Bombay High Court
General Manager vs Smt. Suman Wd/O Nanaji Balki on 19 January, 2010
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FARAD CONTINUATION SHEET No.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
First Appeal No.361/2001
General Manager,
Western Coalfields Ltd.
Wani Area, Tadali,
Dist. Chandrapur. ..Appellant (Ori. Respondent
no.4 on R.A.)
..VERSUS..
1. Smt. Suman Wd/o Nanaji Balki,
Aged about 55 Yrs., Occu. Household.
2. Prakash S/o Nanaji Balki,
Aged about 38 Yrs., Occu. Cultivator.
3. Smt. Kusum W/o Digamber Thakare,
Aged about 35 Yrs., Occu. Household,
R/o Chandrapur, Tq. & Dist. Chandrapur.
4. Ravindra S/o Nanaji Balki,
Aged about 30 Yrs., Occu. Service.
5. Smt. Kalpana W/o Haridas Bobade,
Aged about 25 Yrs., Occu. Household,
R/o Unshala, Tq. Warora, Dist. Chandrapur.
6. Ku. Sunita D/o Nanaji Balki,
Aged about 20 Yrs., Occu. Household.
7. Smt. Sadhana W/o Divekar Yergude,
Aged about 28 Yrs., Occu. Household.
R/o Chandrapur, Tq. & Dist. Chandrapur.
Nos.1, 2, 4 & 6 r/o Ukani, Tq. Wani,
Dist. Yavatmal.
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8. State of Maharashtra,
through the Collector,
Yavatmal.
9. Special Land Acquisition Officer,
Minor Irrigation Works No.II,
Yavatmal, Tq. & Dist. Yavatmal.
10. Union of India, through the Secretary,
Ministry of Coal, Shastri Bhawan,
New Delhi. Respondents (Original petitioners &
respondents 1 to 3 on R.A.)
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Mr. S.C. & A.S. Mehadia, counsel for appellant.
Mr. M.V. Samarth, counsel for respondent nos.1 to 7.
Mr. T.R. Kankale, A.G.P. for respondent nos.8 and 9.
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with
First Appeal No.359/2001
General Manager,
Western Coalfields Ltd.
Wani Area, Tadali,
Dist. Chandrapur. ..Appellant (Ori. Respondent
no.4 on R.A.)
..VERSUS..
1. Smt. Chandrakala Wd/o Dadaji Lode,
Aged about 44 Yrs., Occu. Household.
2. Prashant Dadaji Lode,
Aged about 22 Yrs., Occu. Cultivator.
3. Pramod Dadaji Lode,
Aged about 21 Yrs., Occu. Student.
4. Pravin Dadaji Lode,
Aged about 19 Yrs., Occu. Student.
All 1 to 4 r/o Ukani, Tq. Wani,
Dist. Yavatmal.
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5. Sau. Asha Kishor Astokar,
Aged about 25 Yrs., Occu. Household,
R/o Bhadrawati, Dist. Chandrapur.
6. State of Maharashtra,
through the Collector,
Yavatmal.
7. Special Land Acquisition Officer,
Minor Irrigation Works No.II,
Yavatmal, Tq. & Dist. Yavatmal.
8. Union of India, through the Secretary,
Ministry of Coal, Shastri Bhawan,
New Delhi. Respondents (Original petitioners &
respondents 1 to 3 on R.A.)
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Mr. S.C. & A.S. Mehadia, counsel for appellant.
Mr. M.V. Samarth, counsel for respondent nos.1 to 5.
Mr. T.R. Kankale, A.G.P. for respondent nos.6 to 8.
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with
First Appeal No.357/2001
General Manager,
Western Coalfields Ltd.
Wani Area, Tadali,
Dist. Chandrapur. ..Appellant (Ori. Respondent
no.4 on R.A.)
..VERSUS..
1. Smt. Lahanubai Wd/o Dharmaji Khapne,
Aged about 75 Yrs., Occu. Household. (Deleted)
2. Sau. Sakhubai W/o Shamrao Parkhi,
Aged about 35 Yrs., Occu. Household.
Both R/o Ukani, Tq. Wani, Dist. Yavatmal.
