N.V Dabholkar, J.:— These ten appeals under section 54 of Land Acquisition Act, 1894 (henceforth, “the said Act”) read with Order 41 of Code of Civil Procedure, 1908 (by virtue of section 53 of the said Act), challenge composite judgment delivered by Reference Court (Civil Judge, Senior Division), Jalgaon, on 4-4-2000, thereby disposing of ten Land Acquisition References i.e LAR Nos. 478, 461, 495, 465, 485, 477, 468, 491, 466 and 481 of 1999. All the appeals are preferred by the State, feeling aggrieved by the enhancement of compensation granted in favour of respective respondents-claimants, by the Reference Court.
2. The respondents are the owners of lands, which were agricultural lands from village Deoli Bhoras (8 lands) and Bilakhed (2 lands), Taluka Chalisgaon, District Jalgaon. Their lands are acquired by regular land acquisition proceedings through Special Land Acquisition Officer (henceforth referred to as “SLAO”) for the purpose of Minor Irrigation Tank, Deoli Bhoras. Notification under section 4 of the said Act, was published in Government Gazette on 14-3-1996, in local newspaper on 17-4-1996 and at Grampanchayat office, on 29-4-1996. Declaration under section 6 was published in the gazette on 10-4-1997, it was published in the local newspapers on 7-4-1997 and 8-4-1997. The SLAO declared the award on 31-3-1999. The land owners claimed that they received compensation under protest, because SLAO had awarded the compensation on the lower side. According to them, the SLAO did not consider the proper market value as on the date of notification under section 4, he took into consideration only those sale instances, which were transactions of low prices, he also neglected rich quality and potentiality of the lands under acquisition. The SLAO failed to appoint any expert for doing proper valuation of the lands and trees therein. On the contrary, he arbitrarily classified the lands on the basis of revenue assessment, which was not just and proper. The respondents-claimants, therefore, submitted aforesaid land acquisition references, requesting for payment of compensation at the rate of Rs. 3.00 lacs to Rs. 4.00 lacs per acre of jirayat land.
3. All these references are decided and disposed of by the impugned judgment. It appears that evidence is recorded in Land Acquisition Reference No. 465 of 1999, and by mutual consent of the parties, the same is relied upon for the purpose of all ten references, since the lands acquired are from the same locality and for the purpose of same project. Even while arguing the matter before this Court, the parties have followed the same pattern.
4. From the copy of the award declared by the SLAO (Exhibit 44, all references to exhibits are from Land Acquisition Reference No. 465 of 1999), it can be seen that the lands of seven claimants are from village Bhoras (Budruk) and one from Bhoras (Khurd) i.e of Indubai (LAR No. 477/1999), and two lands are from village Bilakhed (Shankar and Dharma) (i.e LAR Nos. 481 and 478 of 1999 respectively). From the table pertaining to demands placed by claimants before SLAO, it appears that, eight claimants placed their demands and there is no demand placed on behalf of Indubai and Shankar. Claimants Santosh, Dharma and Sahebrao claimed compensation of Rs. 2.00 lacs per hectare, whereas claimants Chintaman, Arjun, Kubabai (Kushabai), Laxman and Nimbabai on behalf of Daga, claimed compensation at Rs. 3.00 lacs per hectare. (Here itself, it must be noted that the reference Court has granted compensation to all claimants at Rs. 6.00 lacs per hectare, holding their lands to be Bagayat (irrigated) lands, except to Santosh Tukaram, whose land is held to be jirayat (dry) and hence, he is awarded compensation of Rs. 3.00 lacs per hectare. Claimant Chintaman Gangadhar (LAR No. 491 of 1999) also claimed Rs. 80,000/- towards valuation of the Well and Rs. 1,35,000/- towards valuation of the trees. Claimant Arjun (LAR No. 465/1999), claimed Rs. 70,000/- each towards compensation for well and trees. Claimant Kubabai (Kushabai) (LAR 495/1999) claimed Rs. 70,000/- towards well. Dharma Chindha (LAR No. 478/1999) claimed Rs. 1,40,000/- towards compensation for Well and Rs. 2,10,000/- for the trees. Claimant Sahebrao Rajaram (LAR 461/1999) prayed for compensation of Rs. 50,000/- for structure and another Rs. 50,000/- for trees. Claimant Nimbabai on behalf of Daga (LAR No. 466/1999) claimed Rs. 70,000/- for Well, Rs. 2,20,000/- for trees and Rs. 50,000/- for construction. Claimant Santosh and Laxman (LAR No. 485 and 468 of 1999) have not claimed any additional compensation, except prices of the lands at desired rate.
