Bombay High Court
Vidarbha Irrigation Development ... vs Prakash Namdeo Dive & Ors on 27 July, 2017
Author: S.B. Shukre
Bench: S.B. Shukre
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
FIRST APPEAL No. 520 OF 2005
Vidarbha Irrigation Development
Corporation.
Through its Executive Engineer,
Medium Project Division, Pusad,
District - Yavatmal. : APPELLANT
...VERSUS...
1] Prakash Namdeo Dive.
Aged about 40 years.Occup-Agriculturist,
R/o-Kumbharkinhi Tah-Darwha,
District - Yavatmal.
2] The State of Maharashtra,
Through the Collector, Yavatmal.
3] The Sub Divisional Officer and Land
Acquisition Officer, Darwha,
Tah-Darwha, Dist - Yavatmal. : RESPONDENTS
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Shri A. B. Patil, Advocate for the Appellant.
Shri Abhay Sambre, Advocate for the Respondent No.1.
Shri S. J. Kadu, AGP for the Respondent Nos.2 and 3.
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AND
FIRST APPEAL No. 677 OF 2008
Prakash Namdeo Dive,
Aged about 47 years.Occup-Agriculturist,
R/o-Kumbharkinhi Tah-Darwha,
District - Yavatmal. : APPELLANT
...VERSUS...
1] The State of Maharashtra,
Represented by the Collector, Yavatmal.
District - Yavatmal.
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2] The Sub-Divisional and Land
Acquisition Officer, Darwha,
Tah-Darwha, Dist-Yavatmal.
3] The Executive Engineer,
Lower Pus Project, Pusad,
Tah-Pusad, Dist - Yavatmal. : RESPONDENTS
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Shri Abhay Sambre, Advocate for the Appellant.
Shri S. J. Kadu, AGP for the Respondent Nos.1 and 2.
Shri A. B. Patil, Advocate for the Respondent No.3.
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CORAM : S.B. SHUKRE, J.
th
DATE : 27
JULY, 2017.
ORAL JUDGMENT :
This common judgment disposes of both these appeals which challenge the legality of correctness of one and the same award dated 21.03.2005 passed by Civil Judge Senior Division, Darwha in Land Acquisition Case No.1202 of 2004 (Old No.223/1999).
02] 0.98 R land situated at village Kumbharkinhi, Tah- Darwha, District - Yavatmal from out of Gat No.9 belonging to the claimant, who is appellant in First Appeal No.520/2005 was acquired for the purpose of construction of a dam at Kumbharkinhi. ::: Uploaded on - 08/08/2017 ::: Downloaded on - 09/08/2017 01:01:34 :::
fa520.05 and 677.08.CJ.odt 3/12 Notification u/s 4 of the Land Acquisition Act was published on 24.10.1996 and the award under Section 11 of the Act, was passed by the Land Acquisition Officer on 30.06.1999. The Land Acquisition Officer determined the true market value of the acquired land to be of Rs.37,000/- per hectare. Since the claimant was not satisfied with it he preferred a reference application under Section 18 of the Land Acquisition Act. On merits of the case, the Reference Court found the value of the land determined by the Land Acquisition Officer as well as the valuation of the trees done by the Land Acquisition Officer to be on the lower side and therefore, by the Award passed on 21.03.2005, the Reference Court enhanced both the values fixing the value of the land at Rs.1,50,000/- per hectare and determining the value of the trees standing on the acquired land at substantially higher rate. The acquiring body as well as the claimant, however, were not satisfied with such an award and therefore, both of them are before this Court in these two appeals.
03] Heard Shri. A. B. Patil learned counsel for the acquiring body and Shri. Abhay Sambre learned counsel for the claimant. I have also heard Shri. S. J. Kadu learned Assistant Government ::: Uploaded on - 08/08/2017 ::: Downloaded on - 09/08/2017 01:01:34 ::: fa520.05 and 677.08.CJ.odt 4/12 Pleader for the State in both the appeals. I have gone through the record of the case. Now only point which arises for my determination is :
Whether the compensation awarded by the Reference Court is just and proper ?
