Bombay High Court
Nagpur Bench vs Shri Kamlaji Balaji Jadhav on 7 October, 2010
Author: Vasanti A.Naik
Bench: Vasanti A.Naik
1 Common Judgment
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
First Appeal No.589/2010 With Cross-Objection No.19/2010
Vidarbha Irrigation Development Corporation,
Through its Executive Engineer, Khadakpurna
Project, Division Deulgaon-Raja, Taq. & Dist.
Buldana. APPELLANT
.....VERSUS.....
1. Shri Kamlaji Balaji Jadhav,
Age : Major, Occup. Agriculturist,
R/o. MehunaRaja, Tq. DeulgaonRaja,
Distt. Buldhana.
2. The State of Maharashtra,
Through the Collector, Buldhana.
3. The Special Land Acquisition Officer,
Khadakpurna Project, Buldhana. RESPONDENTS
Shri A.B. Patil, counsel for the appellant.
Shri A.S. Chandurkar, counsel for the respondent no.1-Cross Objector.
Mrs. Mayuri Deshmukh, Assistant Government Pleader for the R-2 & 3.
WITH
First Appeal No.590/2010 With Cross-Objection No.18/2010
Vidarbha Irrigation Development Corporation,
Through its Executive Engineer, Khadakpurna
Project, Division Deulgaon-Raja, Taq. & Dist.
Buldana. APPELLANT
.....VERSUS.....
1. Bramhanand Shamrao Kakde,
Age : Major, Occup. Agriculturist,
R/o. MehunaRaja, Tq. DeulgaonRaja,
Distt. Buldhana.
2. The State of Maharashtra,
Through the Collector, Buldhana.
::: Downloaded on - 09/06/2013 16:31:12 :::
2 Common Judgment
3. The Special Land Acquisition Officer,
Khadakpurna Project, Buldhana. RESPONDENTS
Shri A.B. Patil, counsel for the appellant.
Shri N.B. Kalwaghe, counsel for the respondent no.1-Cross Objector.
Mrs. Mayuri Deshmukh, Assistant Government Pleader for the R-2 & 3.
WITH
First Appeal No.592/2010 With Cross-Objection No.20/2010
Vidarbha Irrigation Development Corporation,
Through its Executive Engineer, Khadakpurna
Project, Division Deulgaon-Raja, Taq. & Dist.
Buldana. APPELLANT
.....VERSUS.....
1. Manohar Gulab More.
Age : Major, Occup. Agriculturist,
R/o. MehunaRaja, Tq. DeulgaonRaja,
Distt. Buldhana.
2. The State of Maharashtra,
Through the Collector, Buldhana.
3. The Special Land Acquisition Officer,
Khadakpurna Project, Buldhana. RESPONDENTS
Shri A.B. Patil, counsel for the appellant.
Shri N.B. Kalwaghe, counsel for the respondent no.1-Cross Objector.
Mrs. Mayuri Deshmukh, Assistant Government Pleader for the R-2 & 3.
WITH
First Appeal No.642/2010 With Cross- Objection St.No.12523/2010
Vidarbha Irrigation Development Corporation,
Through its Executive Engineer, Khadakpurna
Project, Taq.: Deulgaon-Raja, Dist. Buldana. APPELLANT
::: Downloaded on - 09/06/2013 16:31:12 :::
3 Common Judgment
.....VERSUS.....
1. Kaduba Kashiram Dongre,
Age : Major, Occup. Agriculturist,
R/o. MehunaRaja, Tq. DeulgaonRaja,
Distt. Buldhana.
2. The State of Maharashtra,
Through the Collector, Buldhana.
3. The Special Land Acquisition Officer,
Khadakpurna Project, Buldhana. RESPONDENTS
Shri A.B. Patil, counsel for the appellant.
Shri N.B. Kalwaghe, counsel for the respondent no.1-Cross Objector.
Shri M.A. Kadu, Assistant Government Pleader for the R-2 & 3.
WITH
First Appeal No.661/2010
Vidarbha Irrigation Development Corporation,
Through its Executive Engineer, Khadakpurna
Project, Taq.: Deulgaon-Raja, Dist. Buldana. APPELLANT
.....VERSUS.....
1. Treembak s/o Hari Jamdhade,
Age : Major, Occup. Agriculturist,
R/o. MehunaRaja, Tq. DeulgaonRaja,
Distt. Buldhana.
2. The State of Maharashtra,
Through the Collector, Buldhana.