5. The SLAO, at internal page 6 of the award, has recorded that the interested persons did not produce any evidence in support of the claims for compensation. Similarly, even acquiring body did not produce any evidence. The SLAO refused to accept the valuation as done by panchas, since that was an approximation and he decided to take into consideration sale instances for comparison, which transactions were entered into during three years preceding notification under section 4 of the said Act. For the purpose of convenient consideration, he has grouped the lands into nine groups, in accordance with revenue assessment, first group being of lowest assessment from Rs. 1.00 to Rs. 1.25 and group No. 9 being group of highest assessment at Rs. 10.00 or above. As can be seen from the table at internal pages 7 and 8 of the award, 19 sale instances of the lands from village Bhoras (Bdk) and 27 instances of sale of the lands from village Bilakhed, are tabularised. (We are not concerned with the subsequent table which is pertaining to non-agricultural lands).
6. While considering lands at village Bhoras, the SLAO found the lands to be of group I to III. He rejected some sale instances, as very low prices and one instance as of exorbitant price. Taking into consideration the sale instance dated 24-5-1995 of Gat No. 244/3/2/1, which appeared to be sale instance of land of group III, he noted that price paid was Rs. 61,905 per hectare. Giving ten per cent rise, because instance was one year prior to the date of notification under section 4, the SLAO has fixed Rs. 68,000/- per hectare as market price for jirayat land of group III. Consequently, he has fixed the price for group II and group I at Rs. 58,000/- and Rs. 54,000/- per hectare. In accordance with government policy, he has awarded Rs. 1500/- per hectare for pot kharab land.
7. For the lands at Bilakhed for class I, as there were no sale instances, except two which were too low priced, the SLAO has fixed price at Rs. 64,500/- per hectare, by reference to ready reckoner. For group II lands, although there were 20 transactions available, the SLAO was not satisfied, as some were too low priced and some were excessively priced, in his opinion. From one transaction, land was sold at Rs. 62,000/- per hectare. Consequently, the SLAO has accepted ready reckoner and fixed the price at Rs. 72,500 per hectare for class II lands. For class III lands, he has accepted the rate of one transaction of 1995 with 10 per cent rise and fixed market price at Rs. 78,000/- per hectare, as the same was better offer to the agriculturist than that prescribed by the ready reckoner, which was Rs. 75,500 per hectare. For class IV land, ready reckoner price at Rs. 80,500/- per hectare, being higher than the sale instance considered for comparison, is accepted as awardable market price, by the SLAO.
8. We do not intend to give the details worked out by the SLAO, in the same manner about other classes of lands. Suffice it to say that, after taking into consideration the acceptable sale instances and ready reckoner, the SLAO has fixed market price at a rate, which ever is higher out of the two.
9. So far as Gat No. 61 of village Bilakhed (LAR No. 481/1999) of Shankar is concerned, although total land under acquisition is 1.22 Are, since there are 269 trees, the SLAO has deducted acreage of land at the rate of 1 Are for each group of six trees and thus for 269 trees, he has reduced cultivable acreage, by 49 ares. Taking remaining acreage to be bagayat land, compensation is paid Rs. 1,61,085/- towards price of the fruit bearing trees. The SLAO has awarded market price at double rate for bagayat land, after fixing price for jirayat land, either by comparison method or by reference to ready reckoner.
10. So far as fruit bearing trees in the land at village Bhoras (Budruk) are concerned, the SLAO has relied upon valuation report by (Deputy Director of Fruit Production) which was prepared on 18-2-1997, as also report dated 19-11-1996 obtained by acquiring body from the same authority, when the acquiring body took possession by private negotiations.
11. In the concluding part, existence of standing structures are referred. So far as our ten appeals are concerned, the structures are recorded to have been found in Gat No. 42.A/2 and Gat No. 89/2 i.e LAR Nos. 461 and 466 of 1999.
12. We are recording, at the end of paragraph 4, a comparative table of the claim by each land owner, compensation awarded by SLAO, and also as awarded by Reference Court.
