AI Structured Summary
Not yet generated for this judgment
Judgment
Manish Pitale, J.
1.This appeal and cross objection were decided by this Court vide judgment and order dated 13-11-2014. But, thereafter, a review application was
filed on behalf of the respondents/claimants pointing out that original respondent no.3-Anil Gulabrao Mankar had expired and that since appropriate
steps in that regard were not taken, the judgment and order disposing of this appeal and cross objection were rendered a nullity in view of the death of
said Anil Gulabrao Mankar. The said review application was allowed by this Court on 09-08-2017 and the said judgment and order dated 13-11-2014
disposing of this appeal and cross objection was recalled and it was directed that they would be listed for final hearing again.
2.It is in pursuance of the said order dated 09-08-2017 that the judgment and order dated 13-11-2014 was recalled and the appeal and cross objection
have come up for final hearing again before this Court. The learned Counsel for the parties have been heard in detail in this appeal and cross
objection. On 14-02-2018, a pursis was filed on behalf of the appellant/State and a document, being an order dated 07-04-2017 passed by the
Reference Court 3 fa 918.91.odt in Land Acquisition Case No.208 of 2009 was sought to be placed on record, which was objected to on behalf of the
respondents/claimants. Subject to the objection raised by the respondents/ claimants, the said document was kept on record of the file of this appeal
and the cross objection by an order dated 22-02-2018 and the judgment was reserved.
3.The subject matter of the present appeal and cross objection is the land belonging to predecessor of the respondents/claimants/cross objectors being
land admeasuring 9 H 60 R in survey no. 24 and land admeasuring 10 H 36 R in survey no.25 of mouza Wai, Taluka Kelapur, District Yavatmal.
Notification under Section 4 of the Land Acquisition Act, 1894, was issued for acquisition of the aforesaid land on 15-10-1987. It has been brought on
record that the possession of the said land was already taken on 25-01-1987, in view of the urgency. It is claimed that a joint measurement report
pertaining to the said land was prepared on 04-09-1987 by the then Land Acquisition Officer Shri A.B. Deshmukh on which the claimant had raised
an objection on 30-11-1987. It was claimed that there were fruit bearing trees and other trees standing on the aforesaid land when the process of
acquisition was initiated.
4.The said Land Acquisition Officer prepared a draft award dated 15-04- 1989 in respect of the said land. It was forwarded by him for approval to the
Divisional Commissioner as the amount involved in the award was more than 15 lakhs. On 04-07-1989, the Divisional Commissioner sent a letter to
the said Land Acquisition Officer granting approval to the said draft award. It was stated in the said letter that the approval was accorded assuming
that the authenticity and correctness of all the documents and data had been personally verified by the Land Acquisition Officer and that the
responsibility of any controversy or complicity arising out of the said case would be the sole responsibility of the Land Acquisition Officer. It was
further stated that the Land Acquisition Officer should check and recheck the whole award to his own satisfaction. Thus, the approval was subject to
aforesaid condition mentioned in the letter.
5.Thereafter, the Land Acquisition Officer changed and one Shri Chinchole was appointed as the Land Acquisition Officer. On 09-02-1990, the said
new Land Acquisition Officer pronounced award in terms of the provisions of the said Act, in respect of acquisition of the aforesaid land. In this
award, the claimant was paid compensation at the rate of Rs. 8000/- per hectare and some amount was granted towards trees on the said land. It has
come on record that thereafter on 03-02-1990, the Land Acquisition Officer conducted a spot inspection on the said land. It was claimed that a report
was prepared as regards the trees, bunds and well located on the said land. The claimants preferred an application under Section 18 of the Land
Acquisition Act, 1894, before the Court of Civil Judge, Senior Division, Yavatmal (Reference Court) and her case was taken up as Land Acquisition
Case No.97 of 1990.
6.In the proceedings before the Reference Court, the claimant heavily relied upon the contents of the draft award dated 15-04-1989 and produced the
then Land Acquisition Officer who had prepared the draft award i.e. Shri A.B. Deshmukh as a witness in support of its claim. The State produced
Shri Chinchole, the Land Acquisition Officer, who was the author of award dated 09-02-1990, as a witness. On 04-05-1991, the Reference Court
passed the impugned judgment and award holding that the claimant was entitled to enhanced compensation at the rate of Rs. 50,000/-per hectare for
dry crop land and at the rate of Rs. 75,000/- per hectare for irrigated land. It was further held that the claimant was entitled to compensation of Rs.