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3. State of Maharashtra,
through the Collector,
Yavatmal.
4. Special Land Acquisition Officer,
Minor Irrigation Works No.II,
Yavatmal, Tq. & Dist. Yavatmal.
5. Union of India, through the Secretary,
Ministry of Coal, Shastri Bhawan,
New Delhi. Respondents (Original petitioners &
respondents 1 to 3 on R.A.)
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Mr. S.C. & A.S. Mehadia, counsel for appellant.
Mr. M.V. Samarth, counsel for respondent no.2.
Mr. T.R. Kankale, A.G.P. for respondent nos.3 and 4.
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CORAM : F.M. REIS J.
th
DATE : 19
JANUARY,
2010.
ORAL JUDGMENT
1. The above appeals have been filed by the acquiring body against the common award dated 10th of October 2000 passed by the 2nd Joint Civil Judge (Senior Division), Yavatmal whereby the reference sought by the respondent nos.1 and 2 was partly allowed. The parties shall be referred in the manner as they so appear in the cause title of the impugned judgment. The appeals are disposed of by common judgment as the references were also disposed of by the Reference Court by common judgment dated 10th of October 2000.
2. The lands of the petitioners were acquired by the respondent no.2 for the respondent no.4 for the purpose of Ninja Open Cast Mining Development Project in the village Ukani, Tq.
::: Downloaded on - 09/06/2013 15:31:38 ::: 5Wani, Dist. Yavatmal. The portion which has been acquired were with regard to First Appeal No.361/2001 an area of 3.95 Hectors belonging to the petitioners from the property Survey under No.274 was intended to be acquired. The portion acquired in First Appeal No.357/2001 was 2.78 Hectors from the Survey No.504 belonging to the petitioners therein. With regard to First Appeal No.359/2001 an area of 3 Hector was intended to be acquired by the respondent no.2 in respect of the property Survey No.126/1. All the said lands were acquired by the same notification. The notification under section 4 of the Land Acquisition Act was published in the official gazette on 10/12/1987 and the award was passed by the respondent no.2 on 8/8/1990 in respect of the acquisition of the properties of the petitioners. By the award passed by the Land Acquisition Officer the compensation to the petitioners was awarded at the rate of Rs.20,500/- per hector. The petitioners sought a reference under section 18 of the Land Acquisition Act for enhancement of compensation to the tune of Rs.50,000/- per hector.
The Reference Court after recording of evidence and hearing the parties, awarded the compensation by the impugned judgment dated 10/10/2000 at the rate of Rs.45,000/- per hector. The respondent no.4 who is the acquiring body preferred the present appeals challenging the impugned judgment passed by the Reference Court.
3. The learned counsel appearing for the respondent no.4 submitted that the evidence on record does not justify that the market value of land as on the date of section 4 notification was Rs.45,000/- per hector. It is further his submission that the Reference Court has not appreciated the evidence on record in a proper perspective and consequently came to an erroneous ::: Downloaded on - 09/06/2013 15:31:38 ::: 6 conclusion that the compensation payable to the petitioners was Rs.45,000/ per hector. It is further his submission that the reliefs granted by the Reference Court is on the basis of the sale deed at Exh.59 which is a sale deed pertaining to village Belora and not at village Ukani where the land acquired was located. He has further submitted that the petitioners themselves had produced a copy of judgment dated 31/12/1998 passed by the Civil Judge, Yavatmal in Land Acquisition Case Nos.144/1992, 148/1992 and 150/1992 (Exh.50) wherein the compensation was awarded at the rate of Rs.28,000/- per hector. It is further his submission that the sale deed at Exh.51 which is located at village Ukani was at the rate of Rs.24,000/- per hector and as such there was no justification to award the compensation at the rate of Rs.45,000/- per hector. The learned counsel further submitted that the land of the petitioners had no appreciable value as the said lands were in the vicinity of the mines. It is further submitted that there was no justification for the learned Judge to rely upon the sale instances in respect of village Belora when there were sale instances of the village Ukani where the land acquired was located. The learned counsel has submitted that the impugned judgment deserves to be quashed and set aside.
