Bombay High Court
The State Of Mah. Thr. Collector, Akola ... vs Sheshrao Laxman Pawar on 3 July, 2017
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
FIRST APPEAL NO. 1183 OF 2012
1 The State of Maharashtra,
through Collector, Akola
2 The Executive Engineer,
Minor Irrigation, Akola ... APPELLANTS
.... VERSUS ....
Sheshrao laxman Pawar,
Occ. Cultivator,
R/o. Punoti Kh., Tah. Barshitakli,
Dist. Akola. ...RESPONDENT
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Mr.Amit Chutke, AGP for Appellant
Mr. V.J. Deshpande, Advocate for Respondent
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CORAM :DR.SMT. SHALINI PHANSALKAR-JOSHI, J.
DATE :JULY 3,2017.
ORAL JUDGMENT :
1 The State has preferred this appeal challenging the judgment and order dated 25.8.2011 passed by 2 nd Joint ::: Uploaded on - 15/07/2017 ::: Downloaded on - 28/08/2017 08:50:50 ::: 2 jfa1183of12.odt Civil Judge Senior Division, Akola in L.A.C. No.31 of 2002, being aggrieved by the exorbitant amount of compensation awarded by the Reference Court.
2 Brief case of the appeal can be stated as under:
The land bearing block No. 19/2A, admeasuring 1H 08R and 19/3 admeasuring 34 R situate at Punaouti, Tq. Barshi Takli, Dist. Akola was owned by the respondent claimant. By virtue of notification issued under Section 4 of the Land Acquisition Act and award of the LAO dated 28.2.2001, the said land came to be acquired by the LAO for total consideration of Rs. 8,44,211/- including the market value of the land and the various fruit bearing trees and teak wood trees standing thereon.
3 Being aggrieved by this meager amount of compensation as awarded by the LAO, respondent claimant approached the Reference Court contending interalia that his lands were irrigated. He used to cultivate the crops in Kharip as well as Rabbi season all over the year. He used to ::: Uploaded on - 15/07/2017 ::: Downloaded on - 28/08/2017 08:50:50 ::: 3 jfa1183of12.odt get annual yield of 15 quintal of grains and 10 to 12 quintals of cotton per acre. He was earning profit in the range of Rs. 20,000/- to 25,000/- per acre per annum. Moreover, his village and land is well connected with market place by road and there is availability of frequently plying S.T. buses and other private vehicles. Therefore, approximate market value of the said land can not be less than Rs. 2 lac per acre on the date of publication of the notification whereas the LAO has awarded the compensation of Rs. 43,500/- per hector only. 4 As regards the trees standing thereon, it was submitted that having regard to the fruit bearing potentiality of the said trees, the amount of compensation awarded by the LAO was not at all just and fair. There were total 297 Orange trees, 50 Nilgiri trees and 1552 Nilgiri trees of different ages and one Sag tree. The market value of the said trees also far exceeds the amount awarded by the LAO and therefore, he claimed for enhancement of the compensation in the amount as awarded by the LAO. ::: Uploaded on - 15/07/2017 ::: Downloaded on - 28/08/2017 08:50:50 :::
4 jfa1183of12.odt 5 The appellant herein failed to file written statement to his petition and hence it proceeded without written statement. At the time of hearing, the claimant lead his own evidence and evidence of Government Valuer by name Shri Narend Patil. Both these witnesses were cross examined on behalf of the appellant.
6 On appreciation of this evidence on record, the Reference Court was pleased to hold that if the Court goes by the method of comparison of sale instances in determining the market value of acquired land and fruit bearing trees standing thereon, then it would come to Rs. 8,44,211/- whereas if the capitalization method is adopted and the report of the witness examined by respondent no. 1 namely Government Valuer - Narendra Patil is accepted, then it comes to Rs. 26,00,790/-. The Reference Court held that the claimant is entitled to the compensation as has been assessed on the basis of capitalization method by the valuation expert, and accordingly awarded the ::: Uploaded on - 15/07/2017 ::: Downloaded on - 28/08/2017 08:50:50 ::: 5 jfa1183of12.odt compensation of Rs. 26,00,790/- to the respondent claimant.
