The Reference Court has arrived the compensation for the land
acquired on the basis of comparable sale instances and not on income
capitalization method. It is well settled that only when income capitalization method is followed, no separate compensation for land or trees is possible and the maximum compensation out of the two can be awarded at the market price.
In State of Maharashtra Vs. Deoram Fakira Pamahale & others 2007
(6)
Mah. L. J. 556, this Court has held that where the compensation was not
awarded by income capitalization method, it did not bar grant of separate
compensation.
In the present case the valuation was not effected on the basis of income
capitalization method and as such separate compensation could be awarded.
Apart from that the Reference Court has also valued the mango trees existing
in the acquired land on the basis that the wood from the trees could be utilised
for the purpose of making furniture, building material and fuel purpose.
Hence, the contention of the learned A. G. P. that the mango trees could not be
valued separately deserves to be rejected. The petitioner as such is entitled to
the compensation as awarded by the Reference Court. The point for
determination is answered accordingly.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR.
FIRST APPEAL NO. 443 OF 1992
The Collector, Yavatmal VsLaxman Tanba Jumle
CORAM: F. M. REIS, J.
DATED : 10th March, 2010.
Citation;2010(3) ALLMR 342 Bom
1. Heard the learned Counsel for the appellants and the respondent.
2. This appeal challenges the judgment and order dated 9/4/1991
passed by the Civil Judge, Senior Division, Pusad in Land Acquisition Case No.
231 of 1990. The parties shall be referred to in the manner as they appear in
the impugned judgment.
3. The land of the petitioner (the respondent herein) was acquired by
the respondents (appellants herein) ad measuring 1.77 H. R. from the property
survey No. 53/3 of village Khandapur by a notification issued under Section 4
of the Land Acquisition Act dated 24/4/1982. By an award passed by the Land
Acquisition Officer dated 11/12/1985 the compensation for the land of the
petitioner was fixed @ Rs. 9,000/per
hectare. Being aggrieved by the said
award, the petitioner sought a reference for enhancement of compensation
under Section 18 of the Act. After framing of issues and recording the
evidence, by the impugned judgment dated 9/4/1991 the learned Civil Judge,
Senior Division awarded the compensation @ Rs. 22,500/per
hectare for the
land of the petitioner beside other statutory benefits. Being aggrieved by the
said judgment and order, the present appeal has been preferred by the
respondent. The petitioner filed cross objection on 02/11/1992 claiming that
the amount payable to the petitioner should be enhanced to Rs. 25,000/per
hectare.
4. The learned A. G. P. has contended that there is no material on record
for the Reference Court to come to the conclusion that the market value of the
land as on the date of Section 4 notification was @ Rs. 22,500/per
hectare.
The learned A. G. P. further submitted that the sale deeds sought to be relied
upon by the petitioner are from the different villages and as such no reliance
should have been placed by the Reference Court. She further submitted that
there is no evidence on record to show comparability between the land
acquired and the sale deed plots. It is further submitted that the market value
as fixed by the Reference Court is exorbitant and there was no justification for
the Reference Court to enhance the compensation. The learned A. G. P.
submitted that the amount of compensation fixed by the Land Acquisition
Officer is just and proper. The learned A. G. P. further submitted that the
petitioner is not entitled for compensation for 11 mango trees in addition to
the value of the open land.
5. On the other hand, the learned Counsel appearing for the petitioner
submitted that the sale deeds produced by the petitioner are at the distance of
about 12
Kms. from the acquired land. He further submitted that the
witnesses examined by the petitioner have disclosed that the land in the
vicinity of the acquired land along with the neighboring villages is similar and
have equal potentiality. The learned Counsel further submitted that the
Reference Court ought to have awarded the compensation @ Rs. 25,000/per
hectare and his cross objection is liable to be considered.
6. On hearing the learned Counsel and on perusal of the record,
following points arise for determination. :(
1) Whether the Reference Court was justified in awarding the
compensation @ Rs. 22,500/per
hectare for the land acquired
and Rs. 200/per
mango tree?
(2) Whether the petitioner is entitled for an increase in the
compensation from Rs. 22,500/to
Rs. 25,000/per
hectare as
claimed by him in the cross objection?
7. On perusal of the record, I find that the petitionerA.
W. No. 1
Laxman Jumale is examined and he has deposed that the acquired land is
fertile one and composed of black soil. He has further stated that he was
taking yield of cotton 5.6 qt., jwar 12 to 15 qt. and tur 2 qt. per year per acre
and getting net income of Rs. 1,500/per
year per acre and prayed for
compensation of Rs. 25,000/taking
into consideration the utility and fertility
of the land. He has further deposed that one Bhimrao Gawande has sold his
field survey No. 2/1 ad measuring 2.30 H.R. for Rs. 40,000/in
the year 1977
by the registered sale deed which is at Exh. 16. He has further deposed that
fertility of the acquired land and land of Bhimrao is similar. He has further
deposed that village Mokh is 2 Kms. away from the acquired land. He has
further deposed that one Jainarayan has also purchased 1.00 H. R. land from
survey No. 8 from one Motilal Oswal for Rs. 30,000/in
the year 1980 and the
sale deed is at Exh. 17. He has further stated that the land is similar to the
acquired land and is situated at the distance of 2 Km. away from the acquired
land. He has also produced certified copies of the award passed in Land
Acquisition Case Nos. 228/80 and 185/82 which according to the petitioner
the lands are similar and are located in the vicinity of the acquired land. In the
cross examination he has deposed that he could not give any instance of sale of
his village wherein the land was sold @ Rs. 25,000/per
hectare. In the cross
examination there is no challenge to the contention of the petitioner to the
effect that the sale deed plots and the land acquired is similar and is in the
vicinity of 1 to 2 Km. The next witness examined by the petitioner is
Rajendraprasad Shukhala, who deposed that the Government has acquired
field of village Dhanora and the Civil Court had awarded compensation @ Rs.