4. On the other hand, the learned counsel appearing for the petitioners submitted that there is no infirmity committed by the Reference Court while passing the impugned judgment as the provisions of law for the purpose of determining the compensation have been duly complied with. It is further his contention that the village Belora is adjoining to the village Ukani having a common boundary and the facilities which are available in the acquired land are also available in Belora and as such there cannot be justification for the appellants to contend that the learned Judge erred in relying ::: Downloaded on - 09/06/2013 15:31:38 ::: 7 on the sale instances of the village Belora. He further submitted that in any event the sale deed at Exh.51 shows that the value of the land was at the rate of Rs.48,000/- per hector and not Rs.24,000/-
per hector as submitted by the learned counsel for the appellant/respondent no.4 and as such the compensation as determined by the Reference Court cannot be faulted. He has further submitted that considering the sale deed at Exh.51, the Reference Court has correctly determined the compensation at the rate of Rs.45,000/- per hector. The learned counsel further submitted that the judgments produced by the applicant cannot be considered as the value therein was determined on the basis of Capitalization Method of the agricultural produce as admittedly in the present case comparable sale deeds were produced by the petitioners. The learned counsel submitted that there is no merit in the present appeals and as such the same deserve to be dismissed.
5. Having heard the learned counsels for the parties and on perusal of impugned judgment the following point arise for determination in the present appeals -
Whether the Reference Court was justified to fix the compensation at the rate of Rs.45,000/- per hector ?
6. Dealing with the said point for determination, the Reference Court while determining the compensation discarded the judgment dated 31/12/1998 at Exh.55 as the value of land was determined on the basis of Income Capitalization Method. It is well settled that Income Capitalization Method is to be applied in case comparable sale instances are not available. In the present cases, I find that there were comparable sale instances produced by the petitioners for determining the ::: Downloaded on - 09/06/2013 15:31:38 ::: 8 compensation and as such the question of determining the compensation on the basis of Income Capitalization Method does not arise at all. As such the Reference Court was justified in discarding the judgment at Exh.55. The claim of the petitioners for the purpose of valuing the land on the basis of Income Capitalization Method derived from the land acquired has also been rejected by the Reference Court for justifiable reasons. The petitioners had failed to produce any records for the purpose of disclosing the income derived from the acquired lands. In absence of such material, the question of arriving at any decision on the basis of Capitalization Method does not arise at all. As such the Reference Court was justified in refusing to determine the compensation on the basis of Capitalization Method.
7. The reference Court while determining the compensation has relied upon the sale deed at Exh.59 wherein an area 1.01 Hector was purchased for a sum of Rs.48,000/-. The said sale deed is dated 14/1/1986 and the notification in the present case was published on 10/12/1986. The Reference Court considering that the said sale deed was comparable awarded the compensation at the rate of Rs.45,000/- per hector. It is well settled that merely because the land in sale deed at Exh.59 is pertaining to the village Belora, it cannot be said that the same cannot be considered for the purpose of determining the compensation in adjoining village provided that all the facilities available at village Belora are also available at village Ukani and the nature of the land being similar. The Apex Court in 2001 Supreme Court 2424 (Thakarsibhai Devjibhai and others V/s. Executive Engineer, Gujarat and another) held that when the ::: Downloaded on - 09/06/2013 15:31:38 ::: 9 qualities and the similarities of the land as well as the potentialities thereof are similar merely because such similar situated lands is about 5 kilometers is not at all relevant for the purpose of determining market value of the land. The petitioner has stated in his deposition that the land at Belora pertaining to the sale deed at Exh.59 and the land acquired is similar and that the distance is between 1 and 1 ½ k.m. from the village Ukani. The purchaser of the said sale deed Shri Bharat was also examined who stated that both the lands were dry crop lands and similar in quality. In the present case the respondents have failed to adduce any evidence to disclose that the lands at Belora are not similarly situated as the lands which have been acquired in the present proceedings. As such the Reference Court was justified in relying the sale deed at Exh.59 but however, the sale deed at Exh.58 being of village Ukani could also be considered for the purpose of determining the compensation in the present cases. When the sale deeds of the same village are available, such sale deeds will have more evidentiary value than the sale deeds of adjoining village. Though the sale deeds of adjoining village can also be considered for the purpose of arriving at compensation along with the sale deeds of the villages where the land has been acquired.
