Bombay High Court
Shri. Manohar S/O Atmaram Fiske vs The State Of Maha. Thr The Collector, ... on 30 September, 2020
Author: N. B. Suryawanshi
Bench: A. S. Chandurkar, N. B. Suryawanshi
1
J-FA-225-2010.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
FIRST APPEAL NO. 225 OF 2010
APPELLANT : Shri. Manohar S/o Atmaram Fiske,
Aged about 52 years,
Occ. - Agriculturist, R/o Post Isapur,
Tahsil - Katol, District - Nagpur.
...VERSUS...
RESPONDENTS : 1) The State of Maharashtra,
Through the Collector, Nagpur
2) The Special Land Acquisition Officer,
and Sub-Divisional Officer, Katol,
Tahsil-Katol, District - Nagpur.
3) The Executive Engineer,
Minor Irrigation Works, Nagpur.
--------------------------------------------------------------------------------------------------------
Shri. S. V. Deshmukh, Advocate for appellant.
Shri. M. A. Kadu, Assistant Government Pleader for respondents.
--------------------------------------------------------------------------------------------------------
WITH
FIRST APPEAL NO. 42 OF 2012
APPELLANTS/ : 1) State of Maharashtra,
ORI. RESPONDENTS Through Collector, Nagpur
(On R.A.)
2) Special Land Acquisition Officer,
and Sub-Divisional Officer Katol,
District - Nagpur.
3) Executive Engineer,
M. I. W., Nagpur.
...VERSUS...
RESPONDENT/ : Shri Manohar S/o Atmaram Fiske,
ORI. CLAIMANT Aged about 45 years,
(On R.A.) Occupation: Agriculturist, R/o Post
Isapur (Bk.), Tahsil - Katol,
District - Nagpur.
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J-FA-225-2010.odt
Shri M. A. Kadu, Assistant Government Pleader for appellants.
Shri S. V. Deshmukh, Advocate for respondent-sole.
--------------------------------------------------------------------------------------------------------------
WITH
FIRST APPEAL NO. 591 OF 2012
APPELLANTS/ : 1) State of Maharashtra
ORI. RESPONDENTS Through Collector, Nagpur
(On R.A.)
2) Special Land Acquisition Officer,
And Sub-Divisional Officer Katol,
District Nagpur.
3) Executive Engineer,
Minor Irrigation Works, Nagpur.
...VERSUS...
RESPONDENT/ : Shri Purushottam S/o Atmaram Fiske,
ORI. CLAIMANT Aged about 53 years,
(On R.A.) Occupation : Agriculturist,
R/o Post Isapur(Bk.), Tahsil Katol,
District Nagpur.
--------------------------------------------------------------------------------------------------------
Shri. M. A. Kadu, Assistant Government Pleader for appellants.
Shri. S. V. Deshmukh, Advocate for respondent.
--------------------------------------------------------------------------------------------------------
WITH
FIRST APPEAL NO. 16 OF 2010
APPELLANT: Shri. Purushottam S/o Atmaram Fiske,
Aged about 60 years,
Occupation : Agriculturist,
R/o Post Isapur, Tq. Katol,
Distt. Nagpur.
...VERSUS...
RESPONDENTS : 1) The State of Maharashtra
Through The Collector, Nagpur.
2) The Special Land Acquisition Officer
And Sub-Divisional Officer, Katol,
Tahsil Katol, Distt. Nagpur.
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J-FA-225-2010.odt
3) The Executive Engineer,
Minor Irrigation Work, Nagpur.
Shri S. V. Deshmukh, Advocate for appellant.
Shri M. A. Kadu, Assistant Government Pleader for respondents.
--------------------------------------------------------------------------------------------------------------
WITH
FIRST APPEAL NO. 505 OF 2011
APPELLANT : Shri. Bhimrao s/o Nanoji Kale,
ORI. APPLICANT Aged about : 50 years, Occupation
Agriculturist, resident of Chikhali,
Tahsil Katol, Distt. Nagpur.
...VERSUS...
RESPONDENTS: 1) The State of Maharashtra
ORI. NON-APPLICANTS through the Collector, Nagpur,
District, Collector Office, Nagpur.
2) The Special Land Acquisition Officer,
and Sub-Divisional Officer, Katol,
District - Nagpur.
--------------------------------------------------------------------------------------------------------
Shri. S. V. Deshmukh, Advocate for appellant.
Shri. M. A. Kadu, Assistant Government Pleader for respondents.
--------------------------------------------------------------------------------------------------------
WITH
FIRST APPEAL NO. 849 OF 2012
APPELLANTS/ : 1) State of Maharashtra,
ORI. RESPONDENTS Through Collector, Nagpur
(On R.A.)
2) Special Land Acquisition Officer,
and Sub-Divisional Officer Katol,
District - Nagpur.
...VERSUS...
RESPONDENT/ : Shri Bhimrao s/o Nanoji Kale,
ORI. CLAIMANT Aged about 51 years,
(On R.A.) Occupation: Agriculturist, R/o Post
Chikhali, Tahsil - Katol,
District - Nagpur.
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J-FA-225-2010.odt
Shri M. A. Kadu, Assistant Government Pleader for appellants.
Shri S. V. Deshmukh, Advocate for respondent-sole.
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CORAM:- A. S. CHANDURKAR AND
N. B. SURYAWANSHI, JJ.
JUDGMENT RESERVED ON : 11/09/2020
(FA No..225 of 2010 with FA No.42 of 2012)
WITH
(FA No. 591 of 2012 with FA No. 16 of 2010)
JUDGMENT RESERVED ON : 18/09/2020
(FA No. 505 of 2011 with FA No.849 of 2012)
JUDGMENT PRONOUNCED ON : 30/09/2020
JUDGMENT (PER : N. B. SURYAWANSHI, J.):
1. Heard finally with the consent of learned counsel appearing for the parties.
2. Since these appeals arise out of the lands acquired in same Land Acquisition Case No. 6/A-65/1998-99, by which the lands of the claimants at village Mouza - Isapur, Taluka - Katol, District - Nagpur were acquired by the State Government for Chikhali Nala Prakalpa, they are heard together and are decided by this common judgment.
