(1) FA. 132.1995 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO. 132 OF 1995 Amarsing S/o Gulabsing Hazari Age : 42 years, Occu.: Agri., R/o : Tisgaon, Taluka and Dist.: Aurangabad .. Appellant VERSUS 1] The State of Maharashtra, through it's Secretary, Industrial and Labour Department, Bombay 2] Maharashtra Industrial and Development Corporation, Through its Chief Executive Officer, Bombay 3] The Special Land Acquisition Officer, at Aurangabad (Office at Sharda Colony, Aurangabad) .. Respondents Mr. S.S. Nirkhee, Advocate for the appellant Smt. V.A. More, AGP. for the respondent-State ... CORAM : A.V. NIRGUDE, J. DATED : 2ND FEBRUARY, 2010 ORAL JUDGMENT:- 1] The appellant has filed this appeal against the judgment and award passed by the learned Extra Joint District Judge at Aurangabad in L.A.R. no. 96 of 1987 dated 28.09.1994. (2) FA. 132.1995 2] The facts leading to the litigation are under:- The Government of Maharashtra acquired land block no. 134 admeasuring 8 Acre 34 Guntha of village Tisgaon, Tq. and Dist. Aurangabad for industrial development under the provisions of M.I.D. Act, 1961 (hereinafter referred to as "M.I.D. Act"). The notification under section 32(2) of the M.I.D. Act was published on 22.9.1982 and the possession of the land block no. 134 was taken over on 1.3.1986. The appellant being the owner of the land was paid Rs.9000/- per acre and Rs.256/- per lemon tree for 180 trees as compensation . The Land Acquisition Officer also paid compensation in respect of pipeline, well constructed in the land in question etc. The appellant was not satisfied with the award and he preferred a reference under section 34 of the M.I.D. Act and the same was heard and decided by the learned Judge of the Reference Court as mentioned above. After recording evidence of both the parties, the learned Judge held that the appellant was entitled to enhanced compensation at the rate of Rs.12,500/- per acre and Rs.500/- per lemon tree for 180 lemon trees. The learned Judge of the Reference Court did not disturb the other part of the award delivered by the Land Acquisition Officer. Despite of the enhancement ordered by the learned Judge of the Reference Court, the present (3) FA. 132.1995 Appeal is filed. It was asserted that the learned Judge fell in error in not holding the market value of the land in question between Rs.35,000/- to Rs. 40,000/- per acre. The second objection is the ld. judge erred in awarding compensation @ Rs.500/- per tree to only 180 trees. The appellant asserted that the appellant could prove that there were 243 standing lemon trees and that he was entitled to Rs. 1000/- per tree as compensation. 3] The questions that arose for my consideration are as under:- (i) What was the market value of the land in question at the time of the notification? (ii) How many trees were standing on the land of the appellant at the time of taking of the possession and what compensation per tree, is the appellant entitled to? 4] In order to support his case on the market value of the land, the appellant asserted that he purchased the land in question at the rate of Rs.6000/- per acre way back in 1997, thereafter he spent Rs.60,000/- to Rs.70,000/- on deepening of the well and on levelling of the land and on pipeline. He said that after these improvements, the land became irrigated. He said he started taking crops like sugarcane, vegetables along with other usual (4) FA. 132.1995 crops which are taken in dry land. However, the learned Judge of the Court below did not accept the case of the appellant about irrigation of the land. He held that despite presence of the well in the land, the land was not irrigated by the well water. He perused various 7/12 extracts to draw this conclusion. Having gone through the record and the reasons mentioned in the judgment, I find no reason to disagree with the said finding. The learned Judge then took into account the sale instances produced on record by the appellant. There are two sale instances exhibit 33 and 34. Exhibit 33 is a sale instance dated 15.4.1982 and is in respect of a land of the same village Tisgaon. Here 1 Acre 20 Guntha land abutting a public road was sold at Rs.40,000/-. The learned Judge did not find this sale instance relevant, because the land under the sale instance was strategically positioned abutting a public road and so, he rightly held that it had commercial prospectus. The second sale instance exhibit 34 was of 20.4.1982. It is in respect of land admeasuring 2 Acre of village Waladgaon. This land was sold for Rs.12,500/- per acre. The learned Judge held that this land was quite comparable to the land in question. The learned Judge of the Reference Court also took into account the other documents produced on record, namely the judgments of the other Reference Courts in respect of the adjoining lands (5) FA. 132.1995 acquired under the M.I.D. Act at the relevant time. In