1 srk IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE First Appeal No. 358 of 1999 With Cross Objection Stamp No.8216 of 2000 With Civil Application No.4486 of 2000 The State of Maharashtra (Through the Special Land Acquisition Officer National Highway Project, Nashik) Appellant (Org. Opponent) Vs. 1. Damu Shankar Gorade 2. Smt.Sitabai Shankar Gorade Respondents (Org.Claimants) With First Appeal No. 359 of 1999 With Civil Application No.4487 of 2000 The State of Maharashtra (Through the Special Land Acquisition Officer National Highway Project, Nashik) Appellant (Org. Opponent) Vs. 1. Chandrabhan Mahadu Ghotekar since deceased through legal heirs: 1-A. Shri Vishal Chandrabhan Ghotekar 1-B Sagar Chandrabhan Ghotekar 1-C Hemant Chandrabhan Ghotekar 1-D Smt.Vanita Kailas Patil 1-E Smt.Renukabai Chandrabhan Ghotekar Respondents (Org.Claimants) 2 With First Appeal No. 360 of 1999 With Cross Objection Stamp No.12838 of 2000 With Civil Application No.4488 of 2000 The State of Maharashtra (Through the Special Land Acquisition Officer National Highway Project, Nashik) Appellant (Org. Opponent) Vs. Vasant Gajanan Ghotekar age 16 yeas, minor by his guardian natural mother no.2, Saraswatibai Gajanan Ghotekar Respondent (Org.Claimant) With First Appeal No. 361 of 1999 With Cross Objection Stamp No.9971 of 2000 With Civil Application No.4489 of 2000 The State of Maharashtra (Through the Special Land Acquisition Officer National Highway Project, Nashik) Appellant (Org. Opponent) Vs. Shri Deoram Mahadu Ghotekar Respondent (Org.Claimant) Mrs.G.P.Mulekar, AGP for Appellants in all appeals. 3 Mr.P.N.Joshi for claimants in First Appeal Nos.358 to 360 of 1999. Mr.R.A.Thorat for claimant in First Appeal No.361 of 1999. CORAM: B.H.MARLAPALLE & S.J.VAZIFDAR,JJ. Reserved on : July 16, 2009. Pronounced on: August 27, 2009. JUDGMENT (PER B.H.MARLAPALLE,J.) 1. All these Appeals have been filed under Section 54 of the Land Acquisition Act, 1894 by the State Government against the common award dated 23/4/1997 passed by the Joint District Judge, Nashik in Land Reference Nos.412, 413, 415 and 417 of 1989. In the first part of the award the Reference Court fixed the market value of the land acquired at Rs.25,000/- per hectare and in the second part it awarded compensation for the fruit trees as well as for the well and structures. The claimants have filed Cross Objections in First Appeal Nos.358, 360 and 361 of 1999 and claimed higher market value for the land as well as higher compensation for the fruit bearing trees. In his depositions before the Reference Court, Shri Somanth Damu 4 Gorade – the claimant in L.R. No. 413/1989 stated that in L.R. No. 402/1989 the claimant had received Rs.25000/- per hectare as market value for the bagayat land and hence he claimed the very same market value on the basis of parity. However, during the course of the arguments it is not much in dispute between both the parties that the market rate awarded at Rs.25,000/- per hectare has been confirmed by this Court in connected appeals and, therefore, the challenge in these appeals remains only in respect of the compensation awarded for the fruit bearing trees by the common award. 2. The Government of Maharashtra issued the notification under Section 4 of the Land Acquisition Act, 1894 (“the Act” for short) on 30/10/1980 for acquiring the land for construction of Nandur Madmeshwar Express Canal and the declaration under Section 6 was published on 2/7/1981 whereas the SLAO passed his award on 23/9/1986. The claimants accepted the award amount under protest and submitted an application under Section 18 of the Act for enhanced compensation. They claimed that the market rate of the acquired land was required to be fixed at Rs.50,000/- for bagayat and Rs.25,000/- for jirait as against the market rate awarded by the Land Acquisition Officer 5 at Rs.9500/-. So far as the fruit bearing trees are concerned the Reference Court in L.A.R.No.413/89 fixed the compensation at Rs.900/- per tree for 970 grape trees, Rs.100/- per tree for 33 grape trees, Rs.800/- per tree for 249 guava trees, Rs.50/- per tree for 24 guava trees and Rs.3000/- per tree for 25 mango tress. In L.A.R.No.412/89 the Reference Court fixed the compensation at Rs.750/- per tree for 200 grape trees, Rs.3000/- for one mango tree. In L.A.R. No.415/89 the compensation for trees was fixed at Rs.750/- per tree for 181 grape trees and Rs. 3000/- per tree for five mango trees. In L.A.R.No.417/89 it was fixed at Rs.750/- per tree for 181 grape trees. In