13. So far as reference Court is concerned, it appears that learned Judge has accepted evidence of three witnesses examined on behalf of the claimants, namely, Arjun Sukhdeo Patil-Exh. 11 (LAR No. 465/1999), attesting witness Latifkha s/o Dagekha (Exh. 42) of the sole instance of sale produced by the claimant for comparision (instance is dated 2-2-1995, wherein 96 Are land from Gat No. 97/1 of Bhilakheda is sold for a consideration of Rs. 2.65 lacs) and valuer of the trees, Ravindra Ghanashyam Chaudhari (Exh. 33). Learned Reference Court accepted the sole sale instance for comparison, observing the comparison to be the best method for determining market price. Since the land was sold at Rs. 2,76,000/- per hectare, giving 10 per cent rise for lapse of one year, learned Judge fixed the market price for jirayat land at Rs. 3.00 lacs per hectare and double of that, at Rs. 6,00,000/- per hectare for bagayat land. The report of the valuer regarding valuation of the trees, is accepted in toto and, accordingly, compensation is awarded.
14. It must be stated here itself that, learned Reference Court has not at all bothered to refer to any of the sale instances, considered by the SLAO, although details of as many as 19 and 27 sale instances of agricultural lands from Bhoras and Bilakhed respectively, were available within the award, in a tabularized form. In the table, there are four transactions of agricultural lands from village Bhoras and another four transactions from village Bilakhed, which are lands described as i.e irrigated with well, and those instances also could have been considered for comparison method. Learned Judge has not at all referred to those and consequently, he has recorded no reasons why those instances cannot be considered Bagayat lands in Bilkhed were sold at the rate of Rs. 58,950/-, 23,438/-, 75,500/- and 74,408/- per hectare in 1993 May, 1993 October, 1995 April and 1995 April. Even the sale incident which the SLAO rejected from consideration because price is too high, the land was sold at the rate of Rs. 90164/- per hectare in March, 1996. The Reference Court ought to have considered at least these two sale instances of April 1995 (underlined above) and one instance of March, 1996, along with the sale instance relied upon by the claimants. Without referring to these other instances and without recording reasons for not using those for the purpose of determination of compensation, Reference Court has taken the approach as if sole sale incident relied upon by the claimants is binding on it. In fact, it was obligatory on the part of Reference Court to record reasons as to why the rate of market price as fixed by SLAO was not acceptable, why that is unreliable or erroneous. No such exercise is done. By not addressing to the material available in the award, Reference Court has exhibited an approach to swallow whatever was placed before it, by the claimants.
15. About village Bilakhed, four instances of sale of Bagayat land with well are of June, 1994, December, 1994, February, 1996 and December, 1994. The lands were sold at the rate of Rs. 95,890/-, 1,00,000/-, 3,12,500/- and 1,00,000/- per hectare.
16. Unfortunately, Reference Court does not appear to have studied the award and has readily accepted whatever is placed before it by claimants, without taking any efforts to arrive at just and proper market price. The claimants not having examined either vendor or vendee, there is nothing on record to show why jirayat land was sold at so high a price, when 8 transactions from award referred hereinabove, demonstrate that Bagayat lands were being sold at a price of Rs. 75,000/- to Rs. 1,00,000/- per hectare in 1995-1996, except the instance of December 1994, where Bagayat land is sold at the rate of Rs. 3,12,500/- per hectare. If rates of jirayat lands are to be 50% of bagayat, land in the sale instance relied upon by claimants ought to have been sold, at the most, @ Rs. 1,50,000/- per hectare, or even at some lower price. When it is sold @ Rs. 3,00,000/- per hectare in spite of being jirayat land, there must had been some special reasons for the same, which could have been learnt from vendor/vendee. By not examining either, claimants have denied such opportunity to the Reference Court. The Reference Court has not at all realised this angle and, therefore, has not at all considered the aspect that price therein could not have been accepted for fixing market price of acquired lands, unless same special reasons did exist in case of acquired lands. The burden to prove these special reasons and similarity of special reasons in case of lands acquired with that of sale instance relied upon, was required to be discharged by claimants. The Reference Court is totally unmindful of the fact that the claimants have not undertaken such an exercise, much less successfully.
