Bombay High Court
The State Of Maharashtra 2 Ors vs Shri.Bhaiyya S/O. Sitaram Dhakane on 19 October, 2018
Author: V. M. Deshpande
Bench: V. M. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
: NAGPUR BENCH : NAGPUR.
FIRST APPEAL NO. 293 OF 2010
with
FIRST APPEAL NO. 472 OF 2010
with
FIRST APPEAL NO. 551 OF 2010
.............
FIRST APPEAL NO. 293 0F 2010
APPELLANTS : 1. The State of Maharashtra
2. Special land Acquisition Officer,
Pench Project No.1, Nagpur.
3. The Executive Engineer,
Pench Project, Nagpur.
VERSUS
RESPONDENT : Rambhau S/o Hari Dhakane,
Aged about 40 years,
Occupation : Agriculturist,
R/o Masala, Tah. & Dist. Nagpur.
WITH
FIRST APPEAL NO. 472 OF 2010
APPELLANTS : 1. The State of Maharashtra
2. Special land Acquisition Officer,
Pench Project No.1, Nagpur.
3. The Executive Engineer,
Pench Project, Nagpur.
VERSUS
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RESPONDENT : Mahadeo S/o Hari Dhakane,
Aged about 48 years,
Occupation : Agriculturist,
R/o Dudhala, Tah. & Dist. Nagpur.
WITH
FIRST APPEAL NO. 551 OF 2010
APPELLANTS : 1. The State of Maharashtra
2. Special land Acquisition Officer,
Pench Project No.1, Nagpur.
3. The Executive Engineer,
Pench Project, Nagpur.
VERSUS
RESPONDENT : Bhaiyya S/o Sitaram Dhakane
Aged about 60 years,
Occupation : Agriculturist,
R/o Masala, Tah. & Dist. Nagpur.
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Mr. M. A. Kadu, A.G.P. for the appellants in F.A.No.292/10.
Mr. I. J. Damle, A.G.P. for the appellants in F.A.No.472/10.
Mrs. M.S.Naik, A.G.P. for the appellants in F.A.No.551/10.
Mr. S. P. Kshirsagar, Advocate for respondents/claimants.
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CORAM : V. M. DESHPANDE, J.
DATE : OCTOBER 19, 2018.
ORAL JUDGMENT
1. These three appeals can conveniently be disposed of by this common judgment since these three appeals arise out of the ::: Uploaded on - 22/10/2018 ::: Downloaded on - 26/10/2018 23:09:30 ::: 3 FA293.10+2.odt common judgment and decree passed by the learned Joint Civil Judge, Senior Division, Nagpur, dated 21.12.2004, by which the learned Judge decided six different land acquisition cases which were pending before it.
2. First Appeal No. 293 of 2010 challenges the judgment and decree passed in Land Acquisition Case No. 139 of 1997 filed by Rambhau Hari Dhakane ; First Appeal No.472 of 2010 challenges the judgment and decree passed in Land Acquisition Case No. 137 of 1997 filed by Mahadeo Hari Dhakane ; and First Appeal No.551 of 2010 challenges the judgment and decree passed in Land Acquisition Case No. 140 of 1997 filed by Bhaiyya Sitaram Dhakane.
3. In First Appeal No. 293/10, Mr. M.A.Kadu, the learned Assistant Government Pleader is appearing for the appellants, in First Appeal No. 472/10, Mr. I.J. Damle, the learned Assistant Government Pleader contested for and on behalf of the appellants and in First Appeal No. 551/10, Mrs. M. S. Naik, the learned Assistant Government Pleader represented the appellants. In all these three appeals respective respondent/original claimants are ::: Uploaded on - 22/10/2018 ::: Downloaded on - 26/10/2018 23:09:30 ::: 4 FA293.10+2.odt represented by the learned counsel Mr. S.P. Kshirsagar.
