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Judgment
. Heard.
By way of present appeal, the challenge is to the judgment and award passed by the learned Reference Court in LAC No.79/2006. According to the appellants, who are original claimants seek enhancement in the present appeal towards the land acquired by the respondents and also enhancement towards the market value of orange trees, which was not properly determined by the Reference Court.
The appellants herein are the owners of the field Survey No.26/4-A admeasuring 1.23 HR of Mouza Dongar Yawali, Tq. Morshi, District Amravati. The respondents issued notice under Section 4 of the Land Acquisition Act on 09.02.2001 for the purpose of Ghoddev Minor Irrigation Project. Under that project, the land owned by the appellants admeasuring 1.23 HR along with Orange trees was acquired.
The Land Acquisition Officer has awarded the meager compensation to the appellants of Rs.97,775/- towards land as well as fruit-bearing trees. The appellants being dissatisfied with the compensation awarded by the learned Land Acquisition Officer preferred reference before the learned Civil Judge Senior Division, Amravati. According to the appellants, after notice under Section 9 of the Land Acquisition Act, the appellants demanded the costs of 280 Orange trees at the rate of Rs.3000/- per tree and costs of the land at the rate Rs.1,50,000/- per hectare.
Appellants further raised ground that the calculation done by the Land Acquisition Officer while issuing final award, valuation of land as well as orange trees was done without personally visiting to the orchard of the petitioners. Hence, there is no consideration to the actual fruit-bearing trees. Hence, appellants claimed enhancement of compensation before the Reference Court.
In support of submission, the appellants entered into the witness box and categorically stated about the orange trees which were, according to them, six to seven years old at the time of acquisition of the land. In short, the averments made in the reference petition are reiterated in the evidence of the appellants.
It is seen from the record that the appellants were cross-examined by the respondents. From the cross-examination, no adverse was elicited to state that either there were no orange trees or the location of the land was not beside the Gaonthan of village Ghoddev. As such, the evidence of appellants remained unshaken.
The appellants then examined the valuer, namely Subhash Ramraoji Tayade. This witness specifically stated that he has inspected the orange trees and found that orange trees were six years old. According to him, he has considered trees' height, girth, and spread for fixing the value of the trees. According to him, the fruit-bearing capacity of each tree was near about 80 kg. per annum. According to him, the market rates of the orange fruits were Rs.839/- for 1000 Orange fruits. This witness has also proved the valuation report prepared by him, which is brought on record as exhibit 34. This witness was also cross-examined by the respondents. In the cross-examination, it is admitted by this witness that he is 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. Except this, there is nothing was elicited from the cross-examination by this witness.
The appellants 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 and it were sold for Rs.1,68,06,524/-. As per the average rate in the year 1998–1999, 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 11 of this judgment, though recorded that Land Acquisition Officer has discriminated amongst the farmers for valuation of trees, without considering the evidence brought on record by the appellant and calculation done by the appellants, simply recorded that “Considering average value of the trees, the value of per orange tree is not less than of Rs.2000/- per tree.” Thus granted compensation towards orange trees Rs.2000/-per tree.
It is the case of the appellants before the Reference Court that their 1.23 HR land was acquired along with orange trees. As such, they should be awarded the compensation separately from the land acquired by the respondents as well as towards the full-grown orange trees.
Per contra the learned Counsel for respondents states that the appellants cannot be permitted to claim higher compensation than what they claimed before the Reference Court. According to him, he has claimed Rs.10,00,000/- as enhanced compensation and if the amount as per his calculation is awarded, same would be more than Rs.10,00,000/-. Hence on this count, the appeal is not tenable. No other submission is made by the respondents to demonstrate as to how the grounds raised by the appellant are not justified in the matter on merits.
In light of above factual position, I have heard both the Counsel at length and perused the case laws which appellants have relied upon.