Claimant Appeal of 2001 Demand before SLAO/price per hectare for well for trees for structure Award by SLAO price/P.H for well for trees for structure Award by Ref. Court price/hectare for well for trees for structure Rs. Rs. Rs. Chindha 659 2,00,000 1,40,000-W 2,10,000-T 78,000 17,146-W 19,580-T 6,00,000 (Pot Kharab 3,00,000/- (P.H) 1,47,727 (for 17 trees) Sahebrao 660 2,00,000 50,000-T 50,000-S 58,000 1677-T 26,980-house 6,00,000 35,375 (for 5 trees) Kubabai (Kushabai) 661 3,00,000 70,000-W 58,000 2404-W 6,00,000 Arjun 668 3,00,000 70,000-W 70,000-T 58,000 13,582-W 2540-T 6,00,000 53,720 (for 7 trees) Santosh 669 2,00,000 68,000 3,00,000 Indubai 671 No claim 68,000 7,240-W 6,00,000 3,18,934 (for 31 trees) Laxman 672 3,00,000 70,000-W 58,000 4,275-W 6,00,000 Pot Kharab at 3,00,000 P.H Chintaman 673 3,00,000 80,000-W 1,35,000-T 58,000 10,792-W 6,00,000 Daga and Pira 674 3,00,000 70,000-W 2,20,000-T 50,000-S 58,000 14,989-W 6,655-T 834-S 6,00,000 90,029 (for 11 trees) Shankar 675 No claim 1,60,000 2,23,085-T 6,00,000 14,31,176 (for 279 trees)
17. We may state here itself that SLAO awarded compensation for Pot Kharab land at Rs. 1500/- per hectare as per Government guidelines. As against this, the reference Court has granted compensation towards Pot Kharab land at 50% of the market price i.e at Rs. 3,00,000/- per hectare for Pot Kharab of Bagayat land and at Rs. 1,50,000/- per hectare for Pot Kharab of Jirayat land.
18. Couple of salient features, which emerge from the above comparative table also need to be quoted here itself. Out of 10 claimants, 2 claimants had not raised any specific demand before SLAO, 5 of them had claimed market price at Rs. 3,00,000/- per hectare and remaining 3 at Rs. 2,00,000/- per hectare. All of them, except Santosh whose land is held to be Jirayat land, are paid market price at Rs. 6,00,000/- per hectare and Santosh is paid at Rs. 3,00,000/- per hectare. Claimant Sahebrao had not placed any demand towards Well, yet his land is also held to be irrigated land. (We have noticed from 7/12 extracts at Exhibits 13 to 27 that there are Wells in the lands of all the claimants except Sahebrao. The Wells in the lands of Laxman and Santosh are referred as “Nadge”).
19. Prima facie, Sahebrao and Santosh had not claimed compensation towards Well before SLAO. Yet the land of Sahebrao is held to be irrigated land and that of Santosh to be unirrigated land. The learned Judge of Reference Court, thus, seems to have lost sight of the details available in the 7/12 extract. When Santosh, although raised demand before SLAO and did not claim any compensation towards well (Nadge) as other claimants, entry in the 7/12 extract also becomes doubtful, although otherwise, those entries have presumptive value by virtue of section 157 of the Maharashtra Land Revenue Code, 1966. This mess about claim of Santosh makes us somewhat sceptic about the entry regarding well in the lands of all others, to which aspect we shall deal with in more details when we discuss the sale instance for the purpose of comparison and determination of market price.
20. Learned AGP Shri Patil was critical about the Reference Court. According to him, the Reference Court has mechanically accepted the sole sale incident and arrived at the conclusion that price of Jirayat land should be Rs. 3,00,000/- per hectare. Similarly, the learned Judge has readily accepted the valuation report so far as compensation of the fruit bearing trees is concerned. Referring to the sale-deed produced for the purpose of comparison (Exh. 28), the concluding part of it indicates that the price quoted in the sale-deed includes price for everything, including the trees attached to the land and, therefore, according to learned AGP, Reference Court committed an error in not making any reduction for it and has, thus, awarded exorbitant compensation by calculating separately for the land as well as fruit bearing trees, and against the ratio laid down by the Supreme Court. Although he was critical, because either vendor or vendee of the sale instance produced for comparison was not examined, sale-deed being a registered sale-deed, can be considered as evidence. But, examination of vendor or vendee could have enabled better insight in the transaction as discussed in para 4 ante. It cannot be ignored that the claimants could have produced further material such as 7/12 extract of the land that was sold under the said sale-deed in order to enable the Reference Court to compare the sale incident in a better way 7/12 extract would have shown the trend of crops cultivated by the vendor and, thus, could have enabled the Court to decide whether it was really a Jirayat land.