04] It is submitted by Shri A. B. Patil, learned counsel for the acquiring body that no support from the sale instance vide Exh.47 as well as the award passed vide Exh.68 could have been drawn by the Reference Court as the lands involved in these documents were not the nearby lands but were the distant lands. He further submits that at the most the sale instance vide Exh.47 in which the land bearing Gat No.9 was involved could have been relied upon by the Reference Court and if the Reference Court had relied upon it, the market value of the land even by giving increase for the year which passed by after that sale instance, would have been of Rs.1,35,000/- per hectare. Shri Abhay Sambre, learned counsel for the acquiring body submits that in his evidence, the claimant has given in quite categorical terms the similarity of all these lands and that even the situation of these lands as shown in the maps vide Exh.45 and 46 would confirm the same, and therefore, no error in this regard could be found in the approach ::: Uploaded on - 08/08/2017 ::: Downloaded on - 09/08/2017 01:01:34 ::: fa520.05 and 677.08.CJ.odt 5/12 adopted by the Reference Court. He also submits that in First Appeal No.74 of 2006 decided on 3rd July, 2017 in which the acquired land was Gat No.155, this Court determined the market value of the land to be of Rs.90,000/- per hectare for dry crop land and in the present case the land acquired being admittedly a perennially irrigated land, the true value of the land, by relying upon the determination made by this Court in the said appeal, would come to Rs.1,80,000/-. He claims the enhancement of the compensation for the acquired land to this extent. 05] If one goes through the evidence of the claimant - PW-1, who is the claimant, one would find that he has mentioned some similarity between the lands involved in the sale instance and relied upon by the Reference Court. One would further see that there has been no effective cross-examination of this witness in this regard. This was the reason why the Reference Court considered these sale instances to be relevant. The impugned award shows that the Reference Court also relied upon the award given in another case vide judgment at Exh.68. The land involved in the judgment vide Exh.68 which was Survey No.155, was a matter of record. If one considers the maps vide Exh.45 and 46, one would ::: Uploaded on - 08/08/2017 ::: Downloaded on - 09/08/2017 01:01:34 ::: fa520.05 and 677.08.CJ.odt 6/12 find they show various lands with different survey numbers, many of which were acquired under the same notification as the land involved in the present case. On a closure look, one can easily come to the conclusion that these lands including the present land together formed a circle around the 'Gawthan' area which was at the center of the circle. The acquired land has Gat No.9 whereas the land involved in the judgment at Exh.68 has Survey No.155 and the distance between Gat No.9 and 'Gawthan' is almost equal to the distance between Gawthan and Survey No.155. Therefore, I do not think that any different view can be taken than the one taken by the Reference Court in recording a finding that the acquired land as well as the land Survey No.155 bore similarities with each other and therefore, deserved same treatment. This would make me record a finding that same rate of land as has been given for Survey No.155 also deserves to be given for the acquired land bearing Gat No.9 and it is of Rs.1,50,000/- per hectare. This is also the rate ascertained by the Reference Court to be the true market value of the acquired land and rightly so. 06] A serious doubt has been expressed by learned counsel for the acquiring body about the valuation of the various trees done ::: Uploaded on - 08/08/2017 ::: Downloaded on - 09/08/2017 01:01:34 ::: fa520.05 and 677.08.CJ.odt 7/12 by the Reference Court. In the opinion of learned counsel for the acquiring body, the assessment has been done on the basis of unreliable evidence of the expert witness PW-4 - Vishnu Gangadhar Paradkar and on some assumptions, which has led to granting of exorbitant rates for different trees. He submits that there were material admissions given by the expert witness in his cross-examination, which rendered his entire testimony as untrustworthy. The learned counsel for the claimant, however, has different opinion. He submits that in spite of some admission given by PW-4 - Vishnu Gangadhar Paradkar, his evidence cannot be rejected altogether for the reason that whatever doubt created because of those admissions stood removed by other evidence brought on record by the claimant. He submits that it is not the law that in all cases, notes of inspection or the details of the factual data be placed on record, especially when such lacunae are seen to be filled up by some other evidence available on record and in the present case, the other evidence has helped remove those doubts. He also submits that the evidence brought on record by the claimant is of such nature as would convince this Court that the claimant deserves to be given even more compensation for the trees than what has been granted by the Reference Court. ::: Uploaded on - 08/08/2017 ::: Downloaded on - 09/08/2017 01:01:34 :::
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07] In the case of Land Acquisition Officer ..vs.. Sidappa
Omanna Tumari, reported in 1995 Supp(2) SCC 168, the Hon'ble Apex Court had held that when opinion of the expert is based upon relevant factual data, such factual data must be produced in Court in the absence of which, the Court has to exercise caution and care before relying upon the evidence of the expert. It further held that the report of the expert must be assessed by the Court properly and it is the duty of the party relying upon such a report to prove to the satisfaction of the Court that expert evidence is as genuine and reliable as any other evidence. In the case of Mahesh Dattatray Thirthkar ..vs.. State of Maharashtra, reported in (2009) 11 Supreme Court Cases 141, the Hon'ble Apex Court held that it is well established a proposition of law that burden of proving true market value of the acquired property is on the State which acquired it for a particular purpose. The Hon'ble Apex Court also referred to this proposition of law laid down in the case of Land Acquisition Officer & Mandal Revenue Officer ..vs.. V. Narasaiah, reported in (2001) 3 SCC 530.
