That takes me to the testimony of the appellant's expert witness PW2 Arvind Paradkar, who stated that he is a Government recognized architect and performed valuation work of Government, SemiGovernment, etc. Organizations and handled about 1500 cases in the capacity of valuer and architect, and he also stated that he personally visited the house of the appellant and prepared the plan of valuation and calculated the cost of the existing house in question and further stated that the valuation shown in the valuation report prepared by him is based on District Scheduled Rates of the Government at the relevant time. He also stated that the valuation report and the map bear his signature and he identified the same and admitted that the contents thereof are correct, and accordingly, same were exhibited as Exhs. 33 and 34 respectively. However, during crossexamination he admitted that he has not produced the documentary evidence to show his expertise, as well as not produced the District Scheduled Rates and the market value at the relevant time, and hence, suggestion was given to PW1 Masaji and PW2 Arvind Paradkar that PW2 Arvind Paradkar never visited the house acquired, but same were denied by both of them.
Considering the valuation report Exh. 33, map Exh. 34 and the testimony of PW2 expert witness architect Arvind Paradkar, it is material to note that PW2 Arvind Paradkar has not stated the details regarding his visit to the acquired house in question and regarding the measurement of the said house, as also as regards the built up area and open space thereof, as well as the basis and foundation for calculation of its valuation. Moreover, he has no where stated in his deposition that what test he had applied for arriving at the conclusion of rates of construction stated in his valuation report, as well as he has not stated the methods and parameters, which he applied for calculation of valuation of the acquired house in question headwise, and also he has nowhere stated in what manner and how he arrived at the rates of construction as stated in the valuation report, and therefore, it is amply clear that PW2 Architect Arvind Paradkar has not proved the very contents of the said valuation report and mere exhibiting the said report stating that the valuation report bears his signature and its contents are correct, will not suffice the purpose, since the valuation report and the testimony of PW2 Arvind Paradkar are the expert's evidence.
Coming to the map Exh.34, which has been prepared by PW2 Architect Arvind Trimbak Paradkar, since it bears his signature, admittedly the area of the acquired house is 30.10 Sq. Mtrs.; whereas the area stated in the said map Exh. 34 discloses the measurement of the house as 42.90 Sq. Mtrs., and therefore, there is variance in the area of the acquired house as stated in the award and the said map Exh. 34. Moreover, the architect PW2 Arvind Paradkar has no where stated in his deposition the date on which he visited the acquired house and when and how he measured the said house, as well as the manner of preparing the said map and the method of preparation of area statement thereof, and the basis of scale thereof is not mentioned in the said map and even the said map discloses the stamp as Vastukala, Architect and Engineer, Parbhani, and signed as PW2 Arvind Trimbak Paradkar as Architect, but neither the said map Exh. 34 or deposition of PW2 Architect Arvind Trimbak Paradkar discloses whether PW2 Arvind Paradkar is proprietor or partner thereof, and all these shortcomings and lacunae create suspicion about the said map Exh. 34, and further even the area statement of the said map does not disclose the built up area and open space of the said house.
18 Thus, it is amply clear from the testimony of PW2 Architect Arvind Paradkar, an expert witness, that he has not narrated the contents of valuation report Exh. 33 and further the area statement in the map Exh. 34 of the acquired house differ from the area of the acquired house given in the award and even PW2 Arvind Paradkar admitted that he has neither produced the documentary evidence to show his expertise nor produced the District Scheduled Rates and market value at the relevant time, and therefore, the said expert evidence i.e. the testimony of PW2 Arvind Paradkar and valuation report Exh. 33 as well as map Exh. 34 come under the doldrums and do not take the appellant's case any further in constructive manner to consider the same for enhancement in the compensation as claimed by the appellant.
BOMBAY HIGH COURT
Masaji s/o Gyanoji Thoke Vs. The State of Maharashtra And Anr.
Judge : SHRIHARI P. DAVARE, J.
Decided On : Mar-07-2011
Acts : Land Acquisition Act - Sections 11, 18, 4
Case Number : FIRST APPEAL NO. 286 OF 1994
Citation; 2011 (3) ALL MR161 Bom,2011(3) Bom C R 633
1 This First Appeal is directed against the judgment and award, dated 17.11.1990, rendered by the learned Civil Judge, Senior Division, Hingoli, in Land Acquisition Reference No. 85 of 1987 challenging the said award.
2 The factual matrix of the matter is as follows : The appellant (original claimant) owned and possessed House No. 133 of village Borja, Taluka Kalamnuri, District Parbhani, which was acquired by respondent no.1 State of Maharashtra for Upper Penganga Irrigation Project in the year 1990. The acquired area was 30.10 Sq. Mtrs. i.e. 23.50 Sq. Mtrs. built up area and 6.60 Sq. Mtrs. was open space.