21. About the report of valuer, learned AGP pointed out that valuer, according to his report, visited the land between 16th May and 21st May, 1996, whereas he has submitted his report on 5-6-1999 i.e 3 months after the award was drawn. According to learned AGP, the report of the valuer is not at all reliable and it is tailor-made to serve the purpose of the claimants. He tried to support the proposition by pointing out that the valuer has shown all the trees to be of the same height, estimated crop and price of the crop taken for the purpose of considering yield is taken arbitrarily and the report is in conflict with the 7/12 extract so far as claimant Shankar is concerned. 7/12 extract of land of Shankar shows that there is Pomegranate garden over entire area of 1 H 22 R without referring to number of trees. As against this, the valuer has found 10 Jujube trees. (In fact, we may state here itself that on this count, even SLAO is in conflict with the 7/12 extract. In the award at Exhibit 44, SLAO has calculated space of 1 Are for each set of six trees. He has, thus, spared 49 R land for 269 trees. According to valuer, there are 279 trees and, therefore, Reference Court has paid compensation for 279 trees plus remaining area of 73 R land out of 1 H 22 R land of claimant Shankar. If we refer to 7/12 extract of Shankar at Exhibit 23, it is evident that during the year 1992-1993, he had grown crop of Hybrid Jowar, Hybrid Bajra and Tur over area of 20 R, 22 R and 80 R respectively, whereas from cultivation year 1993-1994 till cultivation year 1996-1997, entire areas is shown covered by pomegranates and there is no other crop. Viewed thus, imaginary calculation of SLAO about the area of land under fruit garden and other land available is in conflict with entries in the 7/12 extract of the land of Shankar. He also did not fail to point out that valuer is thoroughly interested witness, who was eager to depose that he noticed existence of pipeline in each of the lands, whereas claimant Arjun examined on behalf of all, has not claimed existence of pipeline in the land of any of the claimants. Learned AGP was also critical, because none of the claimants have produced any bills regarding sale of fruits. This added strength to his argument that valuer has arbitrarily decided the estimated crop from the fruit bearing trees. It was also submitted that as shown in the award if the land was taken in possession by private negotiation by the acquiring body, in that case, the same must have been before notification under section 4 dated 14-3-1996 and in that case, there was minimal chance of valuer being able to see the existence of trees at the time of his visit in May, 1996. (In the internal page 18 of the award under the caption there is specific reference that the land owners and the acquiring body have transferred the possession by private negotiation and even 80% advance compensation is paid to the owners.)
22. While arguing for the claimants, Advocate Shri V.G Sakolkar mainly laid emphasis upon the aspect of potential value of the land. He pointed out that both the villages Bhilakhed and Bhoras are twin villages within a distance of 5 Kms. from Taluka place Chalisgaon. There is a sugar factory at Bhoras. There is State Highway passing by the side of these villages and according to Advocate Shri Sakolkar, both the lower authorities have not given due weightage to this potential value of the lands acquired.
23. He pointed out that lands of all the claimants have at least one Well each. The trend of the crop shows that irrigated crops are being grown and, therefore, Reference Court, according to him, was justified in determining the market price as payable for irrigated land. He supported the report of the valuer by claiming that valuer has followed Government parameters. Judicial precedent was relied upon to support the proposition that market price for Bagayat land can be considered to be double that of Jirayat land and Pot Kharab can be paid at 50% of the market price.
24. Learned counsel Shri P.S Patil for remaining claimants, apart from subscribing the view propounded by Advocate Shri Sakolkar, pointed out that there is well in the land of Sahebrao, although not mentioned in 7/12 extract, because SLAO has granted compensation for the well to him. (In fact, this submission is factually erroneous. Rs. 26,980/- is granted to Sahebrao by SLAO as compensation towards house.). According to Shri Patil, the existence of Well in each land and cult of irrigated crops, such as cotton and groundnuts justifies the decision of Reference Court to determine the market price by presuming the lands to be irrigated lands.