08] So, from the above referred cases, two propositions of law emerge - (i) the burden of proving the true market value of the ::: Uploaded on - 08/08/2017 ::: Downloaded on - 09/08/2017 01:01:34 ::: fa520.05 and 677.08.CJ.odt 9/12 acquired property is on the State, and (ii) when the report of expert is based upon relevant factual data and material which constitute its basis, it must be produced and the party relying on it must prove it to be as genuine and reliable as any other evidence before the Court.
09] In the present case,PW-4 - Vishnu Gangadhar Paradkar's report, a horticulture expert, vide Exh.25, was undoubtedly based upon the factual details recorded by him in his notes of inspection he had taken on the date of his visit to the acquired land. There is an admission given in this regard by him. This witness also admitted that he did not produce those notes of inspection before the Court. The report vide Exh.25 was issued by him, admittedly, about 4 years after the date of the inspection which was in the year 1996. The explanation given by him that he prepared the report within 3 months from the date of the inspection and that it was collected belatedly sometime in January, 2000 by the claimant appears to be a lame excuse for the delay. This report at Exh.25 bears the date of 28.01.2000 and not of the year 1996, indicating thereby that it was issued on the date which it bore in its body. Had the report been issued within 3 months of the inspection ::: Uploaded on - 08/08/2017 ::: Downloaded on - 09/08/2017 01:01:34 ::: fa520.05 and 677.08.CJ.odt 10/12 which he says to have been done sometime in 1996, the date of the report would have been of the year 1996. So, the report is full of doubts. This would call for this Court to exercise care and caution while appreciating the evidence of the expert and claimant on the point of insufficiency of the compensation amount. 10] This would make this Court to turn to the other evidence available on the record. Other evidence is mainly in the nature of deposition of the claimant, PW-1, 7/12 extracts vide Exhs.28 to 38 as well as the material referred to in the award passed by the Land Acquisition Officer.
11] So far as the number of trees is concerned, one can see that the Land Acquisition Officer, based upon the joint inspection report, has accepted the number of trees as claimed by the claimant to be correct and this is also the case with the Reference Court. The acquiring body also does not raise any dispute about the number of trees as well as the kind of trees found to be present on the acquired land by the Reference Court at the relevant point of time.
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12] So, the controversy now would boil down to only about
the valuation of the trees done by the Reference Court. We have already seen that the evidence of the expert witness PW-4 - Vishnu Gangadhar Paradkar, has some doubts in it. But, there is also evidence of the claimant, PW-1. The claimant, PW-1, has given details of the number of trees, the kind of trees, their age and their overall health and also yields given out per annum by them. There is no effective cross-examination of the claimant in this regard by the learned counsel for the acquiring body as well as State. Therefore, this evidence would have to be accepted as reliable and inspiring confidence. Doing so, I find that evidence of the claimant which gives some data for making proper valuation of the trees broadly tallies with the evidence of expert witness PW-4 - Vishnu Gangadhar Paradkar. The cumulative effect of this evidence has been considered by the Reference Court in ascertaining the valuation of the trees as well as the kind of trees found to be present at the relevant time on the acquired land, and accordingly, it made its conclusions and rightly so. These conclusions having regard to the evidence available on record, cannot be said to be suffering from any factual or legal error. Apart from this, there is no other evidence brought on record either by the claimant or the ::: Uploaded on - 08/08/2017 ::: Downloaded on - 09/08/2017 01:01:34 ::: fa520.05 and 677.08.CJ.odt 12/12 acquiring body to enable this Court to find any error in the findings so recorded by the Reference Court.
13] In the result, I find that the compensation awarded by the Reference Court is just and proper. There is no scope for making any interference with the findings recorded by the Reference Court. The point is answered accordingly.
O R D E R.
(i) Appeals stand dismissed.
(ii) Parties to bear their own costs.
JUDGE
PBP
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