The facts giving rise to the first appeals can be stated as under :-
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J-FA-225-2010.odt
3. In this acquisition, a Notification under Section 4 of the Land Acquisition Act was published on 22/01/1998 and a Notification under Section 6 was published on 19/11/1998. The awards were passed by the Special Land Acquisition Officer on 26/12/2000 and the possession of the claimants land was taken by the Collector, Nagpur.
4. In First Appeal No. 225 of 2010, the land bearing Survey No.91, admeasuring 4.94 HR of Mouza Isapur, Tq. Katol, Dist. Nagpur was acquired and the Land Acquisition Officer granted compensation for the land @ Rs.56,500/- per hectare, which was calculated on the basis of land revenue assessment. A total compensation of Rs.16,60,016/- was awarded by the Special Land Acquisition Officer for land and trees, which included Rs.2,94,978/- towards land, Rs.7,24,062/- towards fruit bearing trees and other trees, Rs.3,05,712/- towards solatium and Rs.3,35,264/- towards 12 % component.
5. The claimant since was not satisfied with the meagre amount of compensation, filed a reference (LAC No. 104/2002), under Section 18 of the Land Acquisition Act before the Reference Court and claimed compensation @ ::: Uploaded on - 01/10/2020 ::: Downloaded on - 02/10/2020 02:00:43 ::: 6 J-FA-225-2010.odt Rs.14,82,000/- for the area of 4.94 HR for the irrigated land, Rs.2,00,000/- towards two constructed Wells and Rs.7,24,062/- towards fruit bearing trees and other trees. Thus, the claimant raised a claim of Rs.64,43,984/- in the Reference Court + 30% solatium and 12 % interest on the amount of compensation from the date of notification under Section 4 till the date of award. The claimant averred that the possession of his land was taken by the Government even prior to the notification.
6. After considering the evidence on record, Reference Court partly allowed the reference, thereby directing the respondents to pay value of 290 orange trees @ Rs.5,000/- per tree, value of 103 Mosambi trees @ Rs.4,500/- per tree, Rs.1,000/- towards value of one Jam tree and Rs.500/- towards value of one Bor tree for life period of trees. The claimant was also held entitled for 30% solatium on total amount and 12% additional component per annum on the total amount as per Section 23 of the Act was also awarded from the date of publication of notification under Section 4(1) of the Land Acquisition Act w.e.f. 22/01/1998 till the date of award i.e. 26/12/2000. The Reference Court did not grant compensation for Wells and also held that the compensation towards land and forest trees awarded by the Special Land Acquisition Officer, was ::: Uploaded on - 01/10/2020 ::: Downloaded on - 02/10/2020 02:00:43 ::: 7 J-FA-225-2010.odt just and proper. The claimant as well as the State both are aggrieved by the Judgment and Award passed by the Reference Court. According to the claimant, the compensation granted is meagre and inadequate and needs to be enhanced as per the claim made before the Reference Court. The State has filed First Appeal No. 42 of 2012 challenging the compensation awarded by the Reference Court being excessive.
7. First Appeal No. 16 of 2010 is filed by the claimant whose land bearing Survey No.92, admeasuring 1.08 HR of Mouza - Isapur, Taluka - Katol, District - Nagpur was acquired and total compensation of Rs.12,19,110/- was awarded by the Special Land Acquisition Officer which included Rs.28,479/- towards the land area 1.08 HR, Rs.6,66,580/- towards fruit bearing trees and other trees, Rs.2,24,514/- towards 30% solatium, Rs.2,46,217/- towards 12% components and Rs. 53,320/- towards one Pakka Well.
8. The claimant/appellant since was not satisfied with the meagre amount of compensation, filed reference (L.A.C. No. 103 of 2002) under Section 18 of the Land Acquisition Act before the Reference Court and claimed compensation @ Rs.3,24,000/- for the land area of 1.08 HR (@ Rs.3,00,000/- per ::: Uploaded on - 01/10/2020 ::: Downloaded on - 02/10/2020 02:00:43 ::: 8 J-FA-225-2010.odt hectare), Rs.58,42,000/- towards fruit bearing trees and other trees and Rs.1,00,000/- towards one Pakka Well as enhanced compensation. Thus, the claimant raised a total claim of Rs.62,66,000/-.
9. Considering the evidence on record, the Reference Court partly allowed the reference, thereby directing the respondent to pay value of 373 Orange trees @ Rs.5,000/- per tree, value of 2 Lemon trees @ Rs.1000/- per tree, the value of 4 Sitaphal tree @ Rs.500/- per tree, Rs.500/- towards the value of 1 Bor tree and Rs.2,000/- towards the value of 1 Mango tree for life period of the trees, for fixing the market value of the acquired land/trees to the claimant. 30% solatium on the total amount and 12% additional component per annum was also awarded to the claimant from the date of publication of Notification under Section 4(1) of the Land Acquisition Act w.e.f. 26/12/2000. The claimant as well as State are aggrieved by the judgment and award passed by the Reference Court. According to the claimant, the compensation granted is meagre and inadequate and the same needs to be enhanced as per the claim made before Reference Court. The State has filed First Appeal No. 591 of 2012 challenging the compensation being excessive. ::: Uploaded on - 01/10/2020 ::: Downloaded on - 02/10/2020 02:00:43 ::: 9
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10. First Appeal No. 505 of 2011 is filed by claimant whose lands bearing Survey Nos. 47/3, 48/3 and 50/B3 admeasuring 0.72, 0.15 and 0.56 HR respectively. (Total area 1.43 HR) of Mouza - Isapur, Taluka Katol, District - Nagpur were acquired and total compensation of Rs. 13,27,929/- including solatium, interest was granted for the acquired land and fruit bearing trees.
11. The claimant/appellant being not satisfied with the meager amount of compensation, filed reference (L.A.C. 339 of 2002) under Section 18 of the Land Acquisition Act, 1894 before the Reference Court and claimed compensation @ Rs. 3,57,500/- for the land area 1.43 HR [@ Rs. 2,50,000/- per hectare], Rs. 58,47,000/- for fruit bearing trees and other trees, Rs. 2,00,000/- for two constructed Wells, Rs. 5,000/- for Stone Bunds, Rs. 15,000/- for PVC Pipeline as enhanced compensation. Thus, the claimant/appellant claimed Rs. 50,96,558/- towards enhanced compensation.
