1 fa286.94
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
AURANGABAD BENCH, AURANGABAD
FIRST APPEAL NO. 286 OF 1994
1 Masaji s/o Gyanoji Thoke,
aged 49 years,occ. Agriculture,
r/o Borja, Ta. Kalamnuri,
District Parbhani ...Appellant
[Original Claimant]
VERSUS
1 The State of Maharashtra,
through Collector, Parbhani,
2 Special Land Acquisition
Officer, Kalamnuri,
District Parbhani ...Respondents
[Original Respondents]
.....
Shri S.K.Adkine, advocate for the appellant
Shri B.J.Sonawane, A.G.P. for respondent nos. 1 and 2
.....
CORAM : SHRIHARI P. DAVARE, J.
DATE OF RESERVING
THE JUDGMENT : 17.2.2011
DATE OF PRONOUNCING
THE JUDGMENT : 07.3.2011
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J U D G M E N T : –
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
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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
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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
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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,
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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
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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
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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 cross-examination 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
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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
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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 cross-examination 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
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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,
Semi-Government, 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 cross-examination 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.
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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.
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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
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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
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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.
(SHRIHARI P. DAVARE, J.)
dbm/fa286.94
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