6156/- for bunds in survey no.24 and Rs. 1752/- in survey no.25 and an amount of Rs. 25,000/- for the well located in survey no.24. It was also held
that the claimant was entitled to Rs. 1404/- for fruit bearing trees in survey no.24 and Rs. 1872/- in survey no.25 5 fa 918.91.odt with a further amount
for other trees of Rs. 3,46,482/- in survey no.24 and Rs. 2,78,551/- in survey no.25.
7.Aggrieved by the aforesaid judgment and order of the Reference Court, the State has filed this appeal, claiming that the findings of the Reference
Court were unsustainable because the claimant had only relied upon draft award dated 15-04-1989 and the evidence of the then Land Acquisition
Officer in support of its claim and that no independent evidence was brought on record for claiming enhancement of compensation. Shri M.A. Kadu,
learned Assistant Government Pleader appearing on behalf of the appellant/State contended that it was for the claimant to prove her case for
enhancement of compensation and that the burden was completely on her. It was pointed out that the claimant could not have relied upon the contents
of the draft award while claiming enhanced compensation and that it ought to have produced independent evidence in the form of expert witness and
other such evidence to prove her claim. The award that was eventually passed by the Land Acquisition Officer was also only an offer and that the
burden was not discharged by the claimant in the present case with cogent evidence and material on record. It was further contended that the
Reference Court was not justified in relying upon the evidence of the then Land Acquisition Officer Shri A.B. Deshmukh, because he and the son of
the claimant, who had appeared as a witness on her behalf were both working in the office of the Collector and it was admitted by the said witness of
the claimant that they used to sit next to each other in the office. In such a situation, the valuation report and the draft award prepared by the then
Land Acquisition Officer Shri A.B. Deshmukh deliberately gave inflated figures of valuation and hence they were unreliable. It was further contended
that the valuation of the trees given in the report of the said Land Acquisition Officer was based on inputs of the Forest and Horticulture Department
and that since the Land Acquisition Officer was not the author of the valuation reports, it could not be said that he had proved them by appearing as
witness on behalf of the claimant. It was further contended that the additional compensation granted by the Reference Court for irrigated land was not
based on proper application of the law in that regard. On this basis, the learned AGP appearing on behalf of the appellant/State submitted that the
impugned judgment and order of the Reference Court deserved to be set aside and the award of the Land Acquisition Officer was required to be
restored. The learned Counsel placed reliance on the judgments of the Hon'ble Supreme Court in the case of Chimanlal Hargovindas vs Special Land
Acquisition Officer, Poona and another, reported at (1988) 3 SCC 751, in the case of Ramanlal Deochand Shah vs State of Maharashtra and another,
reported at (2013) 14 SCC 50, in the case of Kaliyappan vs State of Kerala, reported at 1989 (1) SCC 113 and in the case of Special Land Acquisition
Officer vs Sri Siddappa Omanna Tumari, reported at 1995 (Supp2) SCC 168.
8.On the other hand, Shri R.L. Khapre, learned Counsel appearing on behalf of the respondents/claimants/ Cross Objectors submitted that the
claimant was entitled to rely upon the draft award prepared by the then Land Acquisition Officer Shri A.B. Deshmukh, particularly because he had
entered the witness box in support of the claim before the Reference Court and that there was sufficient material on record to show that the enhanced
quantum of compensation claimed by her was based on cogent evidence and material on record. It was contended that the draft award dated 15-04-
1989 had been approved by the Divisional Commissioner and that it was only aspect of calculations that were to be undertaken to grant the quantum
of compensation recommended in the draft award. It was contended that subsequent Land Acquisition Officer Shri Chinchole had acted in an
arbitrary manner by completely ignoring the contents of the draft award while pronouncing his award dated 09-02-1990, wherein the compensation
was granted on the basis of arbitrary considerations and that the said award could not be said to be offering a just and reasonable compensation for
the acquisition of land. It was further contended that the Reference Court had erred in failing to grant enhanced compensation for land by applying
recognized formula for the appreciation of value of land annually. It was further contended that the valuation report based on spot inspection
conducted by earlier Land Acquisition Officer Shri A.B. Deshmukh was ignored by the Reference Court while calculating the compensation payable
for the fruit bearing trees and other trees. If the report, which formed part of evidence on record, was taking into consideration, the claimant was
entitled to further enhanced compensation. On this basis, the learned Counsel for the respondents/claimants/cross objectors sought further
enhancement of compensation.
