(1)
FIRST APPEAL NO.577 OF 1997
Date of decision: 24TH MARCH, 2009
For approval and signature.
THE HONOURABLE SHRI JUSTICE K.K. TATED
1. Whether Reporters of Local Papers } Yes
may be allowed to see the Judgment? }
2. To be referred to the Reporter or not } Yes/No
3. Whether Their Lordships wish to see } No
4.
the fair copy of the Judgment?
Whether this case involves a substantial
}
}
question of law as to the interpretation } No
of the Constitution of India, 1950 or }
any Order made thereunder? }
5. Whether it is to be circulated to the } No
Civil Judges? }
6. Whether the case involves an important }
question of law and whether a copy of } No
the Judgment should be sent to Mumbai, }
Nagpur and Panaji offices? }
[A.S. Bhagwat)
Personal Assistant to
the Honourable Judge.
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD.
FIRST APPEAL NO.577 OF 1997
IN
LAND ACQUISITION REFERENCE NO.11 OF 1990
1) Munjaji s/o Umaji Ubale,
Age-35 years, Occu:Agri.,
2) Madhav s/o Umaji Ubale,
Age-30 years, Occu:Agri.,
3) Amrat s/o Umaji Ubale,
Age-22 years, Occu:Agri.,
4) Yeshodabai w/o Manik Kankute,
Age-27 years, Occu:Household,
All R/o Balsa (Kh.),
Tq. & Dist-Parbhani.
.... APPELLANTS.
VERSUS
1) The State of Maharashtra,
Through Collector,
Parbhani.
2) The Special Land Acquisition
Officer, M.K.V., Parbhani.
.... RESPONDENTS.
...
Mr.A.M. Dabir Advocate for the Appellants.
Mr.S.P. Dound, A.G.P. for Respondent Nos.1
and No.2.
...
CORAM: K.K. TATED, J.
DATE : 24TH MARCH, 2009.
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ORAL JUDGMENT:
1. Heard Mr. Dabir, learned counsel for the
Appellants and Mr. S.P. Dound, learned A.G.P.
for Respondents.
2. The present First Appeal preferred by the
original claimants against the Judgment and award
dated 30th August, 1996 passed by IVth Joint Civil
Judge,
of 1990.
Senior Division, Parbhani in L.A.R. No.11
3. The undisputed facts in the present case
are that the Special Land Acquisition Officer (for
short “S.L.A.O.”) issued Notification under
Section 4 of the Land Acquisition Act dated 1st
August, 1985 for acquiring Appellants’ house
property admeasuring 40.70 sq. meters and open
area 193.05 sq. meter, total area 273.05 sq.
meter for Maharashtra Krishi Vidyapith, Parbhani.
After following due process of law, S.L.A.O.
declared award dated 28th March, 1988 and awarded
compensation in respect of acquired built up
property to the tune of Rs.8172.50 Paisa, cost for
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open plot Rs.855/- i.e. total net valuation of
the structure Rs.9027.50 Paisa. The S.L.A.O.
also awarded a sum of Rs.2708.25 Paisa towards 30%
solatium payable under Section 23(2) of the Land
Acquisition Act. The S.L.A.O. also awarded 12%
component payable under Section 23 (1A) of the
Land Acquisition Act for the period from 1st
August, 1985 till 30th January, 1988, a sum of
Rs.2708.25 Paisa. In all the S.L.A.O. passed
award for a sum of Rs.14,494/-. Being aggrieved
by the said
award passed by the
Appellants/ original claimants preferred Reference
S.L.A.O., the
under Section 18 of the Land Acquisition Act dated
6th May, 1988 claiming enhanced compensation to
the tune of Rs.19,933/- along with 30% solatium
and 12% component over the said amount. The said
Reference came to be decided by the Reference
Court on 30th August, 1996. The Reference Court
enhanced compensation, solatium, additional
compensation and interest amounting to
Rs.10,628/-. Being aggrieved by the said Judgment
and award dated 30th August, 1996 passed by the
Reference Court, the Appellants/ original
claimants preferred present Appeal in this Court.
