Bombay High Court
Additional Special Land Acquisition ... vs Mahadeo Natthuji Mohitkar & 5 Ors on 29 August, 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.371 OF 2003
1. Special Land Acquisition Officer,
(Pench Project), Nagpur.
2. Executive Engineer,
Lower Wana Project,
Wardha. : APPELLANTS
...VERSUS...
1. Shri Mahadeo s/o. Natthuji Mohitkar,
Aged about 52 years,
2. Smt. Rangubai wd/o. Natthuji Mohitkar,
Aged about 75 years,
3. Indrapal s/o. Natthuji Mohitkar,
Aged about 30 years,
4. Smt. Parbatabai w/o. Deoraoji Mungole,
Aged about 55 years,
5. Smt. Saraswati w/o. Youraj Jogi,
Aged about 48 years,
6. Smt. Asha w/o. Vitthal Chikate,
Aged about 27 years,
All R/o. Kanhalgaon, (Satgaon Turkmari),
Tah. Hingna, Distt. Nagpur. : RESPONDENTS
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Ms. R.V. Kalia, Asstt. Government Pleader for Appellant No.1.
Shri M.A. Kadu, Advocate for Appellant No.2.
Smt. S. Kashyap, Advocate for Respondents.
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WITH
CROSS OBJECTION No.76 OF 2017
1. Shri Mahadeo s/o. Natthuji Mohitkar,
Aged about 55 years, Occu.: Agriculturist.
2. Smt. Rangubai wd/o. Natthuji Mohitkar,
Aged about 78 years, Occu.: Agriculturist.
3. Indrapal s/o. Natthuji Mohitkar,
Aged about 33 years, Occu.: Agriculturist.
4. Smt. Parbatabai w/o. Deoraoji Mungole,
Aged about 58 years, Occu.: Agriculturist.
5. Smt. Saraswati w/o. Youraj Jogi,
Aged about 51 years, Occu.: Agriculturist.
6. Smt. Asha w/o. Vitthal Chikate,
Aged about 31 years, Occu.: Agriculturist.
Respondent No.2 to 6 through respondent No.1
(Power of Attorney holder).
All R/o. Kanhalgaon, (Satgaon Turakmari),
Tah. Hingna, Distt. Nagpur. : CROSS-OBJECTORS
...VERSUS...
1. Additional Special Land Acquisition
Officer, (Pench Project), Nagpur.
2. Executive Engineer,
Lower Wena Project Division,
Wardha, Tah. & Distt. Wardha. : RESPONDENTS
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Smt. S. Kashyap, Advocate for Cross-Objectors.
Ms. R.V. Kalia, Asstt. Government Pleader for Respondent No.1.
Shri M.A. Kadu, Advocate for Respondent No.2.
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CORAM : S.B. SHUKRE, J.
th
DATE : 29
AUGUST, 2017.
ORAL JUDGMENT :
1. This appeal is taken up for final hearing as it is overdue for the same. It is also seen that there is a Cross-objection No.76/2017, which has been only listed for admission. Since the appeal has already been admitted, Cross-objection is also admitted.
2. Heard finally by consent. This Judgment disposes of appeal as well as Cross-objection. Parties shall now be referred to as per their status in the appeal.
3. The appellants are the acquiring body and the cross-objectors are the respondents and claimants in this appeal. The First Appeal No.371/2003 and the Cross Objection No.76/2017 have been preferred against the judgment and order dated 19 th April 2001, passed in Land Acquisition Case No.93/1998 by the Court of Joint Civil Judge, Senior Division, Nagpur, thereby partly allowing the reference of the respondents made under Section 18 of the Land Acquisition Act (hereinafter referred to as "L.A. Act").
