Upon perusal of the impugned judgment and award and also record of the case and judgments relied upon by the learned counsel for the appellant, I find that the Reference Court has committed serious illegality in ignoring the similarity of the lands of the appellant and his uncle Vyankatrao involved in LAC No. 432/92. Vyankatrao's land was a part of family lands belonging to the appellant and his joint family and they were adjoining to each other. Therefore, unless some specific evidence was available on record distinguishing the land acquired in this case and the land involved in LAC No. 432/92, the learned Civil Judge ought not to have found, simply on the basis of conjunctures, that lands and their portions have tendency to differ from one place to another. There is no presumption in law that two lands bearing two different survey numbers although adjoining to each other are different in terms of grade, quality, potentiality and fertility and, in my view, to make such a conclusion, some scientific evidence is required showing the differences in lands. On the other hand, if lands comprising several gat numbers form one larger chunk of land, there is a greater possibility of the lands, though donning different gat numbers bearing similarity to each other. Therefore, by applying law of probability, the inference that has to be drawn in the absence of evidence to contrary in case of adjoining lands would be towards their similarity in terms of vital soil parameters that determine lands' character and potentiality.
IN THE COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
FIRST APPEAL NO. 203 OF 1999
Shri Anil s/o Amrutrao Deshmukh
VERSUS
The State of Maharashtra, through
its Secretary.
CORAM : S. B. SHUKRE, J.
DATED : 31st OCTOBER, 2014.
Citation;2015(2) MHLJ 675
By this appeal, the judgment and decree dated 4 th
September, 1998 passed in Land Acquisition Case No. 433/92 by Jt. Civil
Judge (Sr. Dn.), Pusad, district Yavatmal has been challenged.
2.
The agricultural land of the appellant bearing Gat No. 60,
admeasuring 1 H 87 R situated at village Chincholi, district Yavatmal
came to be acquired for the purpose of Arunawati Project. Notification
under Section 4 was published on 6/2/1986. The Land Acquisition
Officer granted compensation for the acquisition of the land of the
appellant by passing an Award on 4/3/1989. Since the compensation
awarded by the Land Acquisition Officer was considered to be
insufficient by the appellant, the appellant preferred reference u/s 18 of
the Land Acquisition Act for enhancement of the compensation. It was
resisted by the respondents. Upon consideration of the evidence available
on record and arguments of other side, the learned Civil Judge found
that the appellant was not entitled to receive enhanced compensation as
claimed, and therefore, dismissed the reference with costs by the
judgment and decree dated 4/9/1998. Not satisfied with the same, the
3.
appellant is before this Court in this appeal.
I have heard Shri Jibhkate, learned counsel for the appellant
and Shri Bhoyar, learned AGP for the respondents.
4.
I have carefully gone through the impugned judgment,
decree and record of the case and also the judgment and decree dated
22/12/1995 passed in Land Acquisition Case No. 418/92, copy of which
as contained in Paper Book of the Reference Court, has been filed on
record of the case. The Paper Book is marked for identification as
“DOCUMENTX” and the Judgment starting from Page No. 9 thereof and
ending on Page No. 49 is marked as “DOCUMENT – Y Colly” and also
the judgment and decree dated 21/1/1995 passed in LAC No. 432/92.
The only point which arises for my consideration in the appeal is as
under :
1.
Whether the appellant is entitled to
enhanced compensation ? If yes, at what
rate ?
2.
What order ?
Shri Jibhkate, the learned counsel for appellant submits that
the land involved in Land Acquisition Case No. 432/92 was Gat No. 58
and it belonged to Vyankatrao, the uncle of all these appellants and it
was also a family land, in which the Reference Court awarded
compensation at the rate of Rs. 25,000/ per hector. This land was
similar to the land acquired in the instant matter and there was
absolutely no evidence led by the respondents to establish that its quality,
fertility and potentiality is different from the land involved in present
matter, he submits further. Therefore, he also submits, the Reference
Court has committed serious illegality in not considering this aspect of
the matter and dismissing the reference.
He also submits that subsequently in Land Acquisition Case
No. 418/92, Reference Court by its judgment and decree dated
22/12/1995 granted compensation at the rate of Rs. 1,00,000/ per
hector and land involved therein belonged to father of the appellant and
it was a part and parcel of family lands, just as the land involved in the
present appeal. He submits that since the land involved in the said case
was Gat No. 67, being similar to the land involved in this case, the
appellant would be entitled to the compensation at the rate of Rs.
1,00,000/ per hector. He also submits that compensation is required to
be fixed by determining market value of the land and it is the duty of the
court to find out the market value of the land and grant compensation
accordingly. He relied upon the judgment of the Hon'ble Apex Court
rendered in the case of Bhimasha V/s Special Land Acquisition Officer
and another, reported in (2008) 10 Supreme Court Cases 797.
6.
Shri Bhoyar, learned AGP for respondents submits that the
Reference Court has rightly held that the appellant has failed to establish
similarity of the land acquired in this case with the land involved in the
Land Acquisition Cases, on which reliance is being placed by the
appellant. He, therefore, submits that there is no reason for making any
interference in the impugned judgment and award.
7.
