Bhaurao S/o Gulabrao Mankar & Ors. vs The State Of Maharashtra & Ors.

Heard.

By way of present appeal, the challenge is to the judgment and award passed by the learned Reference Court in LAC No.70/2006. According to the appellant, who is original claimant seeks enhancement in the present appeal towards the compensation of orange trees and acquired land, which was not properly determined by the Reference Court.

The appellant herein is the owner of the field Survey No.27/1 admeasuring 3.63 HR of Mouza Ghod-deo, Tq. Morshi, District Amravati. The respondents issued notice under Section 4 of the Land Acquisition Act on 13.05.1999 for the purpose of Ghoddev Minor Irrigation Project. Under that project, the land owned by the appellant admeasuring 2.49 HR along with standing Orange trees of year 11 to 12 years old were acquired. According to appellant, there were 765 orange trees of 10 years, 3 Bamboo bushes, one well and one tube-well in the acquired land.

The Land Acquisition Officer has awarded the meager compensation to the appellant of Rs.6,30,160/- by considering only 339 full grown-up fruit-bearing orange trees and Rs.1,19,234/- towards acquired land. The appellant being dissatisfied with the compensation awarded by the learned Land Acquisition Officer preferred reference before the learned Civil Judge Senior Division, Amravati.

In support of the submission, the appellant entered into the witness box and categorically stated about the details of the orange trees which were, according to him, 10 to 12 years old at the time of acquisition of the land. In short, the averments made in the reference petition were reiterated in the evidence of the appellant.

It is seen from the record that the appellant was cross-examined by the respondents. From the cross-examination, no adverse was elicited to state that either there were no orange trees nor it was full grown up fruit bearing trees. As such, the evidence of appellant remained unshaken.

The appellant then examined the Valuer, namely Narayan Gangaramji Dhoke. This witness specifically stated that he has inspected the orange trees and found that orange trees were nine years old. According to him, he has considered trees' height, girth, and spread for fixing the value of the trees. According to him, he has found 742 orange trees of different age between 12 to 15 years old. On that basis, he has drawn total valuation of Rs.45,28,454/-. This witness has also proved the valuation report prepared by him as exhibit 45. This witness was cross-examined by the respondents. In the cross-examination, it is admitted by this witness that he was not a registered orchard valuer in the Gazette of Government of Maharashtra. He also admitted that maintenance is required for trees after it starts bearing the fruits. He further admitted that the rate fixed by the APMC and the market is required to be considered for determining the value of trees.

The appellant then examined one Vijay Ramchandra Kubde, who was the Secretary of APMC Warud. This witness on the basis of record in the nature of registers maintained by APMC Warud of yearly transactions of sale purchase and rate of agriculture produce, adduced evidence before learned Reference Court. As per his deposition in the year 1998–1999, orange fruits per quintal came for sale in APMC Warud, were sold for Rs.1,68,06,527/-. As such, the average rate in the year 1998–1999 of the orange fruits were Rs.698/- per quintal. Likewise in the year 1999–2000, the average rate was of Rs.938/- per quintal. This witness, in the same manner, stated that for year 2000–2001, the average rate of the orange fruits were Rs.671/- per quintal. This witness was also cross-examined by the respondents, but nothing was brought on record to state that the evidence rendered by this witness is not believable.

In the background of above said factual position, learned Reference Court proceeded to decide the reference. The Reference Court in paragraph 22, of the judgment recorded that on the basis of guesswork valuation of fruit-bearing trees is done and without recording any basis for guesswork assessed the rates of Rs.671/- for 1000 fruits on average basis, and 10% deduction is done towards the transportation of fruits and maintenance of trees. Reference Court considered only 466 orange fruit bearing trees and thereby determine the compensation Rs.8,21,158/- and for 1 H 32 R land on the basis of sale instances determined the compensation of Rs.1,00,000/- per hectare. Same is under challenge by way of present appeal.

In the present appeal, the submission of appellant is that it was established by him there were total 762 orange trees of different years between 7 to 15 years. There is no dispute about the rate granted by Reference Court, only dispute is about number of trees. Hence he preferred present appeal.

Learned AGP opposed the appeal mainly on the ground that appellant failed to established on record by producing concrete evidence about number of trees. According to him, learned Reference Court rightly considered the number of trees in the matter. Hence, there is no need of interference in the matter.

In the present matter, to substantiate the submission, the appellant has stated that before the Reference Court, he has proved the following documents:

The appellant, in support of his submission, has stated that the 7/12 Extract is the most relevant document, which ought to have been considered by the Reference Court. He has come with a specific submission that the Joint Measurement Report, spot valuation of fruit trees, and fruit valuation were carried out behind his back without issuing any notice to him. Therefore, the award passed by the learned Special Land Acquisition Officer cannot be treated as the basis for determining the number of trees, their age, or their valuation.