4. The common facts giving rise to these three appeals are as under :
After publication of Section 4 Notification under the Land Acquisition Act, 1894 on 18.7.1994 by which the State authorities disclosed its intention to acquire various lands for public purpose of submergence of Wadgaon tank project, a Land Acquisition Case No. 8/A-65/1992-93 of Mouza Masala was registered on the file of Special Land Acquisition Officer, Pench Project No.1. The Land Acquisition Officer declared the award on 31.3.1997. All the lands under acquisition were situated at village Masala, Tah. & District Nagpur. The Land Acquisition Officer granted compensation @ Rs.39,000/- per hectare and Rs.49,000/- per hectare, respectively in favour of the respondents along with the compensation for various trees and stone bunds and other statutory benefits. The compensation so awarded was accepted by the respective respondents, however under protest, but they preferred different reference applications under Section 18 of the Land Acquisition Act within the period of limitation. The Reference Application filed by ::: Uploaded on - 22/10/2018 ::: Downloaded on - 26/10/2018 23:09:30 :::
5 FA293.10+2.odt respondent Mahadeo Dhakane was registered as Land Acquisition Case No.137 of 1997, the Reference Application filed by respondent Rambhau Dhakane was registered as Land Acquisition Case No.139 of 1997 and the Reference Application filed by respondent Bhaiyya Dhakane was registered as Land Acquisition Case No.140 of 1997.
5. I would like to enumerate herein below the respective claims of respective claimants in the respective land acquisition cases as under :
A] Facts of Land Acquisition Case No. 137 of 1997 :-
According to the claimant in this land acquisition case Mahadeo Dhakane, there were 20 Sagwan (Teak) trees, 30 Bori Trees and 64 other (adjat) trees in his land survey No. 35/2-C(36) which was admeasuring 1.46 hectares. According to the contention of the claimant, the land was perennially irrigated land and was having stone bunds. He claimed compensation for 20 Sagwan (Teak) trees @ Rs.5,000/- per tree. Insofar as bori trees are concerned, he claimed Rs.4,000/- per tree for 30 bori trees and @ Rs.3,000/- per tree for 64 Adjat trees. According to him, he was entitled to get Rs.3,65,000/- for his acquired land of 1.46 Hectares as ::: Uploaded on - 22/10/2018 ::: Downloaded on - 26/10/2018 23:09:31 :::
6 FA293.10+2.odt against Rs.85,410/- granted by the Land Acquisition Officer. Thus he claimed compensation @ Rs.2,50,000/- per hectare for land. He also claimed Rs.50,000/- as compensation for stone bunds in stead of Rs.3,444/- as granted by the Land Acquisition Officer. B] Facts of Land Acquisition Case No. 139 of 1997 :-
In this case, claimant Rambhau Dhakane is the owner of land survey No. 35/2K (36P) admeasuring 1.46 hectares. According to this claimant, there were 20 Sagwan (teak) trees, 35 bori trees and 60 other (adjat) trees in the acquired land and he claimed @ Rs.5,000/- per tree for 20 teak trees, @ Rs.4,000/- per tree for 35 bori trees and @ Rs.3,000/- per tree for 60 adjat trees. Insofar as compensation for land is concerned, he demanded compensation @ Rs.2,50,000/- per hectare. He also claimed compensation of Rs.1,50,000/- for stone bunds in stead of compensation of Rs.2,458/- that was granted by the Land Acquisition Officer. C] Facts of Land Acquisition Case No. 140 of 1997 :-
This land acquisition case is filed by claimant Bhaiyya Dhakane. He was the owner and holder of land Khasara No.33/95 ::: Uploaded on - 22/10/2018 ::: Downloaded on - 26/10/2018 23:09:31 :::
7 FA293.10+2.odt (2/38C) admeasuring 1.52 Hectare. According to him, on the date of acquisition, there were 50 bori trees, 40 Anjan trees, 3 Moha trees, 25 Palas trees, 2 Behada trees, 25 Sitafal trees and 15 Hiwar trees standing in the field. He claimed compensation @ Rs.4,000/-, Rs.2,000/-, Rs.2,000/-, Rs.2,000/-, Rs.2,000/-, Rs.2,000/- and Rs.2,000/- per tree, respectively, for those. According to him, in the acquired field, there was a big well. He claimed compensation of Rs.50,000/- for that. According to him, nothing was given by the Land Acquisition Officer. He also claimed Rs.1,00,000/- for stone bunds and it is his claim in the claim reference that nothing was given by the Land Acquisition Officer.
6. After being summoned, the respondents/claimants in respective Land Acquisition Cases put their appearance and filed their written statements. At Exh.8, written statement in L.A.C. No.137/1997 is on record, while it is at Exh.7 and Exh.14 in L.A.C No.139/1997 and 140/1997. In sum and substance, the written statement stoutly denies the claim put forth by the respective claimant.
