1 fa1018group-32 matters.sxw ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION FIRST APPEAL NO.1018 OF 1998 AND CROSS OBJECTION ST.NO.25976 OF 1999 The State of Maharashtra ...Appellant Vs. Pandharinath Keru Thete (Since deceased through L.Rs.) ...Respondents ALONGWITH FIRST APPEAL NO.1019 OF 1998 AND CROSS OBJECTION ST.NO.25945 OF 1999 The State of Maharashtra ...Appellant Vs. 1 Dagu Keru Thete (Since deceased through L.Rs) & Ors. ...Respondents ALONGWITH FIRST APPEAL NO.1020 OF 1998 The State of Maharashtra ...Appellant Vs. Vishnu S. More ...Respondent ALONGWITH FIRST APPEAL NO.1021 OF 1998 AND CROSS OBJECTION ST.NO.25955 OF 1999 The State of Maharashtra ...Appellant Vs. Raghunath Mahadeo Kedar (Since deceased through L.Rs.) ...Respondents ALONGWITH FIRST APPEAL NO.1022 OF 1998 The State of Maharashtra ...Appellant Vs. Modiram Shankar Kedar ...Respondent 2 fa1018group-32 matters.sxw ALONGWITH FIRST APPEAL NO.1023 OF 1998 AND CROSS OBJECTION ST.NO.25986 OF 1999 The State of Maharashtra ...Appellant Vs. Mahadu Hari Palave (Since deceased through L.Rs) ...Respondents ALONGWITH FIRST APPEAL NO.1024 OF 1998 AND CROSS OBJECTION ST.NO.25981 OF 1999 The State of Maharashtra ...Appellant Vs. Sadashiv Radhakrishna Thete & Ors. ...Respondents ALONGWITH FIRST APPEAL NO.1025 OF 1998 AND CROSS OBJECTION ST.NO.25971 OF 1999 The State of Maharashtra ...Appellant Vs. Dasharath Baburao Khirkade & Ors. ...Respondents ALONGWITH FIRST APPEAL NO.1026 OF 1998 AND CROSS OBJECTION ST.NO.25984 OF 1999 The State of Maharashtra ...Appellant Vs. 1 Ramdas Tukaram Kedar & Anr. ...Respondents ALONGWITH FIRST APPEAL NO.1027 OF 1998 AND CROSS OBJECTION ST.NO.33562 OF 1999 The State of Maharashtra ...Appellant Vs. Laxman Eknath Thete ...Respondent ALONGWITH FIRST APPEAL NO.1028 OF 1998 AND 3 fa1018group-32 matters.sxw CROSS OBJECTION ST.NO.37903 OF 1999 The State of Maharashtra ...Appellant Vs. Murlidhar Govind Thete (Since deceased through L.Rs.) ...Respondents ALONGWITH FIRST APPEAL NO.1029 OF 1998 AND CROSS OBJECTION ST.NO.2595 OF 1999 The State of Maharashtra ...Appellant Vs. Bhagwat Shankar Thete ...Respondent ALONGWITH FIRST APPEAL NO.1030 OF 1998 AND CROSS OBJECTION ST.NO.25963 OF 1999 The State of Maharashtra ...Appellant Vs. Kisan Thete (Since deceased through L.Rs.) ...Respondents ALONGWITH FIRST APPEAL NO.1115 OF 1998 AND CROSS OBJECTION ST.NO.37406 OF 1999 The State of Maharashtra ...Appellant Vs. Pundalik Radhakrishna Thete ...Respondent ALONGWITH FIRST APPEAL NO.793 OF 1995 The State of Maharashtra ...Appellant Vs. Kondaji Ganpat Dhatrak (Since deceased through L.Rs) ...Respondent ALONGWITH FIRST APPEAL NO.1416 OF 2002 Kondaji Ganpat Dhatrak (Since deceased through L.Rs.) ...Appellants Vs. The State of Maharashtra ...Respondent ALONGWITH 4 fa1018group-32 matters.sxw FIRST APPEAL NO.794 OF 1995 The State of Maharashtra ...Appellant Vs. Manohar Dada Avhad (Since deceased through L.Rs) & Ors. ...Respondents ALONGWITH FIRST APPEAL NO.795 OF 1995 The State of Maharashtra ...Appellant Vs. Laxman Zavariram Dhakane ...Respondent ALONGWITH FIRST APPEAL NO.796 OF 1995 The State of Maharashtra ...Appellant Vs. Dagu Keru Thete (Since deceased through L.Rs) & Ors. ...Respondents ALONG WITH FIRST APPEAL NO.616 OF 1997 Dagu Keru Thete (Since deceased through L.Rs.) & Ors. ...Appellants Vs. The State of Maharashtra ...Respondents ALONGWITH FIRST APPEAL NO.797 OF 1995 The State of Maharashtra ...Appellant vs. Lahu Shivram Gangode & Ors. ...Respondents ALONGWITH FIRST APPEAL NO.798 OF 1995 The State of Maharashtra ...Appellant Vs. Bhima Mahipati Kedar ...Respondent ALONGWITH FIRST APPEAL NO.799 OF 1995 The State of Maharashtra ...Appellant Vs. Pandharinath Zavariram Dhakane ...Respondent ALONGWITH FIRST APPEAL NO.800 OF 1995 5 fa1018group-32 matters.sxw The State of Maharashtra ...Appellant Vs. Laxman Suka Dhakane (Since deceased through L.Rs.) ...Respondents ALONGWITH FIRST APPEAL NO.801 OF 1995 The State of Maharashtra ...Appellant Vs. Waman