3 The appellant claimed the compensation to the tune of Rs.90/ per sq. ft.; whereas respondent no.2 the Special Land Acquisition Officer awarded total compensation of Rs.2,178/ i.e. Rs. 5/ to Rs.6/ per sq. ft. The Special Land Acquisition Officer, Kalamnuri, District Parbhani, after hearing the appellant/petitioner and the acquiring body passed the award under Section 11 of the Land Acquisition Act. Hence, being aggrieved by the said award, passed by the Special Land Acquisition Officer, the appellant preferred Reference under Section 18 of the Land Acquisition Act, claiming enhanced compensation of Rs. 18,612/.
4 Accordingly, the said Reference Petition was forwarded to the court of learned Civil Judge, Senior Division, Parbhani, and consequently, it was transferred to the learned Civil Judge, Senior Division, Hingoli. The respondents resisted the Reference Petition of the appellant/petitioner by filing say.
5 The appellant/petitioner examined himself, namely Masaji Gyanoji Thoke as PW1, as well as examined the expert witness i.e. the Architect, namely Arvind Trimbak Paradkar as PW2 to substantiate his contentions; whereas the respondents did not examine any witness.
6 Accordingly, after considering the rival pleadings and assessing the evidence on record, the learned Civil Judge, Senior Division, Hingoli i.e. the Reference Court allowed the said Reference Petition partly with proportionate costs and directed that the petitioner is entitled to get difference of compensation of Rs.3,841/ only and the said additional amount of compensation shall carry the interest at the rate of 12 per cent per annum from the date of notification to the passing of the award or the date of taking possession, whichever is earlier, as well as directed that the petitioner is also entitled to receive solatium at the rate of 30 per cent on the enhanced compensation, and awarded the interest on the enhanced compensation and solatium in one year from the date of taking possession at the rate of 9% per annum and thereafter at the rate of 15% per annum till the realisation of entire amount. The respondent/State was directed to deposit the above amount within two months from the date of the said order, by judgment and award, dated 17.11.1990, rendered in Land Acquisition Reference No. 85 of 1987.
7 Being aggrieved and dissatisfied by the said judgment and award, passed by the Reference Court, the appellant/petitioner has preferred the present First Appeal, contending that the Reference Court should have allowed the claim of the appellant to the extent claimed by the appellant and the Reference Court awarded too meagre amount of compensation i.e. Rs. 200/ per Sq. Mtrs. and also contending that the Reference Court failed to consider the house construction which was 'chirebandi' and there was bricks and cement plaster all around the premises and the construction was made recently i.e. within five years, and also the Reference Court failed to consider that the appellant was required to change his residence to another village due to acquisition of his house, which resulted in incurring expenditure therefor, as well as contending that the Reference Court failed to consider the material facts, like prevailing market price and cost of the construction of the house and the Reference Court ought to have held that the enhancement of Rs. 18,612/ claimed by the appellant was just and proper. Accordingly, the appellant submits that although in the Land Reference, enhancement of compensation was claimed at Rs.18,612/; the Civil Judge, Senior Division, Hingoli allowed the claim to the extent of Rs. 3,841/ only, and therefore, the present appellant claimed the restricted enhancement in compensation of Rs.14,680/. only and paid the court fee thereon.
8 Learned counsel for the appellant canvassed that the date of notification under Section 4 of the Land Acquisition Act is 4.4.1980. and the award was passed by respondent no. 2 the Special Land Acquisition Officer on 28.10.1980 and awarded amount of Rs.2,178/ towards the compensation for the said acquired house, which admeasured 30.10 Sq. Mtrs. i.e. 23.50 Sq. Mtrs. built up area and 6.60 Sq. Mtrs. open space. Learned counsel for the appellant argued that the appellant/petitioner claimed Rs.90/ per sq. ft. compensation before respondent no.2, but respondent no.2 i.e. the Special Land Acquisition Officer awarded total amount of Rs.2,178/ i.e. around Rs. 5/ to Rs. 6/ per sq. ft.
9 Being dissatisfied with the said compensation, the appellant/petitioner preferred the Reference before the Reference Court claiming compensation of Rs.18,612/, but the Reference Court awarded enhancement of Rs.3,841/ i.e. about Rs.200/ per Sq. Mtrs. i.e. around Rs.20/ per sq. ft., and accordingly, granted very meagre amount towards enhancement of compensation.