The appellants have relied upon the judgment of Hon’ble Supreme Court of India in case of Chimanlal Hargovinddas vs. Special Land Acquisition Officer, Poona and another reported in AIR 1988 SC 1652, wherein the Hon’ble Apex Court has held that a reference under Section 18 is not an appeal against the award and Court cannot take into account the material relied upon by the Land Acquisition Officer in his Award unless some material is produced and proved before the Court. It is held that the proceeding before the Land Acquisition Officer is merely an offer made by the Land Acquisition Officer, and the material utilized by him for making his valuation cannot be utilized by the Court unless produced and proved before it. Hence, Reference Court is not expected to sit in appeal against the Award, approve or disapprove its reasoning or correct its error or affirm, modify or reverse the conclusion reached by the Land Acquisition Officer. According to the Hon’ble Apex Court, the reference proceeding is required to be decided on the basis of market value afresh on the basis of material produced before it.
On the same footing that reference to the Court must be treated as an original proceeding by the Court has also relied upon the judgment of the Hon’ble Supreme Court, in Sagunthala (dead) through LRs. Vs. Special Tahsildar (Land Acquisition) and Ors reported in 2010 (3) SCC 661. In this judgment, the Hon’ble Supreme Court has observed in para 28 and 29 as under:
“28.It is settled that the burden of establishing/proving the market value of the lands is always on the claimants. In Periyar and Pareekanni Rubbers Ltd. vs. State of Kerala, AIR 1990 SC 2192, this Court held that it is the duty of the Court to determine just and fair market value. It was further held that the claimants should produce necessary evidence on the value of land since the burden of proof is on them to establish the higher compensation claimed. While agreeing with the judgment in Periyar and Pareekanni Rubbers Ltd. (supra), this Court in the case of Special Deputy Collector and another vs. Kurra Sambasiva Rao and others, (1997) 6 SCC 41, held that in a claim for enhancement of compensation the burden of proof was on the claimants that land was capable of fetching higher compensation. Further in the case of Kiran Tandon vs. Allahabad Development Authority and another, (2004) 10 SCC 745, it was held that the burden of proving that the amount of compensation awarded by the Collector is inadequate lies upon the claimant and he is in the position of a plaintiff.
29.The Court, therefore, has to treat the reference as an original proceeding before it for determination of the market value afresh on the basis of the material produced before it. The claimant in the position of a plaintiff has to show that the price offered for his land in the award is inadequate on the basis of the materials produced in Court. The material produced and proved by the other side will also be taken into account for this purpose.”
The appellants then specifically relied upon the judgment of the Hon’ble Supreme Court in case of Special Land Acquisition Officer Vs. Karigowda and others reported in (2010) 5 SCC 708, wherein the Hon’ble Supreme Court has clarified that once the claimant has established on record the correct market value of the land, then the burden is shifted to the State Government to justify the award or to establish that the claim made by the appellant is not justified in the facts and circumstances of the case. This fact is clear from paragraph 29 of the judgment of the Hon’ble Supreme Court, which is reproduced as under:
“29.It is a settled principle of law that, the onus to prove entitlement to receive higher compensation is upon the claimants. In Basant Kumar v. Union of India this Court held that the claimants are expected to lead cogent and proper evidence in support of their claim. Onus primarily is on the claimant, which they can discharge while placing and proving on record sale instances and/or such other evidences as they deem proper, keeping in mind the method of computation for awarding of compensation which they rely upon. In this very case, this Court stated the principles of awarding compensation and placed the matter beyond ambiguity, while also capsulating the factors regulating the discretion of the Court while awarding the compensation. This principle was reiterated by this Court even in Gafar v. Moradabad Development Authority and the Court held as under: (SCC p. 620, para 12)
"12.As held by this Court in various decisions, the burden is on the claimants to establish that the amounts awarded to them by the Land Acquisition Officer are inadequate and that they are entitled to more. That burden had to be discharged by the claimants and only if the initial burden in that behalf was discharged, the burden shifted to the State to justify the award." Thus, the onus being primarily upon the claimants, they are expected to lead evidence to revert the same, if they so desire. In other words, it cannot be said that there is no onus whatsoever upon the State in such reference proceedings. The court cannot lose sight of the facts and clear position of documents, that obligation to pay fair compensation is on the State in its absolute terms. Every case has to be examined on its own facts and the courts are expected to scrutinize the evidence led by the parties in such proceedings.”
