High Court
Facts
fa4213.17--1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABADFIRST APPEAL NO. 4213 OF 2017Vasant s/o Vishwanath DhopareAge 58 years, Occ. AgricultureR/o. Umardara, Tq. Shirur-Anantpal District Latur ...Appellant Versus 1.The State of Maharashtra Through, the Collector, Latur 2.The Special Land Acquisition OfficerP.T. and I.T. Collector officeLatur 3.The Executive Engineer,Minor Irrigation (Local Sector),Adm. Building, LaturTq. And District Latur ...Respondents ANDFIRST APPEAL NO. 4214 OF 2017Jabbarkhan s/o Pachulkhan Pathan (Died)Through Legal representatives1.Rukiyabi w/o Jabbarkhan PathanAge 65 years, Occ. Housewife & Agri.2.Chandpasha s/o Jabbarkhan PathanAge35 years, Occ. Agriculture3.Mubarak s/o Jabbarkhan PathanAge 33 years, Occ. Agriculture4.Rabbanbi w/o Hiralal ShaikhAge 38 years, Occ. Housewife & Agri.All R/o. Umardara, Tq. Shirur-Anantpal District Latur ...Appellants fa4213.17--2- Versus 1.The State of Maharashtra Through, the Collector, Latur 2.The Special Land Acquisition Officerand Sub-Divisional Officer, P.T.I.T. (Delegated P.T.I.T. Latur)Sub-Division Office, NilangaDistrict Latur 3.The Executive Engineer,Minor Irrigation Local Sector, Latur Tq. And District Latur ...Respondents ANDFIRST APPEAL NO. 4215 OF 2017Rashid Abdul Shaikh Age 65 years, Occ. AgricultureR/o. Umardara, Tq. Shirur-Anantpal District Latur ...Appellant Versus 1.The State of Maharashtra Through, the Collector, Latur 2.The Special Land Acquisition OfficerP.T. and I.T. Collector OfficeLatur 3.The Executive Engineer,Minor Irrigation (Local Sector),Adm. Building, LaturTq. and District Latur ...Respondents …..Mr. N.D. Kendre, advocate for the appellantMr. D.J. Patil, A.G.P. for respondents ….. fa4213.17--3- CORAM:SANJAY A. DESHMUKH, J.DATE OF RESERVING THE ORDER: 24.01.2025DATE OF PRONOUNCING ORDER: 09.04.2025JUDGMENT:- 1.These three appeals are preferred against the commonjudgment and award dated 24.01.2017, passed by the learnedReference Court i.e. Civil Judge, Senior Division, Nilanga, DistrictLatur in L.A.R. Nos. 21 of 2012, 17 of 2014 and 22 of 2012, arisingout of one and the same award, passed by the Special LandAcquisition Officer, Latur. 2.The agricultural lands of the appellants in these appealshave been acquired for construction of minor irrigation tank atUmardara, Tq. Shirur Anantpal, District Latur, which are as follows :-Sr.No.LAR No.Survey/Gat No.Area inHector121 of 201224/1, 39/10.82, 1.05222 of 201232/40.83317 of 201431/B, 31/C, 31/D1.583.The appellants-claimants were owners and possessors ofthe said lands, respectively. The compensation was granted atRs.1,75,000/- per hectare. The Land Acquisition Award No. fa4213.17--4- 2007/LNQ/Cr-05 dated 11.12.2009 was passed by the landacquisition authority accordingly. The amount of compensation wasinadequately granted to the appellants. Therefore, L.A.R. Nos. 21 of2012, 17 of 2014 and 22 of 2012, were preferred by the claimants. 4.The appellants contended that the compensation amountwas not carved out properly and it was inadequate. Though thoselands were purchased by private negotiations on 30.5.2008, therental compensation was not paid to the claimants. 5.The appellants further contended that after receiving thenotices under Section 9 of the Land Acquisition Act, they had raisedtheir objections alongwith the evidence of sale deed, tax receipts andother record of their irrigated lands. However, those documents werenot properly considered. The award is passed on the basis of 100years old assessment of land, which is contrary to the provisions oflaw, by treating the lands as dry lands. It is further contended thatthese lands are situated at Umardara adjacent to Latur-Kamblga,Shirur-Udgir road. The Anant Pal Shirur is about 5 kilometers awayfrom village Umardara. The population of village Umardara was3000 at the time of acquisition of said lands. There are severalfacilities, such as roads, education, electricity, telephone, etc.. Theclaimants were cultivating the commercial crops such as sugarcane, fa4213.17--5- chilly, potato, Toor, Jawar, wheat, gram, sunflower etc. The claimantshave raised their objections while drawing panchnamas in respect ofcommon water well, pipeline, cow pen, stone-Bund, etc. situated inthe said lands. In a joint measurement report, fruit bearing trees andother trees are mentioned, however, those were not consideredproperly. The claimants claimed enhanced amount of compensation@ Rs.11,00,000/- per acre for the acquired lands and also for treesand stone-Bunds, etc. 6.The respondents objected the claim petitions and deniedthe material contentions raised in it. It is their contention that there isno permanent source of water to cultivate the acquired agriculturallands in question. The claimants were cultivating the lands only inone