Prakash Raut & Ors. vs The State Of Maharashtra & Ors.

. Heard Mr. Abhijit Deshpande, learned Counsel for the Appellants, Mr. S. P. Rajurkar, learned Counsel for the Respondent No.3 and Ms. R. V Sharma, learned AGP for the Respondent Nos.1 and 2.

By this Appeal, the Appellant/original Claimant has assailed the Judgment and Award dated 28/3/2008 passed by the Civil Judge Senior Division, Wardha in LAC No. 35/1991.

The Appeal is filed by the Appellant on the ground that the learned Reference Court failed to determine the correct market value of the land, and therefore, he seeks enhancement of compensation.

The Appellant was owner of the lands bearing Survey No. 70 admeasuring 3.52 HR and Survey No. 3 admeasuring 8.88 HR situated at village Dongargaon, Tahsil Seloo, District Wardha.

The Notification under Section 4 was published on 7/9/1983 for acquiring the land for the purpose of joint Sector Project Seluluj Complex and Industrial Explosives. In terms of the said acquisition proceeding the Respondent has acquired 3.52 HR land from Survey No.70 and 6.62 HR from Survey No. 3 of Mouza Dongargaon. In the said land acquisition proceeding the Special Land Acquisition Officer has awarded compensation at the rate of Rs.4,85,376/- for the acquired land.

The Appellant, being dissatisfied with the compensation awarded, has preferred the reference application before the Civil Judge Senior Division, Wardha. According to the Appellant, acquired property was an irrigated land and he was doing irrigation from Dongargaon Tank Project and the well which is situated in his agricultural field. It is also submitted that the land was having good quality and potentiality. In support of his submission, he had placed on record 7/12 extract (Exhibit-43) and the communication issued by the Irrigation Department of Wardha (Exhibit-44), which are the part and parcel of record, whereby the Department directed the present Appellant to make repair of water channels in his land. Hence, according to the Appellant, the land was an irrigated land, and accordingly, the compensation was required to be awarded in the matter.

In support of his submission, the Appellant has stepped into the witness-box and produced the documentary evidence before the learned Reference Court. He has also examined one Rameshkumar Harivallabh Bisani, who deposed that market value of the land was Rs.45,000/- per hectare as per the transactions which were taken place on behalf of this witness.

It is seen from the record that one Suresh Jadhav, Special Land Acquisition Officer was examined before the Reference Court by the State Government. But, the Respondent No.3/Corporation has neither filed written statement nor taken any steps to cross-examine the witnesses before the Reference Court.

In the light of above, learned Reference Court has decided the reference proceeding vide impugned Judgment and order dated 28/3/2008 and awarded enhanced compensation of Rs.1,39,248/- including solatium and additional component.

In the present Appeal, the Appellant has challenged the said Judgment and order mainly on the ground that he had proved before the Reference Court that the entire acquired land was an irrigated land and same was not disputed by the Respondent No.3. Therefore, the Reference Court should not have relied upon the sub division done by the Land Acquisition Officer on the basis of land assessment. The assessment of land by adopting such method is contrary to the settled principles of law, therefore, he challenged the same in the present Appeal.

In this regard, the Appellant has relied upon the Judgment of this Court in the case of State of Maharashtra and another V/s Baliram Girdhar Patil, 2006(6) Mh.L.J 82, wherein in paragraph No.13 held as under :

In view of above, this Court has held that on the basis of assessment of the land, sub division is not permissible. The same view has been taken by the Hon’ble Division Bench of this Court in the case of Special Land Acquisition Officer (III), Jalgaon and another V/s Bhagwat Vithal Sonwane, 2009(4) Mh.L.J. 308. It is, thus, clear that as per the law laid down by this Court, sub division of the land on the basis of land assessment is not permissible.

The other factor which Appellant has specifically pointed out from the record i.e. 7/12 extract (Exhibit-42) and the communication (Exhibit-43) issued by the Irrigation Department, both the documents were duly proved before the Reference Court. Once it is proved that there was a well in the agricultural land acquired by the Respondent, as per the law laid down in the case of Chindha Fakira Patil V/s Special Land Acquisition Officer, (2011) 10 SCC 787 it is held that when it is not in dispute that there was well in the acquired land, mere fact that Appellant had not cultivated sugarcane or wheat cannot lead to an inference that land was not irrigated land. Hence, in the present case, it is established that total acquired land was an irrigated land.

Coming to the issue of market value, the Appellant has relied upon the evidences of PW-3 Pradip Anandrao Raut and PW-4 Marotrao Chindhuji Udan, who have deposed in favour of the Appellant to substantiate the fact that acquired land was an irrigated land. So also the Appellant has produced on record the copy of Sale Deeds (Exhibit-56 and 59), wherein the transactions were of dated 7/7/1983 and 18/7/1983 respectively and the market value of the land was Rs.45,000/- per hectare. In view of this evidence, Appellant states that he is entitled for enhancement of compensation.

