned A. G. P. further submitted that the sale deeds sought to be relied upon by the petitioner are from the different villages and as such no reliance should have been placed by the Reference Court. She further submitted that there is no evidence on record to show comparability between the land acquired and the sale deed plots. It is further submitted that the market value as fixed by the Reference Court is exorbitant and there was no justification for ::: Downloaded on - 09/06/2013 15:41:52 ::: fa443.92.odt 3 / 8 the Reference Court to enhance the compensation. The learned A. G. P. submitted that the amount of compensation fixed by the Land Acquisition Officer is just and proper. The learned A. G. P. further submitted that the petitioner is not entitled for compensation for 11 mango trees in addition to the value of the open land.
5. On the other hand, the learned Counsel appearing for the petitioner submitted that the sale deeds produced by the petitioner are at the distance of about 1-2 Kms. from the acquired land. He further submitted that the witnesses examined by the petitioner have disclosed that the land in the vicinity of the acquired land along with the neighboring villages is similar and have equal potentiality. The learned Counsel further submitted that the Reference Court ought to have awarded the compensation @ Rs. 25,000/- per hectare and his cross objection is liable to be considered.
6. On hearing the learned Counsel and on perusal of the record, following points arise for determination. :-
(1) Whether the Reference Court was justified in awarding the compensation @ Rs. 22,500/- per hectare for the land acquired and Rs. 200/- per mango tree?
(2) Whether the petitioner is entitled for an increase in the compensation from Rs. 22,500/- to Rs. 25,000/- per hectare as claimed by him in the cross objection?
7. On perusal of the record, I find that the petitioner-A. W. No. 1 ::: Downloaded on - 09/06/2013 15:41:52 ::: fa443.92.odt 4 / 8 Laxman Jumale is examined and he has deposed that the acquired land is fertile one and composed of black soil. He has further stated that he was taking yield of cotton 5.6 qt., jwar 12 to 15 qt. and tur 2 qt. per year per acre and getting net income of Rs. 1,500/- per year per acre and prayed for compensation of Rs. 25,000/- taking into consideration the utility and fertility of the land. He has further deposed that one Bhimrao Gawande has sold his field survey No. 2/1 ad measuring 2.30 H.R. for Rs. 40,000/- in the year 1977 by the registered sale deed which is at Exh. 16. He has further deposed that fertility of the acquired land and land of Bhimrao is similar. He has further deposed that village Mokh is 2 Kms. away from the acquired land. He has further deposed that one Jainarayan has also purchased 1.00 H. R. land from survey No. 8 from one Motilal Oswal for Rs. 30,000/- in the year 1980 and the sale deed is at Exh. 17. He has further stated that the land is similar to the acquired land and is situated at the distance of 2 Km. away from the acquired land. He has also produced certified copies of the award passed in Land Acquisition Case Nos. 228/80 and 185/82 which according to the petitioner the lands are similar and are located in the vicinity of the acquired land. In the cross examination he has deposed that he could not give any instance of sale of his village wherein the land was sold @ Rs. 25,000/- per hectare. In the cross examination there is no challenge to the contention of the petitioner to the effect that the sale deed plots and the land acquired is similar and is in the vicinity of 1 to 2 Km. The next witness examined by the petitioner is ::: Downloaded on - 09/06/2013 15:41:52 ::: fa443.92.odt 5 / 8 Rajendraprasad Shukhala, who deposed that the Government has acquired field of village Dhanora and the Civil Court had awarded compensation @ Rs.
22,500/- per hectare by judgment dated 18/10/1988 which is at Exh. 20. The next witness Bhimrao Gawande was examined by the petitioner. He has deposed that he had sold his field bearing survey No. 2/1 ad measuring 4.30 H. R. for the consideration of Rs. 40,000/- by registered sale deed in the year 1977. The said sale deed is at Exh. 16. He has further deposed that quality of the acquired land is comparable and similar to the sale deed plot. In his cross examination there is no dispute as far as the similarity of the sale deed plot and the land acquired.
