In para 35 the Apex Court viewed the situation thus:
"35. We are afraid that the High Court has misread the
said decision in regard of valuing the land and trees
separately. If the land value had been determined with
reference to the sale statistics or compensation awarded for
a nearby vacant land, then necessarily, the trees will have
to be valued separately. But if the value of the land has
been determined on the basis of the sale statistics or
compensation awarded for an orchard, that is land with
fruitbearing trees, then there is no question of again
adding the value of the trees. Further, if the market value
has been determined by capitalizing the income with
reference to yield, then also the question of making any
addition either for the land or for the trees separately does
not arise. In this case, the determination of market value
was not with reference to the yield. Nor was the
determination of market value in regard to the land with
reference to the value of any orchard but was with
reference to vacant agricultural land. In the circumstances,
the value of the trees could be added to the value of the
land. "
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
FIRST APPEAL NO.456 OF 1998
State of Maharashtra, through Collector,
APPELLANTS :-
Special Land Acquisition Officer,
CORAM : A. P. BHANGALE, J.
PRONOUNCED ON : 06.08.2013
Both these appeals are against the same Judgment and
award dated 30/12/1997 passed by the Joint Civil Judge, Senior
Division, Amravati in LAQ Case No. 49 of 1987 with prayer to
quash the same whereby the compensation was assessed and it
was granted as under –
At the rate of Rs 20,000/ per hector for 3.57 Hector.
(ii) Rs.7,250/ per hector for 0.80 R land.
(iii) At the rate of Rs.200/ per hector for 0.20 R land.
iv) Rs.5,75,000/ for the standing orange trees (1150x500)
(i)
2)
together with the statutory benefits.
It is submitted on behalf of the Appellants State that the
enhancement of the compensation was contrary to law without
adequate and reliable evidence. Sole instance of Survey No.96 (2)
dated 16041979 was wrongly held as comparable sale instance.
3)
On the other hand, it is argued on behalf of the
respondents that the compensation was assessed at lower rate and
the reference Court ought to heave considered the sale instances
which were post notification after 4/5 months from the date of
notification. Such sale instances cannot be brushed aside by the
reference Court. Value of the land ought to have been assessed at
Rs.25,000/ per hector. The assessment of the compensation for
the Orange trees was very low. It ought to have been Rs.600/
per Orange tree instead of Rs.500/ per tree. Learned Advocate
for the respondents prayed for the modification in respect of
the compensation. Learned Advocate for respondents also
prayed for the enhancement of the compensation for farm house
@ Rs.20,000/ and well, pipeline and the electric motor pump on
ig
the well. It is submitted that the sale indexes at Exhibit113 and
4)
114 were not appreciated.
What is required to be considered by the Court is the
market value of the land on the date of publication of the
notification under Section 4 of the Land acquisition Act and the
damage sustained by the persons interested by reason of the
standing crops or trees which may include fruit bearing trees be
on the land at the time the Collector's taking possession thereof or
any other damage proved by the persons interested as has been
caused due to the Collector's taking possession of the land. The
burden to prove the market value of acquired property is on the
State, but the burden to prove that the claimant is entitled to the
enhanced compensation is on the claimant. The market value is
the 'price a willing purchaser would pay to a willing seller having
due regard to its existing condition with all its existing advantages
and its potential possibilities when laid down in the most
advantageous manner'. Potentiality as on the date of the
notification under Section 4(1) can be considered. Oral evidence
as to the market value is not acceptable. In order to establish the
case for the enhancement, the claimant must be able to show that
the comparable Sale instance was within reasonable time before
the notification issued under section 4(1) and it was a bona fide
transaction in respect of the Sale of the adjacent land possessing
similar advantages, having similar potentiality and nature. In
exceptional case Sale of small properties may be relied upon to
determine the market value of large plots, but when such
comparable Sale instance is to be acted upon the certain
deductions which may normally range between 33% to 50% are
required to be made towards development of the area.
Guesstimates of the plus and minus points of comparable sales are
needed. Plus points are small size, frontage to road, proximity to
developed area, regular shape, even land and other special
advantages are plus points. Large size, remoteness from the road,
and undeveloped area, irregular shape, uneven levels etc. are
minus points. The question that arises is as to whether the
reference Court was in error to rely upon Sale indexes Exhibit113
and 114 though admissibility thereof was rejected by the reference
Court while determining the compensation to fix compensation
without any cogent and reliable evidence.