He further pointed out that, as per the settled principles of law, it is for the claimant to discharge initial burden before the Reference Court. Accordingly, he has proved his case by leading specific evidence of himself, the valuer, and the Secretary of the APMC to justify his claim. Hence, considering the evidence he has placed on record, which was duly exhibited before the Reference Court, there remains no doubt that there were more than 762 trees. However, he has restricted the compensation to only 762 trees. Therefore, the compensation is required to be determined on the basis of the evidence brought on record by the appellant.

The appellant thereafter pointed out that the spot valuation report of fruit bearing trees dated 03.04.2001, which is part of Exhibit-23. In the said report, it is specifically recorded that 78 trees were of 15 years old, 126 trees were 13 years old, 59 trees were 10 years old, 24 trees of eight years old, 52 trees of five years old and 19 trees of two years old. As such, the calculation is done of 490 trees in the spot valuation report. In the same report, he has pointed out that against 24 trees of eight years, there is a cross mark by the Officer, but there is no explanation why that cross has been marked by the Officer. As such, as a result while doing valuation of fruit trees, 24 trees have been subtracted from 490 trees and thereby the valuation has been done in the matter. Hence, it is the submission of the appellant that the calculation done in the matter, prima facie, seems to be incorrect.

In the present appeal, though these grounds are specifically raised, there is no satisfactory explanation from the respondent as to how these particulars, which are pointed out by the appellant, are incorrect. So also, there is no specific evidence available on record on the part of respondents to demonstrate that the valuation done by the appellant from the valuer is how incorrect.

The appellant while advancing his oral submission before this Court has restricted his claim only for 762 orange trees. According to him, as per Miram’s table, he is entitled for the calculation as under:

In respect of remaining land i.e. 1.32 HR land, on which there were no orange trees or any other trees, the appellant has relied upon the Index II of Survey No.40/3 of mouze Ghoddeo of non-irrigated land. On the basis of the Index II, he has claimed the compensation at the rate of Rs.1,50,000/- which was assessed for the dry crop land. According to him, his land was irrigated land, he is entitled for compensation at the rate of Rs.3,00,000/-. The sale exemplar of mouze Ghoddeo was before five years of the date of Notification. In this regard, learned Reference Court has recorded cogent finding and reached to conclusion that on the basis of Index II, value of the land cannot be determined properly. But then granted enhancement from Rs.62,000/- per hectare to Rs.1,00,000/- in the matter. Hence, in my opinion, the enhancement granted by Reference Court is just and proper in the matter.

The appellant in support of his submission, he has relied upon the certain judgments of Hon'ble Supreme Court of India whereas judgment of this Court, particularly the judgment of Kasturbai Manikrao Karpe vs State of Maharashtra, 2021(1) Bom.C.R. 350, Mahesh Dattatray Thirathkar vs. State of Maharashtra, (2009) 11 SCC 141 and Narayan Yashwanta Kapse vs. State of Maharashtra 2021 (2) Bom.C.R. 129. To substantiate his submission that the report of the valuer ought to have been given weightage by the Reference Court unless something contradictory is found in the matter. In the present case, it is the submission of the appellant that the report of the valuer is proved beyond doubt and there is no contradictory evidence brought on record by the respondents to say that the report of the valuer is not trustworthy. Hence, in my view, the judgment relied on by the appellant is applicable in the matter.

In respect of granting of compensation on the ground of parity and to consider the earlier judgment of the Reference Court, the appellant has relied upon the judgment of the Hon'ble Supreme Court in the case of Chindha Fakira Patil vs. Special Land Acquisition Officer, Jalgaon reported in AIR 2012 SC 481. Hence, considering this legal position and, by applying the rule of parity, the appellant is entitled for the compensation.

It is necessary to mention here that the respondent has contested the proceeding before the Reference Court, as well as before this Court, but nothing is brought on record to demonstrate that the calculation of the trees, which is done in the matter by appellant found to be incorrect, so also, not pointed out as to how the calculation of trees and it's value assessed by appellant. No extra pains or efforts appear to have been taken by the respondent to elicit anything adverse from the evidence of the witnesses recorded before the Reference Court, nor was any evidence brought on record to establish the correct age of the trees in the matter.

On the other hand, the appellant has produced ample evidence to show that there were more than 1000 orange trees in his field. But, even then, he has restricted to only 765 trees.

In the background of this factual position, the report of the valuer cannot be discarded. The valuation done on the basis of Miram's table and by considering the age of the trees is also found to be justified in the facts and circumstances of this case. Hence, I proceed to pass the following order :

The First Appeal is disposed of in above terms. No order as to the costs.