these references also the other Reference Courts held that the market price of the lands in this area was Rs.12,500/- per acre. The learned Judge thus, held that the appellant was entitled to Rs.12,500/- per acre as compensation. I find no error in this conclusion also. The learned Judge thereafter, considered the evidence on record in respect of the compensation payable for the lemon trees. As said above, there was dispute between the parties as to the number of lemon trees that were found standing on the land in question when the possession was taken. The appellant in his deposition said that he had planted 300 lemon trees on 2 Acre area of the land in question. He asserted further that there were 243 lemon trees when the possession was taken. He disputed the findings of the S.L.A.O. that at the time of taking of possession, there were only 180 lemon trees on the land in question but the evidence on this point was considered by the Court below and it was specifically held that the appellant was trying to utilise certain forged documents to inflate the number of trees. The learned Judge of the Reference Court rightly placed reliance on the contents of not only the panchanama, but also on the report of the Deputy Director, Horticulture in which after spot inspection, the Deputy Director recorded that there were in all 180 lemon trees out of which (6) FA. 132.1995 140 were fruit bearing. The learned Judge, therefore held that there were 180 lemon trees on the land in question. Having gone through the reasoning for coming to this conclusion, I do not think it requires revision. 5] The next question between the parties is in respect of the amount of the compensation payable for each lemon tree. As said above, the learned Special Land Acquisition Officer placed reliance on the valuation done by the Deputy Director, Horticulture at the rate of Rs.256=35 per fruit bearing tree and Rs.10/- per non fruit bearing tree. The appellant however challenged this, examining an expert in this field. One Dr. Nigam deposed in support of his valuation report that the lemon trees were worth Rs.1000/- each, but the learned Judge rightly rejected the deposition of the expert because this expert made his report on the basis of information received in 1993, years after the land was taken away from the appellant and admittedly the trees were removed. The report, thus was essentially a guess work and the expert presumed the ideal situation and drew his conclusion accordingly. If the expert had no occasion to see the land, the surroundings, source of water, the health of the trees, the yield of the trees etc. he would have drawn an accurate conclusion and that could not have been acceptable. As regards the yield of the trees (7) FA. 132.1995 the appellant himself did not utter a single word. He did not say as to how many fruits each tree on an average per year yielded and what income he derived on an average from each tree. He said in one breadth that he took fruits from these trees for about 5 years immediately prior to the date of delivery of possession. A farmer cultivating lemon trees, either gives his trees on contract basis to a trader or he himself picks up the fruit and sells it in market. The appellant has not said as to what method he utilised for disposal of the yield of the trees in the market and how much income he earned from 5 long years. The evidence on this aspect is rather shallow and not reliable. Despite of this, the learned Judge of the Reference Court increased the compensation payable for the lemon trees by almost 100% and awarded Rs.500/- per tree. I see no reason for disturbing the finding. 6] Last submission of Mr. Nirkhee the learned counsel appearing for the appellant is that the learned Judge of the Reference Court erred in not awarding interest on the amount, as per the provisions of section 28 of the Land Acquisition Act. He challenged the correctness of the order of the reference Court when he awardedonly 4% interest per annum on the sum due as provided in section 38 of the M.I.D. Act. (8) FA. 132.1995 Section 38 of the M.I.D. Act reads as under:- .38. Payment of interest - When the amount of such compensation is not paid or deposited on or before taking possession of the land, the State Government shall pay the amount of compensation determined with interest thereon at the rate of four per cent per annum from the time of so taking possession until it shall have been so paid or deposited. This provision is not comparable to the provision of section 28 which contemplates payment of interest on the enhanced compensation after the Court determines/enhances it in a land acquisition reference. The M.I.D. Act does not contain a similar provision and so, no fault can be found in the impugned order in respect of payment of interest. 7] The First Appeal therefore should fail. The First Appeal stands dismissed. Sd/- (A.V. NIRGUDE, J.) arp