12. Considering the evidence on record, the Reference Court partly allowed the reference, thereby directing the respondents to pay value of 487 Orange trees @ Rs.4,500/- per tree, value of 6 Lemon trees @ Rs.1,000/- per tree, the value ::: Uploaded on - 01/10/2020 ::: Downloaded on - 02/10/2020 02:00:43 ::: 10 J-FA-225-2010.odt of 2 Bor trees @ Rs.5,00/- per tree and the value of 2 Mango trees @ Rs.1,500/- per tree and 6 Guava trees @ Rs.500/- per tree for the life period, for fixing the market value of the acquired land/trees to the claimant. 30% solatium and component compensation @ 12% per anuum was also awarded to the claimant. According to the claimant, the compensation granted is meagre and inadequate and the same needs to be enhanced as per the claim made before the Reference Court. The State, by filling First Appeal No. 849 of 2012 claims that the compensation awarded by the Reference Court is excessive.
13. Common arguments are advanced seeking enhancement of compensation by the learned Advocate for the claimants in all the first appeals. It is argued that the Special Land Acquisition Officer has granted meagre compensation. He committed an error in arriving at market value of the land on the basis of land revenue assessment. The highest market value as per the sale instances mentioned in the award of Rs.2,92,306/- was not granted without assigning any reason and hence, the award suffers from illegality. By relying upon the sale instances mentioned in the award at village Mendki of the year 1994-1995, he submits that irrigated land was sold @ Rs.2,92,306/- per hectare. Since the sale instances are quoted in the award, they ::: Uploaded on - 01/10/2020 ::: Downloaded on - 02/10/2020 02:00:43 ::: 11 J-FA-225-2010.odt are admitted by the acquiring body and hence, the rate of Rs.2,92,306/- per hectare ought to have been given to the claimant. Since the State has quoted the sale instances in the award, the claimant is not liable to prove the sale instances. It is further submitted that burden lies on the State / Collector to justify the compensation given to the claimant and he has to prove that fair and reasonable compensation was given to the claimant. Further submission is that fruit bearing trees were planted in part of the land area and the claimants are entitled for separate compensation towards the land wherein, fruit bearing trees were planted. The claimants were taking two cash crops in remaining land area which is irrigated land and claimants are entitled for enhanced compensation for the said area. For forest trees, the Reference Court ought to have granted enhanced compensation as claimed in reference. Necessary evidence was brought on record by the claimants in respect of valuation of the forest trees. However, the Reference Court erred in not awarding compensation as per the valuation brought on record by the claimant. Learned advocate for the claimant further submits that in spite of there being two constructed Wells in the acquired land, the Reference Court has failed to give compensation for the said Wells and separate compensation needs to be given for land and trees. The learned advocate for claimant therefore, prays to ::: Uploaded on - 01/10/2020 ::: Downloaded on - 02/10/2020 02:00:43 ::: 12 J-FA-225-2010.odt allow the first appeals and grant the claim made in the Reference Court. Learned advocate for claimants in support of his submissions, placed reliance on following Judgments. I] The State of West Bengal Vrs. Shyamapada etc., reported in AIR 1975 SC 1723, wherein it is held that "While the land classification for revenue purposes might have its own rationals, it is not uncommon to find that land which has a lower classification for revenue purposes fetches a higher price in the market" and that, "where sale deeds pertaining to different transactions are relied upon on behalf of parties, the transaction representing the highest value should be preferred to the rest." II] Mehrawal Khewaji Trust (Regd.) Faridkot & others Vrs. State of Punjab & others, reported in AIR 2012 SC 2721 for claiming separate compensation payable for land and trees. III] The Special Land Acquisition Officer and another etc. etc. Vrs. Sri Siddappa Omanna Tumari and others etc., reported in AIR 1995 SC 840 in support of his submission that award passed by the Collector in respect of land covered under notification under Section 4(1) of the Land Acquisition Act, cannot be ignored by the Court while determining compensation payable ::: Uploaded on - 01/10/2020 ::: Downloaded on - 02/10/2020 02:00:43 ::: 13 J-FA-225-2010.odt for other acquired land covered by the same notification. IV) Learned advocate for the claimant further argued that the Division Bench Judgment reported in 2013(1) Mh.L.J. 397 in the case of State of Maharashtra and Anr. .Vrs. Chandrakant Mangilal Samdadia and Ors. is distinguishable on the facts, wherein "this Court has relied on the Judgment of Hon'ble Apex Court in the case of Ambya Kalya Mhatre .Vrs. State of Maharashtra reported in 2011 AIR SC (supplement) 625, when compensation has been determined on the basis of sales statistics for an Orchard i.e. land with fruit bearing trees, then there is no question of again adding value of trees of it, because value has been determined by capitalizing income with reference to yield."
By relying on unreported Judgment of Division Bench of this Court at Nagpur in First Appeal No. 54 of 2013 (Maharashtra Industrial Development Corporation .Vrs. Mohan Shriram Nimdeokar and Ors.), wherein decision in Ambya Mhatre (supra) was considered and it is held that "separate compensation would not be payable for the land, if compensation for the trees determined by capitalizing by income with reference to yield. In the instant case, we find that the ::: Uploaded on - 01/10/2020 ::: Downloaded on - 02/10/2020 02:00:43 ::: 14 J-FA-225-2010.odt Reference Court has not determined the value of trees by capitalizing the income with reference to yield. Since the value of trees is not decided by capitalizing the income with reference to yield, in view of the Judgment in case the of Ambya Mhatre (supra) the claimant in this case would be entitled for separate compensation for 1.22 hectare of land @ Rs.1,00,000/- per hectare." The learned advocate for the claimants submits that this judgment should be relied upon and not the judgment reported in the case of Chandrakant Samdadia (supra). V) By relying on the Judgment of Single Bench of this Court at Nagpur in First Appeal No. 453 of 2010 (Vidarbha Irrigation Development Corporation .Vrs. Champatrao s/o Amrutrao Bhaswar and Ors.), wherein land was acquired for the same project for which land of the claimants is acquired, it is submitted that in that case this Court has granted compensation @ Rs.1,80,000/- per hectare for the land at village Mendki which is adjacent to village Isapur, the claimants are therefore, entitled at least for the same rate.