8. It is evident from the record that sale deeds produced by the petitioner are duly proved and that the lands under the sale deeds are in the vicinity i.e. 1 to 2 km. from the land acquired. In the judgment passed by this Court on 4/3/2010 in first appeal No. 581 of 1991 this Court has held that merely because the sale deeds plots are located in a different village can not by itself be a ground to discard such sale deeds in cases in which the lands are similar and the potentiality of the lands are found to be comparable. In the present case the petitioner has produced sufficient evidence on record to establish that the sale deeds plots and the land acquired of the petitioner is comparable and have similar potentiality. The respondents have failed to adduce any evidence to rebut the evidence produced by the petitioners that both the lands were comparable. As such no fault can be found in the ::: Downloaded on - 09/06/2013 15:41:52 ::: fa443.92.odt 6 / 8 judgment of the Reference Court in relying upon such sale deeds to determine the compensation payable for the land acquired.
9. The Reference Court whilst passing the impugned judgment has considered the sale deeds as well as the judgment passed in the said awards produced by the petitioner. The Reference Court came to the conclusion that the sale deeds which are at Exhs. 16 to 19 were prior to the notification under Section 4 of the Act issued in the present case. The Reference Court further held that the petitioner is entitled to get higher compensation on the basis of the said sale deeds and consequently awarded the compensation @ Rs.
22,500/- per hectare. The Reference Court has also considered the valuation on the basis of the awards produced by the petitioner. The Reference Court has found that even considering the said awards, the market value of the land of the petitioner as on the date of Section 4 notification was Rs. 22,500/- per hectare. The claim of the petitioner to value the land on the basis of the yield and income derived from the acquired land has been rightly rejected. The law is well settled that in cases in which the sale instances are available, there is no justification to arrive at the compensation on the basis of the income and yield derived from the acquired land. As such the contention of the learned A. G. P. that there was no material to arrive at the compensation @ Rs.22,500/- per hectare is to be rejected.
10. With regard to the contents of the learned A. G. P. that no separate compensation is to be awarded for trees and land, I find that there is no ::: Downloaded on - 09/06/2013 15:41:52 ::: fa443.92.odt 7 / 8 ground raised in the appeal memo challenging the impugned judgment with that regard. The Reference Court has arrived the compensation for the land acquired on the basis of comparable sale instances and not on income capitalization method. It is well settled that only when income capitalization method is followed, no separate compensation for land or trees is possible and the maximum compensation out of the two can be awarded at the market price.
In State of Maharashtra Vs. Deoram Fakira Pamahale & others - 2007 (6) Mah. L. J. 556, this Court has held that where the compensation was not awarded by income capitalization method, it did not bar grant of separate compensation.
In the present case the valuation was not effected on the basis of income capitalization method and as such separate compensation could be awarded.
Apart from that the Reference Court has also valued the mango trees existing in the acquired land on the basis that the wood from the trees could be utilised for the purpose of making furniture, building material and fuel purpose.
Hence, the contention of the learned A. G. P. that the mango trees could not be valued separately deserves to be rejected. The petitioner as such is entitled to the compensation as awarded by the Reference Court. The point for determination is answered accordingly.
11. With regard to the cross objection filed by the petitioner, I find that the petitioner himself in his cross examination has admitted that he his not in a ::: Downloaded on - 09/06/2013 15:41:52 ::: fa443.92.odt 8 / 8 position to produce any sale instance to demonstrate that the value of land in the village where the land has been acquired was @ Rs. 25,000/- per hectare.
Apart from that there is no evidence on record to substantiate the claim of the petitioner that the acquired land has the value @ Rs. 25,000/- per hectare. As such, the cross objection has no basis and the same deserves to be rejected.
12. In view of the above, I find that the Reference Court has applied the principles well settled in law in arriving at the conclusion that the market value as on the date of section 4 notification is Rs. 22,500/- per hectare. The said amount has been arrived at on the basis of oral as well as documentary evidence adduced by the petitioner. The respondents, admittedly have not led any evidence to rebut or disprove the evidence produced by the petitioner and as such I find that no interference is called for in the impugned judgment.
There is no substance in the appeal, consequently the same stands dismissed.
The cross objection of the petitioner stands dismissed. In the facts and circumstances of the case there shall be no order as to the costs.
JUDGE WWL ::: Downloaded on - 09/06/2013 15:41:52 :::