1
srk
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE
First Appeal No. 358 of 1999
With
Cross Objection Stamp No.8216 of 2000
With
Civil Application No.4486 of 2000
The State of Maharashtra
(Through the Special Land Acquisition Officer
National Highway Project, Nashik) Appellant
(Org. Opponent)
Vs.
1. Damu Shankar Gorade
2. Smt.Sitabai Shankar Gorade Respondents
(Org.Claimants)
With
First Appeal No. 359 of 1999
With
Civil Application No.4487 of 2000
The State of Maharashtra
(Through the Special Land Acquisition Officer
National Highway Project, Nashik) Appellant
(Org. Opponent)
Vs.
1. Chandrabhan Mahadu Ghotekar
since deceased through legal heirs:
1-A. Shri Vishal Chandrabhan Ghotekar
1-B Sagar Chandrabhan Ghotekar
1-C Hemant Chandrabhan Ghotekar
1-D Smt.Vanita Kailas Patil
1-E Smt.Renukabai Chandrabhan Ghotekar Respondents
(Org.Claimants)
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With
First Appeal No. 360 of 1999
With
Cross Objection Stamp No.12838 of 2000
With
Civil Application No.4488 of 2000
The State of Maharashtra
(Through the Special Land Acquisition Officer
National Highway Project, Nashik) Appellant
(Org. Opponent)
Vs.
Vasant Gajanan Ghotekar
age 16 yeas, minor by his guardian
natural mother no.2, Saraswatibai Gajanan
Ghotekar Respondent
(Org.Claimant)
With
First Appeal No. 361 of 1999
With
Cross Objection Stamp No.9971 of 2000
With
Civil Application No.4489 of 2000
The State of Maharashtra
(Through the Special Land Acquisition Officer
National Highway Project, Nashik) Appellant
(Org. Opponent)
Vs.
Shri Deoram Mahadu Ghotekar Respondent
(Org.Claimant)
Mrs.G.P.Mulekar, AGP for Appellants in all appeals.
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Mr.P.N.Joshi for claimants in First Appeal Nos.358 to 360 of 1999.
Mr.R.A.Thorat for claimant in First Appeal No.361 of 1999.
CORAM: B.H.MARLAPALLE & S.J.VAZIFDAR,JJ.
Reserved on : July 16, 2009.
Pronounced on: August 27, 2009.
JUDGMENT (PER B.H.MARLAPALLE,J.)
1. All these Appeals have been filed under Section 54 of the
Land Acquisition Act, 1894 by the State Government against the
common award dated 23/4/1997 passed by the Joint District
Judge, Nashik in Land Reference Nos.412, 413, 415 and 417 of
1989. In the first part of the award the Reference Court fixed
the market value of the land acquired at Rs.25,000/- per hectare
and in the second part it awarded compensation for the fruit
trees as well as for the well and structures. The claimants have
filed Cross Objections in First Appeal Nos.358, 360 and 361
of 1999 and claimed higher market value for the land as well as
higher compensation for the fruit bearing trees. In his
depositions before the Reference Court, Shri Somanth Damu
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Gorade – the claimant in L.R. No. 413/1989 stated that in L.R.
No. 402/1989 the claimant had received Rs.25000/- per hectare
as market value for the bagayat land and hence he claimed the
very same market value on the basis of parity. However, during
the course of the arguments it is not much in dispute between
both the parties that the market rate awarded at Rs.25,000/- per
hectare has been confirmed by this Court in connected appeals
and, therefore, the challenge in these appeals remains only in
respect of the compensation awarded for the fruit bearing trees
by the common award.
2. The Government of Maharashtra issued the notification
under Section 4 of the Land Acquisition Act, 1894 (“the Act” for
short) on 30/10/1980 for acquiring the land for construction of
Nandur Madmeshwar Express Canal and the declaration under
Section 6 was published on 2/7/1981 whereas the SLAO passed
his award on 23/9/1986. The claimants accepted the award
amount under protest and submitted an application under
Section 18 of the Act for enhanced compensation. They claimed
that the market rate of the acquired land was required to be
fixed at Rs.50,000/- for bagayat and Rs.25,000/- for jirait as
against the market rate awarded by the Land Acquisition Officer
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at Rs.9500/-. So far as the fruit bearing trees are concerned the
Reference Court in L.A.R.No.413/89 fixed the compensation at
Rs.900/- per tree for 970 grape trees, Rs.100/- per tree for 33
grape trees, Rs.800/- per tree for 249 guava trees, Rs.50/- per
tree for 24 guava trees and Rs.3000/- per tree for 25 mango
tress. In L.A.R.No.412/89 the Reference Court fixed the
compensation at Rs.750/- per tree for 200 grape trees, Rs.3000/-
for one mango tree. In L.A.R. No.415/89 the compensation for
trees was fixed at Rs.750/- per tree for 181 grape trees and Rs.
3000/- per tree for five mango trees. In L.A.R.No.417/89 it was
fixed at Rs.750/- per tree for 181 grape trees. In L.A.R.No.
413/89 the compensation for the land was awarded at Rs.