The appellant then relied upon the judgment of the Hon’ble Supreme Court in Ambya Kalya Mhatre (dead) through LRs. And others Vs. State of Maharashtra reported in (2011) 9 SCC 325, it is held that if the land value had been determined with reference to the statistics or compensation awarded for a nearby vacant land, then necessarily the trees will have to be valued separately. The paragraph Nos.34 and 35 of the judgment of this Court are relevant in the matter. Same are reproduced as under:
“34.The High Court has also held that once the compensation is awarded for the land, there cannot be additional or separate compensation for the trees. For this purpose, the High Court has relied upon the following observations of this Court in State of Haryana v. Gurcharan Singh5: (SCC p. 639, para 3) "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 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."
35.We are afraid that the High Court has misread the said decision in regard to 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 fruit-bearing 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.”
The appellants then relied upon the judgments of Mahesh Dattatray Thirthkar Vs. State of Maharashtra reported in (2009) 11 SCC 141, Kasturbai Manikrao Karpe Vs. State of Maharashtra 2021 (1) Bom. C.R. 350 and Narayan Yashwanta Kapse Vs. State of Maharashtra and ors. 2021(2) Bom. C.R. 129, to state that testimony and valuation report of the expert valuer based upon the personal visit to the site of the acquired property and the report is prepared after taking the measurement of the acquired property, then such a report cannot be disbelieved unless contrary is proved by the respondent. If there are no efforts on the part of the respondent Government authority to produce and prove any other report of a Government valuer from the Horticulture Department to lend support to the valuation of the trees finalised by the Land Acquisition officer, the valuation report produced by the appellant/ claimant should always be given consideration by the Courts.
The appellant has relied upon the judgment of the Hon’ble Supreme Court in case of Krishna Kumar Vs. State of Haryana reported in AIR 2025 SC 2468, wherein the Hon’ble Apex Court has observed, how the quantum of compensation should be awarded by recording the finding of in paragraph 26 to 28 as under:
“26.The determination of compensation for compulsory acquisitions under the 1894 Act is fundamentally an exercise in equity. Rather than being a precise science, the law of compulsory acquisition in India strives to uphold the enduring principles of justice, equality, and fairness. This ethos is reflected in the procedural framework of the 1894 Act and has been further refined by its successor-statute, i.e. the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013. The 1894 Act used to provide clear guidelines for the Land Acquisition Officer/Collector to arrive at a fair quantum of compensation and balance the competing interests of the acquiring authority and the expropriated landowner(s). These guidelines, which are kept deliberately open-ended, therefore, act as a compass for the LAC to navigate the complex task of determining fair compensation for landowners whose property is being appropriated by the State for public purposes.
27.In particular, Section 23 of the 1894 Act enumerates the factors that are to be considered for determining compensation. The foremost consideration this provision mandates is the market- value of the land at the date of the publication of the Section 4 Notification. 'Market value' itself is as nebulous a term as it is well-defined. This Court has laid down, through its consistent opinions, that the market value must be understood as that price or rate which a willing buyer would pay to a willing seller at any given point in time. That being said, it is important to caveat that this price reflects the land's conditions, advantages, disadvantages, location, and potentialities.
28.There is no gainsaying that the willing buyer-willing seller dynamic as well may invite a lot of subjectivity, due to the fiction it seeks to perpetuate. As a counter-measure, over the course of various decades, this Court has come to recognise the 'comparable sales method' as perhaps the best mode of determining compensation for an acquired land. While the reasons for this may be manifold, it seems to us that the advantage of using the comparable sales method in land acquisition is that it provides the Court with tangible, real-world examples of transactions, eliminating the need for speculation about how a willing buyer and seller might negotiate a price. In Shaji Kuriakose v. Indian Oil Corporation Ltd. 15, this Court occasioned to lay down certain descriptive factors that must be fulfilled before a sale deed can be used for the comparison set-out hereinabove. These include, inter alia: (i) temporal proximity of the sale exemplar to the date of the Section 4 Notification of the subject-acquisition; (ii) genuineness of the transaction; (iii) geographical nearness of the land sold via the sale exemplar to the land sought to be acquired; (iv) comparable sizes of lands; and (v) similarity in the nature of the lands.”