4. The agricultural land bearing Survey No.13, admeasuring 3.40 hectare, situated at village Kanhalgaon belonging to the respondents was acquired for the purpose of Pench Project (Lower Wena) Nagpur. Section 4 L.A. Act Notification was published on 20 th May 1994 while the award under Section 11 was passed by the Special Land Acquisition ::: Uploaded on - 05/09/2017 ::: Downloaded on - 07/09/2017 01:11:58 ::: J-fa371.03.odt 4/13 Officer on 13.12.1996. The Special Land Acquisition Officer granted compensation for the land at varying rates and also granted compensation for 449 orange trees and other trees. The Reference Court granted compensation for 2.40 hectares of land by determining the market value at the rate Rs.2,00,000/- per hectare and granted compensation for the orange and other trees, which were standing on the remaining portion admeasuring 1 hectare of the acquired land. The Reference Court found that there were 467 orange trees, 15 bor trees, 10 custard apple trees and other trees. The Reference Court determined the value of the orange trees to be at the rate of Rs.2,500/- per tree, bor trees to be at the rate of Rs.1,000/- per tree and custard apple tree to be at the rate of Rs.500/- per tree. There were also other trees the existence of which and valuation of which both were confirmed by the Reference Court in terms of what was done by the Special Land Acquisition Officer in his award passed under Section 11 of the L.A. Act. Both sides were not satisfied with the award so passed by the Reference Court and, therefore, they are before this Court in the present appeal and the cross- objection.
5. I have heard Ms. R.V. Kalia, learned Assistant Government Pleader for the appellant No.1, Shri M.A. Kadu, learned counsel for the appellant No.2 and Smt. Kashyap, learned counsel for the respondents- Cross-objectors. I have gone through the record of the case including the impugned award.
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6. Now, following points arise for my determination :
(i) Whether the findings recorded by the Reference Court in respect of orange trees, bor trees and custard apple trees and their valuation carried out by the Reference Court are just and proper ?
(ii) Whether the compensation granted in terms of market value of the land for 2.40 hectares, instead of 3.40 hectares, out of the total acquired land, is the result of correct appreciation and application of relevant law ?
(iii) What order ?
7. Learned counsel for both the appellants have submitted that the valuation of the orange trees 467 in number, done by the Reference Court at the rate of Rs.2,500/- per tree is not based upon evidence brought on record by the respondents. Learned counsel for the respondents submits that there is sufficient evidence available on record, that this evidence has gone totally unchallenged and, therefore, no interference with the findings recorded by the Reference Court in this behalf is warranted.
8. While there is no dispute about the existence of total number of orange trees, 467 in number, the dispute is on account of the age of orange trees and valuation of all the trees.
9. I find that so far as the age of the orange trees is concerned, the dispute can be resolved by referring to the joint measurement report as well as the award passed by the Special Land Acquisition Officer, as rightly submitted by the learned counsel for the respondents. ::: Uploaded on - 05/09/2017 ::: Downloaded on - 07/09/2017 01:11:58 ::: J-fa371.03.odt 6/13 Admittedly, the joint measurement report was submitted in the year 1992-93 and Section 4 L.A. Act Notification was issued in the year 1994. In the award, passed under Section 11 of the L.A. Act, age of 449 orange trees has been shown to be of 7 years and 18 orange trees has been shown to be of 4 years. This age, I must say, has been based upon the joint measurement report of the year 1992-93 and, therefore, for the purpose of making valuation of the orange trees in the year 1994, one year of age would have to be added to all the orange trees. If this is done, one would at once find that all the orange trees, 467 in number were in the category of mature or adult trees and, therefore, could be termed to be fruit bearing trees. So, all 467 orange trees, in the instant case, would have to be considered to be sufficiently mature trees for the purpose of their valuation.
10. As regards valuation of these orange trees, now we have to turn to the evidence brought on record by the respondents, for, the burden to prove higher valuation in order to seek higher compensation will always be upon the respondents, interested in proving such a claim. The evidence of PW 1 Mahadev Mohitkar, one of the respondents- claimants is relevant in this regard.