3. The Special Land Acquisition Officer,
Khadakpurna Project, Buldhana. RESPONDENTS
Shri A.B. Patil, counsel for the appellant.
Shri A.S. Chandurkar with Shri N.B. Kalwaghe, counsel for the respondent no.1.
Shri M.A. Kadu, Assistant Government Pleader for the R-2 & 3.
::: Downloaded on - 09/06/2013 16:31:12 :::
4 Common Judgment
CORAM :SMT.VASANTI A.NAIK, J.
DATE : 7 th OCTO BER , 2010.
ORAL JUDGMENT
Since common issues arise for consideration in these first appeals and they arise out of almost identical awards passed by the reference Court in the land acquisition cases filed by the respondents, they are heard together and are decided by this common judgment.
2. The lands of the respondents were situated at village MehunaRaja, Taluka DeulgaonRaja, District Buldana. They were acquired by the State of Maharashtra by the section 4 notification issued on 24.10.2001 for the Khadakpurna Project. The land acquisition officer passed the award on 15.06.2005 and granted separate compensation to the claimants by placing their lands in different groups on the basis of the land revenue paid by the claimants. The land acquisition officer granted compensation ranging from Rs.69,555/- to Rs.82,360/- in respect of the lands of the respondents. The respondents were dissatisfied with the grant of compensation by the land acquisition officer at those rates and, therefore, they filed reference applications before the Collector, Buldana.
Separate land acquisition cases were registered and were decided by the reference Court by separate judgments though, the evidence tendered in ::: Downloaded on - 09/06/2013 16:31:12 ::: 5 Common Judgment these cases was almost identical and the judgments passed by the reference Court were also identical. The reference Court granted separate compensation to the respondents, ranging from Rs.1,15,000/- per hectare to Rs.1,64,000/- per hectare. The appellant-Vidarbha Irrigation Development Corporation is aggrieved by the awards passed by the reference Court in these cases and has filed these appeals. In some of the cases, the respondents have also filed cross-objections seeking higher compensation.
3. Shri Patil, the learned counsel for the appellant-Vidarbha Irrigation Development Corporation, submitted that the reference Court was not justified in relying on a sale instance, which was mentioned by the land acquisition officer in the land acquisition officer's award dated 15.06.2005 showing that the transaction fetched the consideration @ Rs.1,22,000/- per hectare. The learned counsel for the appellant submitted that the reference Court could not have relied on the transaction mentioned in the award when the claimants had not produced the sale-deed or the extract of sale index in regard to the transaction at serial number 11 in the award dated 15.06.2005. The learned counsel for the appellant relied on the judgment of the Full Bench of this Court reported in 2007(5) BCR 847 (State of Maharashtra Versus Prashram Jagannath Aute) to substantiate his submission that a reference under ::: Downloaded on - 09/06/2013 16:31:12 ::: 6 Common Judgment Section 18 of the Land Acquisition Act is not an appeal against an 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. The learned counsel for the appellant then submitted that in these cases, there was absolutely no evidence on record to grant compensation to the claimants @ Rs.1,15,000/- to Rs.1,64,000/-
per hectare. The learned counsel for the appellant submitted that the claimants were seeking compensation @ Rs.3,25,000/- per acre on the basis of the sale transaction of village Deulgaon-Mahi, which was a much bigger village and there was no comparison between the lands at village Deulgaon-Mahi and village Mehuna Raja. The learned counsel for the appellant submitted that certain persons, whose lands were acquired by the State for the same project by the same section 4 notification had accepted ex-gratia payment and this payment was approximately @ Rs.85,000/- per hectare. The learned counsel for the appellant then submitted that the reference Court had rightly rejected the sale instance from village Deulgaon-Mahi though there were also other reasons for rejection of the same. The learned counsel for the appellant submitted that the claimants had admitted in their cross-examination that village Deulgaon-Mahi was a big village on Chikhali-DeulgaonRaja road and there were hotels on both the sides of the road, banks, Offices, cloth market, Ginning and Pressing Factories, etc. and the sale transaction of ::: Downloaded on - 09/06/2013 16:31:12 ::: 7 Common Judgment village Deulgaon-Mahi was in regard to the land, which was adjoining to the Ginning and Pressing Factory. The learned counsel for the appellant submitted by placing reliance on the 7/12 extracts that the land from village Deulgaon-Mahi, specially Survey No.124 was also converted to non-agricultural use since the year 2000 and, hence, there was no comparison between the lands of the claimants from village MehunaRaja and the land sold by the transaction of village Deulgaon-Mahi. The learned counsel for the appellant then submitted that there was an error in the mentioning of the market price of the transaction at serial number 11 of the award dated 15.06.2005 as the sale-deed of the sale transaction at serial number 11 showed that the market value of the land was not Rs.1,22,000/- per hectare but was only Rs.45,112/- per hectare. The learned counsel for the appellant sought permission to file the said sale-
deed in this appeal as the same was not produced by the appellant in the reference Court. The learned counsel for the appellant submitted that the award passed by the land acquisition officer in these cases was just and proper and there was no question of granting enhancement on the basis of the scanty evidence on record.