5)
Subject matter is the reference for the irrigable
agricultural land survey No.91 with an area of H.04.57 R. having
one well fitted with electric motor pump and pipeline with
standing 1150 fruit bearing orange trees Notification under
Section 4 was issued on 10/12/1981. Sale instances pointed out
were dated 19/05/1982 and 22/04/1982 (Exhibit 113 and 114)
much after the notification under Section 4 of the Act. The sale
instances were not from Dapori village hence could not have been
considered. But the agricultural land herein has perennial source
of water from one well in the land.
6)
The question that arises is as to whether the reference
Court was in error to rely upon Sale indexes Exhibit 113 and 114
though admissibility thereof was rejected by the reference Court
while determining the compensation to fix compensation without
any cogent and reliable evidence and further, whether it erred to
grant lump sum compensation for the damage resulting to the
standing orange trees standing on the acquired land? The answer
must be in negative for the following reasons.
7)
The Reference Court in the course of the judgment
observed that the Sale indexes were in respect of the sale deeds
ig
executed much after the date of the notification under Section 4 of
the Land Acquisition Act and were in respect of the lands situated
at villages Mauza Umarkhed and Mauza Ghoddeo Khurd
respectively while land acquired is situated at Dapori village.
There was no evidence about the distance between the acquired
land at village Dapori and the lands in respect of which the sale
indexes of the lands sought were to be relied upon. While
granting compensation for the acquired land on the basis of the
market price in this case the method adopted by the Land
Acquisition Officer is referred to in the impugned judgment and
order. Land Acquisition Officer had placed the land acquired in
category No. 4. L.A.O. then considered nine Sale instances for the
year preceding the notification under Section 4. Sale data was
obtained from the Agricultural Produce Market Committee,
Morshi. After considering and comparing the Sale instances, the
L.A.O. arrived at the conclusion as to the market price of the dry
crop agricultural land in the area was Rs.8,500/ per hector. Since
the acquired land to the extent of H. 3.37 R. was perennially
irrigated land with a well, L.A.O. granted compensation at the rate
of Rs.17,000/ per hector which was at the rate double than for
the dry crop land. This method to arrive at the market price was
reasonable and permissible. L.A.O. had also considered the
acquired land as the best amongst the lot on the basis of the rate
of assessment indicating the fertility of the soil. L.A.O. also noted
the existence of the well which was perennial source of water.
Claimant had deposed that there was yearly lucrative income from
the land. This evidence remained unrebutted from the side of the
State. The land is situated in the orange growing belt and because
of the agroclimatic condition the land in the area commands
more value than the land raising Kharip crops only. There is
increasing trend in prices of the land in this area. L.A.O. had not
considered it fully to justify the award limited to sum of
Rs.17,000/ per hector only. He did not come forward to
depose before the reference Court to justify his Award. Sale
indexes of the four transactions of 1979 were brought to the
notice of the reference Court. Of those two instances were Field
Survey No.96/2, H.1.16 R. was sold for Rs.20,000/. Field Survey
No.12/1 area H.1.62 R. was sold for Rs.15,000/ on 24/12/1979,
in the area. These Sale instances were two years prior to the date
of notification under Section 4 of the Act. Thus, on this basis since
the market value of the land in the vicinity was approx about
Rs.18,000/ per hector, that too prior to two years of notification
under Section 4 of the Act, the reference court considered the
acquired land as irrigated land, advantageous, H.3.57 R.