9.Having heard the learned Counsel for the parties and upon perusal of the material on record, the point that is required to be determined in the
present appeal and cross objection is, as to whether the claimant was granted just, fair and reasonable compensation for acquisition of her land. It is
required to be examined whether the Reference Court took into consideration the evidence and material on record to reach its findings and as to
whether the appreciation of the material on record was proper.
10.It is settled law that the award of the Land Acquisition Officer is an offer made to the claimant as regards the quantum of compensation and that
before the Reference Court it has to be proved by cogent material and evidence on record as regards the quantum of compensation which could be
said to be just, fair and reasonable. In the case of Chimanlal (supra), the Hon'ble Supreme Court has stated the factors that need to be taken into
consideration for determining the quantum of compensation payable to the claimant for acquisition of her land. It is laid down therein that the
Reference Court has to treat the reference as an original proceeding and that the burden is on the claimant to show how the quantum of compensation
granted by the Land Acquisition Officer is inadequate. In the case of Ramanlal (supra), the Hon'ble Supreme Court has reiterated the fact that it is the
claimant who has to discharge the burden of proving the claim made before the Reference Court for enhancement of compensation. It has been held
that the claimant is to be considered as plaintiff in a suit requiring discharge of initial burden of proving that the amount of compensation determined in
the award of the land Acquisition Officer was inadequate. Thus, in the present case also it needs to be examined as to what was the material placed
on record on behalf of the claimant in support of her claim enhanced compensation before the Reference Court.
11.The evidence and material on record in the present case shows that the claimant initially relied upon the draft award dated 15-04-1989 prepared by
the then Land Acquisition Officer Shri A.B. Deshmukh and his evidence as a witness in support of her claim. The son of the claimant has also
appeared as a witness in support of the claim of enhanced compensation. While on behalf of the State, subsequent Land Acquisition Officer Shri
Chinchole, who actually pronounced the award impugned appeared before the Reference Court, as a witness. The claimant did not produce any
expert witness or any valuation report in support of her claim for enhanced compensation.
12.A perusal of evidence of witness no.1 for the claimant, being her son Anil Gulabrao Mankar, shows that he has admitted about the fact that the
then Land Acquisition Officer Shri A.B. Deshmukh was working with him in the office of the Collector where he was working as Accounts Officer.
It is further admitted by him that they were sitting together in the office. He has further stated in his evidence that he had produced no documents to
show the existence of trees in the said land except the document prepared by Land Acquisition Officer Shri A.B. Deshmukh. He has further deposed
about the value of the land and the fact that there was a well located therein, showing that it was irrigated land.
13.The claimant has examined earlier Land Acquisition Officer Shri A.B. Deshmukh as another witnesses in support of her claim. This witness has
supported the recommendations made by him in his draft award dated 15-04- 1989 and he has claimed that a joint measurement was prepared and
that a spot inspection report pertaining to the land in question was prepared, wherein the valuation of the trees was also given. But, he has admitted in
cross examination that unless the draft award was approved by the competent authority, it had no legal value. He has also admitted that he never
accompanied Forest Officer at the time of spot inspection and further that the valuation of the fruit bearing and other trees given by him was based on
the reports and estimates of the Forest Department.
14.A perusal of evidence of Shri Chinchole, the land Acquisition Officer, who pronounced the award dated 09-02-1990, shows that he had conducted
a spot inspection on 03-02-1989 that is much after issuance of notification under Section 4 of the Land Acquisition Act dated 15-10-1987. He has
claimed that he prepared a report as regards the number of trees, bunds and well located in the land in question and that on the basis of such report he
had arrived at the figure for grant of compensation in respect of acquisition of the land in question.