VI) Further, reliance is placed on the Judgment of Single Bench at Nagpur in First Appeal No. 213 of 2014 (State of Maharashtra through its District Collector, Wardha and ::: Uploaded on - 01/10/2020 ::: Downloaded on - 02/10/2020 02:00:43 ::: 15 J-FA-225-2010.odt Anr. .Vrs. Prakash Ramdasji Jadhav) and the Single Bench Judgment at Nagpur in the case of Sau. Ushadevi Manikrao Baradkar .Vrs. State of Maharashtra (First Appeal No. 469 of 2012), compensation @ Rs.8,281/- per Orange tree was granted. The same rate for Orange trees is claimed on behalf of claimants.
14. The learned Assistant Government Pleader, on the other hand, disputes the number of trees, so far as First Appeal No. 591 of 2012 and First Appeal No. 225 of 2010 are concerned. In First Appeal No. 849 of 2012, the learned Assistant Government Pleader contends that the Reference Court has committed an error in awarding compensation @ Rs.4,500 for 52 Orange trees which were of 4 years age, they could not be said to be fruit bearing trees and hence, could not be granted compensation @ Rs.4,500/- per tree for 52 Orange trees. The said compensation awarded is exorbitant and excessive and the same needs to be interfered with and reduced.
The learned Assistant Government Pleader further submits that the sale instances mentioned in the award are not proved on record by leading evidence, hence those cannot be relied upon. It is the duty of claimant to prove that the price offered for his land in the award is inadequate on the basis of ::: Uploaded on - 01/10/2020 ::: Downloaded on - 02/10/2020 02:00:43 ::: 16 J-FA-225-2010.odt material produced in the Court. He placed reliance in the case of Chimanlal Hargovinddas Vrs. Special Land Acquisition Officer, Poona and another, reported in AIR 1988 SC 1652 in support of his submission. It is further submitted that sale deeds brought on record by the claimant, at Exh. 21 and 26 are of the year 1996 of village Gondi Digras, there is nothing on record to show what was the distance between Isapur and Gondi Digras, whether it is adjacent to Mouza - Isapur, hence, the same cannot be relied upon to arrive at a market value of the land of the claimant. Further, submission is that the claimant has failed to prove that the entire land was irrigated by bringing cogent evidence on record. Thus, taking into consideration the material on record, learned Assistant Government Pleader would submit that the compensation awarded by Land Acquisition Officer to the respective lands of the claimants is fair and reasonable, so far as value of trees is concerned. Shri Sharad Umale (AW-2) is not an approved valuer on that date. Hence, his valuation cannot be relied upon. In respect of valuation of forest trees, learned Assistant Government Pleader submits that the schedule of the Forest Department is not proved by Competent Officer and the said valuation is made after two years of Section 4 Notification, the valuer has not filed qualification certificate. Hence, the same cannot be relied upon. The learned Assistant Government ::: Uploaded on - 01/10/2020 ::: Downloaded on - 02/10/2020 02:00:43 ::: 17 J-FA-225-2010.odt Pleader placed reliance in the Single Bench decision at Nagpur in First Appeal No. 586 of 2007 (State of Maharashtra and Anr. .Vrs. Shankar s/o Baban Rathod), land Gat No.67 admeasuring 2H 2R from village Kumbharkinhi was the subject matter of the acquisition for construction of a dam. A Notification under Section 4 of the Land Acquisition Act, 1894 was issued on 24/10/1996, wherein compensation @ Rs.3,000/- per Big Orange tree and @ Rs.1,500/- per Small Orange tree was awarded. The learned Assistant Government Pleader submits that the same may be awarded in the present matters.
Further, by relying upon Single Bench decision at Nagpur in First Appeal No. 348 of 2014 (Gulab S/o Ambadasji Gole .Vrs. State of Maharashtra and Anrs.) , wherein land Survey No.74 admeasuring 2.06 hectare situated at village Pathrat, Taluka Ner, District - Yavatmal was acquired. This Court considering the evidence on record awarded compensation @ Rs.3,000/- per Big Orange tree and Rs.700/- per Small Orange tree. He submits that the same may be awarded in the present matters. The learned Assistant Government Pleader also relied upon Ambya Mhatre (supra) and Chandrakant Samdadia (supra) to contend that no separate compensation for land and fruit bearing trees is payable to the claimants. With respect to not ::: Uploaded on - 01/10/2020 ::: Downloaded on - 02/10/2020 02:00:43 ::: 18 J-FA-225-2010.odt granting compensation towards two wells, learned Assistant Government Pleader submits that the exact dimension, nature of construction of Wells, etc. is not brought on record by the claimant and hence, the Reference Court is justified in not granting compensation towards above Wells.
15. After hearing the learned counsel for the parties and on perusal of record and proceedings, the following points arose for determination in these first appeals :-
i) Whether the Reference Court was right in arriving at the value of fruit bearing trees for fixing the market value of the acquired land / trees and / or whether amount needs to be enhanced or reduced ? ii] Whether the claimants are entitled for separate compensation for land and fruit bearing trees ? iii] Whether the compensation for forest trees needs to be enhanced or reduced ?
iv] Whether the Reference Court was justified in denying compensation for wells to the claimant ? v] Whether the claimants are entitled to the enhanced compensation and/or the compensation is liable to be reduced ?
::: Uploaded on - 01/10/2020 ::: Downloaded on - 02/10/2020 02:00:43 ::: 19 J-FA-225-2010.odt vi] What order ?