Dada Palve ...Respondent ALONGWITH FIRST APPEAL NO.802 OF 1995 The State of Maharashtra ...Appellant Vs. Balkrishna Bhika Dhakane & Ors. ...Respondents ALONGWITH FIRST APPEAL NO.803 OF 1995 The State of Maharashtra ...Appellant Vs. Deoram Aba Shingade ...Respondent ALONGWITH FIRST APPEAL NO.804 OF 1995 The State of Maharashtra ...Appellant Vs. Pandurang Hari Jadhav ...Respondent ALONGWITH FIRST APPEAL NO.805 OF 1995 The State of Maharashtra ...Appellant Vs. Chiman Runja Shingade (Since deceased through L.Rs) & Ors. ...Respondents ALONGWITH FIRST APPEAL NO.806 OF 1995 The State of Maharashtra ...Appellant Vs. Manohar Savliram Dhakne & Ors. ...Respondents ALONGWITH FIRST APPEAL NO.807 OF 1995 The State of Maharashtra ...Appellant 6 fa1018group-32 matters.sxw Vs. Kashiram Shivram Kedar ...Respondent ALONG WITH FIRST APPEAL NO.1416 OF 2002 Kondaji Ganpat Dharale (Since deceased by L.Rs.) ...Appellants Vs. State of Maharashtra ...Respondent Mr.A.R.Patil, A.G.P for the appellant in all appeals (except in F.A.nos.616 of 1997 and 1416 of 2002). In F.A.nos.616 of 1997 and 1416 of 2002 for respondent Mr.P.N.Joshi for the respondents in all appeals (except in F.A.Nos.616 of 1997 and 1416 of 2002). In F.A.Nos.616 of 1997 and 1416 of 2002for appellants. CORAM: A.S.OKA,J. DATE: JUNE 17, 2011 ORAL JUDGMENT: 1 These appeals can be disposed of by a common Judgment. The challenge in these appeals is to the two common Judgments delivered by the trial Court in two separate groups of references under section 18 of the Land Acquisition Act, 1894 (hereinafter referred to as the said Act). One group of appeals pertains to common Judgment delivered by the trial Court on 21st April 1997 in L.A.R.Nos. 229,230,231,232,233,234 of 1987, 171,172,173,174,175,176 and 177 of 1995 and L.A.R.no.75 of 1996. The other group of appeals involves challenge to the Judgment and Award dated 14th December 1993 passed by the District court in L.A.R.no.89 of 1985 to 109 of 1985. 2 The first group relates to lands at village Umrale. It appears that large numbers of lands were acquired for the project of a Dam known as Waghad Dam in Taluka Dindori, District Nashik. A grievance was made that as a 7 fa1018group-32 matters.sxw result of the project of Dam, several lands were getting submerged thereby causing damage to guava trees. It appears that a notification under section 4(1) of the said Act was issued by the State of Maharashtra on 26th March 1981 by which the affected lands in village Umrale Taluka Dindori, District Nashik were notified for acquisition. It must be stated here that as far as award under section 11 is concerned, one Award was made on 1st October 1985. It appears that subsequently another Award was made on 27th march 1986. There were petitions filed in this Court being W.P.No.300 of 1986 and 6004 of 1988 by some of the affected parties. In the Writ Petitions there was a challenge to the subsequent Award made under section 11 of the said Act. The Division Bench of this Court decided the Writ Petitions on 26th November 1992. The Division Bench held that subsequent Award was not legal and valid and that the petitioners were entitled to compensation in accordance with the first Award dated 1st October 1985. As the compensation offered under the said Award was not accepted, the claimants filed applications under section 18 of the said Act claiming enhancement and at their instance, references were made. By the common Judgment and Award passed by the trial Court, after considering the evidence on record, the learned Reference Court came to the conclusion that the value of the every grown up (fruit bearing) Guava tree shall be taken at the rate of Rs.856/- per tree and the value of the small tree below 3 to 4 years (early bearing) shall be taken at the rate of Rs.55/- per tree. Thus, depending upon the number of full bearing trees and early bearing trees on the acquired lands, enhancement was granted at the aforesaid rate. The enhancement was granted considering the reports of the Agricultural Department and a Horticulturist. 