Collector, Nagpur vs Sheikh Semiulla Badulla and Others

Mridula Bhatkar, J.—This Appeal is preferred against the judgment and award dated 24th September, 1997 passed by the learned Civil Judge, Senior Division, Nagpur in Land Acquisition Case No. 327/1993.

The original claimants are the owner of a land bearing Survey No. 501 admeasuring 8.82 hectares at village Khumari, Tahsil Kalmeshwar, Dist. Nagpur. The said land was acquired for Minor Irrigation Project by the Government of Maharashtra. The notification under Section 4 of the Land Acquisition Act (henceforth abbreviated to "the L.A. Act") was issued on 12.5.1988 in the Government Gazette. Section 6 notification was published on 20.7.1989 and then the Special Land Acquisition Officer issued final award on 26.6.1992 thereby fixing the total compensation of Rs. 11,33,537/-. The original claimants found the award inadequate and was not satisfied with the amount of the compensation hence approached the Collector, Nagpur who, made a reference to the Civil Court; and an Application u/s. 18 of the L.A. Act was preferred by the original claimants. The original claimants made a claim of Rs. 89,46,424.00. The learned Judge after considering the oral as well as documentary evidence produced by both the parties, enhanced the amount of the award and fixed the compensation at Rs. 36,08,000/- excluding the amount of award and granted other benefits, i.e. interest and solatium as per the provisions of the Act.

Being aggrieved by the said order of enhancement, the State of Maharashtra, through Collector, preferred this Appeal challenging the said judgment and award. The claimants too challenged the said order and filed Cross Objection for adequate compensation of Rs. 83,02,316/-.

Mrs. Kalyani Deshpande, learned Assistant Government Pleader, has submitted that the judgment and award passed by the Reference Court is exorbitant and illegal. The learned Judge of the Court below has committed an error while fixing compensation and making the calculations of the compensation of the trees. She submitted that the learned Judge ought to have appreciated the evidence of DW 1-Mohammad Mumtazuddin Mohd. Amirdudin, SLAO. The SLAO while considering the valuation, has taken into account various sale instances and for the valuation of the trees relied on the report of the Deputy Director of Horticulture. She argued that once the value of the land including value of the trees is fixed by the Reference Court, then the Court cannot again separately determine the compensation for fruit-bearing trees. In support of her submissions, she relied on the judgment of the Hon''ble Supreme Court in the case of Shri Ambya Kalya Mhatre (d) through legal heirs and Others Vs. The State of Maharashtra, .

Mr. Anand Parchure, learned counsel for the respondents i.e. original applicants submitted that the SLAO has not considered properly the value of the trees. The Reference Court has also not correctly appreciated the evidence of the witnesses who were examined by the original claimants on the point of determining the value of the trees and the land. He submitted that no sale instance was produced by either of the parties before the Court on the point of value of the trees. The learned counsel relied on the evidence of an expert Dr. Tularam Raghunath Bagde in determining of the value of the crop. He submitted that the Reference Court has undervalued the acquired land.

Perused the impugned judgments, entire record and proceedings. We have gone through the evidence of the witnesses especially Dr. Tularam Bagde who was examined as a witness for the claimants and also the evidence of SLAO Mohd. Mumtazuddin, for the State. The land acquired was arable horticulture on which many fruit bearing trees were standing at the time of acquisition. The trial Court, on considering the evidence of the witnesses of the claimants, has separately discussed and determined the valuation of the trees in different categories. There were 2074 orange trees out of which 900 trees were nine-year-old; 1174 orange trees of ten-year-old; 150 lemon trees; 5 mango trees whereas there were also trees of guava and custard apple were standing on the land. All these trees were not fruitlets but were mature fruit bearing trees fetching good income. Dr. Tularam Bagde, holding the qualification of Ph.D. in Horticulture from Indian Agricultural Research Institute, New Delhi, was examined by the claimants as an expert witness. He has gone through the report of the Horticulture Department in respect of the acquired land and then submitted his report. The reports marked at Exh. 21 is properly appreciated by the learned Court below. While determining the award of the acquired land, the authority has to consider the factors mentioned u/s. 23 of the L.A. Act. The learned Judge has properly marshalled the evidence on the background of Section 23 of the L.A. Act.

The ratio laid down in the case of Ambya Kalya Mhatre (supra) especially in paragraph 22 of the said judgment is guiding principle which states as follows :

"22. We are afraid that the High Court has misread the said decision in regard of 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."

If the value of the land is determined taking into account the orchard then the value of the land cannot be determined separately. However, in the present case, the SLAO DW 1- Mohd. Mumtazuddin has deposed that he declared the award as per the Sale Statistics method and he had considered the sale instances given by the claimant in village Khumari and also villages Dudhala and Mohapa. He has admitted that he assessed the rates of dry crop land. Neither he has stated nor any evidence is brought by the State to show that the value of the land had been determined on the basis of Sale Statistics or compensation awarded for an orchard. It appears that the valuation of the trees was separately done. Therefore, necessarily the trees will have to be valued separately and the Reference Court has rightly valued the land and trees separately. To that effect, the claimant has also tendered evidence of the witnesses. Therefore, the value of the land and value of the fruit-bearing trees is rightly determined separately by the Reference Court.

For the purpose of determining the value of the land the claimants have relied on the evidence of DW 2 - Shalikram Cherjan and a sale instance of village Khumari, which is marked as Exh. 27. The witness had purchased 10R land for Rs. 15,000/-. However, the learned Reference Judge has rightly observed that the land acquired is a huge land and the sale instance compared to the land acquired is a small piece of land and hence cannot be compared with. However, the trial Court after considering the evidence of the witnesses, i.e. CW 3-Mohan Ramchandra Laphalkar, an Architect and also CW 4- Namdeo Nichale, a Patwari, has held that the land acquired was a black soil fertile land for cultivation. CW-3 and CW-4 have valued the land for 50,000 to Rs. 65,000 rupees, per acre; and CW 3 has valued the orchard land which was acquired including the land, crops and yields of Rs. 87,75,000/-. There was a well having 24 meters depth with perennial source of water with electric pump and rightly determined the valuation of the said land separately at Rs. 25,000/- per acre, which is found to be just and proper.

In the present case, no comparable sale instance of orchard in the same village was produced by the claimants to fix the correct valuation of the trees so also of the land. While determining the value of the fruit -bearing trees so also the land, the Court has to go by ''approximation'' by taking objective approach on the basis of the oral or documentary evidence tendered and available so that the margin or error is less. The learned Reference Court, however, fixed the compensation of Rs. 36,08,000/- excluding the amount of the award passed by the SLAO. We are of the opinion that in all the claimants are entitled for Rs. 36,08,000/- including the amount of the award. We confirm the order of the Reference Court in respect of the entitlement of the claimants for solatium on the amount of compensation and interest from the date of application till realization of the full amount, so also others benefits. Hence, we pass the following order:

ORDER:

First Appeal is partly allowed.

It is held that the respondents/claimants are entitled to compensation quantified at Rs. 36,08,000/- in all, including the amount as was awarded by the Special Land Acquisition Officer.

Rest of the order regarding solatium and interest is maintained.

The parties to bear their respective costs.

The respondents/claimants are permitted to withdraw the balance of the amount deposited in the fixed deposit receipt along with interest accrued thereon.

Cross Objection is disposed of.