1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD FIRST APPEAL NO. 209 OF 1996 WITH CIVIL APPLICATION NO. 1530 of 1996 The State of Maharashtra .. appellant ori.resp. versus 01. Laxman Madhav Ware, .. respondent age 65 years, occup. claimant r/of Karodi, Tq. Pathardi, District Ahmednagar. WITH FIRST APPEAL NO. 212 OF 1996 WITH CIVIL APPLN. NO. 1533 OF 1996 The State of Maharashtra .. appellant ori.resp. versus Dadaba Laxman Dahiphale, .. respondent/ age major, r/of Karodi claimant Tq. Pathardi Dist.Ahmednagar WITH FIRST APPEAL NO.213 OF 1996 WITH CIVIL APPLN. NO.1535 OF 1996 The State of Maharashtra .. appellant ori.resp. versus Shamrao Ganu Khedkar, age 51 yrs.occup.agril Respondent/ r/of Karodi Taluka Pathardi claimant Dist.Ahmednagar 2 WITH FIRST APPEAL NO.214 OF 1996 WITH CIVIL APPLN. NO.1536 OF 1996 The State of Maharashtra .. appellant/ respondent vs Ranganath Labha Khedkar, age 51 years, occup.agril .. respondent/ r/of Karodi, Tq. Pathari claimant District Ahmednagar. WITH FIRST APPEAL NO. 215 OF 1996 WITH CIVIL APPLN. NO.1537 OF 1996 The State of Maharashtra .. appellant/ respondent versus Laxman Yadav Khedkar, age 60 years, occup.agril. .. respondent/ r/of Karodi Tq. Pathardi, claimant District Ahmednagar WITH FIRST APPEAL NO.216 OF 1996 WITH CIVIL APPLN. NO.1538 OF 1996 The State of Maharashtra .. appellant/ respondent versus Namdeo Babu Khedkar, age 60 years, occup.agril r/of Karodi, Taluka Pathari, respondent/ District Ahmednagar. claimant 3 WITH FIRST APPEAL NO.217 OF 1996 WITH CIVIL APPLN. NO.1539 OF 1996 The State of Maharashtra appellant/resp. versus 01. Babu Bhau Khedkar, age 35 years, occup.agril 02. Mahadeo Bhau Khedkar, age 25 years,occup. agril. both r/of Karodi, Tq. resp/claimants Pathardi, Dist.Ahmednagar. WITH FIRST APPEAL NO. 218 OF 1996 WITH CIVIL APPLN. NO.1540 OF 1996 The State of Maharashtra, appellant/resp. vs Trimbak Dadasaheb Khedkar, age 55 years, occup.agril r/of Karodi, Tq. Pathardi, District Ahmednagar. resp./claimant WITH FIRST APPEAL NO. 219 OF 1996 WITH CIVIL APPLN. NO.1541 OF 1996 The State of Maharashtra appellant/resp. vs Navnath Maruti Khedkar, age 55 yrs.occup.agril. r/of Karodi, Tq.Pathardi, District Ahmednagar. resp./claimant 4 WITH FIRST APPEAL NO. 1151 OF 2003 Trimbak Dadasaheb Khedkar, age 65 years, occup.agril. r/of Karodi, Tq. Pathardi, District Ahmednagar. appellant/claimant vs 1. The State of Maharashtra 2. Special Land Acquisition' respondents Officer No.__ Ahmednagar, WITH FIRST APPEAL NO. 1157 OF 2003 Laxman Madhav Ware, age 70 years, occup.agril r/of Karodi, Tq. Pathardi District Ahmednagar. appellant/claimant vs 1. The State of Maharashtra 2. Special Land Acquisition respondents Officer No.__ Ahmednagar, WITH FIRST APPEAL NO. 1194 OF 2003 1. Nanaba Genu Khedkar, age 49 years, occup.agril 2. Parubai Jagannath Khedkar, age 43 years, occup.agril both r/o Karodi Tq.Pathardi, District : Ahmednagar appellants/claimants versus The State of Maharashtra .. respondent 5 WITH FIRST APPEAL NO.295 OF 2008 Dadaba Laxman Dahiphale, through General Power of Attorney Bhagwan s/o Dadaba Dahiphale, age 64 years, occup.agril r/o Karodi, Tq. Pathardi, District: Ahmednagar. appellant/claimant vs The State of Maharashtra respondent ----------------------------------------------------------- Shri T.S. Lodhe Patil A.G.P. for State appellant-in FA Nos. 209,212, 213, 214, 215, 216, 217, 218, 219 of 1996 and for respondent-State in F.A. Nos.1151,1157,1194 of 2003 and F.A. No.295 of 2008. Shri D.R.Jaibhar and Shri S.L. Bhapkar, for respondents-claimants in FA Nos. 209,212, 213, 214, 215, 216, 217, 218, 219 of 1996 and for appellants- claimants in F.A.Nos. 1151,1157,1194 of 2003 and F.A.No.295 of 2008, respectively. ----------------------------------------------------------- Coram : P.R. Borkar, J. Date : 13.04.2010. ORAL JUDGMENT 01. This is a group of First Appeals arising out of same common judgment and award delivered and passed by the learned Joint Civil Judge, Senior Division, Ahmendnagar, in group of Land Acquisition References (L.A.R. No.105 of 1999 and other connected L.A.Rs.) decided on 27.2.1992. First Appeal Nos. 209/96, 212/96 to 219/96 are filed by the State of Maharashtra. Remaining four appeals are filed by 6 original claimants being aggrieved by refusal to grant higher compensation as prayed. Since all these appeals arise out of the common award, common evidence is led in L.A.R.No.108 of 1990 (out of which First Appeal No.208 of 1996 arises and which is dismissed as not tenable in law as per order dated 25.3.2010) and in L.A.R. No.401 of 1991, and so this group first appeals is heard together and is being conveniently disposed of by this common judgment. 