33,500/- admeasuring 1 H. 34 R. whereas for all the fruit trees
the compensation awarded came to Rs.11,51,700/-. In
L.A.R.No.412/89 the compensation for the land was awarded at
Rs.16,750/- measuring 67 R. whereas for the fruit bearing trees
the compensation amount granted was Rs.1,53,000/-. In
L.A.R.No.415/89 the compensation for land admeasuring 66 R.
was awarded at Rs.6500/-, whereas for the bruit bearing trees
the compensation awarded came to Rs.1,50,750/-. In L.A.R. No.
417/89 the compensation for the land admeasuring 67 R. was at
Rs.16,750/- whereas for the fruit bearing trees compensation
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was awarded at Rs.1,35,750/-.
3. It was submitted by the learned AGP that the method
adopted for determining the compensation for the fruit bearing
trees by the Reference Court is based on income capitalization
method and the same cannot be adopted when the
compensation for the land has been awarded by fixing the
market value as Bagayat land (perennially irrigated). It was
submitted that if the market value of the land is fixed on the
basis that it is Bagayat land, the fruit bearing trees cannot be
separately valued and compensation if at all has to be on the
basis that it was firewood. In the alternative it was submitted
that if the compensation for fruit bearing trees is calculated and
awarded on the basis of income capitalization method, no
compensation is required to be given for the land acquired and
the claimants cannot have both the benefits. They must opt for
one of them and it was fairly conceded before us that better of
the two benefits could be allowed to be retained. It was further
submitted that the valuation done in respect of the fruit bearing
trees is also excessively high, it is unreasonable and unrealistic.
If the Reference Court accepted the Government Valuer’s report
(Deputy Director of Horticulture at Exhibit 14), the said report
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was required to be accepted in toto and not in bits and pieces.
The learned AGP, therefore, submitted that even the
compensation fixed for the fruit bearing trees even by following
income capitalization method is excessive and is required to be
slashed down and in no case there could be separate
compensation granted for the land on which the fruit bearing
trees were standing. In support of these arguments the learned
AGP has placed reliance on the following decisions:
1. State of Haryana v. Gurcharan Singh [1995 Supp (2) SCC
637]
2. Land Acquisition Officer, A.P. Vs. Kamadana Ramkrishna
Rao & anr. [(2007) 3 SCC 526]
3. Dy. Director, Land Acquisition Vs. Malla Atchinaidu & ors.
[(2006) 12 SCC 87]
4. Kiran Tandon Vs. Allahabad Development
Authority & anr. [(2004) 10 SCC 745]
5. Special Land Acquisition Officer, Malaprabha Dam Project
V. Madivalappa Basalingappa Melavanki [(1995) 5 SCC
670]
6. Special Land Acquisition Officer, Devangere Vs. P.
Veerabhadrappa & ors. [(1984) 2 SCC 120]
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She has also relied upon the following decisions of this
Court:
1. Ramgonda Layappa Birajdar & ors. Vs. Special Land
Acquisition Officer No.6, Sangli & ors. [2006 (2) Mh.L.J.
436]
2. Special Land Acquisition Officer, M.I.W., Jalgaon Vs.
Chindha Fakira Patil (deceased) Heirs Dharma Chindha
Patil [2007 (2) Mh.L.J. 130]
3. State of Maharashtra Vs. Sahadu Aba Shete & ors. [2009
(1) ALL MR 186]
As per the learned AGP, the possession of the land was taken
over on 8/4/1987 and thus for about seven long years, the
claimants had derived and enjoyed the income from the fruit
bearing trees as per their own case and this period of seven
years was required to be deducted from the life span of the
trees while calculating compensation by the income
capitalization method in Exh. 14. Mrs. Mulekar by referring to
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the depositions of PW 3 – Shri Uttamrao Patil, the Private Expert
Valuer examined by the claimants, submitted that if the said
valuer had visited the acquired land on 15/10/1985 and noted
that 970 grape trees were of 6 years of age and 273 Guava
trees were of 9 years of age, it was clear that the grape trees
were planted after the notification under Section 4 of the Act
was issued on 30/10/1980 and, therefore, the land owner cannot
claim compensation for the grape trees at least. She also made
the said argument in respect of the acquired land and covered
under L.R. Nos. 412, 415 and 417 of 1989 as PW 3 has stated
that he had noticed in the said Gat number, 562 grape trees of
5 years of age which clearly implied that all these trees were
planted after the notification under Section 4 of the Act was
issued. She referred to Section 24 – fifthly of the Act and
submitted that these trees were planted to increase the value of
the land and after the notification was issued under Section 4 of
the Act, Section 24 – seventhly made it clear that the land
owners were required to obtain the sanction from the Collector
before undertaking such plantation of fruit bearing trees. The
learned AGP, therefore, urged before us that the land owners
were not entitled for any compensation in respect of the fruit
bearing trees on the basis of income capitalization method
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when the market value of the land was fixed on the basis that it
was a bagayat land.