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4. Learned counsel Mr. Dabir appearing on
behalf of the Appellants/ original claimants
submitted that the Reference Court erred in coming
to the conclusion that the claimants are entitled
to compensation in respect of acquired land to the
tune of Rs.10,628/- only. He further submitted
that the Reference Court should have considered
that the Respondent State actually acquired 75.37
sq. meters constructed area in the present
matter. Inspite of that the Reference Court
awarded
meter
compensation
constructed
ig area
in respect
only.
of
Learned
40.70
counsel
sq.
further submitted that the Reference Court erred
in discarding the valuer’s evidence as well as the
report submitted by the valuer in respect of
acquired property. Learned counsel for Appellant
submitted that the Reference Court at least should
have granted compensation in respect of property
to the tune of Rs.28,105.78 Paisa as valued by the
Architect in his valuation report, which is on
record being Exhibit 24. Learned counsel further
submitted that the Reference Court erred in not
awarding a sum of Rs.10,000/- towards shifting
charges because of the acquired property was
residential premises.
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5. On the other hand learned A.G.P. Mr.
Dound appearing on behalf of the Respondents
vehemently opposed the present First Appeal for
enhancement of compensation. He submitted that
the Reference Court rightly considered the
documentary evidence on record and awarded
reasonable compensation in respect of acquired
property as on the date of issuing Notification
under Section 4 of the Land Acquisition Act dated
1st August, 1985.
Appellants
ig He further submitted that
failed to produce any cogent evidence
the
for enhancing compensation in respect of acquired
property. Learned A.G.P. further pointed out
that the Appellants in the present First Appeal
filed Foot Note as under:
“Foot Note
Appellant claimed Rs.19,933/-
Reference Court awarded Rs.12000/-
————————————————-
Claim regarding Rs.7,933/-
Hence the Appellant is
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entitled to Rs.7,933/- "
6. Learned A.G.P. further submitted that the
present Appeal is preferred by the Appellants for
enhanced compensation of Rs.7,933/- only and
therefore there is no question of enhancing the
compensation as per the valuation report submitted
by the valuer Mr. S.W. Nayak. He further
submitted that the Appellants neither disputed
acquired
18 of the
area in their application under
Land Acquisition Act nor raised
Section
any
ground in the present Appeal for the same.
Therefore, the Appellants cannot agitate the said
issue in the present Appeal. On the basis of
these submissions, learned A.G.P. submitted that
the present Appeal to be dismissed with the
exemplary cost.
7. Learned counsel appearing on behalf of the
Appellants / original claimants submitted that the
Reference Court erred in not awarding a sum of
Rs.10,000/- towards shifting charges as the
acquired property was residential premises. He
further submitted that the Reference Court ought
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to have awarded a sum of Rs.10,000/- towards
shifting charges to the claimants. If we see
evidence of claimant himself at Exhibit 20, then
it is clear that claimant nowhere stated in his
deposition that they incurred a sum of Rs.10,000/-
towards the shifting charges. Not only that when
the Appellants/ original claimants preferred
Reference under Section 18 of the Land Acquisition
Act dated 6th May, 1988, Appellants failed to
claim said sum of Rs.10,000/- for shifting
charges.
Prayer in the Reference under Section 18
of the Land Acquisition Act reads as under:
“It is therefore, prayed that the petition
may kindly be allowed and enhanced
compensation to the tune of Rs.19933/-
along with 30% solatium and interest @ 12%
p.a. over above amount from the date ofaward till the date of realisation of
amount with cost may be granted to the
petitioners.”
8. With the help of learned counsel for the
parties, I have gone through the Record and
Proceedings of the present case. Learned counsel
for the Appellants took me through Exhibit 28 i.e.
deposition of witness No.1 for Appellant – Umaji
Ubale. In his evidence, the claimant claimed
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enhanced compensation of acquired property to the
tune of Rs.19,933/-. The said witness nowhere
stated about the area of acquired property.
Though the learned counsel for Appellants disputed
that the Respondent actually acquired 75.37 sq.
meters constructed property of claimants in the
present case but these facts were not stated by
the claimant himself in his deposition.