8. Dealing with the factors for the purpose of determining the compensation on the basis of the comparable sale instances, I find that the sale deed at Exh.58 which is of village Ukani is also comparable to the land acquired. The genuineness of the said sale deed has not been disputed by the respondents. The sale deed which is dated 12/4/1988 is in the ::: Downloaded on - 09/06/2013 15:31:38 ::: 10 proximity of the date when Section 4 notification was published. Considering that there is no evidence adduced by the respondent to the extent that there was any appreciable increase in the value of land in view of the intended acquisition, the said sale deed whereby one Kisan Nagoji Parshive had purchased an area of 1.24 hectors can also be considered for the purpose of determining the compensation of the land acquired of the petitioners. By the said sale deed an area of 1.24 hectors was sold for Rs.60,000/- which works out to Rs.48,387/- per hector.
A.W.1 in his deposition has stated that the said land of Kisan Nagoji Parshive is similar in quality to the acquired land and the same is located at the distance of 2 fields away from the acquired land. The said contentions have not been disputed by the respondents in the course of the cross examination of the said witnesses. As such it can be safely assumed that the sale deed at Exh.58 of said Kisan can be considered for the purpose of valuing the land of the petitioners. Considering the well settled principles as determined by the Apex Court referred is herein above the sale deed at Exh.58 is comparable sale deed for determining the compensation in the present case. The Reference Court was not justified in not considering the said sale deed and relying upon the sale deed at village Belora when the sale deed was available in respect of the land which was similar to that of the acquired land. The contentions of the learned counsel for the appellants that the consideration works out to Rs.24,000/- per hector cannot be accepted as on perusal of the said sale deed at Exh.58, I find that the calculation discloses that the subject matter of the land in the said sale deed was sold at the rate of Rs.48,387/- per hector. Considering the said sale deed at Exh.58 and in view of the fact that the transaction has ::: Downloaded on - 09/06/2013 15:31:38 ::: 11 taken place about four months after the notification under section 4 of the Land Acquisition Act was published in the present case, I find that the market value of the land as on the date of Section 4 notification was at the rate of Rs.45,000/- per hector.
9. In Mahesh Dattatraya Tirthakar V/s. State of Maharashtra 2009 AIR S.C.W. 2962 the Apex Court has held that the burden of proving the true market value of the acquired property is on the State that has acquired it for the particular purpose when the land owner has shown by testimony and valuation report of the Expert and the amount of compensation awarded by Land Acquisition Officer was inadequate, onus shifts on the State to adduce sufficient evidence to sustain the award. In the present case the petitioners have established that the market value of the land as awarded by the Land Acquisition Officer was inadequate in as much as the sale instances, referred to herein above, disclose that the market value of the land was to the tune of Rs.45,000/- per hector when the Section 4 notification was published. The respondents have failed to adduce any evidence to show that the compensation as awarded by the Land Acquisition Officer was adequate. Considering the above, it can be safely held that the market value of the land as on the date of Section 4 notification was at the rate of Rs.45,000/- per hector.
10. The Reference Court while determining the compensation has not considered the said sale deed at Exh.58 and has relied upon only the sale deed at Exh.59 which is pertaining to the village Belora wherein the market value was ::: Downloaded on - 09/06/2013 15:31:38 ::: 12 also at the rate of Rs.48,000/- per hector about 1 and ½ years before the Section 4 notification was published in the present case. This shows that in any event the compensation as determined by the Land Acquisition Officer was inadequate and the Reference Court as such was justified in enhancing the compensation. Considering the above, I find that the Reference Court was as such justified in coming to the conclusion that the market value of the acquired land as on the date of Section 4 notification was at the rate of Rs.45,000/- per hector.
Considering the above, said point for determination is answered accordingly.
11. In view of the above, I find no substance in the above appeals and as such the appeals stand dismissed with no order as to costs.
JUDGE Tambaskar.
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