4. Mr.Joshi, the learned counsel for the claimants on the
other hand, submitted that as per the scheme of Section 23 of
the Act, the compensation to be awarded to the claimants is in
different parts. Firstly it is the market value of the land and in
addition, for the fruit bearing trees or structures thereon are
required to be valued for payment of additional compensation
by way of damages. As per Mr. Joshi in the instant case the
Reference Court has awarded compensation for fruit bearing
trees and structures by way of damages and, therefore, it does
not call for any interference more so when the said valuation is
based on the report of the State Government Valuer as well as
private valuer PW 3 examined by the claimants. It was
submitted that the valuation so made is not realistic and in fact
it is on the lower side and, therefore, it requires to be enhanced
because while fixing the compensation the Reference Court has
not taken into consideration the total life of the trees as well as
the yield and market rate as per the private Valuer’s report. In
the alternate Mr.Joshi submitted that even if this Court finds that
the valuation for the fruit bearing trees made by the Reference
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Court is just and proper, there is no reason to interfere with the
award passed by the Reference Court and the claimants ought
to receive the market value for the land as well as the
compensation for fruit bearing trees. Mr. Joshi does not agree
with the submissions made by the learned AGP that the
claimants can have either of the benefits i.e. either the
compensation for the land by way of its market value or the
compensation for the fruit bearing trees on the basis of the
income capitalization method.
ig In support of these arguments
Mr. Joshi has placed reliance on the following decisions:
1. State of Haryana v. Gurcharan Singh [1995 Supp (2) SCC
637]
2. KAA Raja & ors. Vs. State of Kerala & anr. [(1994) 5 SCC
138]
3. State of Jammu and Kashmir Vs. Mohammad Mateen Wani
[AIR 1998 SC 2470]
4. Navanath & ors. V. State of Maharashtra [JT 2009 (6) SC
386]
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5. Hansraj Sharma (dead) by Lrs Vs. Collector, Land
Acquisition, Tehsil and District Doda [2005 (2) Mh.L.J. 557]
5. In support of the claim for enhancement of compensation,
the claimants had examined in all four witnesses and also had
relied upon the expert’s evidence recorded in L.R. No. 402 of
1989. PW 1 – Somnath Damodhar Gorade was the claimant in
L.R. No. 413 of 1989, PW 2 – Chandrabhan Mahadu Ghotekar
was the claimant in L.R. No. 412 of 1989 and he stated that his
brothers were claimants in L.R. Nos. 415 and 417 of 1989 and
he deposed on their behalf as well. He admitted that the total
land acquired and covered under L.R. Nos. 412, 415 and 417 of
1989 admeasure 2 hectares and each of the three brothers had
1/3rd share. In addition, two more witnesses, namely, PW 3 –
Shri Uttamrao Wamanrao Patil, Agricultural Consultant and
Expert for private valuer and PW 4 – Jayendra Valabhdas Pabari
– Architect and approved Government Valuer were examined.
PW 3 was examined as an expert valuer for determining the
compensation payable for fruit bearing trees on income
capitalization basis and PW 4 was examined to determine the
valuation of the structures standing on Gat No. 200. In the
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evidence of PW 1, 7×12 extracts of his land in Gat No. 199 and
totally admeasuring 1 H. 34 R. were brought on record at Exhs.
15, 16, 17 and 18. He also brought on record the railway
receipt to show goods dispatched to Varanasi (Exh. 20), to
Patna (Exh. 21), receipts of Carting Agent of Manmad (Exh. 22)
and of Lasalgaon (Exh. 23). PW 1 – Somnath stated in his
depositions that there were 1003 grape trees, 273 guava trees
and 25 mango trees standing in his land at the time when the
possession was handed over. He relied upon the Government
Valuer’s report at Exh. 14 which he had produced before the
court and he claimed Rs.2000/- per grape tree, Rs.1000/- per
guava tree as compensation. In his cross examination he
admitted that the plantation of guava garden was in the year
1974-75 and the grape garden plantation was in the year 1976.
In his examination-in-chief he stated that guava and grape trees
were fruit bearing trees at the time of acquisition and this
statement clearly went to show that the 25 mango trees which
he claimed were standing on the land were not bearing fruits at
the relevant time and obviously he did not claim compensation
on the lines he claimed for the grape and guava trees. PW 2 –
Chandrabhan stated that the share of each of the three brothers
was 66 R, 67 R and 67 R out of 2 hectare land from Gat No.
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200. As per him, in his land (L.R. No. 412/89) there were 200
grape trees, in the land of his brother Gajanan (L.R. No. 415/89)
there were 181 grape trees and in the land of second brother
Depram (L.R. No.417/89) there were 192 grape trees, thus
making a total of 573 grape trees in Gat No. 200. However, the
Government valuer found 562 grape trees in Gat No. 200. He
also relied upon the report at Exh. 14 made by the Government
Horticulturist and stated that he had engaged a private valuer
to determine the valuation of fruit bearing trees. He also relied
upon the letter dated 10/12/1982 at Exh. 26. Coming to the
evidence of PW 3, as noted earlier, he admitted that he visited
the land in Gat No. 199 for the first time on 15/10/1985 and
noted that there were in all 970 grape trees of 6 years of age,
33 grape trees were less in age and the quality of 970 trees
were of Thomsan Seedless. He also stated that there were 273
guava trees of 9 years old and they were of local variety. He
further stated that he noticed 12 mango trees of 9 years of age
in the said land in Gat No. 199. He stated that he visited the
land in Gat No. 200 also on the same day and he found 562
grape trees of 5 years old, 4 guava trees of 8 years old, 2 lemon
trees of 7 years old, 3 bor trees of 8 years old and 6 mango
trees of 9 years of age. He submitted the valuation report at
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Exhs. 33, 34, 35 and 36. He admitted in his cross-examination
that the mango trees in the land at Gat No. 199 were of local
variety and they were not planted. It is pertinent to note that
the Government valuer noticed only 249 guava trees in the land
in Gat No. 199 which were fruit bearing, whereas the other 24
guava trees were just saplings.