Therefore, it is difficult to accept the
contention of learned counsel for the Appellants/
original
75.37 sq.
claimants
ig that the Respondent
meters constructed area of Appellants.
acquired
9. Thus, it is clear that even in Reference
under Section 18 of the Land Acquisition Act
Appellants claimed only Rs.19,933/- towards the
house property. The calculation for sum of
Rs.19,933/- given by the Appellants in Para 8 of
their Application under Section 18 of the Land
Acquisition Act, which reads as under:
“(8) That, even as per valuation of the
Architect, cost of the construction/
building is more than Rs.28105/- and so the
Petitioners are claiming Rs.28105/- as
enhanced compensation and after excluding
the amount awarded by the SLAO, net
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9comes to Rs.19933.00/-”
10. It is thus clear from the above mentioned
facts that the Appellants never claimed a sum of
Rs.10,000/- towards shifting charges. Therefore,
the Reference Court rightly rejected/ not
considered the Appellants request for a sum of
Rs.10,000/- towards the shifting charges.
11. Learned counsel for Appellants took me
No.2 for the claimants.
through Exhibit 23, which is deposition of witness
Architect Mr. Subhash W.
Nayak deposed as expert for the claimants. In his
evidence he stated that he himself visited the
suit property in the month of July, 1985 and took
measurement of the house and made the valuation
report accordingly. He produced copy of map and
valuation report. He stated that, in his opinion
the market value of the house property should be
Rs.28,105.78 Paisa. He stated that the house
property contains three rooms in stone work
covering in G.I.C. roofing and one hut. He
stated that the built up area is approximately
75.37 sq. meters. It is to be noted that at the
time of giving deposition, he has not produced the
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10
material on the basis of which he prepared the
valuation report, as well as note prepared by him
at the time of carry out survey. In cross
examination, he specifically admitted that he has
not undergone any special training as a valuer.
If the expert fails to produce the material on the
basis of which he has prepared valuation report,
then the said valuation report cannot be
considered in evidence. The Apex Court in the
matter of Special Land Acquisition Officer and
another
reported
vs.
in 1995 Supp.
Sidappa Omanna Tumari
(2) Supreme Court
and others,
Cases,
Page 168 held that report of expert can be acted
upon by the Court if relevant factual data or
material which constituted basis of the report is
also produced and the same is proved to be genuine
and reliable and the method adopted by the expert
found to be recognised and correct. Para 17 of
the said Judgment reads as under:
“17. Therefore, when a report of an
expert is got produced by a claimant beforethe Court giving the market value of the
acquired lands, the court may choose to act
upon such report for determination of the
amount of compensation payable for the
acquire lands, if the data or the material
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11is produced before the court and the
authenticity of the same is made good and
the method of valuation adopted therein is
correct.”
12. In view of these facts I hold that the
Reference Court rightly disbelieved the evidence
as well as valuation report prepared by the valuer
Mr. S.W. Nayak. Therefore, there is no merit in
the contentions raised by the learned counsel for
the Appellants that the Reference Court should
have considered the valuation report prepared by
the valuer Mr.
S.W. Nayak for fixing the market
value of the acquired property.
13. The Reference Court considering the
material on record came to the conclusion that
market value of the acquired property should be
Rs.12,000/- on the date of issuing Notification
under Section 4 of the Land Acquisition Act. It
is a principle for fixing the market value of the
acquired land that Court has to do some guess work
on the basis of material produced before it. It
is not possible that at the time of fixing market
value of the acquired land, the Court has to do
mathematical calculations only. It is the duty of
the Court to see plus and minus factors in respect
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of acquired property.
14. In view of the above facts and
circumstances I am of the opinion that it is not
necessary to interfere with the Judgment and award
passed by the Reference Court dated 30th August,
1996. Hence the present First Appeal is liable to
be dismissed with no order as to the costs. hence
the Order:
ig O R D E R
(i) First Appeal No.577 of 1997
preferred by the Appellants/ original
claimants against the Judgment and award
passed by the Reference Court dated 30th
August, 1996 is hereby dismissed.
(ii) There shall be no order as to the
costs.
[K.K. TATED]
JUDGE.
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asb/u/fa577.97
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