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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.
———————————————————————————————
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.)
———————————————————————————————
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.
———————————————————————————————
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.)
———————————————————————————————
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 thereference 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.
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Wani, 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
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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
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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
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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
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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
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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
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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
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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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