The private valuer had fixed the annual income of 970
grape trees at Rs. 1087/- per tree as against the same valuation
is fixed at Rs.595/- and Rs.423/- per tree by the Government
valuer in Gat No. 199. The private valuer did not consider
granting any compensation for 33 grape trees which were newly
planted in the said land. In respect of grape trees in Gat No.
200, the private valuer fixed the annual income of Rs.1043/- per
tree, whereas the Government valuer fixed the same at Rs.423/-
per tree. In respect of the guava trees, the private valuer fixed
the compensation at Rs.800/- per tree, whereas the Government
valuer fixed the said amount at Rs.600/- per tree for 249 trees
and Rs.56/- per tree for 24 trees. In respect of the mango trees,
the Government valuer fixed the compensation at Rs.50/- per
tree and Rs.75/- per tree whereas the private valuer estimated
the said amount at Rs.5018/- per tree. The following
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comparative chart will indicate the valuation made by the
Government valuer, private valuer and the court:
Trees Govt.Valuer Private Valuer Reference
Rs. Per tree Rs. Per tree Court
Rs. Per Tree
———————————————————————————–
(a) L.R.No.413/89
Grape (363) 595 1087 900
Grape (607) 423
Guava – Gat
No.200 600 1008 800
Guava – Gat 600 1008 900
No. 199
Mango 50 & 75 5018 3000
(b) L.R.No.412/89
Grape 423 1043 750
(c) L.R.No.415/89
Grape 423 1043 750
Mango 50 & 75 5018 3000
(d) L.R.No.417/89
Grape 423 1043 750
6. The 7×12 extracts at Exh. 15 in respect of Gat No. 199
shows that in the year 1975-76 guava garden was planted for
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the first time on 28 R land and jwari cultivation was shown on 1
hectare and same situation continued in the next year i.e.
1976-77. In the year 1977-78 plantation of grape garden has
been shown on 1 H. and the guava garden remained as it
is. It is thus clear that so far as the land in Gat No. 199
admeasuring 1 H. 34 R. is concerned, it was already under
horticulture development much before the notification under
Section 4 of the Act was issued and initially it was only guava
garden plantation (local variety), whereas in the year 1977-78, 1
H. land was brought under grapes cultivation. A reasonable
inference is required to be drawn that in 1 H. of land there were
about 1000 grape trees planted and obviously on the remaining
34 R. land there was guava garden. The mango trees noticed
were not planted and obviously they must be standing on the
peripheral areas. The railway receipts and dispatch receipts
brought on record at Exhs.20, 21, 22 and 23 also pertain to the
period of February 1980 and while PW 1 was in the cross
examination, it was put to him that there was no cultivation of
grapes in his land and his father used to buy fruits from the
market in bulk and dispatch them to other areas. This
suggestion was denied. We are, therefore, satisfied that the
guava garden and grape garden was existing on the land in Gat
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No. 199 before the notification under Section 4 of the Act was
issued and hence the submissions made by the learned AGP
that the said plantation was done only after the notification
under Section 4 of the Act was issued are unsustainable.
7. We have perused the valuation report at Exh.14 made by
the Government horticulturist and Exhs. 33, 34, 35 and 36 made
by PW 3. Undoubtedly both of them followed the A.E. Mirams
system for valuation of the fruit bearing trees on income
capitalization method.
8. The claimants placed on record the valuation report at
Exh. 14 and made by the Government Horticulturist. The said
report appears to be dated 1/8/1983. It states that in the land in
Gat No. 199 there were 363 grape trees of 6 years of age and its
future age was 19 years. He recorded the annual yield of each
tree at 20 Kgs. and the wholesale market price at Rs.6/- per Kg.,
thus making an annual income of Rs.120/- per Kg. He recorded
that there were 602 other variety of grape trees of 5 years of
age and the future age was 20 years. He has shown the annual
yield at 15 Kgs. and the wholesale market price at Rs.6/- per
Kg., thus making the annual income of Rs.90/- per tree. He
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further stated that there were 38 grape trees which were just
one year old and, therefore, there could not be any
compensation, except the plantation price. He noted that there
were 249 guava trees of 9 years of age and future age was 31
years. He estimated the annual yield at 60 Kgs. and the
wholesale market price at Rs. 1/- per Kg., thus making the
annual income at Rs.60/- per tree. He noted that there were 15
mango trees but could not give the income as they were of local
nature and they were not planted. So far the land in Gat No.