L.A.R.No. 413/89 the compensation for the land was awarded at Rs. 33,500/- admeasuring 1 H. 34 R. whereas for all the fruit trees the compensation awarded came to Rs.11,51,700/-. In L.A.R.No.412/89 the compensation for the land was awarded at Rs.16,750/- measuring 67 R. whereas for the fruit bearing trees the compensation amount granted was Rs.1,53,000/-. In L.A.R.No.415/89 the compensation for land admeasuring 66 R. was awarded at Rs.6500/-, whereas for the bruit bearing trees the compensation awarded came to Rs.1,50,750/-. In L.A.R. No. 417/89 the compensation for the land admeasuring 67 R. was at Rs.16,750/- whereas for the fruit bearing trees compensation 6 was awarded at Rs.1,35,750/-. 3. It was submitted by the learned AGP that the method adopted for determining the compensation for the fruit bearing trees by the Reference Court is based on income capitalization method and the same cannot be adopted when the compensation for the land has been awarded by fixing the market value as Bagayat land (perennially irrigated). It was submitted that if the market value of the land is fixed on the basis that it is Bagayat land, the fruit bearing trees cannot be separately valued and compensation if at all has to be on the basis that it was firewood. In the alternative it was submitted that if the compensation for fruit bearing trees is calculated and awarded on the basis of income capitalization method, no compensation is required to be given for the land acquired and the claimants cannot have both the benefits. They must opt for one of them and it was fairly conceded before us that better of the two benefits could be allowed to be retained. It was further submitted that the valuation done in respect of the fruit bearing trees is also excessively high, it is unreasonable and unrealistic. If the Reference Court accepted the Government Valuer’s report (Deputy Director of Horticulture at Exhibit 14), the said report 7 was required to be accepted in toto and not in bits and pieces. The learned AGP, therefore, submitted that even the compensation fixed for the fruit bearing trees even by following income capitalization method is excessive and is required to be slashed down and in no case there could be separate compensation granted for the land on which the fruit bearing trees were standing. In support of these arguments the learned AGP has placed reliance on the following decisions: 1. State of Haryana v. Gurcharan Singh [1995 Supp (2) SCC 637] 2. Land Acquisition Officer, A.P. Vs. Kamadana Ramkrishna Rao & anr. [(2007) 3 SCC 526] 3. Dy. Director, Land Acquisition Vs. Malla Atchinaidu & ors. [(2006) 12 SCC 87] 4. Kiran Tandon Vs. Allahabad Development Authority & anr. [(2004) 10 SCC 745] 5. Special Land Acquisition Officer, Malaprabha Dam Project V. Madivalappa Basalingappa Melavanki [(1995) 5 SCC 670] 6. Special Land Acquisition Officer, Devangere Vs. P. Veerabhadrappa & ors. [(1984) 2 SCC 120] 8 She has also relied upon the following decisions of this Court: 1. Ramgonda Layappa Birajdar & ors. Vs. Special Land Acquisition Officer No.6, Sangli & ors. [2006 (2) Mh.L.J. 436] 2. Special Land Acquisition Officer, M.I.W., Jalgaon Vs. Chindha Fakira Patil (deceased) Heirs Dharma Chindha Patil [2007 (2) Mh.L.J. 130] 3. State of Maharashtra Vs. Sahadu Aba Shete & ors. [2009 (1) ALL MR 186] As per the learned AGP, the possession of the land was taken over on 8/4/1987 and thus for about seven long years, the claimants had derived and enjoyed the income from the fruit bearing trees as per their own case and this period of seven years was required to be deducted from the life span of the trees while calculating compensation by the income capitalization method in Exh. 14. Mrs. Mulekar by referring to 9 the depositions of PW 3 – Shri Uttamrao Patil, the Private Expert Valuer examined by the claimants, submitted that if the said valuer had visited the acquired land on 15/10/1985 and noted that 970 grape trees were of 6 years of age and 273 Guava trees were of 9 years of age, it was clear that the grape trees were planted after the notification under Section 4 of the Act was issued on 30/10/1980 and, therefore, the land owner cannot claim compensation for the grape trees at least. She also made the said argument in respect of the acquired land and covered under L.R. Nos. 412, 415 and 417 of 1989 as PW 3 has stated that he had noticed in the said Gat number, 562 grape trees of 5 years of age which clearly implied that all these trees were planted after the notification under Section 