In light of above said legal position, the appellants made submission that they have proved before the Reference Court joint measurement report (Exhibit 20), fruit valuation report (Exhibit 21 and 23) and 7/12 extract (Exhibit 22). In respect of the sale instance, he has relied upon the Exhibit 25, 26 and 29, which are of the same village and also relied upon the Government Resolution as well as the circular of the Director of Horticulture, as to how the calculation of the trees is required to be done by applying the principles of Miram’s table.
According to the appellants, there is no dispute that there were 280 orange trees on the acquired land. The 7/12 extract produced on record and expert evidence, indicates the trees were seven years old when the Notification was issued under Section 4 of the Land Acquisition Act, 1894. He contends that the rates, he proved through the evidence of Vijay Kubde, the Secretary of APMC, demonstrate a rate of Rs.889/- per 1000 orange trees. Hence, the rate proved by him through the evidence of competent witness, the learned Reference Court ought to have considered the rate proved on the basis of Exhibit 40, 41 and 42, which is the relevant record made available by the Secretary of APMC before the Reference Court.
In the present matter, it is an admitted fact that the Reference Court without recording any reasons as to how he has reached to the conclusion that valuation of per orange tree is Rs.2000/- hold that appellants are entitled for compensation of Rs.2000/- per tree.
Per contra, from the calculation done by the Land Acquisition Officer, it is clear that by applying Miram’s table, the calculation has been done and granted Rs.79/- per orange tree and thereby awarded Rs.22,110/- towards compensation of orange trees. In the background of above said factual position, the appellant has relied upon the same Miram’s table by considering the valuation of each tree proved by him before the Reference Court. From the evidence established on record, it is clear that through the evidence of the Secretary of A.P.M.C., the appellants have proved Rs.839/- for 1000 orange trees. As such, by applying Miram’s Table, the calculation comes as under: For calculating 280 Orange Trees:-For 800 fruits per tree = Rs. 839/- for 1000 fruits and for 800 fruits Rs.671/-. Therefore, Rs.671/- per tree. (Miram's table calculations) 10% of Rs.671/- = Rs.604/-Rs.25 cultivation cost = Rs.604 - Rs.25 = Rs.579/- per tree Factor to be multiplied 8.404 X Rs.579/- per tree = Rs.4865.91/-per tree As such, considering this calculation Rs.4865.91/- comes for each orange tree. Admittedly there were 280 orange trees, hence the total valuation comes Rs.13,62,454 (Rs.4866.91 x 280)
In the present appeal, in respect of market value of land, learned Reference Court in paragraph No.12 of its judgment, has specifically recorded that appellant restricted the enhancement only towards orange trees as respondents have awarded the same on the basis of income capitalization method. As such, only for 23 R land, enhancement of compensation has been awarded Rs.1,00,000/- per hectare by considering the sale instances produced on record.
The perusal of appeal memo further fortify the fact that appellant stated that, they are challenging the judgment and order dated 24.11.2009 to the extent of enhancement of compensation towards orange trees and prayer is also made to modification of judgment and order only to the extent of enhancement of compensation towards orange trees.
Learned Counsel for appellants, in his oral argument pointed out that as per final award, Land Acquisition Officer has awarded separate compensation towards agriculture land and orange trees. Therefore, Reference Court ought to have enhanced the compensation for entire land instead of restricting the same only to 23 R land. In same way, appellants stated that in present appeal, this Court can rectify the mistake committed by Reference Court and can award enhancement towards agricultural land.
In this regard, the judgment of the Hon’ble Supreme Court in case of Ambya Kalya Mhatre (supra) will be relevant. Hon’ble Supreme Court has held that if the value of land has been determined by capitalizing the income with reference to yield, then question of separate valuation of land does not arise. In the present case, the valuation of orange trees is determined by income capitalization method, therefore, appellants are not entitled for separate compensation towards agriculture land.