3 The other group of appeals arises out of common 8 fa1018group-32 matters.sxw judgment in L.A.R.Nos.89 of 2008 to 109 of 1985 which relates to the land situated at village Waghad, Taluka Dindori, District Nashik. The acquisition was of lands getting submerged under the Waghad Dam. Notification under section 4(1) of the said Act was issued on 2nd April 1979. In these cases, the Special Land Acquisition Officer made an Award under section 11 of the said Act on 1st August 1983. As the claimants did not accept the Award, references were made under section 18 of the said Act at their instance. As far as lands are concerned, market value was fixed at Rs.15,000/- per Hectare. In these cases, there was an issue raised regarding valuation of the Guava trees. The market value of the yield of Guava fruits was accepted at the rate of Rs.2/- per kg and the amount of Rs.941.41 per tree has been granted. 4 The challenge in the Appeals is to the aforesaid common Judgments. In some cases, there are either cross appeals or cross objections. 5 The learned A.G.P appearing for the State of Maharashtra has taken the Court through the impugned Judgments and the evidence on record. His submission is that there was no reason to grant compensation on account of the market value of the trees. His submission is that in absence of the oral evidence of the Deputy Director of Horticulture, his report could not have been read in evidence. He submitted that the figure of the market value of the trees has been arrived at arbitrarily. His further submission is that the market value at Rs. 15,000/- per Hectare could not have been granted by the Reference Court in relation to the lands at village Waghad. He submitted that the price of yield from Guava trees could not have been taken at Rs.2/- per kg in 9 fa1018group-32 matters.sxw absence of any evidence. He submitted that the market value of per tree fixed by the Reference Court is excessive. 6 The learned counsel for the original claimants firstly submitted that the average yield taken of the Guava trees by the learned Trial Judge on the basis of the report of the Officer of the State Government is on the lower side. He pointed out that the yield should have been taken as average of the yield set out in a Government Circular. He also relied upon the certificate issued by the Secretary of the Agricultural Produce Market Committee, Nashik. He pointed out that the said certificate discloses the average market value as of 1981 of Rs.7/- to Rs.12/- per bag each bag containing 4 to 5 Kgs of Guava. He submitted that in case of Guava trees of the same category situated on similarly situated lands at village Waghad, the value of Guava trees has been taken at Rs.914.41/- per tree and there is no reason why the same value should not be taken in respect of the references arising out of the lands at village Umrale. He has taken the Court through the reports on record. He submitted that the appeals preferred by the State Government may be dismissed and the cross objections/cross appeals be allowed. 7 I have given careful consideration to the submissions. Firstly, it will be necessary to deal with the findings recorded by the learned Trial Judge. In the Judgment in cases of lands at village Umrale, the learned Trial Judge had made a reference to the evidence of Shri Santram Patil in which he has stated that he was getting 125 kgs guava fruits per tree and in the year 1981 its rate was Rs.3/- per kg. In the Judgment in the cases of lands at village Waghad, the learned Judge considered the 10 fa1018group-32 matters.sxw evidence of one Sham Sade, a Clerk in Agricultural Produce Market Committee, Nashik who proved the certificate at Exh.32 which disclosed the figures of price of Guava fruits ranging from Rs.7/- per bag to Rs. 12/- per bag of Guava fruit each bag containing 4 to 5 Kgs of Guava fruit. It appears that both the parties did not lead