10 Learned counsel for the appellant also argued that the appellant/petitioner examined himself as PW1 and contended that he accepted the amount of Rs.2,100/ awarded by respondent no.2 under protest, since the said amount was inadequate, but the appellant/petitioner actually spent Rs.18,000/ to Rs. 20,000/ for construction of the said house about 5 to 6 years back from its acquisition, which was constructed with bricks and cement and same was covered by roof of 'Malwad' made up of Teak wood, and the said house was having two doors and two windows, each made up of Teak wood. He also stated that he spent Rs. 3,000/ to Rs. 4,000/ towards migration of his house, and therefore, he claimed compensation of Rs.15,000/ to Rs.20,000/.
11 Learned counsel for the appellant also canvassed that the appellant examined expert witness i.e. the architect Arvind Trimbak Paradkar, who produced the valuation report at Exh. 33 and map of the house Exh. 34, and the said valuation report discloses the valuation of the said house at Rs.20,737/ which was not considered by the Reference Court in proper perspective, and merely awarded Rs.200/ per Sq. Mtrs. for the built up area and the open space and average market value, which has no basis and foundation. Accordingly, learned counsel for the appellant urged that the present appeal be allowed and the appellant be awarded further enhanced compensation to the tune of Rs.14,680/ towards his acquired house.
12 To substantiate the case of the appellant/petitioner, the learned counsel for the appellant relied upon the judgment of the Hon'ble supreme Court in the case of Special Land Acquisition Officer vs Chandramma (deceased by L.Rs.), reported at 2009 AIR SCW 2909, and submitted that the matter may be remanded back to the Reference Court.
13 Learned Assistant Government Pleader opposed the present Appeal and canvassed that the appellant has not produced any comparable sale instance on record to prove and establish his claim of enhanced compensation, but the appellant relied upon the evidence of expert witness PW2 Arvind Trimbak Paradkar. It is submitted by learned A.G.P. that the appellant PW1 has admitted in his crossexamination that he has neither produced the accounts for the expenses of his house nor produced the documentary evidence to show the expenses of migration, and therefore, contended that his testimony is not reliable. As regards the expert evidence of the architect PW2 Arvind Paradkar, it is submitted by learned A.G.P. that the said expert witness neither narrated the contents of valuation nor stated the test which he applied for arriving at the conclusion in respect of the valuation of the house in question. According to the learned A.G.P. the said expert witness did not substantiate each and every aspect of the valuation report Exh.33. Further it is argued by the learned A.G.P. that mere stating that the contents of the said report bear his signature and same are correct, will not suffice for the proof of contents thereof, since it is the expert's evidence. It is further submitted that the said expert witness even did not produce the documentary evidence to show his expertise, as well as failed to produce the District Scheduled Rates and market value prevailing at the relevant time. It is further canvassed by the learned A.G.P. That the area of the house mentioned in the valuation report Exh. 33 and the map Exh. 34 differ from each other, since as per valuation report Exh. 33 the area is 30.10 Sq. Mtrs., whereas the map Exh. 34 discloses the area as 42.90 Sq. Mtrs. Hence, it is canvassed by learned A.G.P. That the expert's evidence i.e. PW2 Arvind Paradkar as well as Exh. 33 valuation report and the map Exh.34 are not the reliable pieces of evidence. Accordingly, the learned A.G.P. Submitted that the enhancement granted by the Reference Court in the compensation is proper and adequate, considering the prevailing market value of the acquired house and no enhancement therein is warranted, and consequently, urged that the present appeal bears no substance and same is devoid of any merits, and therefore, same be dismissed.
14 I have perused the oral as well as documentary evidence adduced and produced by the parties on record, as well as considered the submissions advanced by the learned counsel for the respective parties anxiously and also considered the ratio laid down in the judicial pronouncement cited by the learned counsel for the appellant carefully, and at the out set, it is apparently clear that the oral evidence adduced by the appellant i.e. the testimony of PW1 Masaji Gyanoji Thoke has not been substantiated by documentary evidence. It is significant to note that although PW2 Masaji stated in his deposition that he actually spent Rs.18,000/ to Rs. 20,000/ for construction of the house in question and he constructed the said house before 5 to 6 years of its acquisition and said house was constructed with bricks and cement and the same was covered by roof of 'Malwad' made up of Teak wood and the said house was having 2 doors and 2 windows each made up of Teak wood, but the appellant failed to substantiate the said contentions by documentary evidence. Pertinently, the appellant has not produced the building permission and/or completion certification of the said house, which could have thrown light on the said contentions of the appellant. Moreover, the appellant has admitted in his crossexamination that he has not produced the accounts for the expenses of his house, as well as he has further admitted that he has not produced the documentary evidence to show the expenses of his migration. Hence, suggestion was given to him that he never spent Rs.3,000/ to Rs.4,000/ on his migration, as well as it was suggested to him that he never spent Rs.18,000/ to Rs. 20,000/ for construction of his house, but same were denied by him. Accordingly, the testimony of PW1 does not take the appellant's case further ahead in constructive manner towards the enhancement of compensation.