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7. In order to prove the respective claims, the respective claimant entered into the witness box, while for and on behalf of the State authorities, two witnesses were examined namely Sheshrao Tekam (DW1), who acted as Land Acquisition Officer in the concerned Land Acquisition Case and also examined Devendra Pandharinath Rewatkar (DW2), the Deputy Director of Horticulture. It is to be noted that evidence of these two witnesses was recorded in Land Acquisition Case No. 136 of 1997, which is decided under the impugned judgment and the same evidence was adopted in all other Land Acquisition Cases, including the three aforesaid.
8. Mr. Sheshrao Tekam, the Land Acquisition Officer (DW1) produced the copy of the award at Exh.48 and his evidence is on the line of contents of the award. The evidence of DW2 Devendra Rewatkar shows that after the Land Acquisition Officer sent joint measurement report to him, he visited the respective lands on 28.12.1995. According to him, the trees were standing in the respective fields of the respondent/claimants, however, he differs regarding its numbers. His reports are at Exhs.56 and 57.
The judgments of the Reference Court in Land ::: Uploaded on - 22/10/2018 ::: Downloaded on - 26/10/2018 23:09:31 ::: 9 FA293.10+2.odt Acquisition Case No. 52/1998 and 01/1999 delivered by the Land Acquisition Officer in Land Acquisition Case No. 2/A-65/1992-93 of Mouza Ridhora were also placed on record to substantiate the respective claims of the respondents/claimants for valuation of their land.
9. (i) After appreciating the respective pleadings, various documents and evidence, the learned Judge of the Reference Court found that in Land Acquisition Case No. 137/1997 (Mahadeo / State), the claimant is entitled for compensation @ Rs.2,50,000/- per hectare for the land admeasuring 1.46 HR along with other statutory benefits. He, however, found that the compensation granted by the Land Acquisition Officer for trees and bunds is an adequate compensation.
(ii) So far as Land Acquisition Case No. 139/1997 is concerned (Rambhau / State), the learned Judge of the Reference Court granted compensation @ Rs.2,50,000/- per hectare for 1.46 HR land along with the other statutory benefits. In this case also he found that the claimant is not entitled for any enhanced compensation for the trees and bunds.
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(iii) In Land Acquisition Case No. 140/1997 (Bhaiyya / State) the learned Judge of the Reference Court granted compensation @ Rs.1,25,000/- per hectare for 1.52 HR along with the other statutory benefits. In this case also no other compensation was granted to the claimant Bhaiyya, though it was claimed in his claim application.
10. The State is aggrieved in these three appeals for grant of compensation @ Rs.2,50,000/- per hectare in Land Acquisition Case Nos.137/1997 and 139/1997 and @ Rs.1,25,000/- in Land Acquisition Case No. 140/1997.
11. Though, the claim of the respective respondents/original claimants in these three appeals was rejected in part, none of the respondent has filed any substantive appeal before this Court challenging the rejection of their claim. Though, it was open for them to file cross-appeal in the present appeals filed by the State within the stipulated period, the said is also not done by them. Consequently, the finding recorded by the learned Judge of the Reference Court in respect of rejection of the claim of each of the ::: Uploaded on - 22/10/2018 ::: Downloaded on - 26/10/2018 23:09:31 ::: 11 FA293.10+2.odt respondent has attained finality.
12. I have heard the learned Assistant Government Pleaders for the appellant - State, whose names I have indicated in the opening portion of this judgment and Mr. S.P. Kshirsagar, the learned counsel, who appears for all the respondents, in extenso. All these counsel vehemently submitted their respective submissions for their respective brief. The learned Assistant Government Pleaders attacked the judgment impugned and pressed for allowing their respective appeals, whereas Mr. Kshirsagar, the learned counsel for the respondents/claimants has supported the impugned judgment and prays for dismissal of the respective appeals.
13. Following is the only common point that falls for my consideration in these three appeals :
1] Whether the Reference Court has correctly fixed the price @ Rs.2,50,000/- per hectare in L.A.C. No.137/1997 and 139/1997 and @ Rs.1,25,000/- per hectare in L.A.C. No. 140/1997 ?
2] What Order ?
