:1: pdp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 1043 OF 1997 The State of Maharashtra (Through the Special Land Acquisition Officer, Sindhudurg at Oros) ..Appellant Vs. 1. Shri Mohan Gunaji Redkar died, legal representative Smt. Urmila Mohan Redkar and ors. ..Respondents WITH CROSS OBJECTION STAMP NO. 38196 OF 2002 IN FIRST APPEAL NO. 1043 OF 1997 1. Shri Mohan Gunaji Redkar (died) through Legal Representatives 1A.Smt. Urmila Mohan Redkar and ors. ..Original Claimants Vs. The State of Maharashtra (Through the Special Land Acquisition Officer, Sindhudurg at Oros.) ..Respondent Mrs. G.P. Mulekar, AGP for appellant in F.A. No.1043/97 and for respondent in Cross Objection. Mr. S.B. Shetye for respondent nos.1A, 2A, 3A, 5A(1) to 5A(5), 6A to 6E and for cross objectionists. CORAM: B.H. MARLAPALLE & D.G. KARNIK,JJ. CORAM: B.H. MARLAPALLE & D.G. KARNIK,JJ. CORAM: B.H. MARLAPALLE & D.G. KARNIK,JJ. :2: Date : March 24, 2009. Date : March 24, 2009. Date : March 24, 2009. ORAL JUDGMENT (Per B.H. Marlapalle,J.): ORAL JUDGMENT (Per B.H. Marlapalle,J.): ORAL JUDGMENT (Per B.H. Marlapalle,J.): 1. This appeal filed under Section 54 of the Land Acquisition Act, 1894 (the Act for short) arises from the award dated 18/4/1996 passed by the learned Joint Civil Judge, Senior Division, Ratnagiri at Sawantwadi in L.A.R. No. 18 of 1995. Under the said award, market rate of the land came to be fixed at Rs.3000/- per Are (Guntha) and an additional compensation of Rs.1000/- per coconut tree was directed to be paid in respect of 65 coconut trees. In addition, solatium, additional component and interest was also directed to be paid as per the scheme of the Act. The State Government is aggrieved by the said award and it is submitted that the market value fixed by the Reference Court is excessively high and that too without any justification. The claimants/land owners, on the other hand, have filed cross objection and prayed for the market rate of the land to be fixed at Rs.5000/- per Are and enhanced the compensation for each coconut tree beyond Rs.1000/- per tree. :3: 2. It is clear from the record that the land acquired and subject matter of this appeal is as under:- Sr.No. Survey & Hissa No. Area(H. R.) ----- ------------------ ----------- 1. S.No.32 H.No.10 0-18-02 2. S.No.33 H.No. 3 0-71-04 3. S.No.34 H.No. 6 0-07-05 4. S.No.35 H.No. 3 0-43-08 5. S.No.36 H.No. 2 0-64-06 6. S.No.36 H.No. 4 0-11-01 . The notification under Section 4 was published in the Official Gazette on 7/2/1991 and the Land Acquisition Officer passed his award on 31/1/1994 and granted compensation at the rate of Rs.2/- per Are. In addition, he granted a total compensation of Rs.27,650/- for all the coconut trees. The land :4: owners were dis-satisfied and, therefore, an application under Section 18 of the Act was submitted on or about 10/11/1994 praying for enhancement of compensation. By the order dated 20/1/1995, the reference was forwarded to the Reference Court. In their application, the land owners had clearly stated that the application was in time. The Land Acquisition Officer filed Written Statement and opposed the reference. The claimants examined Shri Raman Vasantrao Kulkarni - PW 1 and one of the owners of the land, Shri Udhav Babaji Warkhandkar - PW 2 (Valuer) and Shri Mingel Baltu Souz - PW 3 and land owner of the neighbouring land. It appears, along with L.A.R. No. 18 of 1995, there are two more references i.e. L.A.R.Nos.19 and 20 of 1995 and evidence recorded was common in all the three references. None had stepped in the witness box on behalf of the State Government and, therefore, no documentary evidence was placed before the Reference Court to oppose the reference. 