oral evidence of any expert. However, the reports prepared by the Officers of high rank in Agricultural Department of the State Government were placed on record of the references relating to lands at village Umrale and were admitted in evidence. The said reports were marked as Exhibits 28 (report of Agricultural office) and 29 (report of the Horticulturist) respectively. The claimants relied upon the said reports. Apart from the said reports, the claimants relied upon the circular recording the procedure of valuation of the trees which was issued by the Director of Horticulture of State Government dated 5th January 1985. Even the said circular was placed on record of the Trial Court at Exh.38. 8 As far as the report of the Agriculture Officer is concerned, it records that net income the per tree was Rs.385.96 and the price of the fruits was Rs. 1/- per kg. As regards early bearing trees, the price was Rs.25/- per tree. 9 Now, it will be necessary to consider the report of the Horticulturist which is considered in the first group of Umrale village. In the report of the Horticulturist, it is stated that the rate of the fruits will be Rs.1.50 per kg and therefore, the amount per tree is determined is Rs.856/-. The said rate has been accepted by the Reference Court as rate of full bearing tree. On the basis of the said rate, value of the small trees having 11 fa1018group-32 matters.sxw age of 3 to 4 years was determined at Rs.55/- per tree. As far as first group of village Umrale is concerned, the claim for enhancement was only in respect of the value of the trees. In each case, the learned Reference Court has also determined the number of trees subject matter of each land reference. There is no dispute regarding the number of trees. 10 The submission of the learned counsel for the claimant in the first group is that apart from the fact that the value of the fruits at Rs.3.00 per kg instead of Rs.1.50 per kg ought to have been taken, for determining the yield of fruits per tree, the documents on record viz. Valuation Report at Exh.28 of the Agriculture Officer should have been taken into consideration. He also placed reliance on the Government Circular dated 5th January 1985 which shows that minimal yield for early bearing Guava trees is 40 kg to 80 kg per tree and in case of full bearing Guava trees; yield is between 80 kg to 150 kg per tree. His submission is that in case of full bearing trees, average of yield as stated in the Government Circular should have been taken which ought to have been 115 kg per tree. He submitted that in case of early bearing trees, average should have been taken at Rs.50 per kg. In this behalf evidence of the claimants will have to be considered. The Circular of State Government gives hypothetical figures. Therefore, for determining the yield, the evidence adduced by the claimants will have to be considered. I have perused the evidence of Shri Santram Patil. He has stated that he was getting 125 kgs of Guava fruits from each tree. He has stated that in the year 1981, the value of Guava fruits was Rs.3/- per kg. The witness was cross examined on this aspect. He has stated that Guava fruits are being sold at Nashik and there were payment receipts for sale of Guava 12 fa1018group-32 matters.sxw fruits. He admitted that he has not produced receipts and he has not produced account of Guava fruits. He admitted that he has not filed any document showing income from Guava trees. Therefore, as far as the yield of fruits from the Guava trees is concerned, there is no specific evidence adduced by the claimants. The learned Reference Court has relied upon the report of the Horticulture Department of the State Government. As far as yield per tree is concerned, in absence of any evidence adduced by the claimants, the Reference Court was justified in proceeding on the basis of the yield reflected in the report of the Horticulture Department of the State Government which was on record. 