15.The aforesaid evidence available on record demonstrates that the claimant has failed to examine any independent witness or expert witness in
support of her claim as regards the quantum of compensation, particularly compensation towards fruit bearing trees and other trees. Since the burden
was entirely on the claimant to prove her claim by placing on record the relevant documents in support of her claim, it is clear that no such positive
evidence was produced on her behalf. The claimant has entirely relied upon the evidence of Shri A.B. Deshmukh, earlier Land Acquisition Officer,
and the valuation report as also the draft award prepared by him. The evidence of said Shri A.B. Deshmukh, earlier Land Acquisition Officer, is
rendered seriously doubtful as it is found that he and the son of the claimant were working in the office of the Collector and that as per the admission
given by the son of the claimant, who appeared as a witness, that they used to sit together in the office. It appears that evidence has been given by
said Land Acquisition Officer Shri A.B. Deshmukh in order to favour the claimant and her son. It appears that he has given inflated figures in respect
of existence of number of trees and their valuation in order to favour the claimant. This is evident from the fact that the Divisional Commissioner has
specifically stated in the aforesaid letter dated 4.7.1989 that the Land Acquisition Officer should check and recheck the whole award. It was also
stated that he would be responsible for any controversy or complicity. In such a situation, where evidence of this witness and the material produced at
his behest were rendered suspicious, it was necessary for the claimant to have produced independent evidence like an expert witness and a valuation
report by such expert, in support of her claim for grant of enhanced compensation. In the absence of producing such cogent evidence and by placing
reliance only on the draft award and the evidence of earlier Land Acquisition Officer Shri A.B. Deshmukh, the claimant has failed to discharge the
burden of proving her case of enhanced compensation. In this context, the learned AGP appearing on behalf of the appellant/State is justified in
contending that the draft award and evidence of the said Shri A.B. Deshmukh could not be relied upon as the sole basis for grant of enhanced
compensation.
16.The draft award dated 15-04-1989 could not have been relied upon by the claimant because it was yet to attain finality. The contention raised on
behalf of the claimant that the said draft award had been approved by the Divisional Commissioner and that it ought to have been simply pronounced,
cannot be accepted because a perusal of letter of approval dated 04-07-1989 shows that the Divisional Commissioner has accorded approval subject
to the Land Acquisition Officer checking and rechecking the whole award to his satisfaction and further it has been stipulated therein that the Land
Acquisition Officer must check the authenticity and correctness of all the documents and data. This clearly demonstrates that the draft award dated
15-04-1989 could not be said to be evidence, which could be relied upon by the claimant for enhanced compensation. It was only the award dated 09-
02-1990 that was pronounced by subsequent Land Acquisition Officer Shri Chinchole in terms of the provisions of the said Act. Therefore, the
quantum of compensation that may have been recommended in the draft award could not solely be the basis for the claimant to claim enhanced
compensation.
17.As regards the evidence of earlier Land Acquisition Officer Shri A.B. Deshmukh and the valuation report relied upon by him, it is evident from the
material on record that such valuation has been arrived at by the said Land Acquisition Officer Shri A.B. Deshmukh, on the basis of spot inspection
and reports of the Forest Department. This clearly shows that he is not the author of the valuation report and that therefore he could not be treated as
a witness to have proved the said valuation reports. In fact, when the entire evidence of the said witness is found to be suspicious and seriously
doubtful, the said valuation reports could not have been relied upon by the claimant for claiming enhanced compensation for the fruit bearing trees and
other trees said to have been existing on the land when it was acquired.
18.The Reference Court has erred in failing to take into consideration this aspect of the matter. While the Reference Court has discarded the
evidence of subsequent Land Acquisition Officer Shri Chinchole holding that his behaviour was abnormal, the Reference Court has failed to
appreciate that the evidence of 12 fa 918.91.odt earlier Land Acquisition Officer Shri A.B. Deshmukh was also seriously doubtful and suspicious.
Therefore, reliance placed by the Reference Court on the evidence of said Land Acquisition Officer Shri A.B. Deshmukh has rendered the impugned
judgment and award erroneous to the extent of findings rendered on the quantum of compensation payable for fruit bearing trees and the other trees
said to have been existing on the land in question.
19.Therefore, it needs to be examined as to whether the quantum of compensation granted for the land as also the fruit bearing trees and other trees
by the Reference Court is justified or not. As regards the determination of market value and hence the quantum of fair compensation payable for
acquisition of land in question, the Reference Court has relied upon the judgment and order passed by the Reference Court itself in another land
acquisition proceeding, pertaining to a land in the same village, which was acquired pursuant to Notification under section 4 of the Land Acquisition
Act dated 06-01-1986. In the said case, the claimant was granted enhanced compensation at the rate of Rs. 50,000/- per hectare for dry crop land.
Although, the Reference Court took into consideration the fact that the Notification under Section 4 of the Land Acquisition Act in the present case
was 1 year and 9 months after the Notification issued in the said case pertaining to Exhibit-51 i.e. about 2 years thereafter, appropriate benefit of
further enhancement was not granted to the claimant herein.