16. For answering the points for determination, it is necessary to consider the evidence of parties, both oral and documentary. The claimant - Manohar filed affidavit in lieu of his examination-in-chief. It is stated in the affidavit that the quality of the acquired land is fine and fertile, land used to take Kharip as well as Rabbi crops i.e. Paddy, Soybean, Wheat, Chana, Jowar, Cotton, Tur, Til, Mung and Orange crops. His land was irrigated land and water was in abundance. He had irrigation facility. He used to take Wheat crop and vegetables, which are cash crops. The land is 10 kilometers away from Tahsil Headquarter and is adjoining to the existing Gaothan of village Isapur. The land is 2 kilometers away from nearest bus stop, which is on the National Highway. The land was irrigated by river and canals. There is Primary School, Secondary High School in village Isapur. Population of village is 566 as per 1991 census. Isapur has Gram Panchayat, Post Office, Police Station and Primary Health Center. The income from the field of the claimant was Rs.40,000/- to Rs.50,000/- per acre per year. The minimum market price of the field of the claimant at the relevant time was not less than Rs.3,00,000/- per hectare. The claimant, therefore, claimed ::: Uploaded on - 01/10/2020 ::: Downloaded on - 02/10/2020 02:00:43 ::: 20 J-FA-225-2010.odt compensation @ Rs.3,00,000/- per hectare for land, Rs.15,000/- per Orange tree for 290 Orange trees, Rs.15,000/- per Sweet Lemon tree for 103 Sweet Lemon trees, Rs.5,000/- for one Guava tree, Rs.10,000/- per Sagwan tree for 51 Sagwan trees, Rs.3,000/- per Adjat tree for 4 other Adjat trees and Rs.2,00,000/- for 2 big constructed Wells, thereby claiming total amount of compensation of Rs.81,04,000/-. The claimant also examined Shri Sharad Umale, Horticulturist at Exh.29 to bring on record the valuation report of fruit trees at Exh.31. He states in his evidence that the field of claimant is close to the village and there were 290 orange trees, 109 Mosambi fruit bearing trees and one Guava and one Ber tree. All the trees were at fruit bearing stage and all these trees were in the area of 4.94 hectare. There was a Well having perennial source of water from which irrigation was done. He visited the field on 15/03/1999 and recorded the minute details and prepared his valuation report at Exh.31. As per the report, the valuation of fruit bearing trees comes to Rs.33,20,767/-. At Exh.30, Shri Balkrishna Patil, an expert in Agro Forestries was examined to bring on record the value of forest trees i.e. Teak trees, Anjan trees and Semal tree, etc. According to him the valuation of the forest trees in the field of claimant was Rs.1,72,875/-. He had taken the rates of valuation for timber from the schedule of rates sanctioned by ::: Uploaded on - 01/10/2020 ::: Downloaded on - 02/10/2020 02:00:43 ::: 21 J-FA-225-2010.odt Forest Department for the year 1999-2000 (Exh.34).
Similar evidence is led in the references filed by the claimants in First Appeal No. 16 of 2010 and First Appeal No. 505 of 2011. On behalf of the State, Special Land Acquisition Officer - Rajendra Ahiwar was examined in all the references who has led similar evidence, he has admitted in his evidence that at the time of land acquisition proceeding, he was not In-charge of Katol Sub-Division and his Predecessor has verified the quality and productivity of the land as per ready reference and has determined the value of land and trees. His evidence, therefore, was not relied upon by the Reference Court.
17. In all these cases, the claimants have not brought any evidence on record to show that the market value of their acquired lands was more than compensation granted to them for their lands. Though, sale deeds - Exh. 21 and 26 of land at village Gondi Digras are brought on record by the claimants, the same are not of much assistance to them. The distance between village Gondi Digras and village Isapur is not brought on record, so also there is no evidence on record that the land in the sale deeds was proximate and was of similar quality to the acquired land of the claimants. In this view of the matter, the sale deeds - ::: Uploaded on - 01/10/2020 ::: Downloaded on - 02/10/2020 02:00:43 ::: 22
J-FA-225-2010.odt Exh. 21 and 26 cannot be of any help to the claimants. It was the duty of the claimant to bring on record evidence in support of their claim that the market value of their land at the relevant time was Rs.3,00,000/- per hectare. However, the claimants have failed to bring on record any such evidence and hence, the claim of the claimants that market value of their land was Rs.3,00,000/- per hectare or at least Rs.2,50,000/- per hectare, cannot be accepted, in absence of any material brought on record by the claimants.
18. It is settled legal position that the claimant is in the position of plaintiff, who has to show that price offered for his land in the award is inadequate, on the basis of materials produced in the Court. A useful reference in this behalf can be made to the relevant observations of the Apex Court in the case of Chimanlal Hargovinddas Vrs. Special Land Acquisition Officer, Poona and another, reported in AIR 1988 SC 1652.
4. The following factors must be etched on the mental screen :
(1) A reference under Section 18 of the Land Acquisition Act is not an appeal against the award and the Court cannot take into account the material relied upon by the Land Acquisition Officer in his Award unless the same material is produced and proved before the Court.::: Uploaded on - 01/10/2020 ::: Downloaded on - 02/10/2020 02:00:43 ::: 23
J-FA-225-2010.odt (2) So also the Award of the Land Acquisition Officer is not to be treated as a judgment of the trial Court open or exposed to challenge before the court hearing the Reference. It is merely an offer made by the Land Acquisition Officer and the material utilised by him for making his valuation cannot be utilised by the Court unless produced and proved before it. It is not the function of the court to sit in appeal against the Award, approve or disapprove its reasoning, or correct its error or affirm, modify or reverse the conclusion reached by the Land Acquisition Officer, as if it were an appellate Court.
(3) The Court has to treat the reference as an original proceeding before it and determine the market value afresh on the basis of the material produced before it. (4) The claimant is in the position of a plaintiff who has to show that the price offered for his land in the award is inadequate on the basis of the materials produced in the Court. Of course the materials placed and proved by the other side can also be taken into account for this purpose.
(5) ................