4. Shri A.S. Chandurkar and Shri N.B. Kalwaghe, the learned counsel for the respondents-claimants in these appeals, have supported the judgments passed by the reference Court and have submitted that the ::: Downloaded on - 09/06/2013 16:31:12 ::: 8 Common Judgment market value of the land was much more than what was granted by the land acquisition officer and also the reference Court. The learned counsel for the respondents-claimants submitted on the basis of their cross-
objections filed in some of the appeals that the reference Court ought to have considered the sale transaction of village Deulgaon-Mahi, which showed that the market value of one acre of land was Rs.3,25,000/-. The learned counsel for the respondents submitted that in fact, the reference Court committed an error in rejecting the sale transaction of village Deulgaon-Mahi. The learned counsel for the respondents then submitted that the land of the respondents was irrigated land and they were taking several crops like Wheat, Jowar, Tur, Sugarcane, Gram, Sunflower, Corn and Cotton from the acquired land. The learned counsel for the respondents-claimants submitted that this Court may not permit the appellant to produce the copy of the sale-deed shown at serial number 11 in the award passed by the land acquisition officer on 15.06.2005 in this Court as the appellant had failed to tender that evidence before the reference Court and has not given any justifiable reason for not producing the same before the reference Court. The learned counsel for the respondents-claimants relied on the judgment reported in 2005 (3) Mh.L.J. 249 (Special Land Acquisition Officer & another Versus Mariano Caetano Clarimundo Francisco Jose De Piedade Menezes alias Caetano De Piedade Menezes) to substantiate the submission that the production of the ::: Downloaded on - 09/06/2013 16:31:12 ::: 9 Common Judgment additional evidence cannot be permitted before the appellate Court when the same could have been produced before the reference Court but, was not produced. The learned counsel for the respondents-claimants sought for the dismissal of the appeals and higher compensation for the claimants, who had filed the cross-objections.
5. Shri M.A. Kadu and Mrs. Mayuri Deshmukh, the learned Assistant Government Pleaders appearing on behalf of the State of Maharashtra, adopted the submissions made on behalf of the appellant and submitted that the reference Court was not justified in enhancing the compensation when the land acquisition officer had granted compensation to the claimants at a rate, which was higher than the rate prescribed by the Ready Reckoner and on the basis of the sale transactions considered by the land acquisition officer. The learned Assistant Government Pleaders submitted that the award passed by the land acquisition officer was just and proper and the reference Court could not have enhanced the compensation, specially in the absence of any cogent evidence to grant the same.
6. On hearing the learned counsel for the parties and on perusal of the Record & Proceedings, it appears that the following points arise for determination in this appeal.
::: Downloaded on - 09/06/2013 16:31:12 :::10 Common Judgment I) Whether the reference Court was justified in granting compensation ranging from Rs.1,15,000/- per hectare to Rs.1,64,000/- per hectare to the respondents and/or whether the compensation needs to be enhanced or reduced ?
II) What order ?