15 That takes me to the testimony of the appellant's expert witness PW2 Arvind Paradkar, who stated that he is a Government recognized architect and performed valuation work of Government, SemiGovernment, etc. Organizations and handled about 1500 cases in the capacity of valuer and architect, and he also stated that he personally visited the house of the appellant and prepared the plan of valuation and calculated the cost of the existing house in question and further stated that the valuation shown in the valuation report prepared by him is based on District Scheduled Rates of the Government at the relevant time. He also stated that the valuation report and the map bear his signature and he identified the same and admitted that the contents thereof are correct, and accordingly, same were exhibited as Exhs. 33 and 34 respectively. However, during crossexamination he admitted that he has not produced the documentary evidence to show his expertise, as well as not produced the District Scheduled Rates and the market value at the relevant time, and hence, suggestion was given to PW1 Masaji and PW2 Arvind Paradkar that PW2 Arvind Paradkar never visited the house acquired, but same were denied by both of them.
16 Considering the valuation report Exh. 33, map Exh. 34 and the testimony of PW2 expert witness architect Arvind Paradkar, it is material to note that PW2 Arvind Paradkar has not stated the details regarding his visit to the acquired house in question and regarding the measurement of the said house, as also as regards the built up area and open space thereof, as well as the basis and foundation for calculation of its valuation. Moreover, he has no where stated in his deposition that what test he had applied for arriving at the conclusion of rates of construction stated in his valuation report, as well as he has not stated the methods and parameters, which he applied for calculation of valuation of the acquired house in question headwise, and also he has nowhere stated in what manner and how he arrived at the rates of construction as stated in the valuation report, and therefore, it is amply clear that PW2 Architect Arvind Paradkar has not proved the very contents of the said valuation report and mere exhibiting the said report stating that the valuation report bears his signature and its contents are correct, will not suffice the purpose, since the valuation report and the testimony of PW2 Arvind Paradkar are the expert's evidence.
17 Coming to the map Exh.34, which has been prepared by PW2 Architect Arvind Trimbak Paradkar, since it bears his signature, admittedly the area of the acquired house is 30.10 Sq. Mtrs.; whereas the area stated in the said map Exh. 34 discloses the measurement of the house as 42.90 Sq. Mtrs., and therefore, there is variance in the area of the acquired house as stated in the award and the said map Exh. 34. Moreover, the architect PW2 Arvind Paradkar has no where stated in his deposition the date on which he visited the acquired house and when and how he measured the said house, as well as the manner of preparing the said map and the method of preparation of area statement thereof, and the basis of scale thereof is not mentioned in the said map and even the said map discloses the stamp as Vastukala, Architect and Engineer, Parbhani, and signed as PW2 Arvind Trimbak Paradkar as Architect, but neither the said map Exh. 34 or deposition of PW2 Architect Arvind Trimbak Paradkar discloses whether PW2 Arvind Paradkar is proprietor or partner thereof, and all these shortcomings and lacunae create suspicion about the said map Exh. 34, and further even the area statement of the said map does not disclose the built up area and open space of the said house.
18 Thus, it is amply clear from the testimony of PW2 Architect Arvind Paradkar, an expert witness, that he has not narrated the contents of valuation report Exh. 33 and further the area statement in the map Exh. 34 of the acquired house differ from the area of the acquired house given in the award and even PW2 Arvind Paradkar admitted that he has neither produced the documentary evidence to show his expertise nor produced the District Scheduled Rates and market value at the relevant time, and therefore, the said expert evidence i.e. the testimony of PW2 Arvind Paradkar and valuation report Exh. 33 as well as map Exh. 34 come under the doldrums and do not take the appellant's case any further in constructive manner to consider the same for enhancement in the compensation as claimed by the appellant.
19 In my opinion, the judgment cited by the learned counsel for the appellant in the case of Chandramma (supra) is not applicable to the present appeal as the facts and circumstances of the said case differ from the facts and circumstances in the present appeal, and as such, this is not the matter for remand.
20 In the circumstances, the view adopted by the learned Reference Court, after assessing and analysing the evidence, is a possible view and the reasoning given therefor cannot be faulted with and same also does not appear to be perverse, and hence, no interference therein is called for in the appellate jurisdiction in the present First Appeal. Besides that, even after reappreciating the evidence on record, I am of the view that this is not a fit case to interfere in the finding given by the Reference Court, which apparently has given the proper and adequate enhancement in the compensation to the appellant in accordance with the prevailing market value at the relevant time, and therefore, present appeal lacks merits, and hence, same deserves to be dismissed.
21 In the result, the present appeal, which is sans merits, stands dismissed. No costs. R. and P. be sent back to the concerned Court.
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