7 While challenging the impugned judgment and order of the Reference Court, the submission of learned AGP is that it is the duty of the Reference Court to fix such amount of compensation which can be called as just, reasonable and adequate. According to him, even assuming that the appellant herein has not laid any evidence, in that case also, the Reference Court could not have overlooked the current market prices and should have arrived at a reasonable sum of compensation. It is urged that in this case, the Reference Court has relied simplicitor on the evidence of the witness examined by the respondent and relying on his version as gospel truth enhanced the compensation amount to the extent of 3 ½ times of awarded compensation of Rs.26,00,790/-. According to learned AGP, therefore, this is a fit case where interference in the impugned judgment and order of the Reference Court, is required.
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6 jfa1183of12.odt 8 Per contra, learned counsel for respondent claimant has relied upon the judgment of Hon'ble Apex Court in the case of Mahesh Dattatraya Thirthkar Vs. State of Maharashtra reported in (2009)11 SCC 141 to submit that the burden of proving the true market value of the acquired property is on the State that has acquired it for a purpose. It is submitted that, in this case, the LAO has relied upon one report submitted by Government Valuer, however, it was not at all exhibited. As against it, the respondent claimant has examined the Government Valuer, who has personally visited the acquired land, inspected the trees standing thereon and thereafter arrived at the market valuation. Thus, it is the claimant who has successfully proved the market value of the acquired property, as against the State Appellant. It is submitted that, by his own testimony and the testimony of the expert valuer respondent claimant has succeeded in proving that the award of compensation passed by the LAO was inadequate. Hence, onus was shifted on the appellant to adduce ::: Uploaded on - 15/07/2017 ::: Downloaded on - 28/08/2017 08:50:50 ::: 7 jfa1183of12.odt sufficient evidence. However, appellant has failed to discharge this burden and hence, sans any evidence produced on record by the appellant to support the valuation of the acquired property made by LAO, the Reference Court has rightly relied upon the evidence produced by the respondent / claimant and awarded just amount of compensation.
9 Further learned counsel for respondent has also repolied upon the judgment of Nama Padu Hudar & Ors Vs. State of Maharashtra reported in 1993(3) Bom. C.R. 54 to submit that if there is no evidence tendered on behalf of the State, then the Court has to decide the market value of the acaquired property on the basis of the factual aspects and evidence brought before it by the respondent claimant. In this case, it is urged that there is no effective cross examination of the expert examined by the respondent. Merely some suggestions are put to him in his cross examination that he is not the Government recognized valuer. It is urged that the suggestion which is denied by ::: Uploaded on - 15/07/2017 ::: Downloaded on - 28/08/2017 08:50:50 ::: 8 jfa1183of12.odt him can not be sufficient to disbelieve his evidence, especially, when he has visited the acquired land and also inspected the trees standing thereon. Hence, according to learned counsel for respondent, Reference Court has not committed any error in accepting his evidence and valuation made by him.
10 Further, learned counsel for respondent has also relied upon the landmark decision of Ambya Kalya Mhatre Vs. State of Maharashtra reported in 2011 (6) ALL MR 974 to submit that once the land owner states that he has objection to the amount of compensation and seeks reference to the Civil Court, the entire issue of compensation is before the Reference Court. Once claimant informs the Reference Court that the compensation awarded by the LAO is inadequate, the Reference Court has to proceed to determine the compensation with reference to the principles laid down u/s. 23 of the Land Acquisition Act. It is submitted that as held by the Hon'ble Supreme Court in this authority, as the LAO is not a Court when he ::: Uploaded on - 15/07/2017 ::: Downloaded on - 28/08/2017 08:50:50 ::: 9 jfa1183of12.odt determines the compensation, he does not adjudicate but merely takes over the acquired land on behalf of the Government. It is urged that as held in this authority of Ambya Kalya Mhatre Vs. State of Maharashtra, the Court in the case of determination of market value by the method of comparing the sale instances can award separately the compensation for the trees also. However, if the method for determination of compensation adopted by the Reference Court is capitalization method as in the instant case, there is no fault committed by the Reference Court in relying on the figure quoted by the Government Valuer - the expert and awarding the sum which may be higher than the one, which could have been arrived at by the method of comparing the sale instances.