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14. In two land acquisition cases out of three, the compensation is granted @ Rs.2,50,000/- per hectare as the Reference Court found that the lands in these two cases were irrigated lands, whereas in one case the compensation is granted @ Rs.1,25,000/- per hectare by treating the land as dry crop land.
15. In Land Acquisition Case Nos. 137/1997 and 139/1997, the Reference Court found that therespective lands involved in these two cases were irrigated through out the year, whereas in Land Acquisition Case No. 140/1997, the Reference Court recorded a finding that it was a dry crop land.
16. In Land Acquisition Case No. 137/1997, the claimant has filed 7/12 extracts on record. Those are available on record at Exhs.13 and 19. Column No.12 of the said documents show that the owner/holder/claimant used to irrigate the land in question with the help of electric motor pump by which the water used to be fetched from the river. Exh.13 also in Column No.12 shows entry that the claimant used to take double crop. Similarly, in Exh.19 the said fact is reiterated. These two are the documents duly prepared by the ::: Uploaded on - 22/10/2018 ::: Downloaded on - 26/10/2018 23:09:31 ::: 13 FA293.10+2.odt Revenue Authorities. Therefore, the entries in that behalf made had its own importance and assumes importance.
17. In addition to the aforesaid documentary evidence, oral evidence in that behalf is also available on record. Claimant Mahadeo Dhakane (AW1) in his evidence has stated that he used to irrigate his land by fetching water from Vena river by lift irrigation.
This piece of evidence brought on record in chief-examination of the claimant is not at all challenged, though he was throughly cross- examined by the State authorities through the Assistant Government Pleader in-charge of the said brief.
18. In Land Acquisition Case No. 139/1997, claimant Rambhau Dhakane has also filed 7/12 extract on record. The said is available at Exh.17. This document also shows that the land involved in Land Acquisition No. 139/1997 used to get irrigated with the help of the water fetched from river. So also, it has a reference that the owner/holder/claimant used to take double crop in a year. Rambhau has also entered into the witness box. He specifically asserted in his examination-in-chief that he used to take double crop ::: Uploaded on - 22/10/2018 ::: Downloaded on - 26/10/2018 23:09:31 ::: 14 FA293.10+2.odt every year from the land, which was an irrigation land and he used to lift the water from river Venna with the help of electric motor pump. His evidence in that behalf has also gone unchallenged.
19. Thus, the claimants in Land Acquisition Case Nos.137/1997 and 139/1997 not only proved through their oral evidence, but in support of their oral evidence, the documentary evidence, as discussed above, is also available on record.
In addition to the aforesaid, a copy of Award (Exh.48) is available on record. Statement 'E' i.e. the statement showing payment of compensation shows that the lands involved in Land Acquisition Case Nos.137/1997 and 139/1997 as irrigated land, are irrigated land. Even evidence of DW1 Sheshrao Tekam, the Land Acquisition Officer examined in Land Acquisition Case No. 136/1997 and whose evidence was adopted in all other Land Acquisition Cases, from the discussion made while appreciating the evidence by the learned Judge of the Reference Court, shows that in cross- examination, he admitted that these two lands were irrigated land. Since, the award, which contains 'E' Statement, shows that these two lands were irrigated land, necessarily, the determination of the ::: Uploaded on - 22/10/2018 ::: Downloaded on - 26/10/2018 23:09:31 ::: 15 FA293.10+2.odt compensation or value of these two lands were determined treating these lands as irrigated land. However, it appears that the Land Acquisition Officer was of the opinion that these lands were irrigated, however, seasonally. The learned Judge of the Reference Court, to that extent, found that the Award and the evidence adduced on the part of the State authorities cannot be accepted. It was always open for the State authorities to bring semblance of evidence to rebut the evidence brought on record by the claimants that they used to take double crop in a year. Taking of double crop clearly indicates that the land was having source of perennial irrigation. In absence of any evidence in rebuttal, in my view, the Court below has not committed any mistake in recording a finding that the claimants have proved that their lands were irrigated perennially and not seasonally. Therefore, the finding of the learned Judge of the Reference Court is confirmed.
20. In the impugned judgment, the Court below found that the land involved in Land Acquisition Case No.140/1997 is a dry crop land. Even in the award, the said land was treated as the same. There is nothing available on record on the part of the claimant to ::: Uploaded on - 22/10/2018 ::: Downloaded on - 26/10/2018 23:09:31 ::: 16 FA293.10+2.odt prove that his land was irrigated one, either seasonally or perennially. Therefore, the finding recorded by the Reference Court that the land involved in Land Acquisition Case No. 140/1997 is a dry crop land, is hereby accepted.