02. Brief facts giving rise to these appeals may be stated as follows; The State Government acquired various lands situated at village Karodi, Taluka Pathardi, District Ahmednagar for construction of percolation tank at Karodi. Notification under Section 4 of the Land Acquisition Act, ("L.A.Act" for brevity) was published in Government Gazette dated 13.9.1984 and subsequent corrigendum was published in Government Gazette dated 18.4.1985. It is stated that before issuance of notification, the Government had taken possession of land on 11.7.1983. The Special Land Acquisition Officer "S.L.A.O." in short) made enquiry under section 11 of the L.A. Act and held that all the 7 lands acquired were jirayat lands. He grouped those lands as Class I, Class II and Class III lands on the basis of revenue assessment and awarded compensation of Rs.3000/= per hectare for Class I land, Rs.3,500/= per hectare for Class-II land and Rs.4,000/= per hectare for Class III-lands. 03. It is the case of the claimants that their lands were irrigated lands deriving irrigated crops. It is also their case that in some of the lands there were fruit bearing trees and their valuation was not properly done by the S.L.A.O. while declaring awards of lower compensation. Therefore, at the instance of claimants references under Section 18 of the L.A. Act were made to the Reference Court (Civil Judge, Senior Division). 04. The State Government filed its written statement at Exhibit 4 and supported the awards declared by the S.L.A.O. and denied that the lands were irrigated or that their market value was more than that what is determined by the S.L.A.O. 05. The learned Reference Court allowed the claim petitions/references and awarded higher 8 compensation by the impugned common judgment and awards dated 27.2.1992 which are challenged in this group of first appeals by both, the State Government and some of the claimants. According to the State Government, the learned Reference Court has awarded excessive compensation, whereas, according to the claimant-appellants, compensation awarded by Reference Court is much less than what it should have been. 06. Heard Shri T.S.Lodhe Patil, learned A.G.P. for appellant-State, Shri D.R. Jaibhar and Shri S.L.Bhapkar, learned Advocates for claimants. 07. So far as quality of the lands acquired is concerned, the Reference court has considered this aspect in paragraph 11 onwards of its judgment. On behalf of claimants in L.A.R NO.108 of 1990, one Nanaba Genu Khedkar is examined at Exhibit 15. Sale instances are produced at Exhibits 12 and 13. One Rabhaji Namdev Daiphale is examined as CW-2 at Exhibit 23 to prove sale instance at Exh.13. These sale instances are from village Chinchpur Ijade and not from village Karodi where acquired lands are situated. 9 08. At the outset, it may be stated that various lands are acquired in respect of which award is passed by the S.L.A.O. against which different Land Acquisition References were filed. Land Acquisition Reference Nos.105 of 1990 to 115 of 1990 and 401 of 1991 arise out of Award No. LAQ/SR/117/87 declared on 16.6.1988 in respect of various lands i.e. land Gat Nos. 115/2/2, 115/2/4 in L.A.R. No.105/90, Gat No. 114/7 in L.A.R. No.106/90, Gat No.114 in L.A.R. No. 107/1990, Gat No.115/1A & 115/G in L.A.R. No.109 of 1990, Gat No.89 in L.A.R. No.110/1990, Gat No.115/1H in L.A.R. No.111/90, Gat No.113/12 and 114/10 in L.A.R. No.112/90, Gat No.113/1 and 114/9 in L.A.R. No. 113/90, Gat No.88 in L.A.R. No.114/1990, Gat No. 113/13, and Gat No.114/6 and Gat No.14/15 and 114/11 in L.A.R. No.108/90, Sry. No. 113/1 and 114/9 part in L.A.R. No.401 of 1991 acquired by the State of Maharashtra. 09. The Reference court has considered V.F. 7x12 extracts and oral evidence. Even in cases where it was found that there was some area of lands under well, compensation was awarded for well. On consideration of crops actually taken, it was held that such well had no sufficient water. It is 10 admitted on behalf of claimants that the S.L.A.O. had visited and inspected the suit lands. The learned Reference Judge considered the notes drawn by the S.L.A.O. in which he has mentioned that the lands acquired were on the bank of nala. However, considering the crops shown in the Record of Rights, the lands were held to be dry lands. Thus, all the lands were found by the Reference Court to be jirayat land, as mainly crops, such as, Bajara and Math were taken. The reasons given by the Reference Court are well founded and there is proper appreciation of evidence on record. 