perennially irrigated, 0.80 R. cultivable but fallow land and Pot
Kharab land 0.20 R were differently assessed for the market value
thereof. The market value of the acquired land H.3.57 R. was
assessed on the basis that it was perennially irrigated land, and a
well included. Separate compensation was not awarded for the
cattle shed as it was easily removable and capable of being taken
away. The reference Court awarded enhanced compensation for
standing Orange trees on the land at the rate of Rs.500/ per
Orange tree without using any multiplier after considering the
evidence of the expert horticulturist as there was no dispute
regarding the number of Orange trees situated on the land. As
permission was sought by the land owner to cut the other trees
like Bor, Jambhul etc. for fuel and wood, the other trees were not
valued for the purpose of computation of amount of compensation
a large number of factors have to be taken into consideration,
namely, nature and quality of land, whether irrigated or un
irrigated, facilities for irrigation like existence of well, etc. , the
location of the land, closeness to any road or highway, the
evenness thereof whether there exists any building or structure. In
ig
Navanath and others v. State of Maharashtra, reported in
(2009) 14 SCC 480, at paragraph 40, the Hon'ble Supreme Court
has held as follows :
"40. Indisputably, valuation of agricultural land on the
one hand and valuation of orchard and forest on the
other would stand on different footings. Whereas in the
former case, the known legal principles, particularly with
reference to the exemplars will have to be applied, in the
latter a different principle, namely, multiplier of eight or
ten, as the case may be, on the basis of the multiplicand,
namely, yield from the trees or plantation would be
applicable”
8)
LAO had not considered the presence of fruitbearing
trees on the land for separate valuation on multiplier basis.
It is true that the compensation cannot be granted both
for the loss of the irrigated land as well as for the
capitalization of income of the fruitbearing orange trees.
The trees standing on the land acquired are things 'attached to the
earth and hence they are included in the definition of land in
section 3(a)' and that definition must apply in construing section
23 of the Act. It is true that the value of the trees as are standing
on the land when the declaration is made under section 6 must be
included in the market value of the land on which the allowance
of 15% should be given under section 23(2) of the Act. No doubt,
accepting the average yielding life of the Orange trees and
capitalizing the same by appropriate multiplier is fair method and
good estimate of the market price of the Orange trees. But when
in the case in hand, the amount of Compensation for damage to
the 1150 standing orange trees was considered and Rs.500/ per
tree = Rs.5,75,000/ was lump sum compensation valued and
added to the estimated market value of the land acquired by the
reference Court based on expert opinion and in the facts and
circumstances of the case. Question of applying the 8 or 10 years
multiplier did not arise as the guesstimated compensation for the
market value of the land acquired was already arrived at. In the
case in hand, the reference Court in the course of the judgment
observed that the Sale indexes were in respect of the Sale deeds
executed much after the date of the notification under Section 4 of
the Land Acquisition Act and were in respect of the lands situated
at villages Mauza Umarkhed and Mauza Ghoddeo Khurd
respectively while the land acquired is situated at Dapori village.
There was no evidence about the distance between the acquired
land at village Dapori and the lands in respect of which the sale
indexes of the lands sought were to be relied upon. While granting
compensation for the acquired land on the basis of the Market
price in this case, the method adopted by the Land Acquisition
Officer is referred to in the impugned judgment and order. L.A.O.
had placed the land acquired in category No.4. L.A.O. then
considered nine Sale instances for the year preceding the
notification under Section 4. Sale data was obtained from the
Agricultural Produce Market Committee, Morshi. After considering
and comparing the Sale instances, the L.A.O. arrived at the
conclusion as to the market price of the dry crop agricultural land
in the area was Rs.8,500/ per hector. Since the acquired land to
the extent of H.3.37 R. was perennially irrigated land L.A.O.
granted compensation at the rate of Rs.17,000/ per hector, which
was at the rate double than for the dry crop land. This method to
arrive at the market price was no doubt permissible . L.A.O. had
also considered the acquired land as the best amongst the lot on
the basis of the rate of assessment indicating the fertility of the
soil. L.A.O. also noted the existence of the well which was
perennial source of water for the land. Claimant had deposed that
there was yearly lucrative income from the land. The evidence
remained unrebutted from the side of the State. But in addition,
the fact is that the land in question is situated in the Orange
growing belt(Track) and because of the agroclimatic condition
the land in the area commands more value than the land raising
Kharip and Rabi crops only. There is increasing trend in prices of
the lands in this area. L.A.O. did not consider this fact fully to
justify the award limited to sum of Rs.17,000/ per hector only.
He did not come forward to depose before the reference Court to
justify his Award. Sale indexes of the four transactions of 1979
were brought to the notice of the reference Court. Of those two
instances were Field Survey No.96/2, H.1.16 R. was sold for Rs.
20,000/. Field Survey No.12/1 area H.1.62 R. was sold for Rs.