4 of the Act was issued. She referred to Section 24 – fifthly of the Act and submitted that these trees were planted to increase the value of the land and after the notification was issued under Section 4 of the Act, Section 24 - seventhly made it clear that the land owners were required to obtain the sanction from the Collector before undertaking such plantation of fruit bearing trees. The learned AGP, therefore, urged before us that the land owners were not entitled for any compensation in respect of the fruit bearing trees on the basis of income capitalization method 10 when the market value of the land was fixed on the basis that it was a bagayat land. 4. Mr.Joshi, the learned counsel for the claimants on the other hand, submitted that as per the scheme of Section 23 of the Act, the compensation to be awarded to the claimants is in different parts. Firstly it is the market value of the land and in addition, for the fruit bearing trees or structures thereon are required to be valued for payment of additional compensation by way of damages. As per Mr. Joshi in the instant case the Reference Court has awarded compensation for fruit bearing trees and structures by way of damages and, therefore, it does not call for any interference more so when the said valuation is based on the report of the State Government Valuer as well as private valuer PW 3 examined by the claimants. It was submitted that the valuation so made is not realistic and in fact it is on the lower side and, therefore, it requires to be enhanced because while fixing the compensation the Reference Court has not taken into consideration the total life of the trees as well as the yield and market rate as per the private Valuer’s report. In the alternate Mr.Joshi submitted that even if this Court finds that the valuation for the fruit bearing trees made by the Reference 11 Court is just and proper, there is no reason to interfere with the award passed by the Reference Court and the claimants ought to receive the market value for the land as well as the compensation for fruit bearing trees. Mr. Joshi does not agree with the submissions made by the learned AGP that the claimants can have either of the benefits i.e. either the compensation for the land by way of its market value or the compensation for the fruit bearing trees on the basis of the income capitalization method. In support of these arguments Mr. Joshi has placed reliance on the following decisions: 1. State of Haryana v. Gurcharan Singh [1995 Supp (2) SCC 637] 2. KAA Raja & ors. Vs. State of Kerala & anr. [(1994) 5 SCC 138] 3. State of Jammu and Kashmir Vs. Mohammad Mateen Wani [AIR 1998 SC 2470] 4. Navanath & ors. V. State of Maharashtra [JT 2009 (6) SC 386] 12 5. Hansraj Sharma (dead) by Lrs Vs. Collector, Land Acquisition, Tehsil and District Doda [2005 (2) Mh.L.J. 557] 5. In support of the claim for enhancement of compensation, the claimants had examined in all four witnesses and also had relied upon the expert’s evidence recorded in L.R. No. 402 of 1989. PW 1 – Somnath Damodhar Gorade was the claimant in L.R. No. 413 of 1989, PW 2 – Chandrabhan Mahadu Ghotekar was the claimant in L.R. No. 412 of 1989 and he stated that his brothers were claimants in L.R. Nos. 415 and 417 of 1989 and he deposed on their behalf as well. He admitted that the total land acquired and covered under L.R. Nos. 412, 415 and 417 of 1989 admeasure 2 hectares and each of the three brothers had 1/3rd share. In addition, two more witnesses, namely, PW 3 – Shri Uttamrao Wamanrao Patil, Agricultural Consultant and Expert for private valuer and PW 4 – Jayendra Valabhdas Pabari – Architect and approved Government Valuer were examined. PW 3 was examined as an expert valuer for determining the compensation payable for fruit bearing trees on income capitalization basis and PW 4 was examined to determine the valuation of the structures standing on Gat No. 200. In the 13 evidence of PW 1, 7x12 extracts of his land in Gat No. 199 and totally admeasuring 1 H. 34 R. were brought on record at Exhs. 15, 16, 17 and 18. He also brought on record the railway receipt to show goods dispatched to Varanasi (Exh. 20), to Patna (Exh. 21), receipts of Carting Agent of Manmad (Exh. 22) and of Lasalgaon (Exh. 23). PW 1 - Somnath stated in his depositions that there were 1003 grape trees, 273 guava trees and 25 mango trees standing in his land at the time when the possession was handed over. He relied upon the Government Valuer’s report at Exh. 14 which he had produced before the court