7. It is necessary to note that the evidence tendered by the claimants in these cases is extremely scanty. The claimants have merely stated about the crops fetched by the claimants from their agricultural lands. They have produced only two sale transactions of village Deulgaon-Mahi to show that one acre of land was sold @ Rs.3,25,000/-
per acre. The claimants have also produced two documents to show that the State had given ex-gratia payment to certain claimants, whose lands were acquired by the same section 4 notification and these persons had accepted the ex-gratia payment. These documents, however, show that the ex-gratia payment was made to the other persons, who had undertaken not to file the reference by accepting the ex-gratia payment at the rate of approximately Rs.85,000/- per hectare. Apart from these documents, nothing has been produced by the claimants before the reference Court. However, the reference Court considered the transaction at serial number 11 in the award of the land acquisition officer, dated 15.06.2005 to hold that the transaction at serial number 11 fetched the market value @ Rs.1,22,448/- per hectare. The reference Court was not ::: Downloaded on - 09/06/2013 16:31:12 ::: 11 Common Judgment justified in considering the sale transaction at serial number 11 in the award passed by the land acquisition officer on 15.06.2005 to grant enhanced compensation to the claimants at the rate ranging from Rs.1,15,000/- to Rs.1,64,000/- per hectare. The learned counsel for the appellant-Vidarbha Irrigation Development Corporation has rightly relied on the decision of the Full Bench of this Court reported in 2007(5) BCR 847 (State of Maharashtra Versus Prashram Jagannath Aute), which had considered the decision of the Hon'ble Supreme Court reported in 1988 (3) SCC 751 (Chimanlal Hargovinddas Versus Special Land Acquisition Officer) which laid down the principle that the reference 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 reference court as the reference Court under Section 18 of the Land Acquisition Act is not an appeal against an award passed by the land acquisition officer. In view of the well settled principle of law that the reference Court could not have relied upon the material relied upon by the land acquisition officer in his award, the reference Court in these cases could not have taken into account the transaction at serial number 11 in the award passed by the land acquisition officer dated 15.06.2005 when the sale-deed or the extract of sale index of the transaction at serial number 11 of the award was not produced and proved by the claimants before the reference Court.
::: Downloaded on - 09/06/2013 16:31:12 :::12 Common Judgment
8. The only basis for enhancing the compensation by the reference Court is the transaction at serial number 11 mentioned in the award dated 15.06.2005. Even if this Court may accept the submission of the respondents-claimants that the appellant may not be permitted to tender additional evidence in this Court in the form of a sale-deed of the transaction at serial number 11 in the award dated 15.06.2005 to show that the rate is mistakenly quoted in the award as Rs.1,22,448/-, in stead of Rs.45,112/- the awards passed by the reference Court in these cases are still liable to be set aside as the reference Court has relied upon the material relied upon by the land acquisition officer in his award though the same material was not produced and proved before the reference Court. In case, the transaction at serial number 11 in the award passed by the land acquisition officer on 15.06.2005 is ignored as it has to be in view of the law laid down by the Supreme Court in the judgment reported in 1988 (3) SCC 751 (Chimanlal Hargovinddas Versus Special Land Acquisition Officer), there is hardly anything on record to support the claim of the respondents-claimants for higher compensation.
9. Though the respondents have stated in their evidence that there was a ban on sale transactions in village MehunaRaja since the year 2000 and hence the sale-deeds could not be filed, it is necessary to note that the respondents could have definitely filed the evidence in regard to ::: Downloaded on - 09/06/2013 16:31:12 ::: 13 Common Judgment the sale transactions, which were effected in village MehunaRaja prior to 2000 in the years between 1995-96 to 1999-00 so that the Court could have had at least some relevant material before it for determining the market value of the land. Since no sale transaction of village MehunaRaja was produced on record, it needs to be inferred that the sale transactions from village MehunaRaja prior to the year 2000 were not such, which could have fetched enhanced compensation for the claimants. The claimants ought to have produced the sale transactions of village MehunaRaja executed prior to Year-2000 before the alleged ban on the sale of lands in village MehunaRaja for seeking higher compensation in stead of producing the sole sale transaction of village Deulgaon-Mahi, which was not comparable to the lands at village MehunaRaja in any respect.
10. The claimants had merely banked on the two sale-deeds of village Deulgaon-Mahi by which one acre of land was sold for Rs.3,25,000/-. The said sale transactions are rightly rejected by the reference Court though the reason for the rejection of the same may not be correct. The reference Court had rejected the sale transaction from village Deulgaon-Mahi only because on acre of land was sold by this transaction and the extent of the acquired lands of the respondents was more than one acre. The learned counsel for the appellant was justified ::: Downloaded on - 09/06/2013 16:31:12 ::: 14 Common Judgment in submitting that there were other reasons also for rejecting the sale transactions of village Deulgaon-Mahi. It would be necessary to refer to the map, which is produced on record in most of these cases. The map clearly shows that though village Deulgaon-Mahi and village Mehuna Raja are adjoining villages, village Deulgaon-Mahi is a very large village as compared to village DeulgaonRaja. Moreover apart from producing the map of the adjoining villages, there is no evidence tendered by the claimants on record to show that the lands of village Deulgaon-Mahi sold by the sale transaction of 2000 were in regard to comparable lands, as those of the respondents from village MehunaRaja. In fact, the claimants had admitted in their cross-examination that Deulgaon-Mahi village was on Chikhali - DeulgaonRaja road and there were hotels, banks, Offices, Shops for selling Tractors, cloth market, a market place and three Ginning and Pressing Factories at village Deulgaon-Mahi. In fact, the sale transaction of village Deulgaon-Mahi shows that one of the boundaries of the land sold by the said transaction was a Ginning and Pressing Factory.