11 According to learned AGP, however, even accepting that capitalization method as also one of the methods recognized for determining market value of the acquired land and trees standing thereon, in that case also, such amount has to be reasonable and not exorbitant. Here in ::: Uploaded on - 15/07/2017 ::: Downloaded on - 28/08/2017 08:50:50 ::: 10 jfa1183of12.odt this case, according to him, as Reference Court has relied simplicitior on the report of the witness examined by the claimant, such compensation awarded by the Reference Court can not be considered as just, reasonable and correct, as the claimant is bound to quote and lead such evidence so as to get enhanced amount of compensation. Therefore, much significance should not have been to the report. 12 In the light of the rival submissions advanced by learned AGP and learned counsel for respondent / claimant, it can be seen from the judgment of Reference Court that the Reference Court has considered the situation, potentiality, size, area and other aspects of the acquired land and fixed its market value @ Rs. 43,500/- per hector. The Reference Court has considered that the acquired land is having high potentiality of annual yield and it is also adjacent to the State highway connecting the villages. The Reference Court also considered the sale instances which were produced by the respondent claimant and thereafter, held that considering the value of the ::: Uploaded on - 15/07/2017 ::: Downloaded on - 28/08/2017 08:50:50 ::: 11 jfa1183of12.odt acquired land on the date of notification and having regard to the fact that required lands are irrigated, and relying upon the sale instance dated 10.5.1997 regarding the land bearing block no. 18/2 of the same village, the market price of the land was Rs. 74,074/- per hector, granted increase of 10% has held that market value of the acquired land can be Rs. 88,272/- per hector. I do not find that there is any infirmity or illegality so far as the determination of market value of the acquired land is concerned.
13 The real dispute appears to be in respect of determining the market value of the trees standing in the acquired land. As regards the number of trees and the kinds of trees, there is no dispute. As per the award total 297 Orange trees were standing in the land whereas 50 and 1552 Nilgiri tress and one Sag tree was standing. LAO has granted compensation of Rs. 5,71,951/- for the 297 Orange tree and Rs. 98,610/- towards 1552 Nilgiri trees and Rs. 1170/- towards Sag tree.
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12 jfa1183of12.odt 14 As much reliance is placed by respondent claimant on the evidence of his expert Shri Narendra Patil, it is necessary to read his affidavit evidence so also his cross examination. According to him, he has visited the acquired land of respondent claimant, inspected the trees standing in the field, took measurement of the land, verified the trees minutely, inspected them and then prepared his report. He has filed said valuation report at Exh. 34. According to his evidence, he is a private Government valuer and qualified engineer. In his cross examination he has admitted that, he has not produced any document to show that he is Government approved valuer on civil engineering works. It is his case that he has filed valuation reports in about 25 to 30 proceedings. He has admitted that he takes rough notes of the property for valuation and maintain that record. However, it is pertinent to note that, no such record is produced in the case, nor he has produced any document to show that he is Government approved valuer or horticulture expert. Further, according to him, he has measured the land and inspected the trees standing therein, ::: Uploaded on - 15/07/2017 ::: Downloaded on - 28/08/2017 08:50:50 ::: 13 jfa1183of12.odt on the request and at the instance of the claimant. Further he has stated that for the inspection of this acquired land and the trees standing therein, he was accompanied with two assistants and within three hours, they inspected 1900 standing in the land of the claimant. During these three hours, he verified the age, height, width etc of all the trees. Further, he has admitted that this inspection and verification of the trees took place after the notification. In his valuation report Exh. 34, he has given the valuation of the some of the orange trees @ Rs. 5094/- per tree then Rs.4470, Rs.4447 and Rs.2307/- per tree. Thus, he has awarded compensation in the range of Rs. 2307/- to Rs. 5094/- In my considered opinion, having regard to this evidence on record, market price of Orange trees at the rate of Rs. 2500/- per tree appears to be just and reasonable by striking a proper balance.