Upon perusal of the impugned judgment and award and also
record of the case and judgments relied upon by the learned counsel for
the appellant, I find that the Reference Court has committed serious
illegality in ignoring the similarity of the lands of the appellant and his
uncle Vyankatrao involved in LAC No.432/92. Vyankatrao's land was a
part of family lands belonging to the appellant and his joint family and
they were adjoining to each other. Therefore, unless some specific
evidence was available on record distinguishing the land acquired in this
case and the land involved in LAC No.432/92, the learned Civil Judge
ought not to have found, simply on the basis of conjunctures, that lands
and their portions have tendency to differ from one place to another.
There is no presumption in law that two lands bearing two different
survey numbers although adjoining to each other are different in terms
of grade, quality, potentiality and fertility and, in my view, to make such
a conclusion, some scientific evidence is required showing the differences
in lands. On the other hand, if lands comprising several gat numbers
form one larger chunk of land, there is a greater possibility of the lands,
though donning different gat numbers bearing similarity to each other.
Therefore, by applying law of probability, the inference that has to drawn
in the absence of evidence to contrary in case of adjoining lands would
be towards their similarity in terms of vital soil parameters that
determine lands' character and potentiality.
8.
Upon perusal of the evidence available on record, I find the
contentions of the appellant in this regard do not appear to be seriously
challenged by the respondents and there is no satisfactory evidence
reasonably establishing dissimilarities between the said lands. Therefore,
the finding recorded in this regard by the Reference Court is perverse
and arbitrary and as such needs to be quashed and setaside.
9.
Once it is found that the land acquired in this case could not
have been distinguished from the land involved in LAC No. 432/92, it
would also have to be found by applying law of probability that both
these lands' are similar to each other, and therefore, required to be
treated equally. But then, there is one difficulty in giving equal treatment,
as there has been a subsequent development. A similar land belonging to
the joint family of the appellant and standing in the name of his father
late Amrutrao Khushalrao Deshmukh bearing Gat No. 67, which was
acquired by the same notification and awarded compensation by the
same award dated 4/3/89, got enhancement in compensation in LAC No.
418/92 by the judgment and decree dated 22/12/95 passed by Pusad
Court. This time, the compensation was fixed at the rate of Rs.1,00,000/
per hector. Even this land, being a part of larger piece of land belonging
to the joint family of the appellant, can be reasonably said to be similar
in terms of the grade, quality and fertility with the land acquired in this
case and, therefore, available for determining market value of the land
acquired in this case by comparison.
The judgment and decree dated 22/12/95 passed in LAC No.
418/92 has been confirmed by this Court, when this court dismissed the
appeal preferred against it in 223/1995. This is clear from the affidavit
filed on record by the appellant dated 22/9/2014. Now, this being the
highest compensation granted amongst all similar lands, would have to
be taken into account for determining market value of present land as it
is the law that when two market rates are available for comparison, the
one which benefits most the claimant should be taken as relevant for
calculating market value of his land.
10.
Learned AGP for the respondents/State submits that the
adjoining lands in village Chincholi acquired under same notification
have been granted compensation at the rate of Rs. 70,000/ per hector by
this Court in First Appeal No. 242/94 and other connected matters
including First Appeal No. 243/94 decided on 27 th April, 2010 and 16th
September, 2010 and has submitted that these lands being similar to the
acquired land in this case, no more compensation than at the rate of Rs.
70,000/ per hector can be granted.
However, I am not inclined to accept the said argument of
11.
learned AGP for the simple reason that although these lands have been
acquired for the same project under the same notification, they are
admittedly not forming part of the joint family lands belonging to the
appellant and his joint family. The appellant's land acquired in this case
forms part of a larger piece of joint family land of which, the lands
involved in LAC No. 432/92 and LAC No. 418/92 were forming part.
Therefore, as I have already found, there is a greater possibility of these
lands bearing similarity to each other and lesser possibility of the land
acquired in this case being similar to the lands involved in First appeal
No. 242/94 and connected matters including First Appeal No. 243/94.
12.
In the circumstances, I am of the view that in the instant
case also, the acquired land being similar to the land involved in LAC
No.418/92, deserves to be given same rate of compensation as has been
granted in the said case by Reference Court, Pusad and confirmed by this
Court. Consequently, the appellant would be entitled to receive
compensation at the rate of Rs. 1,00,000/per hector for the land
acquired in this case vide notification dated 6/2/1986. The point is
answered accordingly.
13.
The appeal is allowed. The impugned judgment and decree
The appellant be given compensation at the enhanced rate
15.
of Rs. 1,00,000/ per hector.
14.
are quashed and setaside.
The appellant be also given 12% component on the amount
of enhanced compensation as per Section 23 (1) (A) of the Land
Acquisition Act from the date of notification u/s 4 till delivery of
compensation or the date of award, whichever is earlier and 30%
solatium on the amount of enhanced compensation as per Section 23 of
the Land Acquisition Act. If any amount is already paid to the appellant
and received by him under protest, the same be deducted from the
enhanced amount granted by this order.
16.
The appellant be given interest at the rate of 9% per annum
for one year from the date of taking over possession of the land and at
the rate of 15% per annum for remaining period on the excess amount
till it is deposited in the Court, as per Section 28 of the Land Acquisition
Act.
Costs to follow suit.
JUDGE
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