It also appears from the 7/12 extract on record that Survey No.124, which was sold by one of the transaction of village Deulgaon-Mahi was converted to non-agricultural use since the year 2000. There is not only no evidence on record as regards the similarity between the acquired land and the land sold by the transaction of village Deulgaon-Mahi but, there is evidence adverse to the claimants on record to show that there is a vast ::: Downloaded on - 09/06/2013 16:31:12 ::: 15 Common Judgment difference between village MehunaRaja and village Deulgaon-Mahi and there is no comparison between the two villages. There is evidence on record to show that village Deulgaon-Mahi is a much large village with considerable development. But, there is no evidence on record to that effect in respect of the land at village MehunaRaja. Even in the map produced by the claimants, it is shown that village Deulgaon-Mahi has a big market place. The reference Court has rightly discarded the sale transaction of village Deulgaon-Mahi but, there are additional reasons for supporting the finding of the reference Court for discarding the sale transaction of village Deulgaon-Mahi.
11. There is also absolutely no reason for the reference Court to grant different compensation ranging from Rs.1,15,000/- per hectare to Rs.1,64,000/- per hectare in cases of different claimants, specially when the judgment in all the reference cases is identical and it may not be wrong to say that it is almost cyclostyled and having the same contents.
Merely because the land acquisition officer had granted different rate of compensation to the claimants on the basis of the land revenue paid by them, the reference Court could not have granted different compensation to the respondents-claimants. In fact, the Division Bench of this Court has observed in the judgment reported in 2008(1) BCR 204 (State of Maharashtra & others Versus Yashwant Kahnu Shirsath) and 1995(1) ::: Downloaded on - 09/06/2013 16:31:12 ::: 16 Common Judgment BCR 277 that the placing of the land in different classes on the basis of the land revenue of the lands and then determining the market value on the basis of the land revenue is not a correct method of valuation.
12. Hence, in the facts and circumstances stated hereinabove, the reference Court was surely not justified in enhancing the compensation and granting it @ Rs.1,15,000/- per hectare to Rs.1,64,000/- per hectare. These are the cases, where there is absolutely no evidence on record to seek enhanced compensation @ Rs.1,15,000/-
per hectare to Rs.1,64,000/- per hectare, much less, at the rate of Rs.3,25,000/- per acre.
13. On an overall view of the evidence on record and by applying some guess-work, this Court is of the view that the reference Court could have granted compensation, to the claimants at the most, @ Rs.1,00,000/- per hectare. The documents produced by the claimants before the reference Court showing the acceptance of the ex-gratia payment @ Rs.85,000/- per hectare by several persons of village MehunaRaja after giving an undertaking not to file a reference, could have been a guide for determining the compensation in these cases. It is necessary to note that the other persons from village MehunaRaja have accepted the ex-gratia payment at the rate of approximately ::: Downloaded on - 09/06/2013 16:31:12 ::: 17 Common Judgment Rs.85,000/- per hectare as could be seen from the documents produced by the respondents before the reference Court. It would be worthwhile to mention here that those persons from village MehunaRaja have not received any statutory benefits on the ex-gratia payment, and the payment @ Rs.85,000/- is without any statutory benefits. The acceptance of the ex-gratia payments by a number of villagers, whose lands were acquired by the same Section 4 notification itself shows that the market value of the lands at village MehunaRaja at the relevant time was Rs.85,000/- per hectare or at the most, a little more than that.
14. Hence, for the reasons aforesaid, the first appeals are partly allowed. The judgments passed by the reference Court in the land acquisition cases of the respondents are modified. It is held that the respondents would be entitled to compensation @ Rs.1,00,000/-
(Rupees One Lac) per hectare with statutory benefits and not at the rates at which the compensation is granted to the respondents-
claimants by the reference Court. The cross-objections filed by the respondents-claimants are dismissed in view of the findings recorded hereinabove.
Order accordingly. No order as to costs.
JUDGE APTE ::: Downloaded on - 09/06/2013 16:31:12 :::