The learned Counsel for Respondent No.3 has opposed the present Appeal. According to him, the present Appellant has filed the proceeding under Section 28-A of the Land Acquisition Act for the adjoining land before the competent Authority stating that he should be paid the compensation which is awarded by the Reference Court i.e. in the present matter, and therefore, it is his submission that once he has accepted the enhanced compensation granted by the Reference Court, now the Appellant cannot claim further enhanced compensation. The other submission, which the Respondent No.3 has made in the present Appeal is that this acquired land was sold out by the Respondent No.3 to Respondent No.4, and therefore, considering this fact the Respondent No.4 is responsible for payment of compensation as per the Sale Deed. It is also stated that the Reference Court has already considered the acquired land as an irrigated land and thereby granted proper compensation in the matter. Hence for all these reasons, Appeal deserves to be dismissed.

I have perused the entire record and submissions made before me by the parties.

It is admitted fact that the Respondent has acquired land admeasuring 3.52 HR from Survey No. 70 and 6.62 HR land from Survey No.3. Both the lands are irrigated lands. Therefore, while awarding compensation, learned Tribunal instead of upholding sub division of the land by the Land Acquisition Officer, ought to have not relied upon and determined the compensation of entire acquired land as per recognized method of awarding compensation. However, the record shows that same has been considered on the basis of land assessment. As per the Judgment referred above in the case of Baliram Patil (supra), sub division of the land on the basis of land assessment is not permissible. Hence, in my view, sub division of the land and thereby awarding different compensation by sub dividing the same is not permissible and thereby Reference Court committed an error while calculating the compensation as per the market rate.

It is well settled position of law that function of the Court in awarding compensation under the Land Acquisition Act is to ascertain the market value of the land and method of valuation are – (a) opinion of Expert; (b) comparative sale exemplar of the vicinity; and (c) capitalization method. From the evidence which Appellant has brought on record, clearly established the fact that he was seeking enhancement by adopting the method of comparative sale deed of the area. As per the settled principles of law that reference proceeding must be treated as an original proceeding, Reference Court, therefore, ought to have decided the matter on the basis of evidence brought on record by the Appellant, more particularly, by applying comparative sale deed method. Reference Court, by adopting the method applied by the Land Acquisition Officer has decided the matter. Hence, Reference Court has committed manifest error in the present matter.

Perusal of record shows that Appellant has relied upon various sale deeds of vicinity and proved the same vide Exhibit-56 to 61, and on the basis of sale exemplar of the adjoining area claimed enhancement in compensation. Perusal of the sale deeds which were executed between 1980 to 1983, the market value of the land in adjoining area shows around Rs.45,000/- per hectare. Hence, the Appellant has claimed enhancement at the rate of Rs.50,000/- by considering the fact that acquired land was an irrigated land. I find substance in the submission of Appellant.

Coming to the objections raised by the Respondent No.3 in respect of Section 28-A of the Land Acquisition Act. In my opinion, present Appellant has invoked the powers under Section 28-A of the Land Acquisition Act for different land. It does not mean that if the land owner has invoked the powers under Section 28-A of the Land Acquisition Act in respect of other land, he is debarred from claiming the enhanced compensation of the other acquired land. The purpose of Section 28-A is altogether different. A person who could not approach within time to the Court, then that land owner has been given the additional facility to claim the compensation equal to the compensation awarded or enhanced by the competent court of law. Therefore, in my view, the objection of the Respondent No.3 is not helpful in the matter.

The second objection of the Respondent No.3 that land has been sold by them to the Respondent No.4 and now from Respondent No.4 it comes into the custody of Respondent No.5, and therefore, the Respondent No.3 is not responsible for payment of compensation. However, the fact remains that at the time acquisition or deciding the reference application by the Reference Court, Respondent No.3 was a party. The fact remains that during the pendency of the present Appeal, all the subsequent transactions have been taken place. Therefore, it is for the Respondent Nos.3 to 5, who have done the transaction knowingly that Appeal is pending for enhancement of compensation cannot be absolved from responsibility of payment of compensation, only because the property has been sold out by the Respondent No.3. So also the Appellant is not expected to run pillar to past for recovery of compensation. As such, all the Respondents are jointly and severally responsible to pay compensation.

The third ground which was raised by the Respondent No.3 that considering the acquired land as an irrigated land, the compensation has been granted in the matter. However, the Respondent No.3 failed to demonstrate as to how the calculation done by the Reference Court in the matter can be appreciated, particularly, when the land was sub divided by the Land Acquisition Officer. The Appellant has categorically pointed out that sub division is itself illegal. Therefore, the entire land was required to be considered as an irrigated land and on that basis, the compensation was required to be awarded by the Reference Court. But as there is no reasoning nor explanation in the impugned Judgment, I am of the opinion that market value is required to be considered equal to entire acquired land.

In the present Appeal, Appellant has brought sufficient evidence on record in the nature of sale exemplar, wherein the market value of land in average was around Rs.45,000/-. So also as per observation made by the Tribunal while making assessment of land for Rs.5/- - Rs.6/- has determined the valuation of dry crop land as Rs.25,000/- per hectare. In my opinion, as acquired land was an irrigated land, Appellant is entitled for compensation at the rate of Rs.50,000/- per hectare.

In the circumstances, Appellant is entitled for enhancement of compensation for the acquired land at the rate of Rs.50,000/- per hectare. In the result, I proceed to pass following order.

In view of disposal of First Appeal, pending Civil Application (CAF) No. 677/2022 does not survive. The same stands disposed of accordingly.