As regards Nilgiri trees, it can be seen that LAO has awarded compensation @ Rs. 48/- and Rs.60/- per tree. The report produced on record by the respondents ::: Uploaded on - 15/07/2017 ::: Downloaded on - 28/08/2017 08:50:50 ::: 14 jfa1183of12.odt Valuation at Exh. 34 does not spell out at which rate per tree he has valued the Nilgiri trees therein. 15 From the judgment of the Reference Court in para no. 21, it can be seen that the Dy. Conservator of Forest, on whose report LAO has relied upon, has granted compensation of Rs. 1,05,974/- for total Nilgiri trees whereas the valuer examined by the claimant, has enhanced the said value to the tune of Rs. 11,04,481/-. Thus, whereas, LAO has considered the market value of the Nilgiri trees at Rs. 48 and Rs. 60/- respectively, the expert has increased its market value to the tune of Rs. 700/- to Rs 750/- per tree. In my considered opinion, having regard to this vast difference between the market value of the Nilgiri trees fixed by the Government valuer, Deputy Conservator of Forest and the witness examined by claimants, who was not proved to be a Government recognized valuer such market value of the Nilgiri trees as fixed by the claimant's witness definitely appears to be exorbitant and ::: Uploaded on - 15/07/2017 ::: Downloaded on - 28/08/2017 08:50:50 ::: 15 jfa1183of12.odt unreasonable and hence is required to reduced to Rs. 350/- per Nilgiri tree.
16 As regards the Sag tree i.e. teak wood tree, Deputy Conservator of Forest on whose report LAO has relied upon, has considered its market value as Rs. 1170/-, whereas, the expert witness of the claimant has valued it at Rs. 2307/-. There is no reason for the witness of the claimant to do so without furnishing any details to that effect. Hence, market value of the Sag tree as determined by Deputy Conservator of Forest and awarded by LAO being reasonable and correct that needs to be maintained.
17 It may be true that the expert examined by the claimants has adopted capitalization method and the compensation arrived by @ Rs. 26,07,790/- is higher but then that compensation needs to be reasonable also, whatever method of compensation may be adopted. It is the duty of the Court also to ensure that the amount of compensation is neither excessive nor exorbitant and at the ::: Uploaded on - 15/07/2017 ::: Downloaded on - 28/08/2017 08:50:50 ::: 16 jfa1183of12.odt same time it should not be meager. Therefore, it is for the Reference Court to strike just, balance to ensure that the claimant is adequately compensated for compulsory acquisition of the land and trees standing therein. 18 Hence, having regard to the entire evidence on record and on its proper re-appreciation, I have no hesitation to come to conclusion that the compensation of acquired land needs to be paid @ Rs. 88,272/- per hector, whereas, compensation for the 297 Orange trees is to be awarded @ Rs. 2500/- per tree, for 50 + 1552 Nilgiri trees @ Rs. 350/- per tree and for one Sag tree @ Rs. 1500/-. The impugned judgment and order of the Reference Court is modified to that extent. The LAO to calculate the amount accordingly and if any amount remained to be paid to the claimant, it should be paid immediately. If any excess amount is found to be paid to the claimant, then, appellant is at liberty to recover the same.
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17 jfa1183of12.odt Appeal is disposed off in above terms with no order as to costs.
JUDGE belkhede, PA ::: Uploaded on - 15/07/2017 ::: Downloaded on - 28/08/2017 08:50:50 :::