11. PW 1 Mahadev has stated that in the year 1994, each of the orange trees used to bear about 500 to 1,000/- oranges every year and that he used to sell them in the market at Nagpur. He has also stated that he used to sell one orange fruit for Rs.1/- each. For such evidence, ::: Uploaded on - 05/09/2017 ::: Downloaded on - 07/09/2017 01:11:58 ::: J-fa371.03.odt 7/13 he places his reliance upon the sale receipts vide Exhs.-15,16 and 17. If one takes a look at the sale receipts, one would find that they do not lead us anywhere. They also do not indicate that they are the sale receipts for sale and purchase of the oranges. They also do not show in any manner the weight of the items sold under these receipts. If a claimant draw support from the sale receipts of his produce, the claimant must successfully show from the sale receipts that whatever he has stated before the Court cannot be discarded. But, as said earlier, these sale receipts, given the absence of necessary particulars in them, do not support in any manner the oral evidence of one of the claimants, PW 1 Mahadev. So, even if there is no specific cross-examination of this witness carried out on behalf of the appellant, it would not mean that respondents have succeeded in discharging their initial burden to prove that every orange tree yielded about 500 to 1000 oranges per year and each of oranges were of such a quality that it fetched a price of Rs.1/- per fruit in the market. Then, we also have the parameters considered by the Special Land Acquisition Officer in passing the award under Section 11 of the L.A. Act. These parameters, so far as valuation of the orange trees is concerned, were based upon the report of the Horticulturist, as is the case always when such an award is passed. The respondents, therefore, ought to have brought some evidence on record to show that the parameters considered by the Special Land Acquisition Officer were fundamentally flawed and, therefore, the valuation of the orange trees ::: Uploaded on - 05/09/2017 ::: Downloaded on - 07/09/2017 01:11:58 ::: J-fa371.03.odt 8/13 done by the Special Land Acquisition Officer was mistakenly on a very lower side. But, no such evidence has been brought on record by the respondents. In these circumstances, I would say that the respondents failed to discharge their initial burden to prove that the valuation of the orange trees carried out by the Special Land Acquisition Officer was on the lower side and it was much above than done by him, may be in the range of Rs.2,500/- per tree. That being not the case, the valuation of the orange trees done by the Special Acquisition Officer, which is of Rs.1,409.71 per orange tree would have to be accepted as the correct valuation of each of the orange trees and this valuation would be applicable to all the orange trees numbering 467, they being mature at the relevant time. I thus find that the respondents would be entitled to receive the compensation for the orange trees, 467 in number, at the rate of Rs.1,409.71 per orange tree.
12. There is also a dispute as regards the valuation of bor or Indian berry tree. The Land Acquisition Officer has evaluated bor trees to be at Rs.318.06 per tree and the Reference Court has enhanced this valuation to Rs.1,000/- per tree. The Reference Court has not discussed any evidence for raising the valuation of bor tree to the level of Rs.1,000/- per tree. The valuation made by the Special Land Acquisition Officer, as usually is the case, is based upon the opinion of the Government Horticulturist. The respondents-claimants on their part have not tendered any evidence regarding the health of bor trees, the girth of ::: Uploaded on - 05/09/2017 ::: Downloaded on - 07/09/2017 01:11:58 ::: J-fa371.03.odt 9/13 the trunk of the trees, the height of the trees and the extent of the canopy of the trees. This evidence about these parameters is essential so as to form an opinion about overall health of the tree and the possibility of the average yield that such a tree would annually produce. This evidence being absent in the instant case, one has to say that the respondents could not succeed in proving the valuation done by the Special Land Acquisition Officer in respect of bor trees as incorrect and mistakenly low. Therefore, I find that in the present case, for 15 number of bor trees, there is no dispute about the number, the compensation should have been given at the rate of Rs.318.06 instead of Rs.1,000/- and I declare that compensation at the rate of Rs.318.06 per tree for 15 number of bor trees should be given to the respondents.
13. As regards 10 number of custard apple trees, the valuation done by the Special Land Acquisition Officer is of Rs.97.61 per tree. Admittedly, age of these trees was of 9 years and their overall condition was good. Therefore, this valuation per tree, I must say, was on a very low side and, therefore, I find that the valuation of these trees done by the Reference Court at the rate of Rs.500/- per tree would have to be found as correct valuation and I do so.
14. In view of above, I find that there were 467 orange trees, the value of which was of Rs.1,409.71 per tree, there also 15 number of bor trees, the valuation of which was of Rs.318.06 per tree and there were also 10 number of custard apple trees, the valuation of which was of ::: Uploaded on - 05/09/2017 ::: Downloaded on - 07/09/2017 01:11:58 ::: J-fa371.03.odt 10/13 Rs.500/- per tree and I find that the respondents are entitled to receive compensation in respect of these trees at the rate so determined under this order. As regards the valuation of the other trees done by the Special Land Acquisition Officer and confirmed by the Reference Court, I do not see any reason to make any interference with the same. The first point is answered accordingly.