season i.e. Kharip season, depending upon the rainfall. Theclaimants have not produced any documentary evidence regardingthe quality, fertility and productivity of the acquired lands and theperiphery. The map showing that the acquired lands are adjacent toLatur-Kamblga, Shirur-Udgir road is not produced. The vicinity andlocality of the acquired land is verified by the Land Acquisition Officerand upon considering the productivity of the acquired land,reasonable amount of compensation was awarded to the claimants.The prevailing market rates were properly considered for determiningthe value of the said lands. The claimants have not raised any fa4213.17--6- objection about the award within limitation. They are not entitled toclaim any interest prior to issuance of notification under Section 4 ofthe Land Acquisition Act. They have not produced any sale instanceof the same village or surrounding villages for enhancement ofcompensation. It is lastly prayed to dismiss the reference petitions. 7.The learned Reference Court by framing three issues in allthese cases held that the claimants are entitled for Rs.3,50,000/- perhectare for dry land/non irrigated land and Rs.7,00,000/- per hectarefor irrigated land. The claim petitions of the claimants were partlyallowed. All these first appeals are filed by the claimants forenhancement of compensation of land, trees and stone-Bunds. 8.Learned advocate for the appellants during the course ofargument pointed out the grounds of objections of these appeals andsubmitted that the judgments and awards passed by the referencecourt are against the evidence on record and provisions of law. Thejudgment and award is based on surmises, conjecture andassumptions which are not sustainable. The learned reference courtignored the fact that the acquired land was situated in developedarea, which is close to Latur in Shirur Anantpal Tahsil, District Latur.The other amenities available in that area are not considered. Themarket value of the acquired land was not properly drawn up and fa4213.17--7- decided. Though the commercial crops were being taken from thoselands, those were not considered by the authority. The relianceplaced by the appellants on the decisions of the Hon’ble SupremeCourt as well as this Court, were not properly considered andapplied. The evidence regarding the trees, water way, bore well,pipeline, stone-Bund and cow pen were not properly appreciated. It islastly prayed to allow the appeals by re-appreciating the evidence.9.The learned AGP for the State argued that the evidenceadduced by the claimant is properly considered by the learnedReference Court in its proper prospective. They have not proved thevalues of trees properly. He prayed to dismiss the appeal as there isno ground to interfere in it.10.The following point emerged for consideration.I.Was the compensation amount awarded by the SpecialLand Acquisition Officer and the Reference Court proper,legal and correct?II.Are the appellants entitled for enhanced amount ofcompensation?III.Are the impugned common judgment and award illegal,incorrect and requires interference? fa4213.17--8- 11.Learned advocate for the appellants have pointed out thefollowing oral as well as documentary evidence adduced by both thesides before the reference court. 12.The claimants have examined Bharatbai Shivaji Kale(CW5) Exh.88, to prove the sale instance. She deposed that sheproduced a sale deed Exh.69, area 9 Are land situated atDongargaon which is 4 kilometers away from the acquired land. Itwas purchased from Rama Ananda Kale for Rs.69,000/- by saledeed dated 23.05.2001. The valuation reports are at Exh.92, 93 and94. Copy of the deposition of Nandkumar Patil (CW2) is at Exh.66.The oral evidence of Anil Phulari (CW3) is at Exh.81 and the copy ofjudgment delivered by the reference court, Nilanga, District Latur inLand Acquisition Reference No.141 of 2010 and others dated26.11.2013 are at Exh.108.13.The claimants have also adduced the evidence of ChandPasha Pathan (CW4) vide Exh.114. He has deposed for his claimand for other claimants in claim No. 17 of 2014. The extract ofindex-II of sale instance of land is at Exh.131. A copy of sale deed isat Exh.132. A copy of judgment in writ petition No. 5956 of 2010 is atExh.136. Additional documentary evidence is produced at Exh.90 isthe village map. fa4213.17--9- 14.In land reference Case No. 21 of 2012, the claimant VasantDhopare (CW1) adduced his evidence by filing an affidavit ofexamination in chief at Exh.60, and reiterated the materialcontentions raised in the application. The details about the waterwell, bore well, trees are also stated in it. He had relied upon thereceipts of payment of agricultural products sold in A.P.M.C. Latur atExh.62 to 65. The claimants have examined Nandkumar Patil (CW2),a valuer, who has deposed that he went to the spot i.e. lands for itsinspection and took the note of the trees. He valued the trees on thebasis of age and size of the trees. He gave chart alongwith thedescriptions, numbers and valuation of the trees. His additional/supplementary evidence is recorded at Exh.66. He deposed that hehad produced a certificate obtained from Agro Services trainingcenter. The sale instances are filed by the claimants at Exh.68 to 70.The valuation report of the fruit bearing trees is at Exh.75 and 77.The claimants examined Anil Phulari (CW3), who is another valuer, atExh.81. He valued the bore well, stone-Bund and cow pen as per hisreport Exh.92 and 93.15.The respondents did not adduce any evidence.16.On perusal of the entire evidence and consideringarguments of both sides, particularly, the judgment of the Reference fa4213.17--10- Court in L.A.R. No. 141 of 2010 (Maheboob Hakkani Sayyad vs. TheState of Maharashtra and another), dated 26.11.2013, this Court is ofthe view that principle of parity should have been followed by theReference Court while deciding claims of the appellants. Theimpugned judgment and award, therefore, required to be interferedwith. It is because in the first appeal No. 4213 of 2017 and 4214 of2017, the valuation of trees was determined by the private valuer.The said valuation report was not accepted by the Reference Courton the ground that the notice was not sent to the respondents by thevaluer or claimants/appellants prior to determining value and thereare no such entries in 7x12 extract of the acquired land. But in thejoint measurement report, Exh.137 and 140, there is a description oftrees, etc. in the acquired land. The report is not disproved by therespondents. The report at Exh.34 and 35 were not properlyconsidered by the reference court. No plausible reasons areassigned for it. In this respect, this court in the case of Pandhari andothers vs. The State of Maharashtra and others,MANU/MH/2645/2019, in para 9 and 10 held as under:-“9.Thus this Court consistently held that, when theevidence of the expert valuer has been adduced and thecontents of the valuation reports have been explained as wellas proved then there was no reason to discard suchevidence. This Court on the basis of such report of valuer hasthen enhanced the compensation.
Legal Reasoning
fa4213.17--11- 10. The objection regarding acceptance of valuation reportcannot be taken on the ground that prior notice was not givenby the valuer to the respondents before taking inspection isconcerned. It will have to be observed that, the said expertwas not a Court Commissioner nor he was under direction byany competent authority to value the land. Question of givingnotice to the other side would then only arise but when hewas engaged by the claimants to value their land/property, hewas under no obligation to issue prior notice to therespondents. Evidence has not been led by the respondentsto disprove the said valuation reports, and therefore, nohurdle to accept those reports.”17.The notice was not given by Nandkumar Patil (AW2) thevaluator to the respondents which is admitted by him in his cross-examination. However, in view of the above reasons and ratio laiddown by this Court in the case of Pandhari and others vs. TheState of Maharashtra and others (supra) the interference iswarranted in the impugned judgment and award. Thus, the valuationreport was not properly appreciated by the reference Court and therespondents have not disproved the same. Therefore, the evidenceof Nandkumar Patil (AW2) Exh.66 is reliable and acceptable.However, the learned Reference Court erred in not relying upon it.18.The compensation amount was not properly carved out inthe award, about the bore-well, common well, cattle shed, stone-bund and pipeline. In the joint measurement Exh.34 and 35, there is fa4213.17--12- a reference of cattle shed, bore-well and super structure. The LandAcquisition Officer as well as the Reference court both did notconsider this evidence in its proper perspectives. As per the report ofvaluer PW-3, Anil Phulari, at Exh.81, of the super structure installedin block Nos.24/1 and 39/1, the valuation of the bore-well and thecommon well is Rs.5,31,355.00 and the valuation of cattle shed,pipeline and stone-Bund is carved out only at Rs.2,55,000/-. Thelearned A.G.P. for the State/acquiring authorities objected that thepipeline is not pointed out by the claimants at the time of jointmeasurement. But there is no reason to disbelieve the said evidence.Though he submitted that the notice was not issued to the StateGovernment or acquiring authority while witness Anil Phulari (CW3)visited and surveyed the superstructure, the acquiring body or theState Government did not disprove it. Hence, it is a reliable evidenceas