200 is concerned, he has noted 562 grape trees of 5 years of
age and future age was 20 years. He estimated annual yield at
15 Kg. per tree and wholesale rate at Rs.6/- per Kg., thus
making a total income of Rs.90/- per tree per annum. Guava
trees he valued on the same basis as it was done in respect of
the land in Gat No. 199. Whereas for the remaining 38 grape
trees, he granted Rs. 20/- per tree towards plantation. For the
grape trees in Gat No. 200, the Horticulturist awarded Rs. 423/-
per tree as the total compensation and for 562 grape trees it
came to 562×423 = Rs.2,37,726/-. So far as guava trees in Gat
No. 199 are concerned he estimated the total compensation at
Rs.600/- per tree and for the same tree in Gat No. 200, as there
were only two trees he granted the same compensation. In
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respect of mango trees, he granted Rs.50/- and Rs.75/- per tree.
PW 3, the private valuer, in his report at Exh. 33 followed
the very same method, but estimated the annual yield of each
grape tree at 26 Kg. per tree and wholesale market rate at Rs.
7/- per Kg. He thus estimated the annual income of each grape
tree at Rs.182/-. In Gat No. 199 he calculated the total
compensation for each grape tree at Rs.1087/-. For the
remaining 33 grape trees he stated that Rs.60/- per tree was
required to be paid as compensation towards the plantation is
concerned and no compensation in the income capitalization.
For guava trees he estimated the annual yield at 90 kg. And the
wholesale market rate at Rs.1.25. For the mango trees he
calculated the annual income at Rs.430/- per tree. He worked
out a total compensation for the guava trees at Rs.1008/- per
tree and for the mango tree at Rs.5018/- per tree.
9. We are not in agreement with the private valuer’s report
in respect of the annual as well as the wholesale market rate.
The report submitted by the Government Horticulturist at Exh.
14, in our opinion, is more realistic and the Reference Court has
not given any reasons, leave alone satisfactory reasons, to
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discard the same. We, therefore, accept the valuation report
made at Exh.14 to determine the compensation of the fruit
bearing trees in toto. The Reference Court has considered both
the reports and tried to fix the compensation amount midway.
In L.R. No. 369/89, the Reference Court had granted Rs.2 lacs by
way of compensation for 211 grape trees i.e. Slightly less than
Rs.1000/- per tree. But it appears only the private valuer’s
report was considered in the same and there was no valuation
report submitted by the Government Horticulturist. But such a
report of the Government Horticulturist was considered for
guava trees and the valuation varied from Rs.400/- to Rs.600/-
per tree. The Reference Court fixed the valuation at Rs.1000/-
per guava tree but without any reasons. So far as mango trees
are concerned, again the valuation was done on the basis of the
private valuer’s report and it was fixed at Rs.5000/- per mango
tree. No reasons were set out in this case as well. Under these
circumstances, the valuation made in the earlier references i.e.
L.R. No. 368, 369 and 372 of 1989 could not have been relied
upon by the Reference Court in the instant case, and on the face
of the valuation report at Exh.14, which was relied upon by the
claimant only.
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10. Mr.Joshi has placed on record a copy of the Circular dated
18th December 1975 issued by the Revenue and Forest
Department, Government of Maharashtra setting out the
procedure for valuation of fruit bearing trees by following
A.E.Mirams method of capitalisation so as to determine the
valuation of fruit bearing trees in gardens or orchards excepting
grape vine yards:
“In such cases, trees are planted with a view to obtaining
regular income and the orchard becomes an enterprise. As
however, in case of orchards, excepting grape vine yards the
part of income attributable to the “Cultivator’s risk and Profits”
is comparative by small, it would be reasonable to consider
about 10% of Gross income to form this item of deduction. In
such cases, therefore, only 10% of gross income be deducted on
account of “Cultivator’s Profit. In addition, usual items of
decutions such as cost of cultivation, manures, maintenance,
insecticides, watch and ward packing and transportation etc. will
also be taken into consideration.”
Similarly for Grape Vine Yards the procedure set out
states as under:
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“Grape is very delicate crop and apart from heavy
expenditure to be incurred towards cost of cultivation, manure,
pesticides and insecticides, watering, watch and ward
maintenance, etc. must of the yield depends upon the
cultivator’s skill in judging the appropriate time for cutting
operation. In such cases naturally therefore a substantial
portion of Gross Income is attributable to the cultivator’s profits
and risks. In view of this, in case of grape vine yards ___ %
(illegible) of Gross Income should be regarded as forming
deduction on account of % “Cultivator’s Profits and Risks”. In
addition, consideration in working out net income.”
Along with the Circular Table-1 on the basis of income
capitalisation (interest on capital at 9% and for redemption of
capital at 4%) was also annexed. The Horticulture Officer has
undoubtedly followed the said procedure set out in the Circular
dated 18th December 1975 as well as Mirams’ method of
capitalisation of income. Therefore, the valuation report
submitted at Exhibit 14 is more authentic, realistic and
justifiable.
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11. At this stage we must consider the submissions made by
Mrs. Mulekar pointing out that the possession of the land was
taken on 8/4/1987 and thus the land owners enjoyed the income
of the fruit bearing trees for about 6-7 years after the
notification under Section 4 of the Act was issued and
consequently this six years period or at least four years period
was required to be deducted from the future age. We are not
impressed by these submissions, more so when the SLAO did
not take any steps to examine the Government Horticulturist so
as to reduce the future age. In fact, the SLAO took no steps to
defend the award passed by the Reference Court in respect of
the compensation awarded for the fruit bearing trees. Mr. Joshi
the learned counsel for the claimants urged before us to follow
the private valuer’s report, but we do not find any merits in this
submission. The dispatch receipts placed on record at Exhs.20,
21, 22 and 23 do not indicate the market rate at the relevant
time i.e. in the year 1980 and the private valuer has not given
any justification in support of his increased figure of annual rate
as well as market rate.