11 There is another argument made by the learned counsel for the claimants which is based on the market value of the trees determined in the other group of Land Acquisition Reference viz. L.A.R.No.89 of 85 and other connected appeals relating to the land at village Waghad. He pointed out that the market value of the yield has been accepted in the said group of references at Rs.2/- per kg and an amount of Rs.914.41/- per tree has been granted by the Reference Court. As there is challenge by the State Government to the findings recorded by the Reference Court in the said group, it will be necessary to make a reference to the findings recorded in the other group of appeals arising out of L.A.R No.89 of 1985 and connected references. As pointed out earlier, the Awards made in the said group are in respect of the excess market value of the land as well as trees. It is already pointed out in the earlier part of the Judgment that notification under section 4(1) of the said Act in the said group pertaining to village Waghad was issued on 2nd April 1979 as distinguished from the notification in the other group in relation to the lands at Umrale wherein 13 fa1018group-32 matters.sxw the date of notification is 21st February 1981. As far as controversy relating to trees is concerned, the finding recorded by the Reference Court will have to be examined before dealing with other challenge in the appeals preferred by the State Government regarding market value of the land. 12 In the said group of references, one Sham Kashiram Sade, Clerk in the Agricultural Produce Market Committee, Nashik was examined who produced a table of the prices of Guava fruits at Exh.32 which shows that the price of the Guava fruits was Rs.7/- , Rs.10/- and Rs.12 for one bag consisting of 4 to 5 Kgs Guava fruits. On the basis of the said valuation which of the year 1980-81, the Reference Court found that the price of 1 kg taken by the Special Land Acquisition Officer was inadequate. Therefore, the Reference Court took the view that the price of Rs.2/- per kg ought to have been taken for determination of the compensation. The Reference Court also considered the evidence of one of the claimants in L.A.R.No.89 of 1985. On the basis of the statement issued by the Agriculture Department of the State Government the yield was taken as 50 kg every year from each tree. The statement produced by the Agricultural Produce Market Committee, Nashik showed that the average rate of fruits was Rs.9.66 per bag containing 4 to 5 Kgs i.e. approximately Rs.2/- per Kg. Thus, the average yield and the price taken into consideration by the reference Court are based on authentic material. By adopting capitalization method, price of Guava tree was arrived at Rs.914.41. While arriving at value of Rs. 914.41 an amount of Rs.10/- per tree has been deducted on account of cultivator s cost and risk. Hence, there is no reason to find fault with the value of the trees fixed by the Reference Court in the said group. 14 fa1018group-32 matters.sxw 13 In case of village Umrale, there was no reason for the Reference Court not to adopt the said market value fixed in group of references pertaining to village Waghad. The notification under section 4(1) in case of lands at village Waghad was of April 1979 and date of notification in case of lands at village Umrale was of March 1981. The villages are adjacent and the lands were acquired for the same public purpose. I find that the said argument was specifically made by producing the certified copy of the Award in land acquisition reference no.89 of 1985, which was at Exh.30. While recording the findings on the basis of the finding recorded in L.A.R.no.89 of 1985, the Reference Court merely observed that valuation in that case was made on the basis of the evidence in that case. Thus, the market value of the trees in respect of lands at Umrale ought to have been fixed at the rate of Rs.941.41 per tree. Hence, cross objections filed in this group will have to be allowed to this extent. 