10. So far as compensation of Rs,5,055/= awarded as excess is concerned, in paragraphs 16 of judgment of the Reference Court we find good reasons in support of the same. I, therefore, agree with the learned Reference Judge as regards discussion of nature of acquired land made in paragraphs 11 to 18 of the judgment. 11. The next question dealt with by the Reference Court is regarding two sale instances placed on record for claiming higher compensation. Exhibit 12 is the certified copy of index No.II in respect of 11 Gat No.243/48 having area of 25 R. situated at village Chinchpur Ijade. It was a sale by one Bhaginath Dahiphale in favour of one Ambadas Dahiphale and Chandrakant Dahiphale. Sale was on 2.4.1980 for Rs. 14,500/=. However, neither the purchaser nor the seller is examined to prove either the quality of the land involved in the said transaction or that the instance is comparable with acquired lands. Moreover, the notification under Section 4 of the L.A. Act in this case was of 1984 and instance was of 1980 and that too from another village and not from the same village. The learned Reference Judge observed in paragraph 19 of his judgment that some sale transactions from village Karodi were available which were of period when Section 4 Notification was issued. It is also observed that the sale instance at Exhibit 12 is of irrigated land deriving irrigated crops by well water. There were two mango trees in the land sold. Sale instance was therefore held to be not comparable with the acquired land. 12. Another sale instance relied upon is at Exh. 13. Sale of 8 R. land from village Chinchpur Ijade was by one Rabhaji Namdeo Dahiphale in favour of Punjaba Lahanu Dahiphale. Sale is dated 24.6.1980 for Rs. 12 9000/=. Seller Rabhaji is examined at Exh.23. According to him, his land was irrigated. It was small area. Crop like wheat, jawar were taken in the said land. It is also noted by the learned Reference Court in para. 20 of its judgment that Punjaba who was purchaser was the owner of adjoining land and, therefore, that sale instance was not considered to be of land comparable with the acquired land. 13. Thereafter, claimants also relied upon sale instance referred to in L.A.R. No.401 of 1991. One Dagadabai Bapu Khedkar of village Karodi sold her land survey No.138/3 admeasuring 18 R. Dagadabai is examined at Exhibit 15 in L.A.R. No.401 of 1991. She proved sale deed at Exhibit 11. She deposed that she sold dry land, but the sale deed indicated that the land was having facility of well water from the well situated in Survey no.142 and the purchaser had purchased right in the well for irrigating land purchased by him. However, Dagadabai was not found to be reliable inasmuch as she stated that she sold land for Rs.20,000/= but to avoid payment of court fee stamp, price was shown to be Rs.15,000/=. The trial court rightly rejected the said evidence of Dagadabi. However, on giving consideration to the sale instance 13 referred to by the S.L.A.O. in his award and considering the sale instance proved by Dagadabai in L.A.R. NO.401/1991, the Reference Court in paragraph 22 held that the prevailing market value for dry land as Rs.20,000/= per hectare and Rs.30,000/= per hectare for seasonally irrigated land. After considering the reasons given by the Reference Court, in my opinion, so far as this aspect is concerned, we can say that the view taken by the reference court is a reasonable one and the award of the S.L.A.O. to that extent can be confirmed. 14. However, so far as other part of the judgment of the Reference Court is concerned, it deals with valuation of the trees. In this respect, before the Reference Court, there was report of the Deputy Director of Horticulture at Exhibit 17. However, on behalf of claimants, Dr. Mukund Ramrao Gaikwad is examined as CW-3 at Exhibit 23 and his valuation report is at Exhibit 22. He deposed that on 30.3.1991 he visited and inspected soil of lands bearing Gat Nos.113/13, 114/6, 114/11, 115/23, 115/24, 113/12, 114/10, 89/9,88, 114/7, 114/8, 115/14, 113/1 and 104/9 of village Karodi. According to this witness, he inspected trees of mango, Jambhul, 14 Tamarind, custard apple, Ramphal in the said lands. According to the witness, the said lands and the climatic condition of the said village were suitable for proper growth of the said trees. However, witness Dr. Gaikwad did not challenge the girth, height, spread, condition and age of trees as noted by the Deputy