12. Now coming to the main issue as to whether the
Reference Court was justified in granting compensation for the
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land as well as for the fruit bearing trees and to decide the said
issue, let us refer to the legal position emanating from the
judgments relied upon by both the sides.
(a) In the case of Mohammad Mateen Wani (Supra), the award
of granting compensation in respect of the fruit bearing trees
and tube well was not interfered by the Apex Court as the same
was based on the Government Circular which allowed such
compensation separately and, therefore, the said decision is not
applicable in the facts of this case. Even in the case of Hans Raj
Sharma (Supra), the issue as to whether market value for the
land which was perennially irrigated and for the orchards
standing thereon could be granted or only one of them is
required to be granted was not for consideration. There was no
material to show that in the said case the fruit bearing trees
were planted for commercial/horticultural production. In the
case of Navanath (Supra), the Apex Court in para 33 noted thus,
” The legal principle laid down in this behalf in a
catena of decisions of this Court is that the market
value of the land cannot be determined both on the
basis of sale instance as also on capitalization
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method keeping in view the fact that it had fruit
bearing trees. But, in this case, nothing has been
pointed out before us that the fruit bearing trees in
large numbers were existing in the agricultural land
itself and the Reference Court had valued the same
land by adopting two different methods. Had such as
position been existing, the Land Acquisition Officer
himself and/or the Horticulturist and the Consulting
Engineer appointed on behalf of the State would not
have taken recourse thereto. They are experts in
their own fields. The Land Acquisition Officer is
presumed to know the legal principles governing
valuation. Furthermore, as noticed hereinabove,
recourse to the determination of amount of
compensation of fruit bearing trees have been taken
keeping in view the guidelines issued by the State
itself.”
Mr. Joshi, therefore, referred to the Circular dated
18/9/1975 and urged that the award passed by the Reference
Court and impugned in these appeals does not call for any
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interference. We do not find any substance in these arguments.
The circular of the Government of Maharashtra does not state
that the market rate as well as compensation by income
capitalization is required to be given in respect of the bagayat
land.
(b) In the case of State of Haryana Vs. Gurcharan Singh and
anr. (Supra), the Supreme Court in para 3 stated thus,
“3………..It is settled law that the Collector or
the court who determines the compensation for the
land as well as fruit bearing trees cannot determine
them separately. The compensation is to the value of
the acquired land. The market value is determined on
the basis of the yield. Then necessarily applying
suitable multiplier, the compensation needs to be
awarded. Under no circumstances the court should
allow the compensation on the basis of the nature of
the land as well as fruit bearing trees. In other words,
market value of the land is determined twice over;
once on the basis of the value of the land and again
on the basis of the yield got from the fruit bearing
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trees. The definition of land includes the benefits
which accrue from the land as defined in Section 3(a)
of the Act. After compensation is determined on the
basis of the value of the land as distinct from the
income applying suitable multiplier, then the trees
would be valued only as firewood and necessary
compensation would be given…….”
(c) A three Judge Bench in the case of Airports Authority of
India (Supra) referred to the decision in Gurcharan Singh’s case
and set out the meaning of capitalization. The court stated that
capitalization means the method used to convert future benefits
to present value by discounting such future benefit at an
appropriate rate of return and it is the process of converting the
net income of a property into its equivalent capital value. The
court further stated that while capitalizing the income, future
income, its duration along with the risk factor is to be taken into
consideration. Capitalizing rate means a designated rate of
return which converts net future benefits to capital value. The
court reiterated the law laid down in Gurcharan Singh’s case in
the following words,
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“8. It is settled law that in evaluating the
market value of the acquired property, namely, land
and building or the land with fruit bearing trees
standing thereon, value of both is to be determined
not as separate units but as one unit. Therefore, it
would be open to the Land Acquisition Officer or the
court, either to assess the land with all its advantages
and fix the market value thereof on the basis of
comparable sale instances. In case where comparable
sale instances are not available and where there is
reliable and acceptable evidence on record of the
annual income, market value could be assessed and
determined on the basis of net annual income
multiplied by appropriate multiplier for its
capitalization. In the case of fruit bearing trees their
net yield is to be taken into consideration, that is to
say, by deducting expenses incurred for getting the
yield and also the value of the timber and expenses to
cut and remove the trees from the land. For
capitalizing the income, previously income from the
gilt-edged securities was the basis, but thereafter rate
of interest in the nationalized banks where deposits
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are quite safe is taken into consideration as the proper
basis. If the interest rate in a nationalized bank or
other safe investments, on a long term fixed deposit,
say is 10%, and the yield from the trees p.a. Is Rs.
5000, then for getting the said income, deposits of Rs.
50,000 would be required to be made. Hene, the
value of the said trees along with the land can be
safely assessed as Rs.50,000. In the present case,
there is no question of acquiring the land. The land
remains with the claimants. The question is limited
with regard to payment of compensation for the
damages because of cutting of trees. With regard to
fruit bearing trees, their lifespan including risk factor
is also required to be taken into consideration. Hence,
yield of trees multiplied by an appropriate multiplier
for its capitalization after taking into consideration all
relevant factors would be the basis for determining
the compensation.”