3. The Reference Court in the impugned award has considered that the notification under Section 4 was :5: issued on 7/2/1991, the Index II copies at Exhs.31 to 38 and 45 to 47 in respect of sale instances from the year 1992 to 1993 were placed on record. It also noted that the valuation made by the Revenue Circle Inspector with the help of the panchas was at Rs.2500/- per Are. The State Government was charging stamp duty in instrument of transfer of the land at the rate of Rs.3000/- per Are during the relevant period and the documents at Exhs. 29 and 30 also indicated that the Mad Bagayat land had the market value of Rs.2800/- per Are from the year 1989 onwards and in the year 1991 it was Rs.3000/- per Are. The Reference Court, therefore, held that when the State Government itself had accepted the market value of the suit land (Mad Bagayat) at Rs.3000/- per Are, it ought to be treated as the market value for payment of compensation under Section 23 of the Act. 4. We have also noticed that the document at Exh.35, which is Index II in respect of transfer of 63 Are land out of 98 Are and the Government has charged stamp duty on Rs.1,90,000/-, though the sale transaction indicated the total consideration of :6: Rs.1,00,000/-. This Index also indicates the market rate of the land covered by the document at Exh. 35 little over Rs.3000/- per Are. On the face of this documentary evidence, which could not be rebutted by the State Government, it cannot be said that the Reference Court was in error in fixing the market rate at Rs.3000/- per Are. 5. Coming to the Cross Objection, though the claimants demanded the compensation at the rate of Rs.5000/- per Are and compensation for trees in excess of Rs.1000/- per tree, we do not find any documentary evidence in support of such a claim. The Land Acquisition Officer had granted Rs.27,650/- for 65 coconut trees and the Reference Court has granted Rs.65,000/-. In short, the Land Acquisition Officer granted about Rs.450/- per tree and the Reference Court has raised it to Rs.1000/-. It was submitted by Mrs. Mulekar, the learned AGP that the compensation amount in respect of the land ought to have been determined on the basis of income capitalisation from the coconut trees. We are not impressed by these submissions, though Mrs. Mulekar relied upon the :7: decision in the case of State of Haryana vs. Gurcharan Singh and anr. [AIR 1996 SC 106] [AIR 1996 SC 106] [AIR 1996 SC 106]. We reproduce the following relevant observations from the said decision in 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 need 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 and one 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 the land includes the benefits to arise from the land as defined in Section 3(a) of the Act. :8: After compensation is determined on the basis of the value of the land from the income applying suitable multiplier, then the trees would be valued only as fire-wood and necessary compensation would be given....." . In the instant case, we have noted that the acquired land admeasures over 5 Acres and there were in all 65 coconut trees. The market rate of the land has not been assessed on the basis of capitalising income from the fruit bearing trees. The market rate, on the other hand, has been fixed on the basis of the Government’s own valuation as has been noticed from Exhs.29 and 30. The Government was calling upon the parties to the transaction to pay stamp duty at the rate of Rs.3000/- per Are in the year 1991. So long as the market value is not fixed on the income capitalisation basis, the ratio laid down in Gurcharan Singh’s case (Supra) cannot be made applicable. The Land Acquisition Officer had himself granted Rs.450/- per tree, in addition to the market value he had determined. Hence, the exercise made by the Reference :9: Court is just and proper and it has also not taken into consideration the claim made by the land owners for additional compensation for the trees on the basis of the income claimed to have been derived from each of such trees. 6. For the reasons stated above, the appeal filed by the State Government as well as the Cross Objection filed by the land owners must fail and the same are hereby dismissed, but without any order as to costs. (D.G. Karnik,J.) (D.G. Karnik,J.) (D.G. Karnik,J.) (B.H. Marlapalle,J.) (B.H. Marlapalle,J.) (B.H. Marlapalle,J.)