and he claimed Rs.2000/- per grape tree, Rs.1000/- per guava tree as compensation. In his cross examination he admitted that the plantation of guava garden was in the year 1974-75 and the grape garden plantation was in the year 1976. In his examination-in-chief he stated that guava and grape trees were fruit bearing trees at the time of acquisition and this statement clearly went to show that the 25 mango trees which he claimed were standing on the land were not bearing fruits at the relevant time and obviously he did not claim compensation on the lines he claimed for the grape and guava trees. PW 2 – Chandrabhan stated that the share of each of the three brothers was 66 R, 67 R and 67 R out of 2 hectare land from Gat No. 14 200. As per him, in his land (L.R. No. 412/89) there were 200 grape trees, in the land of his brother Gajanan (L.R. No. 415/89) there were 181 grape trees and in the land of second brother Depram (L.R. No.417/89) there were 192 grape trees, thus making a total of 573 grape trees in Gat No. 200. However, the Government valuer found 562 grape trees in Gat No. 200. He also relied upon the report at Exh. 14 made by the Government Horticulturist and stated that he had engaged a private valuer to determine the valuation of fruit bearing trees. He also relied upon the letter dated 10/12/1982 at Exh. 26. Coming to the evidence of PW 3, as noted earlier, he admitted that he visited the land in Gat No. 199 for the first time on 15/10/1985 and noted that there were in all 970 grape trees of 6 years of age, 33 grape trees were less in age and the quality of 970 trees were of Thomsan Seedless. He also stated that there were 273 guava trees of 9 years old and they were of local variety. He further stated that he noticed 12 mango trees of 9 years of age in the said land in Gat No. 199. He stated that he visited the land in Gat No. 200 also on the same day and he found 562 grape trees of 5 years old, 4 guava trees of 8 years old, 2 lemon trees of 7 years old, 3 bor trees of 8 years old and 6 mango trees of 9 years of age. He submitted the valuation report at 15 Exhs. 33, 34, 35 and 36. He admitted in his cross-examination that the mango trees in the land at Gat No. 199 were of local variety and they were not planted. It is pertinent to note that the Government valuer noticed only 249 guava trees in the land in Gat No. 199 which were fruit bearing, whereas the other 24 guava trees were just saplings. The private valuer had fixed the annual income of 970 grape trees at Rs. 1087/- per tree as against the same valuation is fixed at Rs.595/- and Rs.423/- per tree by the Government valuer in Gat No. 199. The private valuer did not consider granting any compensation for 33 grape trees which were newly planted in the said land. In respect of grape trees in Gat No. 200, the private valuer fixed the annual income of Rs.1043/- per tree, whereas the Government valuer fixed the same at Rs.423/- per tree. In respect of the guava trees, the private valuer fixed the compensation at Rs.800/- per tree, whereas the Government valuer fixed the said amount at Rs.600/- per tree for 249 trees and Rs.56/- per tree for 24 trees. In respect of the mango trees, the Government valuer fixed the compensation at Rs.50/- per tree and Rs.75/- per tree whereas the private valuer estimated the said amount at Rs.5018/- per tree. The following 16 comparative chart will indicate the valuation made by the Government valuer, private valuer and the court: Trees Govt.Valuer Private Valuer Reference Rs. Per tree Rs. Per tree Court Rs. Per Tree ----------------------------------------------------------------------------------- (a) L.R.No.413/89 Grape (363) 595 1087 900 Grape (607) 423 Guava - Gat No.200 600 1008 800 Guava – Gat 600 1008 900 No. 199 Mango 50 & 75 5018 3000 (b) L.R.No.412/89 Grape 423 1043 750 (c) L.R.No.415/89 Grape 423 1043 750 Mango 50 & 75 5018 3000 (d) L.R.No.417/89 Grape 423 1043 750 6. The 7x12 extracts at Exh. 15 in respect of Gat No. 199 shows that in the year 1975-76 guava garden was planted for 17 the first time on 28 R land and jwari cultivation was shown on 1 hectare and same situation continued in the next year i.e. 1976-77. In the year 1977-78 plantation of grape garden has been shown on 1 H. and the guava garden remained as it is. It is thus clear that so far as the land in Gat No. 199 admeasuring 1 H. 34 R. is concerned, it was already under horticulture development much before the notification under Section 4 of the Act was issued and initially it was only guava