19. Though, the learned Advocate for the claimant relied upon in the case of The Special Land Acquisition Officer and another etc. etc. Vrs. Sri Siddappa Omanna Tumari and others etc., reported in AIR 1995 SC 840 to contend that burden lies on the Collector to justify the compensation given in the award and in terms of Section 12, the award of the Collector is final and conclusive evidence between him and the claimant. The Collector has to justify the compensation awarded to the claimant. We are unable to agree with the said submission. This is not the ratio of this decision and it nowhere exempts the ::: Uploaded on - 01/10/2020 ::: Downloaded on - 02/10/2020 02:00:43 ::: 24 J-FA-225-2010.odt claimant from proving that compensation granted to him was inadequate. In para 7, it is held ;
"7. ...........Therefore, the legislative scheme contained in Sections 12, 18 and 19 while on the one hand entitles the claimant not to accept the award made under Section 11 as to the amount of compensation determined as payable for his acquired land and seek a reference to the Court for determination of the amount of compensation payable for his land, on the other hand requires him to make good before the Court the objection raised by him as regards the inadequacy of the amount of compensation allowed for his land under the award made under Section 11, with a view to enable the Court to determine the amount of compensation exceeding the amount of compensation allowed by the award under Section 11, be it by reference to the improbabilities inherent in the award itself or on the evidence aliunde adduced by him to that effect. That is why, the position of a claimant in reference before Court, is considered to be that of the plaintiff in a suit requiring him to discharge the initial burden of proving that the amount of compensation determined in the award under Section 11 was inadequate, the same having not been determined on the basis of relevant material and by application of correct principles of valuation, either with reference to the contents of the award itself or with reference to other evidence aliunde adduced before the Court. Therefore, if the initial burden of proving the amount of compensation allowed in the award of the Collector was inadequate, is not discharged, the award of the Collector which is made final and conclusive evidence under Section 12, as regards matters contained therein will stand unaffected. But if the claimant succeeds in proving that the amount determined under the award of the Collector was inadequate, the burden of proving the correctness of the award shifts on the Collector who has to adduce sufficient evidence in that behalf to sustain such award. ............."::: Uploaded on - 01/10/2020 ::: Downloaded on - 02/10/2020 02:00:43 ::: 25
J-FA-225-2010.odt In para 22, the Hon'ble Apex Court has observed that "there was absolutely no evidence produced by the claimant in Civil Court made by them which would show that they had produced evidence sufficient to discharge the burden of proving that the award made by the Land Acquisition Officer did not give adequate compensation for their acquired lands". In these present cases also the claimants have failed to discharge the burden by bringing evidence that inadequate compensation was given to the land of the claimants by the land acquisition officer and only after the initial burden is discharged by the claimant that inadequate compensation was given to him, the burden would shift on the Collector to prove that adequate compensation was given. In this view of the matter, there is no substance in the argument of the claimants that since the award is challenged by filing reference under Section 18, the burden is on the Collector to justify that the compensation awarded was adequate and that since the sale instances mentioned in the award are admitted by the acquiring body, the claimant was not required to prove the sale instances.
20. The learned Advocate for the claimants was justified in claiming that the Special Land Acquisition Officer has committed an error in arriving at valuation of the land on the ::: Uploaded on - 01/10/2020 ::: Downloaded on - 02/10/2020 02:00:43 ::: 26 J-FA-225-2010.odt basis of land revenue assessment. This Court in the case of State of Maharashtra and Another .Vrs. Baliram Girdhar Patil, reported in 2006(6) Mh.L.J. 82 has held :
"...............For classification, the quality, fertility with other factors of Jirayat land can be considered. However, it does not stand to a reason as to how the assessment of land can be made a basis for grouping of agricultural lands. Here one more aspect requires consideration. Use of the manure, chemical or otherwise, is the order of the date. Such use of the manual undoubtedly improves the fertility of the agricultural land. Therefore, grouping of lands made by the Special Land Acquisition Officer on the basis of assessment and accepted by the Reference Court is not legal, proper and in accordance with the provisions of law."
The Hon'ble Apex Court in the case of The State of West Bengal Vrs. Shyamapada etc., reported in AIR 1975 SC 1723, has held that "While the land classification for revenue purposes might have its own rationals, it is not uncommon to find that land which has a lower classification for revenue purposes fetches a higher price in the market."
In view of the aforesaid ratio, it can be said that the Land Acquisition Officer was not justified in basing valuation on the basis of land revenue assessment. We, however, find that considering the nature of material brought on record by the ::: Uploaded on - 01/10/2020 ::: Downloaded on - 02/10/2020 02:00:43 ::: 27 J-FA-225-2010.odt claimants, the Reference Court was justified in determining the compensation on the basis of evidence led by the Horticulturist. But, since the claimants have failed to adduce any evidence on record to show that the valuation of their land was more and or the market value of the land of claimants was at that relevant time Rs.2,50,000/- and/or Rs.3,00,000/- per hectare, we are unable to grant the prayer for enhancement of the claimants. Enhancement would not be possible on the basis of a solitary sale instance of the adjoining village without any further material on record.
We, however, find that the Land Acquisition Officer granted compensation @ Rs. 56,500/- per hectare to the land Survey No. 91, of claimant - Manohar Fiske. For adjoining Survey No. 92 belonging to Purushottam Fiske (real brother of Manohar) compensation @ Rs.71,000/- per hectare was awarded. For 1.43 hectare land of Bhimrao Kale, which is from the same village acquired for the same project, total Rs. 28,787/- compensation was granted. All these lands are adjacent to each other, they all have Well, Orange trees and other fruit bearing tress, they need to be given same compensation. In that view of the matter, claimants - Manohar Fiske and Bhimrao Kale are entitled for compensation of the land @ Rs. 71,000/- per hectare ::: Uploaded on - 01/10/2020 ::: Downloaded on - 02/10/2020 02:00:43 ::: 28 J-FA-225-2010.odt as is awarded to Purushottam Fiske.
21. Though in view of the decision of this Court in MIDC (supra), the claimant can claim separate compensation for land and fruit bearing trees as the Reference Court has not determined the value of the trees by capitalizing the income with reference to yield, since the claimants in these first appeals have failed to lead any evidence to prove that inadequate compensation was awarded by the Land Acquisition Officer for their respective lands, they are not entitled for enhanced compensation, except as observed by us in the foregoing para enhancement in the case of Manohar Fiske and Bhimrao Kale. According to us, compensation @ Rs.71,000/- per hectare is fair and reasonable.