14 Now, coming back to the Judgment of the Reference Court in respect of the lands at village Waghad, as stated earlier, the Reference Court has determined the market value of the acquired land at the rate of Rs. 15,000/- per Hectare. The said finding is based on the evidence of one Dinkar Kalu Bhoge who was examined in L.A.R.no.91 of 1985. The said witness was examined to prove the agreement for sale at Exh.50 and sale deed dated 16th July 1979 at Exh.49 in respect of a land in adjoining village Kokangaon. The learned Trial Judge has recorded that village Kokangaon is adjacent to village Waghad and the distance between them is hardly one kilometer. On the basis of the said sale instance which reflected the market value of Rs.16000/- per Hectare, the 15 fa1018group-32 matters.sxw market value was determined at Rs.15000/- per Hectare. Therefore, no fault can be found with the market value fixed by the Reference Court. 15 In case of two of the Appeals forming part of the group relating to village Waghad, enhancement in market value of the trees has been claimed. In absence of any specific evidence showing yield of Guava trees for determining the loss of income, no interference can be made. Reliance was placed on the certificate Exh.32 of Agricultural Produce Market Committee, Nashik. Though the said certificate did not relate to the yield from the lands subject matter of the land references, nevertheless, the said certificate given by the Public Authority like Agricultural Market Produce Committee dealing with the sale of fruits at Nashik can always be taken as a guideline for determining the market value of the fruits. Accordingly, the amount of Rs.2/- per kg taken by the Reference Court is reasonable. Hence, no case for enhancement is made out in case of lands at Waghad. 16 In the circumstances, I pass the following order: FIRST APPEAL NO.1018 OF 1998 . Dismissed with no order as to costs. . Cross Objection st.no.25976 of 1999 is partly allowed. Impugned Judgment and award of the Reference Court is modified to the extent of amount awarded in respect of the market value of the full bearing trees. The amount shall be taken as Rs.941.41 per tree instead of Rs.856/- per tree. The claimant will be entitled to proportionate costs of the Reference and cross objection. Civil application no.95 of 2011 . Heard learned counsel for the parties. Application 16 fa1018group-32 matters.sxw is allowed in terms of prayer clauses (a) and (b). First Appeal no.1019 of 1998 . Appeal is dismissed with no order as to costs. . Cross objection st.no.25945 of 1999 is partly allowed. Impugned Judgment and award of the Reference Court is modified to the extent of amount awarded in respect of the market value of the full bearing trees. The amount shall be taken as Rs.941.41 per tree instead of Rs.856/- per tree. The claimant will be entitled to proportionate costs of the Reference and cross objection. FIRST APPEAL NO.1020 OF 1998 . The Appeal is dismissed with no order as to costs. First Appeal no.1021 of 1998 Appeal is dismissed with no order as to costs. . Cross Objection St.no.25955 of 1999 is hereby partly allowed. Impugned Judgment and award of the Reference Court is modified to the extent of amount awarded in respect of the market value of the full bearing trees. The amount shall be taken as Rs.941.41 per tree instead of Rs.856/- per tree. The claimant will be entitled to proportionate costs of the Reference and cross objection. Civil application no.96 of 2011 . Heard learned counsel for the parties. Application is allowed in terms of prayer clauses (a) to (c). FIRST APPEAL NO.1022 OF 1998 . Appeal is dismissed with no order as to costs. Civil application no.4987 of 1997 Application is allowed in terms of prayer clause (a). 17 fa1018group-32 matters.sxw FIRST APPEAL NO.1023 OF 1998 . Appeal is dismissed with no order as to costs. . Cross Objection St.no.25986 of 1999 is hereby partly allowed. Impugned Judgment and award of