The learned Counsel appearing on behalf of the respondents/cross objectors, is justified in relying upon the judgment of the Hon'ble Supreme Court in
the case of Pehlad Ram and others vs Haryana Urban Development Authority and others, reported at AIR 2014 SC 793, wherein the Hon'ble
Supreme Court has taken note of various earlier judgments holding that the annual increase in assessment of market value could be granted ranging
from 7.5 % to 20%. On this basis, the learned Counsel appearing on behalf of the respondents/cross objectors contended that at least 10% cumulative
annual increase in the rate of compensation for the acquisition of land ought to have been granted by the Reference Court. There is merit in the
aforesaid contention raised on behalf of the respondents/cross objectors.
20.Thus, upon grant of 10% cumulative annual increase in the present case for period of 2 years, for dry crop land, the amount of compensation would
come to Rs. 60,500/- per hectare and for irrigated land it would come to Rs. 90,750/- per hectare. To that extent, the cross objection of the
respondents deserves to be allowed.
21.The other aspect pertaining to compensation in respect of fruit bearing trees and other trees on the land in question, it was for the
claimants/respondents/cross objectors to have placed convincing evidence and material on record to show, firstly, that the trees existed on the land in
question and secondly, that there was a valid basis for their valuation placed on record. Being the claimant, it was a burden that she had to discharge
by placing on record appropriate evidence. In the present case, the claimant has not examined any expert witness to prove her claim in respect of
valuation of the trees and there is insufficient material brought on record to come to the conclusion that the trees claimed by her to be existing on the
land at the time of acquisition did actually exist. The only evidence that the claimant has relied upon is the evidence of earlier Land Acquisition Officer
Shri A.B. Deshmukh and the valuation reports relied upon by him. Reliance is also placed on the draft award prepared by the said person, which
never attained finality.
22.In the absence of any expert witness or evidence brought on record, there is lack of material for the Court to reach a conclusion as regards the
existence of trees on the land in question and its valuation, as claimed by the claimant herein. The evidence relied upon by the claimant is rendered
suspicious, as stated above, because the said earlier Land Acquisition Officer Shri A.B. Deshmukh appears to be an interested party and, in any case,
he was not the author of the valuation report, which was prepared by the Forest Department. The entire evidence and material on record cannot be
said to be enough to prove the claim of compensation raised on behalf of the claimant in respect of the fruit bearing trees and the other trees.
23.In the absence of cogent material and evidence on record, the Reference Court fell in error in concluding that the claimant herein was entitled to
compensation for fruit bearing trees and other trees to the extent that it granted compensation. The discussion on this aspect and the findings rendered
by the Reference Court are not satisfactory because the said Court has failed to appreciate that there was no independent material or evidence placed
on record by the claimant, except the statement and evidence of earlier Land Acquisition Officer Shri A.B. Deshmukh. The burden was not
discharged by the claimant satisfactorily in respect of the quantum of compensation payable to her for fruit bearing trees and other trees. Thus, to that
extent, the appeal filed by the State deserves to
be allowed. As regards the order sought to be placed on record by the State with Pursis dated 14.02.2018, the learned counsel appearing on behalf of
the claimant is justified in pointing out that it is irrelevant for the present case.
24.Accordingly, the appeal and cross objection are disposed of in the following manner :-
(a)The appeal filed by the State is partly allowed to the extent that the compensation granted by the Reference Court for fruit bearing trees and other
trees in survey nos.24 and 25 of mouza Wai, Tahsil Kelapur, District Yavatmal, is quashed and set aside. The compensation granted by the Land
Acquisition 15 fa 918.91.odt Officer in his award for trees is restored.
(b)The cross objection is partly allowed to the extent that the compensation for the acquired land is increased to Rs. 60,500/- per hectare for dry crop
land and for irrigated land, it is increased to Rs. 90,750/-per hectare.
(c)Compensation granted on all other aspects by the Reference Court is maintained.
(d)The consequential benefits as awarded by the Reference Court shall be paid to the claimant on the aforesaid modified amount towards the
compensation determined in this judgment and order.
25.Accordingly, the judgment and order of the Reference Court stands modified in above terms. The appellant-State shall be entitled to take steps for
recovery of excess compensation amount disbursed, if any, to the claimant after three months from the date of this order.
26.The appeal and cross objection are disposed of with no order as to costs.