15. About the market value of the acquired land determined by the Reference Court, I must say, the appellants could not show to me any evidence or other material available on record, showing that such determination made by the Reference Court is unjust or unfair or improper. The market value of the acquired land has been determined by the Reference Court to be at Rs.2,00,000/- per hectare. However, the compensation for the acquired land has been granted at this rate by the Reference Court not for the entire piece of acquired land, which was of Rs.3.40 hectares, but only for 2.40 hectares of it. According to the learned counsel for the respondents, the Reference Court, in doing so has not appreciated the applicable law properly, which is disagreed to by the learned counsel for the appellant Nos.1 and 2. Although, it is submitted by the learned counsel for the appellants that the market value of the acquired land has been found by the Reference Court by resorting to income capitalization method, I do not see any such method having gone into determination of the true market value made by the Reference Court. Perusal of the impugned award shows that the Reference Court ::: Uploaded on - 05/09/2017 ::: Downloaded on - 07/09/2017 01:11:58 ::: J-fa371.03.odt 11/13 has relied upon some other judgment in a connected matter for making such a determination. The number of case in which the judgment was rendered in the connected matter, the date of judgment, names of the parties etc. are not referred to in the impugned award. Adoption of income capital method has also not been specifically mentioned in the impugned award. Therefore, it is difficult to accept the contention of the learned counsel for the appellants that as income capitalization method was adopted, the portion of the acquired land on which orchard stood and for which separate compensation by evaluating the trees has been granted, the Reference Court rightly excluded 1 hectare from out of the acquired land in order to grant compensation for remaining land at the rate of Rs.2,00,000/- per hectare.
16. In the case of Ambya Kalya Mhatre (dead) through LRs. and others vs. the State of Maharashtra, reported in 2012(1) Mh.L.J. 9, the Hon'ble Apex Court has clarified the law in this regard. It has been held that if the land value is determined with reference to the sale instances or compensation awarded for nearby vacant land, necessarily the trees will have to be valued separately and separate compensation based upon such valuation would also have to be granted. It has been further held that if the value of the land has been determined on the basis of the sale instances or compensation awarded for an orchard, a land having fruit bearing trees, there would be no question of again adding the value of the trees. It has also been held that if the market ::: Uploaded on - 05/09/2017 ::: Downloaded on - 07/09/2017 01:11:58 ::: J-fa371.03.odt 12/13 value is determined by capitalizing the income with reference to the yield of the fruit bearing trees or other crops, then also the question of making any addition, to the value of the land, the value of the trees determined separately does not arise.
17. Having considered the evidence available on record, I am of the view that the principles of law stated in Ambya Kalya Mhatre (supra) have not been correctly applied to the facts of the case. There is no evidence available on record by which one can say that the valuation has been done by reference to the sale instances of any orchard or by adopting income capitalization method. Therefore, valuation for the fruit bearing trees would have to be carried out separately and added to the market value of the land. So, the compensation given by the Reference Court at the rate of Rs.2,00,000/- per hectare for only 2.40 hectares of the acquired land would have to be said as not properly made and the compensation at the rate of Rs.2,00,000/- per hectare would have to be given for the entire piece of acquired land which is having area of 3.40 hectares, which I do so now. Thus, I find that the respondents are entitled to receive compensation for the entire piece of acquired land admeasuring 3.40 hectares at the rate of Rs.2,00,000/- per hectare. The second point is answered accordingly and the third point stands answered in the order that would be now passed.
18. In the result, the First Appeal and the Cross-Objection are partly allowed and the impugned award stands modified in the above ::: Uploaded on - 05/09/2017 ::: Downloaded on - 07/09/2017 01:11:58 ::: J-fa371.03.odt 13/13 terms.
19. The modified impugned award shall carry the same interest and other statutory benefits as given by the Reference Court but they shall be applicable on the compensation given under this order with the further modification that the interest given at the rate of 9% p.a. shall be for one year from 13.12.1996 and thereafter at the rate of 15% p.a. till realization.
20. If the calculations made as per this order reveal that additional Court fee is required to be paid by the respondents, the same shall be paid by them within two months from the date of this order.
21. If the calculations reveal the position to be otherwise or to be specific, the position shows that the appellants have paid excess amount, then, whatever stands in excess of what is granted under this order shall be paid back to the appellants within three months along with interest at the rate of 6% p.a. from the date of withdrawal till actual refund is made, failing which the appellants shall be entitled to recover the same in accordance with law.
22. The parties to bear their own costs.
JUDGE okMksns ::: Uploaded on - 05/09/2017 ::: Downloaded on - 07/09/2017 01:11:58 :::