13. This court in the case of Ramgonda Layappa Birajdar
(Supra), Chindha Fakira Patil (Supra) and Sahadu Aba Shete
(Supra) has followed the above stated decisions of the Supreme
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Court in the case of Gurcharan Singh (Supra) and Airports
Authority of India (Supra). In the case of Ramgonda Birajdar,
this court held that the market value of the land is to be
determined on the basis of the value of the land but the value of
fruit bearing trees cannot be added thereto and needless to say
that in case of trees yielding forest produce are to be valued in
addition to the value of the land. In the case of Sahadu Aba
Shete (Supra), this court stated that the trees are integral part
of the land and the claimants cannot claim separate value for
trees. In the case of Chindha Fakira Patil (Supra), this court also
referred to the decision in the case of Koyappathodi M. Ayisha
Umma vs. State of Kerala [AIR 1991 SC 2027] along with
Gurcharan Singh’s case and held that the claimants are not
entitled to compensation by way of market price of the land plus
compensation for income from fruit bearing trees and they are
entitled to either, may be whichever is higher out of the two.
We are in full agreement with the said view and we reiterate
that the claimants cannot claim compensation for the bagayat
land as well as for the fruit garden/orchard standing thereon and
they have to claim one of them and the court must grant the
higher of them so long as the entire land is covered by such
orchard and this principle will also be applicable to the extent of
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the land under plantation of the garden/orchard and in respect
of the balance land, if any, the owner will be entitled for the
market value of the land only.
14. So far as Gat No. 199 is concerned, we have noted above,
and on the basis of the 7×12 extract at Exhs.15, 16, 17 and 18
that the entire land admeasuring 1 H. 34 R was covered by the
grape trees as well as the guava trees and, therefore, by
following the law laid down in the case of Airports Authority of
India (Supra), the claimant in the said case will be entitled only
for compensation for the fruit bearing trees and shall not be
entitled, in addition, for the compensation for the land
admeasuring 1 H. 34 R. So far as the land in Gat No. 200 is
concerned, Mr. Joshi the learned counsel for the claimants has
placed on record copies of the 7×12 extracts and we have noted
that grape trees were planted on 80 R. land in the year
1978-79. However, in the next year i.e. In the year 1979-80
the grape garden was retained only on the land admeasuring 60
R. and 40 R land was brought under cultivation of sugarcane
whereas the balance land was for the cultivation of other crops.
This plantation of grape trees was continued on 60 R land in the
subsequent years and in the year 1981-82 we have noted that
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the grapes plantation was on 60 R land, sugarcane crop on 40 R
land, wheat cultivation on 40 R land, gram (Harbhara) on 40 R
and balance of 18 R land was under onion crop cultivation and
this continued till the year 1985-86 when the entire holding was
partitioned between the three brothers who are the claimants
before us. So far as the grape plantation is concerned in each
case, it continued on 20 R land and on the remaining land
holding varying from 46 to 47 R there was either cultivation of
sugarcane or other crops.
ig Hence, the grape orchards were
standing on 20 R land in each case i.e. LR Nos. 412, 415 and
417. By following the law laid down in the case of Airports
Authority of India (Supra) every claimant in respect of Gat No.
200 will be entitled for 20 R land compensation for fruit bearing
trees alone and shall not be entitled for the market value of the
land, in addition. Whereas for the balance land, the
compensation will have to be paid only on the basis of the
market value and not on the basis of the fruit bearing trees. We
have been able to segregate the land under cultivation of fruit
bearing trees/orchards and the land under cultivation of other
crops solely on the basis of the 7×12 extract which were either
proved before the Reference Court or placed before us by the
claimants themselves.
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15. As per Exhibit 14 the land located in Gut No. 199, there were
15 mango trees which were of 6 years age and 10 mango trees of 4
years of age. It is no where the case, even in the evidence of the
claimant or as per the report at Exh.14 that these mango trees were
planted and admittedly they had naturally grown. The claimant in
his depositions before the Reference Court did not claim
compensation for these trees. The Government Horticulturist
estimated the compensation at Rs.75/- per tree for 15 trees and Rs.
55/- per tree for the remaining 10 trees. The reference court noted
that the private valuer (PW3) had estimated the compensation for
each tree at the rate of Rs. 5,018/- and there could not be so much of
difference between the estimation made by the private valuer and
the Government Horticulturist. The reference court therefore
proceeded to fix the compensation for each mango tree at the rate of
Rs. 3,000/- but without giving any justification. This compensation
rate fixed by the reference court for 25 mango trees is unsustainable
and there is no reason to discard the valuation made by the
Government Horticulturist. The claimants cannot be granted
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compensation for mango trees on the basis of income capitalization
method. It was never the case of the claimants that they had planted
the mango trees for commercial income and on other hand they
were just widely grown mango trees. We therefore, set aside the
compensation of Rs.3,000/- per mango tree as granted by the
Reference Court and hence we uphold the compensation at Rs.75/-
each for 15 mango trees and Rs.55/- each for 10 mango trees as
fixed by the government horticulturist. This finding will be equally
applicable to the mango trees located in Gut No. 200 and covered
by LR No. 412 of 1989 and L.R. No. 415 of 1989.