21. Now, the question remains is in respect of of determination of the price as true market price of the lands involved in these three cases.
22. Besides their oral evidence, the claimants have relied upon a Sale Deed, which is available on record at Exh.21 in Land Acquisition Case No. 137/1997. The said sale deed is also placed on record in other two cases, however, their exhibit number differs. The said sale deed shows that the sale instance took place on 31.12.1992 i.e. prior to about 1 ½ years of publication of Section 4 notification. There is no evidence available on record even to remotely suggest that at the time of execution of sale deed under Exh.21, there was any information or any imagination on the part of the vendor and vendee in the said sale instance that in future certain lands will be required for acquisition for submergence of Wadgaon tank project. ::: Uploaded on - 22/10/2018 ::: Downloaded on - 26/10/2018 23:09:31 :::
17 FA293.10+2.odt Therefore, the price as disclosed in the said sale instance cannot be termed as an inflated one or it cannot be said that the said sell instance was brought into existence to help the claimants in the present land acquisition matters.
Under Exh.21, the land involved is from village Rengapar and from and out of total 1.9 HR, 1.62 HR land was sold by the vendor for an amount of Rs.8,00,000/-. Thus, by calculation, the price under the said sale instance was approximately Rs.5,00,000/- per hectare.
23. The land under Exh.21 is though, from village Rengapar, the said can be considered for comparison as done by the learned Court below for following :
"The Land Acquisition Officer himself has admitted during his cross-examination that two villages namely village Rengapar and village Ridhora are about 5 Kms away from village Masala."
While appreciating the evidence of Sheshrao Tekam (DW1), the Court below found that he has admitted that there was no sale instance for five years of pre-acquisition in village Masala and therefore, he has considered the sale instances of adjoining villages. ::: Uploaded on - 22/10/2018 ::: Downloaded on - 26/10/2018 23:09:31 :::
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24. The another piece of material that was considered by the learned Judge of the Court below for determining the price is the award made by the Land Acquisition Officer in Land Acquisition Case Nos.52/1998 and 1/1999. These two land references arise out of Land Acquisition Case No. 2/A-65/1992-93 of Mouza Ridhora. The purpose for acquisition of those lands and the purpose for acquisition of the lands under consideration, is one and the same. Further, it is brought on record that village Ridhora is just 5 Kms away from village Masala and not only that, the quality of land at Ridhora and the land at Masala is identical. In Land Acquisition Case No. 52/1998, the concerned Reference Court found that the value of dry crop land was Rs.1,75,000/- per hectare. Whereas for dry crop land in Land Acquisition Case No.1/1999 it was found to be @ Rs.1,25,000/- per hectare. Even according to the learned Assistant Government Pleaders, in other appeals filed by the State arising from the acquisition from village Ridhora, even this Court has found the value of dry crop land @ Rs.1,25,000/- per hectare.
25. The Court below, after appreciating the material, found that the market value of dry crop land was Rs.1,25,000/- per hectare. ::: Uploaded on - 22/10/2018 ::: Downloaded on - 26/10/2018 23:09:31 :::
19 FA293.10+2.odt Consistently, double amount is granted for irrigated land . If that be so, the Court below has correctly evaluated the price of irrigated land @ Rs.2,50,000/- as a true market price. Consequently, I record a finding after re-appreciation of the evidence brought on record that the Court below has not committed any mistake in fixing the price @ Rs.2,50,000/- per hectare in Land Acquisition Case Nos.137/1997 and 139/1997 by treating them as irrigated land and Rs.1,25,000/- per hectare for land involved in Land Acquisition Case No. 140/1997, it being the dry crop land. Consequently, these appeals fail and those are dismissed, however, there shall be no order as to costs.
26. It is made clear that if the entire enhanced compensation is not withdrawn by the respective respondents in these two appeals i.e. F.A. Nos.293/2010 and 472/2010, they are permitted to withdraw the same along with the interest accrued thereon V. M. Deshpande, J.
Diwale ::: Uploaded on - 22/10/2018 ::: Downloaded on - 26/10/2018 23:09:31 :::