15,000/ on 24/12/1979, in the area. These Sale instances were
two years prior to the date of notification under Section 4 of the
Act. Thus, on this basis since the market value of the land in the
vicinity was about Rs.18,000/ per hector, that too prior to two
years prior to the notification under Section 4 of the Act, the
reference Court considered the acquired land as irrigated land, of
which advantageous, H.3.57 R. was perennially irrigated, 0.80 R.
cultivable but fallow land and Pot Kharab land 0.20 R. were
differently assessed for computing the market value thereof. Since
the market value of the acquired land H.3.57 R. was assessed on
the basis that it was perennially irrigated land, and Well included,
separate compensation was not awarded for the cattle shed as it
was easily removable shed and capable of being taken away. The
reference Court in the facts mentioned justifiably awarded
enhanced lump sum compensation for 1150 standing Orange trees
on the land at the rate of Rs.500/ per Orange tree, rightly
without adopting capitalizing method or using multiplier method
after considering the evidence of the expert horticulturist as there
was no dispute regarding the number of Orange trees standing on
the land and compensation for irrigable land was already
considered. As permission was sought by the land owner to cut
the other trees like Bor, Jambhul etc. for fuel and wood, the other
trees were not computed for to be valued. Since compensation for
the land was assessed considering it as perennially irrigated land
sourced by water from the well, separate compensation for the
1150 standing orange trees could not have been computed by the
usual capitalizing by multiplier method. Lump sum compensation
was granted as allowable in the facts and circumstances of this
case for the assumption that damage was bound to result to the
standing Orange trees when possession of land was taken by the
Collector. Since the wisdom of overall compensation awarded by
the reference Court appears assured just and fair returns to the
ig
owner of the acquired land, no further enhancement to it or
9)
reduction from it is necessary.
The learned Advocate for respondents
claimants relied upon the ruling in Trishala Jain & Anr. v. State
of Uttaranchal & Anr., reported in AIR 2011 SC 2458, it is held
that–
“'Guess' as understood in its common paralance is an
estimate without any specific information while
calculations' are always made with reference to specific
data. 'Guesstimate' is an estimate based on a mixture of
guesswork and calculations and it is a process in itself. At
the same time 'guess' cannot be treated synonymous to
'conjecture'. 'Guess' by itself may be a statement or result
based on unknown factors while 'conjecture' is made with a
very slight amount of knowledge, which is just sufficient to
incline the scale of probability. “Guesstimate' is with higher
certainty than mere 'guess' or a 'conjecture' per se. The
guesswork has to be used for determination of
compensation with greater element of caution and the
principle of guesstimation will have no application to the
case of 'no evidence'. This principle is only intended to
bridge the gap between the calculated compensation and
actual compensation that the claimants may be entitled to
receive as per the facts of a given case to meet the ends of
justice. Certain principles controlling the application of
'guesstimate' are:
(a) Wherever the evidence produced by the
parties is not sufficient to determine the compensation with
exactitude, this principle can be resorted to.
(b) Discretion of the Court in applying
guesswork to the facts of a given case is not unfettered but
has to be reasonable and should have a connection to the
data on record produced by the parties by way of evidence.
Further, this entire exercise has to be within the limitations
specified under Sections 23 and 24 of the Act and cannot
be made in detriment thereto.
It is also held that application of above principles are the
base for determination of compensation payable to the claimants.
A reference is also made to the ruling in Special Land Acquisition
Officer v. Karigowda & Ors., reported in AIR 2010 SC 2322,
wherein it is held that determination of relevant considerations in
respect of agricultural lands, manufacturing or commercial activity
carried on by agriculturist, either himself or through third party,
as a continuation of the agricultural activity, that is, using the
yield for production of some other final produce, cannot be basis
for determining fair market value of acquired land and the interest
on compensation can be awarded with effect from date of taking
possession and not from date of notification. A reference is also
made to the ruling in State of U.P. v. Major Jitendra Kumar and
others, reported in AIR 1982 SC 876, wherein it is held that
where land was acquired for the benefit of the Cooperative
Housing Society under a Notification issued under Section 4 and
in appeal by the claimant for enhancement of compensation the
High Court relied upon a sale deed where under the Cooperative
Society had itself purchased land in the neighbourhood of the land
for which enhancement of compensation was claimed, the High
Court could not be said to have committed any error by relying
upon the sale deed even though the sale deed was of a date three
years later than the Notification under Section 4 when no material
was produced before the Court to suggest that there was any
fluctuation in the market rate from 1948 onwards till 1951 and if
so to what extent. The ruling cited in Chindha Vithal Sonawane
v. Special Land Acquisition Officer, reported in 1975 Mh.L.J.