22. For fruit bearing trees, the claimants have claimed enhanced compensation as per the valuation made by Shri. Sharad Umale, Horticulturist, who has filed his valuation reports Exhs. 31, 30, and 28 respectively. He claimed to have prepared valuation report for the year 1997-98 and the rates of Orange trees have been obtained by him from the Krushi Utpanna Bajar Samiti, Nagpur. The relevant data from the APMC though produced before the Reference Court, the same is not proved to ::: Uploaded on - 01/10/2020 ::: Downloaded on - 02/10/2020 02:00:43 ::: 29 J-FA-225-2010.odt be genuine and reliable as any other evidence led by the claimant. The Reference Court has awarded Rs.5,000/- per tree for Orange trees, Rs.4,500/- per Mosambi tree to the claimants Manohar Fiske and Purushottam Fiske. The Reference Court awarded the same as in the previous Reference No.105 of 2002 in respect of the same award, the same price was awarded by the Reference Court. We are of the considered view that the Reference Court was justified in fixing the value of fruit bearing trees as above and no case is made out to interfere with the same valuation.
However, the Reference Court has awarded Rs.4,500/- per Orange tree to claimant - Bhimrao Kale. The land of Bhimrao Kale is from the same village Isapur and is similar as that of land Gat No. 91 and 92. His land is irrigated by Well and has fruit bearing trees. In that view of the matter, claimant - Bhimrao Kale is entitled for the same compensation @ Rs.5000/- per Orange tree as is awarded to the claimants Manohar Fiske and Purushottam Fiske. Claimant - Bhimrao Kale would be entitled for this compensation for 435 Orange trees, that are about 8 years old.
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J-FA-225-2010.odt The learned Assistant Government Pleader was right in contending that exorbitant compensation (@ Rs.4,500/- per tree) is awarded by the Reference Court to 4 years old 52 Orange trees to claimant Bhimrao as the said trees cannot be said to be fruit bearing trees and hence, the Reference Court could not have awarded compensation to 52 Orange trees at par with 8 years old fruit bearing trees. Since 4 years old tree cannot bear fruits, the Reference Court was not justified in granting compensation @ Rs.4,500/- for 52 Orange trees aged 4 years. In our view, the compensation @ Rs.3,500/- per Orange tree for 52 Orange trees aged 4 years would be fair and reasonable.
23. In case of claimant - Purushottam Fiske, for one Mango tree the compensation of Rs.2000/- was awarded by the Land Acquisition Officer which is maintained by the Reference Court. It is the matter of common knowledge that Mango tree is a fruit bearing tree which gives yearly yield. This aspect has been ignored by the Land Acquisition Officer and Reference Court while awarding compensation of Mango tree. In our view, compensation @ Rs.5,000/- for the Mango tree would be reasonable and proper.
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Pleader has disputed the number of fruit trees in all the matters, however, the number of trees as are reflected in Joint Measurement Reports and 7/12 extracts are taken into consideration and are awarded compensation, hence there is no substance in the dispute raised about number of trees.
24. By relying on the decision of the learned Single Judge in First Appeal No. 453 of 2010, the learned advocate for the claimant claims that in that case land from village - Mendki which was acquired for the same project, was granted compensation @ Rs.1,80,000/- per hectare by this Court. At least, the same rate be awarded to the land of the claimants. So also by relying upon the decision in First Appeal No. 469 of 2012 which pertains to land acquired in Bembla Project, this Court awarded compensation @ Rs.8,281/- per tree for Orange trees, Rs.7,808/- per tree for Sweet Lime tree, Rs.3,178/- per Gauva tree, Rs.3,178/- per Lemon tree and Rs.3,239/- per Berry tree, the claimants claimed that they are entitled to the same rates for fruit trees. In reply to the said contentions, the learned Assistant Government Pleader submitted that the judgment in Chimanlal Hargovinddas (supra) was not brought to the notice of the learned Single Judge in both the first appeals. ::: Uploaded on - 01/10/2020 ::: Downloaded on - 02/10/2020 02:00:43 ::: 32
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25. The learned Single Judge has relied upon the sale instances mentioned in the award to arrive at Rs.1,80,000/- per hectare compensation and the evidence of Horticulturist was relied upon by the learned Single Judge for awarding enhanced compensation for fruit bearing trees as mentioned hereinabove. In view of the decision in the case of Chimanlal Hargovinddas (supra), the burden is on the claimant, who is in position of a plaintiff to prove, by leading cogent evidence that the compensation granted to him was inadequate, by bringing on record sale instances, etc. The sale instances quoted in award were not brought on record and proved by either of the parties before the Reference Court in First Appeal No. 453 of 2010. Merely on the basis of material considered by the Land Acquisition Officer which was not brought on record before the Reference Court, the enhancement has been granted. It is well settled that a previous award/judgment is merely a piece of evidence and it has to be considered in that backdrop. Reference, in this regard can be made to the decision of the Hon'ble Apex Court in case of Manoj Kumar and Others .Vrs. State of Harayana and Others, (2018) 13 SCC 96, wherein it has been observed thus :
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12. "We have come across several decisions where the High Court is adopting the previous decisions as binding. The determination of compensation in each case depends upon the nature of land and what is the evidence adduced in each case, may be that better evidence has been adduced in later case regarding the actual value of property and subsequent sale deeds after the award and before preliminary notification under section 4 are also to be considered, if filed. It is not proper to ignore the evidence adduced in the case at hand. The compensation cannot be determined by blindly following the previous award/judgment. It has to be considered only a piece of evidence, not beyond that. The Court has to apply the judicial mind and is supposed not to follow the previous awards without due consideration of the facts and circumstances and evidence adduced in the case in question. The current value reflected by comparable sale deeds is more reliable and binding for determination of compensation in such cases award/judgment relating to an acquisition made before 5 to 10 years cannot form the safe basis for determining compensation.
13. The awards and judgment in the cases of others not being inter parties are not binding as precedents. Recently, we have seen the trend of the courts to follow them blindly probably under the misconception of the concept of equality and fair treatment. The courts are being swayed away and this approach in the absence of and similar nature and situation of land is causing more injustice and tantamount to giving equal treatment in the case of unequal's. As per situation of a village, nature of land its value differ from distance to distance, even ::: Uploaded on - 01/10/2020 ::: Downloaded on - 02/10/2020 02:00:43 ::: 34 J-FA-225-2010.odt two to three kilometer distance may also make the material difference in value. Land abutting highway may fetch higher value but not land situated in interior villages.