Director of Horticulture in his report Exhibit 17. But, according to Dr. Gaikwad, yield of the fruits from each tree ought to have been more. In paragraph 24 of its judgment, the Reference Court has given comparative table of the opinions given by the Deputy Director of Horticulture and witness Dr. Gaikwad which I reproduce below. -------------------------------------------------- Kind of tree According to Dy. According to Director of Hort. Dr. Gaikwad. -------------------------------------------------- Custard apple 9 Dozens 25 Dozens Bare tree 35 Kg. 100 Kg. Mango 650 fruits 1200 fruits Tamarind 40 kg. 200 kg. Jambhul 45 kg. 200 kg. -------------------------------------------------- 15 15. Witness Dr. Gaikwad in his examination-in- chief stated in his deposition that conditions like pests, attacks of insects, diseases, abnormal conditions have been considered by him. However, he has admitted in cross examination that each tree differs in fruit yielding. He also admitted that taste of fruit differs fruit to fruit. He also admitted that the market price of fruit mainly depends upon taste and that he did not know the taste of the fruits inspected by him. He also admitted that size of the fruit differs from tree to tree and that he had not seen sizes of fruits of the trees when he inspected the lands. Witness claims to have inspected the land on 30.3.1991 when all types of fruits may not be there in ripen or semi ripen condition. 16. One of the major reasons for disbelieving the evidence of CW-3 Dr. Gaikwad as canvassed before me is that it is held by the learned Reference Judge in paragraph 30 of his judgment that the possession of the acquired lands was handed over on 12.1.1973. Award shows that possession was taken by private negotiations on 11.7.1983. The claimants themselves say that possession was given on 12.1.1973 and as such 16 claimed 12 per cent component from that date under Section 23-1A of the L.A. Act. Reference Court also gave 12 per cent component with effect from 12.1.1973 which, as observed by it, is the date of delivery of possession. 17. Learned A.G.P. Shri T.S. Lodhe Patil for the appellant-State drew my attention to the affidavit filed by the S.L.A.O. on 15.2.2010 in First Appeal No. 208 of 1996 on which Advocate Shri Jaibhar and Shri Bhapkar also wanted to rely. As per the said affidavit possession of the land was taken on 11.7.1983 and percolation tank was completed on 28.11.1984. Along with said affidavit, a copy of the letter dated 29.4.1988 is annexed as Exh. A-1 which is written by the Executive Engineer (MI) Zilla Parishad, Ahmednagar to the Commissioner, Nasik Division, Nasik. The letter clearly indicates the date of completion of percolation tank as 28.11.1984. There is no reason to disbelieve the said letter. The question arises whether after the land was taken into possession either in 1973 or in 1983, claimants would look after the lands and whether there was anybody to look after, tend, nurture the fruit bearing trees in the acquired lands. It is impossible to believe that 17 even after completion of percolation tank on 28.11.1984, the fruit trees or orchards were in existence in the acquired lands till March 1991 when Dr. Gaikwad claims to have visited the acquired lands. Thus, witness Dr. Gaikwad had no opportunity to visit and inspect the fruit trees on 30.3.1991. In my opinion, evidence of Dr. Gaikwad has to be rejected on this count itself. It is impossible to believe that there would be fruit growing trees in acquired land seven years after completion of percolation tank. So, entire evidence of Dr. Gaikwad is nothing, but falsehood. The learned Reference Court appears to have fallen into error in believing such evidence. 18. In the circumstances, appeals by State are partly allowed. The claimants would be entitled to compensation at the rate of Rs.20,000/= per hectare as determined by the Reference Court and price of fruit bearing trees as determined by the Deputy Director of Horticulture. Excess compensation awarded by the Reference Court towards fruit bearing trees is hereby quashed and set aside. However, the claimants would be entitled to 30 per cent solatium and 12 per cent component under Section 23(1A) of the L.A. Act, so also interest at 9 per cent per annum for first year 18 from the date of Section 4 Notification and 15 per cent per annum from second year onwards till actual payment. The appeals by claimants are dismissed. Appeals are accordingly, disposed of. Consequently, Civil Applications also stand disposed of. pnd/fa209.96 (P.R.BORKAR, J.)