garden plantation (local variety), whereas in the year 1977-78, 1 H. land was brought under grapes cultivation. A reasonable inference is required to be drawn that in 1 H. of land there were about 1000 grape trees planted and obviously on the remaining 34 R. land there was guava garden. The mango trees noticed were not planted and obviously they must be standing on the peripheral areas. The railway receipts and dispatch receipts brought on record at Exhs.20, 21, 22 and 23 also pertain to the period of February 1980 and while PW 1 was in the cross examination, it was put to him that there was no cultivation of grapes in his land and his father used to buy fruits from the market in bulk and dispatch them to other areas. This suggestion was denied. We are, therefore, satisfied that the guava garden and grape garden was existing on the land in Gat 18 No. 199 before the notification under Section 4 of the Act was issued and hence the submissions made by the learned AGP that the said plantation was done only after the notification under Section 4 of the Act was issued are unsustainable. 7. We have perused the valuation report at Exh.14 made by the Government horticulturist and Exhs. 33, 34, 35 and 36 made by PW 3. Undoubtedly both of them followed the A.E. Mirams system for valuation of the fruit bearing trees on income capitalization method. 8. The claimants placed on record the valuation report at Exh. 14 and made by the Government Horticulturist. The said report appears to be dated 1/8/1983. It states that in the land in Gat No. 199 there were 363 grape trees of 6 years of age and its future age was 19 years. He recorded the annual yield of each tree at 20 Kgs. and the wholesale market price at Rs.6/- per Kg., thus making an annual income of Rs.120/- per Kg. He recorded that there were 602 other variety of grape trees of 5 years of age and the future age was 20 years. He has shown the annual yield at 15 Kgs. and the wholesale market price at Rs.6/- per Kg., thus making the annual income of Rs.90/- per tree. He 19 further stated that there were 38 grape trees which were just one year old and, therefore, there could not be any compensation, except the plantation price. He noted that there were 249 guava trees of 9 years of age and future age was 31 years. He estimated the annual yield at 60 Kgs. and the wholesale market price at Rs. 1/- per Kg., thus making the annual income at Rs.60/- per tree. He noted that there were 15 mango trees but could not give the income as they were of local nature and they were not planted. So far the land in Gat No. 200 is concerned, he has noted 562 grape trees of 5 years of age and future age was 20 years. He estimated annual yield at 15 Kg. per tree and wholesale rate at Rs.6/- per Kg., thus making a total income of Rs.90/- per tree per annum. Guava trees he valued on the same basis as it was done in respect of the land in Gat No. 199. Whereas for the remaining 38 grape trees, he granted Rs. 20/- per tree towards plantation. For the grape trees in Gat No. 200, the Horticulturist awarded Rs. 423/- per tree as the total compensation and for 562 grape trees it came to 562x423 = Rs.2,37,726/-. So far as guava trees in Gat No. 199 are concerned he estimated the total compensation at Rs.600/- per tree and for the same tree in Gat No. 200, as there were only two trees he granted the same compensation. In 20 respect of mango trees, he granted Rs.50/- and Rs.75/- per tree. PW 3, the private valuer, in his report at Exh. 33 followed the very same method, but estimated the annual yield of each grape tree at 26 Kg. per tree and wholesale market rate at Rs. 7/- per Kg. He thus estimated the annual income of each grape tree at Rs.182/-. In Gat No. 199 he calculated the total compensation for each grape tree at Rs.1087/-. For the remaining 33 grape trees he stated that Rs.60/- per tree was required to be paid as compensation towards the plantation is concerned and no compensation in the income capitalization. For guava trees he estimated the annual yield at 90 kg. And the wholesale market rate at Rs.1.25. For the mango trees he calculated the annual income at Rs.430/- per tree. He worked out a total compensation for the guava trees at Rs.1008/- per tree and for the mango tree at Rs.5018/- per tree. 9. We are not in agreement with the private valuer’s report in respect of the annual as well as the wholesale market rate. The report submitted by the Government Horticulturist at Exh. 14, in our opinion, is more realistic and the Reference Court has