14. The previous awards/judgments are the only piece of evidence on a par with comparative sale transactions. The similarity of the land covered by previous judgment/award is required to be proved like any other comparative exemplar. In case previous award/judgment is based on exemplar, which is not similar or acceptable, previous award/judgment of Court cannot be said to be binding. Such determination has to be out rightly rejected. In case some mistake has been done in awarding compensation, it cannot be followed; on the ground of parity an illegality cannot be perpetuated. Such award/judgment would be wholly irrelevant.
16. To base determination of compensation on a previous award/judgment, the evidence considered in the previous judgment/award and its acceptability on judicial parameters has to be necessarily gone into, otherwise, gross injustice may be caused to any of the parties. In case some gross mistake or illegality has been committed in previous award/judgment of not making deduction etc. and/or sufficient evidence had not been adduced and better evidence is adduced in case at hand, previous award/judgment being not inter partes cannot be followed and if land is not similar in nature in all aspects it has to be outrightly rejected as done in the case of comparative exemplars. Sale deeds are on a par for evidentiary value with such awards of the court as court bases ::: Uploaded on - 01/10/2020 ::: Downloaded on - 02/10/2020 02:00:43 ::: 35 J-FA-225-2010.odt its conclusions on such transaction only, to ultimately determine the value of the property."
26. As far as the decision in First Appeal No. 453 of 2010, wherein Rs. 1,80,000/- per hectare was awarded, the same is from different award i.e. L.A.C. No. 4/LND/47/1995-96 from village Mendki. The present acquisition is from village Isapur from L.A.C. No. 6/A-65/1998-99, the proximity and similarity of lands is not proved on record and therefore, the same cannot be taken into consideration, in the present first appeals.
27. Decision in First Appeal No. 469 of 2012 is in respect of acquisition of land from village Barad, Taluka Babulgaon, District Yavatmal, which was acquired for Bembla Project. There is nothing on record to show the distance between village Isapur and village Bembla, since the acquisition is from another project and from different village in different district. It does not help to the case of the claimants, for claiming same compensation for fruit bearing trees.
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28. In the light of aforesaid legal position in Manoj Kumar's case (supra), it is clear that the evidence in the form of judgments in First Appeal No. 453 of 2010 and First Appeal No. 469 of 2012 are not sufficient to grant similar compensation to the claimants.
For the above reasons and taking into consideration the material on record, we are unable to accept the contentions of the learned Assistant Government Pleader that compensation @ Rs.3,000/- per Big Orange tree and Rs.1,500/- per Small Orange tree, as is granted in First Appeal No. 586 of 2007 be granted and that compensation @ Rs.3,000/- per Big Orange tree and Rs.700/- per Small Orange tree as is granted in First Appeal No. 348 of 2014 be granted in this case as the lands acquired in those matters, where from different villages from District - Yavatmal and there is no material on record to show that the lands acquired in similar.
29. The compensation awarded for forest trees by the Land Acquisition Officer appears to be just and proper, which is maintained by the Reference Court. The claimants have examined (AW-3) Balkrishna Patil in support of their claim for enhancement of compensation for forest trees. AW-3 has based ::: Uploaded on - 01/10/2020 ::: Downloaded on - 02/10/2020 02:00:43 ::: 37 J-FA-225-2010.odt valuation of forest trees, on schedule of rates sanctioned by Forest Department, however, the schedule of rates of Forest Department is not proved on record in accordance with law by the claimants. In that view of the matter, we are not inclined to grant enhanced compensation for forest trees to the claimants in absence of any further material in that regard.
30. In case of claimant - Manohar Fiske, the Reference Court has not awarded any compensation for 2 Wells. There is no dispute that there were 2 Wells in the acquired land of claimant - Manohar. Two constructed Wells are mentioned in the Joint Measurement Report - Exh. 26 as well as in the 7/12 extracts - Exh. 17 and 18. The Reference Court has denied compensation only on the ground that in column 11 of the award, the Wells are not mentioned, which is erroneous. In 7/12 extracts, two constructed wells are reflected. One having water and electric pump installed and the other dry well. Brother of the claimant namely Purushottam having adjoining Survey No. 92 was granted compensation of Rs.53,320/- for well having water, by the Land Acquisition Officer. In this view of the matter, Manohar Fiske is entitled for compensation for two constructed wells. In our opinion, Rs.50,000/- for well having water and Rs.25,000/- for dry well would be reasonable compensation. ::: Uploaded on - 01/10/2020 ::: Downloaded on - 02/10/2020 02:00:43 ::: 38
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31. In view of the aforesaid reasons, the points as framed are answered accordingly and the following order is passed.
ORDER
i) First Appeal No. 42 of 2012 filed by the State is dismissed. First Appeal No. 225 of 2010 filed by claimant - Manohar Fiske is partly allowed. The Claimant - Manohar Fiske would be entitled to compensation @ Rs.71,000/- per hectare for his land and Rs.75,000/- for 2 Wells along with statutory benefits. Rest of the award of the Reference Court is maintained.
ii) First Appeal No. 591 of 2012 filed by the State is dismissed. First Appeal No. 16 of 2010 filed by claimant - Purushottam Fiske is partly allowed. The claimant - Purushottam would be entitled for compensation @ Rs.5,000/- for one Mango tree. Except this modification, rest of the award is maintained.
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iii) First Appeal No. 849 of 2012 filed by the State is partly allowed. The compensation of Rs.4,500/- for 4 year old 52 Orange trees awarded by the Reference Court is reduced to Rs.3,500/- per tree. First Appeal No. 505 of 2011 filed by claimant - Bhimrao Kale is partly allowed. The claimant would be entitled for compensation @ Rs.71,000/- per hectare for his acquired land, for 435 Orange trees, the claimant would be entitled for Rs.5,000/- per tree, along with statutory benefits.
32. In the circumstances, there shall be no order as to costs.
JUDGE JUDGE
TAMBE
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