468, it is held that benefit of simultaneous independent
acquisition of adjacent land cannot be denied, but allowance
should be made for benefit of its own acquisition and post
notification sales are not irrelevant and cannot be discarded
merely because they are effected two or three years after relevant
date. The ruling referred in Kashinath Atmaram Kothavade v.
State of Maharashtra, reported in 1992 Mh.L.J. 987, it is held
that determination of compensation on the basis of sale instances
of similar lands, which assisted in determining market rate and
provided a good basis for deciding compensation in respect of
similar lands. A reference is also made to the ruling in Osman
Khan Abdul Majid Khan and another v. State of Maharashtra,
reported in 1994 Mh.L.J.1103, wherein it is held that fixing
market value of a large property on the basis of sale instances of
smaller property and the availability of evidence to show that
adjoining area i.e. acquired land was already developed and hence
principle of deduction of expenses required for development of
large tract not applicable. It is held that price paid in sale or
purchase of adjoining land within a reasonable time from the date
of acquisition of land in question or about the time of notification
under Section 4 would be the best piece of evidence. It is also
held that where notifications under Sections 4 and 6 were issued
on 21/01/1982 and 23/03/1982 and award was made on
23/02/1984, claimants entitled to interest on amount of
compensation and benefit of higher solatium in view of Sections
In Ambya Kalya Mhatre through L.R.s and others vs.
10)
30(2) and 18 of the Land Acquisition (Amendment) Act.
State of Maharashtra, reported in (2011) 9 SCC 325, Hon'ble
Supreme Court expressed its view in para 30 thus:
"30. It is relevant to notice the definition of land in section
3(a) of the Act. It provides that the expression 'land'
includes benefits to arise out of land, and things attached
to the earth or permanently fastened to anything attached
to the earth. Therefore when the Act refers to acquisition of
`land', the reference is not only to land but also to land,
building, trees and anything attached to the earth. In the
absence of any restriction in section 18 of the Act, and the
respective roles assigned by the Act to the Land Acquisition
Collector and the Reference Court in the context of making
a reference and determining the compensation, we are of
the view that once the reference is made in regard to
amount of compensation, the Reference Court will have
complete jurisdiction to decide the compensation for the
land, buildings and trees and other appurtenances. The
Reference Court will also have the power to entertain any
application for increasing the compensation under
whatever head. The fact that the landowner had sought
increase only in regard to the land in the application for
reference, will not come in the way of the landowner
seeking increase even in regard to trees or structures,
before the Reference Court".
In para 35 the Apex Court viewed the situation thus:
"35. We are afraid that the High Court has misread the
said decision in regard of valuing the land and trees
separately. If the land value had been determined with
reference to the sale statistics or compensation awarded for
a nearby vacant land, then necessarily, the trees will have
to be valued separately. But if the value of the land has
been determined on the basis of the sale statistics or
compensation awarded for an orchard, that is land with
fruitbearing trees, then there is no question of again
adding the value of the trees. Further, if the market value
has been determined by capitalizing the income with
reference to yield, then also the question of making any
addition either for the land or for the trees separately does
not arise. In this case, the determination of market value
was not with reference to the yield. Nor was the
determination of market value in regard to the land with
reference to the value of any orchard but was with
reference to vacant agricultural land. In the circumstances,
the value of the trees could be added to the value of the
land. "
I have considered the rulings cited in the light of
11)
submissions at the bar. It was open for the Reference Court to
consider the compensation for the land as well as for the things
attached to the land when increase is sought in respect of the sum
of compensation for the land as well as the standing trees for
which the certain amount was determined by the Land
Acquisition Officer. Reference Court was well within its power to
consider the compensation for the irrigable land valued on the
basis of Sale statistics in respect of the lands in the vicinity, as well
as to value the standing Orange trees which were required to be
valued separately.
12)
In my opinion, for the reasons stated above, the award
recorded by the Reference Court was just and fair in the facts and
circumstances of the case and no ground is made out for
interference with the same .
13)
In view of above position, the appeals must fail and are
dismissed with costs.
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