The respondents, who are supposed to point out from the record as to how the appellants are not entitled for the additional compensation towards orange trees, takes no pains in the matter to contravene the submission made by the appellants in the matter. Only ground, which they have raised in the present appeal that appellants cannot be granted more compensation than what he has claimed in the reference proceeding.
I am of the opinion that it is the duty of the Court to award just and fair compensation taking into consideration true market value and other relevant factors irrespective of the claim made by the claimants. I am supported by the judgment of the Coordinate Bench of this Court in Vidarbha Irrigation Development Corporation, Nagpur Vs. Laxman Seetaram Neulkar and another reported 2021 (2) Mh.L.J. 198, wherein this Court has occasioned to deal with the issue as identical in the present matter. This Court by relying upon the judgment of the Hon’ble Supreme Court of India has held in paragraph Nos. 21, 40 and 41 as under:
“21.In Ashok Kumar and another vs. State of Haryana, the Apex Court held that it is the duty of the Court to award just and fair compensation taking into consideration the true market value and other relevant factors, irrespective of the claim made by the owner (emphasis supplied). The Apex Court noted that while the pre-amendment provision put a cap on the maximum and the reference Court could not have granted compensation beyond the amount claimed, the amendment removes the cap on the maximum and au contraire puts a cap on the minimum i.e. the compensation cannot be less than what was awarded by the Land Acquisition Collector. In Ashok Kumar and another vs. State of Haryana, it is categorically articulated that the amount of compensation that a Court can award is no longer restricted to the amount claimed by the applicant.”
“40.In a relatively recent decision Ramla and others vs. National Insurance Company Limited and others, (2019) 2 SCC 192, the Apex Court has held that there is no restriction that the Court cannot award compensation exceeding the claim amount, since the function of the Tribunal or Court under section 168 of the Motor Vehicles Act, 1988 is to award "just compensation". The relevant observations read thus :
"6.Though the claimant had claimed a total compensation of 25,00,000/- in their claim petition filed before the Tribunal, we feel that the compensation which the claimants are entitled to is higher than the same as mentioned supra. There is no restriction that the Court cannot award compensation exceeding the claimed amount, since the function of the Tribunal or Court under section 168 of the Motor Vehicles Act, 1988 is to award "just compensation". The Motor Vehicles Act is a beneficial and welfare legislation. A "just compensation" is one which is reasonable on the basis of evidence produced on record. It cannot be said to have become time barred. Further, there is no need for a new cause of action to claim an enhanced amount. The Courts are duty bound to award just compensation. [See the judgments of this Court in (a) Nagappa vs. Gurudayal Singh, (b) Magma General Insurance vs. Nanu Ram, (c) Ibrahim vs. Raju]."
41.The duty of the Court determining the compensation under the Act is to determine just and fair compensation and to award compensation less than just and fair compensation on the premise that the Court is powerless to grant compensation exceeding the amount claimed would be doing disservice to the statutory duty. The decisions of the Apex Court rendered in the context of the provisions of the Motor Vehicles Act support such view.”
Hence, I am of the opinion that irrespective of the claim made by the appellants before the Reference Court, on the basis of documentary as well as oral evidence, which he has brought on record, is entitled to the compensation as per true market value. Hence, the appellants are entitled for enhancement to the compensation. For the aforesaid reason, the judgment passed by the Reference Court needs modification as under:
ORDER
The appeal is partly allowed.
ii) The judgment and order dated 24.11.2009 in LAC No.79/2006 is modified to the extent that the appellants are entitled to compensation of Rs.13,62,454/- towards orange trees (Rs.4866.91 x 280 = 13,62,454/-) with all statutory benefits.
iii) Needless to mention here that the amount awarded by the Reference Court needs to be deducted from the enhanced amount by this Court towards the valuation of trees.
iv) The rest of the award passed in LAC No.79/2006 dated 24/12/2009 is confirmed.
iv) The respondents are directed to deposit the enhanced amount within a period of four months, to the Registry of this Court.
The appellants are permitted to withdraw the enhance compensation after deposit of the same by the respondents before this Court.
The appeal stands disposed of in above terms. No orders as to the costs.