held in the case of Pandhari and others vs. The State ofMaharashtra and others, (supra) the said evidence is not disprovedby the respondents. Therefore, by applying the principle of parity, asheld in the case of Maheboob Sayyad (supra) in L.A.R.No. 141 of2010, the claimants are entitled for enhanced amount ofcompensation for their acquired lands. In First Appeal No.4213 of2024, the claimant had proved the value of trees by thevaluator/expert opinion as follows :- fa4213.17--13- Sr.No.Block No.Particulars oftree No of treesValuation (Rs.)124/1Mango031,28,391.00239/1Mango031,28,391.00324/1Bori331,03,785.00439/1Bori97,680.00539/1Tamarind 0382,895.00639/1Jambhul0425,116.00724/1Sandal wood1644,59,250.00839/1Sandal wood12,52,500.00Total22,78,008.0019.In First Appeal No. 4214 of 2017, the claimant had provedby the evidence of valuator before the reference court. The value oftrees and super structures standing in the acquired lands is asfollows :- Sr.No.Block No.Particulars oftree No of treesValuation (Rs.)131/BMango10022,20,400.00239/CTamarind 2507,13,475.00331/DJambhul1550,355.00431/DPomegranate251,34,400.00531/DBori191,03,835.00631/DUmbar 0403,797.00731/DSandal wood285,02,938.00Total37,29,200.0020.In sofar as the first appeal No. 4215 of 2017 is concerned,only stone-Bund in S. No.31 has been considered and compensationof Rs.1,83,909/- was awarded. As per the valuation report Exh.94, itis proved that valuation of stone-Bund at Rs.49,815/- was determinedproperly. Therefore, the petitioners are entitled for additionalcompensation as per the report of valuator Anil Phulari (CW3). fa4213.17--14- 21.Considering all the aspects and after re-appreciating theevidence, these appeals deserve to be partly allowed. However, inview of the judgment of Hon’ble Supreme Court in the case ofAmbya Kalya Mhatra (D) By Lrs. & Ors vs State Of Maharashtra,(2011) 9 SCC 325, relied upon by learned A.G.P. theappellants/claimants have opted for the compensation either of theland or the trees and superstructure etc. During the course ofarguments, Mr. Kendre, learned advocate for the claimants submittedthat the claimants are ready to accept the compensation of trees,stone-Bunds and superstructure and not the compensation ofacquired land. He further submits that the enhanced amount ofcompensation of agriculture land shall be added towards the amountof trees and superstructure and stone-Bund, etc. This argument isacceptable.22.Learned advocate for the appellants/claimants furthersubmitted that the appellants/claimants have not received anyamount of compensation granted by the reference Court. Therefore, itis necessary to give directions to the acquiring body to deposit thesaid amount within six months. If said amount is already deposited, itis necessary to give directions to the Registry to pay the amount tothe claimants. fa4213.17--15- 23. There is substance in the grounds of the objections ofthese appeals. Considering the above reasons, impugned judgmentsare illegal and therefore, interference is warranted in it. Theappellants are entitled for enhanced amount of compensation as heldabove. Therefore, point Nos. I to III are answered in the affirmative.The appeals deserve to be partly allowed. The impugned judgmentand award deserves to be partly set aside. Hence, the followingorder:-O R D E RI.The First appeal Nos. 4213 of 2017, 4214 of 2017 and 4215 of2017 are partly allowed.II.The impugned judgment and award are partly set aside andthe claimants are entitled for enhanced amount ofcompensation, as follows :-a)In first appeal No. 4213 of 2017, the claimants are entitledfor compensation at Rs.22,78,008.00 and in first appealNo. 4214 of 2017, the claimants are entitled forRs.37,29,200.00, with interest as per Sections 23(1)(A), 28and 34 of the Land Acquisition Act, 1894.b)In first appeal No.4215 of 2017, the claimant is entitled forenhanced additional compensation amount of Rs.49,815/- fa4213.17--16- towards the additional compensation of stone-Bund withinterest as per Sections 23(1)(A), 28 and 34 of the LandAcquisition Act, 1894.c)The acquiring body is directed to deposit the remainingamount alongwith accrued interest thereon, within sixmonths from today in this Court.d)It is clarified that the amount of compensation ofagricultural lands granted to the claimants as per theimpugned judgment and award passed in L.A.R. Nos.21 of2012 and 17 of 2014 shall be added and it be paid to theclaimants alongwith statutory interest as directed by theReference court in clauses 3 and 4 of the operative part ofthe impugned judgment and award.III.The rest of the judgment and award is maintained.IV.Award be drawn up accordingly. The Record andproceedings be sent back to the trial court.V.All first appeals are accordingly disposed of. (SANJAY A. DESHMUKH, J.)rlj/