So far as the structures and well are concerned, we are
satisfied that the valuation /compensation fixed by the Reference
Court is just and proper, having regard to the evidence placed
before the said Court through PW4. The Special Land Acquisition
Officer did not adduce any evidence in contra and the cross
examination of the said witness did not make out that the valuation
was doubtful or unreasonable. We therefore, uphold the
valuation/compensation fixed by the reference court for well and
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structures in the land in Gat No. 199 as well as Gat No. 200.
16. We now come to the arguments advanced by Mr. Joshi on the
point that the compensation granted for the fruit bearing trees
should be treated and confirmed by way of damages. As we noted
earlier, the land in Gat Nos. 199 and 200, the entire area not covered
by grape and guava trees or the orchards was under cultivation
either for sugarcane crop, wheat, onions, etc. and it was not the case
of the claimants that when the possession was taken over on
8/4/1987 any standing crop was not allowed to be harvested and
therefore damages were required to be paid. This concept of
damages will be applicable only in such cases and it cannot be
made applicable when fruit bearing trees are planted for generating
monetary income i.e. orchards /gardens. For the land which was not
covered by orchards/gardens the claimant will be entitled to only
one of the two benefits i.e. market value of the land or
compensation in respect of fruit bearing trees on the basis of income
capitalization method and the claimants cannot claim both the
benefits, as has been noted by us hereinbefore.
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17. In the circumstances, we allow the appeals filed by the State
Government partly and dismiss the cross objections by modifying
impugned common award as under:
1] LR No. 413 of 1989, Gut No. 199, Area acquired 1 H 34 R
a) Market value for the land ad-measuring 1 H 34 R Nil
b) 363 Grape trees
ig (363x600/-) Rs.2,17,800/-
607 Grape trees (607x425/-) Rs.2,57,975/-
c) 33 Grape trees (33x20/-) Rs. 660/-
d) 249 Guava trees (249x600/-) Rs.1,49,400/-
e) 24 Guava trees (24x25/-) Rs. 600/-
f) 15 Mango trees (15x75/-) Rs. 1,125/-
g) 10 Mango trees (10x55/-) Rs. 550/-
h) Well Rs. 9,168/-
i) Structure Rs. 5,025/-
-----------------
Total Rs. 6,42,303/-
----------------
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In addition the claimant will be entitled for 30% solatium,
12% additional component and interest as payable under section 28
of the Act.
2] LR No. 412 of 1989, Gut No. 200/1, Area acquired 0.67 R
a) Market value for the land ad-measuring (0H.67R-0H.20R) 0
H 47 R
(47x250/-) ig Rs. 11,750/-
b) 200 Grape trees (200x425/-) Rs. 85,000/-
c) 1 Mango tree (1x75/-) Rs. 75/-
d) Well Rs. 3,693/-
e) Structure Rs. 15,000/-
-----------------
Total Rs. 1,15,518/-
-----------------
In addition the claimant will be entitled for 30% solatium,
12% additional component and interest as payable under section 28
of the Act.
::: Downloaded on - 09/06/2013 14:57:03 ::: 39 3] LR No. 415 of 1989, Gut No. 200/2, Area acquired 0.66 R a) Market value for the land ad-measuring (0H.66R-0H.20R) 0 H 46 R (46x250/-) Rs. 11,500/- b) 181 Grape trees (181x425/-) Rs. 76,925/- c) 5 Mango tree (5x75/-) Rs. 375/- d) Well Rs. 3,693/- ----------------- ig Total Rs. 92,493/- -----------------
In addition the claimant will be entitled for 30% solatium,
12% additional component and interest as payable under section 28
of the Act.
4] LR No. 417 of 1989, Gut No. 200/3, Area acquired 0.67 R
a) Market value for the land ad-measuring (0H.67R-0H.20R) 0
H 47 R
(47x250/-) Rs. 11,750/-
b) 181 Grape trees (181x425/-) Rs. 76,925/-
c) Well Rs. 3,693/-
-----------------
Total Rs. 92,368/-
-----------------
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In addition the claimant will be entitled for 30% solatium,
12% additional component and interest as payable under section 28
of the Act.
By adjusting the amount awarded by Special Land
Acquisition Officer the balance amount in terms of above award
shall be payable if the same has not yet been received by the
claimants, as expeditiously as possible and within a period of eight
weeks from today by the Collector concerned.
Civil Application Nos. 4486, 4487, 4488 and 4489 of 2000
do not survive and the same shall stand disposed as such.
A copy of this award be forwarded to the Collector, Nashik.
(S.J.VAZIFDAR,J.) (B.H.MARLAPALLE,J.)
After the judgment was pronounced, Mr. R.M. Haridas h/f
Mr. Joshi, the learned counsel for the claimants submitted an
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oral application to stay the operation of the judgment. We have
heard Mrs. Mulekar, the learned AGP, in this regard.
Oral application is allowed and the operation of our
judgment and order is stayed for a period of 12 weeks.
(S.J. VAZIFDAR,J.)
ig (B.H. MARLAPALLE,J.)
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