22,500/per
hectare by judgment dated 18/10/1988 which is at Exh. 20. The
next witness Bhimrao Gawande was examined by the petitioner. He has
deposed that he had sold his field bearing survey No. 2/1 ad measuring 4.30 H.
R. for the consideration of Rs. 40,000/by
registered sale deed in the year
1977. The said sale deed is at Exh. 16. He has further deposed that quality of
the acquired land is comparable and similar to the sale deed plot. In his cross
examination there is no dispute as far as the similarity of the sale deed plot and
the land acquired.
8. It is evident from the record that sale deeds produced by the
petitioner are duly proved and that the lands under the sale deeds are in the
vicinity i.e. 1 to 2 km. from the land acquired. In the judgment passed by this
Court on 4/3/2010 in first appeal No. 581 of 1991 this Court has held that
merely because the sale deeds plots are located in a different village can not
by itself be a ground to discard such sale deeds in cases in which the lands are
similar and the potentiality of the lands are found to be comparable. In the
present case the petitioner has produced sufficient evidence on record to
establish that the sale deeds plots and the land acquired of the petitioner is
comparable and have similar potentiality. The respondents have failed to
adduce any evidence to rebut the evidence produced by the petitioners that
both the lands were comparable. As such no fault can be found in the
judgment of the Reference Court in relying upon such sale deeds to determine
the compensation payable for the land acquired.
9. The Reference Court whilst passing the impugned judgment has
considered the sale deeds as well as the judgment passed in the said awards
produced by the petitioner. The Reference Court came to the conclusion that
the sale deeds which are at Exhs. 16 to 19 were prior to the notification under
Section 4 of the Act issued in the present case. The Reference Court further
held that the petitioner is entitled to get higher compensation on the basis of
the said sale deeds and consequently awarded the compensation @ Rs.
22,500/per
hectare. The Reference Court has also considered the valuation
on the basis of the awards produced by the petitioner. The Reference Court
has found that even considering the said awards, the market value of the land
of the petitioner as on the date of Section 4 notification was Rs. 22,500/per
hectare. The claim of the petitioner to value the land on the basis of the yield
and income derived from the acquired land has been rightly rejected. The law
is well settled that in cases in which the sale instances are available, there is no
justification to arrive at the compensation on the basis of the income and yield
derived from the acquired land. As such the contention of the learned A. G. P.
that there was no material to arrive at the compensation @ Rs.22,500/per
hectare is to be rejected.
10. With regard to the contents of the learned A. G. P. that no separate
compensation is to be awarded for trees and land, I find that there is no
ground raised in the appeal memo challenging the impugned judgment with
that regard. The Reference Court has arrived the compensation for the land
acquired on the basis of comparable sale instances and not on income
capitalization method. It is well settled that only when income capitalization
method is followed, no separate compensation for land or trees is possible and
the maximum compensation out of the two can be awarded at the market
price.
In State of Maharashtra Vs. Deoram Fakira Pamahale & others 2007
(6)
Mah. L. J. 556, this Court has held that where the compensation was not
awarded by income capitalization method, it did not bar grant of separate
compensation.
In the present case the valuation was not effected on the basis of income
capitalization method and as such separate compensation could be awarded.
Apart from that the Reference Court has also valued the mango trees existing
in the acquired land on the basis that the wood from the trees could be utilised
for the purpose of making furniture, building material and fuel purpose.
Hence, the contention of the learned A. G. P. that the mango trees could not be
valued separately deserves to be rejected. The petitioner as such is entitled to
the compensation as awarded by the Reference Court. The point for
determination is answered accordingly.
11. With regard to the cross objection filed by the petitioner, I find that
the petitioner himself in his cross examination has admitted that he his not in a
position to produce any sale instance to demonstrate that the value of land in
the village where the land has been acquired was @ Rs. 25,000/per
hectare.
Apart from that there is no evidence on record to substantiate the claim of the
petitioner that the acquired land has the value @ Rs. 25,000/per
hectare. As
such, the cross objection has no basis and the same deserves to be rejected.
12. In view of the above, I find that the Reference Court has applied the
principles well settled in law in arriving at the conclusion that the market value
as on the date of section 4 notification is Rs. 22,500/per
hectare. The said
amount has been arrived at on the basis of oral as well as documentary
evidence adduced by the petitioner. The respondents, admittedly have not led
any evidence to rebut or disprove the evidence produced by the petitioner and
as such I find that no interference is called for in the impugned judgment.
There is no substance in the appeal, consequently the same stands dismissed.
The cross objection of the petitioner stands dismissed. In the facts and
circumstances of the case there shall be no order as to the costs.
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