Sau Lilawati W/o Rambhau Kakade 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.80/2006. According to the appellant, who is original claimant seeks enhancement in the present appeal towards the enhancement of compensation of orange trees, which was not properly determined by the Reference Court.

The appellant herein is the owner of the field Survey No.27/2 admeasuring 1.21 HR of Mouza Ghod-deo, 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 appellant admeasuring 1.21 HR along with Orange trees was acquired.

The Land Acquisition Officer has awarded the meager compensation to the appellant of Rs.12,090/- towards fruit-bearing trees. 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 through Power of Attorney holder namely Devanand alias Nitin Rambhauji Kakade, entered into the witness box and categorically stated about the orange trees which were, according to him, nine 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 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 Subhash Ramraoji Tayade. 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, 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 33. 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 of this witness.

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 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 appellant, 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 appellant before the Reference Court that his 1.21 HR land was acquired along with orange trees. As such, he 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 appellant cannot be permitted to claim higher compensation than what he claimed before the Reference Court. According to him, he has claimed Rs.7,00,000/- as enhanced compensation and if the amount as per his calculation is awarded, same would be more than Rs.7,00,000/-. 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 appellant has relied upon.

The appellant 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:

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:

In light of above said legal position, the appellant made submission that they have proved before the Reference Court joint measurement report (Exhibit 21), fruit valuation report (Exhibit 22) and 7/12 extract (Exhibit 23). In respect of the sale instance, he has relied upon the Exhibit 28, 29 and 30, 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 appellant, there is no dispute that there were 200 orange trees on the acquired land. The 7/12 extract produced on record and expert evidence, indicates the trees were nine 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 39, 40 and 41, 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 appellant is 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.62/- per orange tree and thereby awarded Rs.12,090/- 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 appellant has proved Rs.839/- for 1000 orange trees. As such, by applying Miram’s Table, the calculation comes as under: For calculating 200 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 7.948 X Rs.579/- per tree = Rs.4601.89/-per tree As such, considering this calculation Rs.4865.91/- comes for each orange tree. Admittedly, there were 200 orange trees, hence the total valuation comes Rs.9,20,378/- (Rs.4601 x 200)

In the present appeal, in respect of market value of land, learned Reference Court in paragraph No.11 of its judgment, has specifically recorded that enhancement towards orange trees has been awarded on the basis of income capitalization method. Therefore, in my opinion, appellant is not entitled for separate compensation towards acquired 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, appellant is not entitled for separate compensation towards agriculture land.

The respondents, who are supposed to point out from the record as to how the appellant is not entitled for the additional compensation towards orange trees, takes no pains in the matter to contravene the submission made by the appellant in the matter. Only ground, which they have raised in the present appeal that appellant 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 claimant. 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:

Hence, I am of the opinion that irrespective of the claim made by the appellant 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 appellant is entitled for enhancement to the compensation. For the aforesaid reason, the judgment passed by the Reference Court needs modification as under:

The appeal stands disposed of in above terms. No orders as to the costs.