25. At the stage of reply, learned AGP has filed Civil Application No. 9109/2006 for production of additional evidence under Order XLI Rule 27 of the Code of Civil Procedure. In fact, necessity of the documents sought to be produced was felt during the arguments of learned defence counsel. Joint measurement/panchanama drawn at that time, either as drawn by SLAO or as drawn by the acquiring body while taking possession, was necessary to be referred in order to establish the existence of trees, especially in the light of conflict between 7/12 extract and valuer's report as discussed in the case of claimant Shankarrao. We have allowed the production in the light of Order XLI, Rule 27(1)(b) of Civil Procedure Code. Civil application, therefore, is allowed in terms of prayer clause (B) and disposed of and we have allowed the learned counsel for the claimants to refer to this panchanama and other documents filed with Civil Application during the course of their arguments. We shall refer to these documents as and when necessary.
26. So far as evidence before the Reference Court is concerned, we have copy of award at Exh. 44. Claimant Arjun deposed on behalf of all ten claimants at Exh. 11. The Valuer Mr. R.G Chaudhari is examined at Exh. 33, who has proved the valuation reports of fruit bearing trees at Exhs. 36 to 41. PW Latif Khan is attesting witness of the sale deed (Exh. 28) produced for the purpose of comparison method for determination of market price of the lands acquired. Exhs. 13 to 27 are 7/12 extracts of the lands of the claimants.
27. Learned AGP was critical about reliability of all the witnesses. Coming to the evidence of claimant Arjun, it must be said that he has not done his home work properly. Although all the claimants claimed market price of the lands acquired to be Rs. 2,00,000/- and Rs. 3,00,000/- per Hectare, during the course of his deposition, Arjun claimed the price at Rs. 7,00,000/- per Hectare, saying, that would be the appropriate market price for Bagayat land, as on the date of acquisition. He has also faltered about number of trees in each of the lands of these claimants. For instance, in G. No. 151/1 of Indubai, according to Arjun, there are 21 Jujube and 3 Mango trees. As against this, as per valuer's report accepted by the Reference Court, there are 21 Jujube, 7 Tamarind and 3 Mango trees in this land. According to Arjun, in G. No. 61, which was owned by claimant Shankar, there are 10 Jujube and 450 Pomegranate trees (total 460). As per valuer's report accepted by the Reference Court, there are 269 Pomegranate trees and 10 Jujube trees in that land. It is evident from above instances that Arjun has entered the box determined to exaggerate and extract maximum amount by way of compensation. According to him, annual income from the Jujube trees was about Rs. 4,000/- to Rs. 5,000/-; from Mango trees about Rs. 10,000/- to Rs. 12,000/- and from Pomegranate/Custard Apple trees about Rs. 10,000/- to Rs. 15,000/-. Upon considering the reports of valuer about the land of Arjun himself, valuer has fixed estimated yield of 160 kg. jujubes and market price to be Rs. 6/- per k.g i.e annual income of Rs. 960/-. For mangoes in the land of Dharma, valuer has fixed estimated crop to be 190 kg. of market price Rs. 13/- per k.g and thus, annual income would be about Rs. 2,470/-. For pomegranates in the land of Shankarrao, valuer has estimated annual yield to be 30 to 50 kg. at a price of Rs. 15/- per k.g In this context, admission of Arjun must be taken into consideration. He has not been able to narrate as to when these fruit bearing trees were planted and what was their age on the date of acquisition. He was also not able to produce any kind of evidence of supply of sugar-cane to Belganga Sugar Factory although in his chief examination, he has boasted that all the lands are irrigated lands and all the claimants are cultivating sugar-cane, wheat and fruit garden. We have examined all the 7/12 extracts and ascertained that none of the claimants have ever cultivated sugar-cane and wheat except claimant Dharma who appears to has cultivated sugar-cane only once and Laxman who cultivated wheat only once, both in the cultivation year 1993-1994. The best possible cash crops cultivated by the claimants are cotton and groundnuts. Otherwise, generally all of them have cultivated hybrid Jawar, Bajra and cereals such as Moog, Toor, Gram, Udid etc.
28. So far as valuer is concerned, as rightly pointed out by learned AGP, his eagerness to support the claimants is evident from the fact that he claimed to have noticed pipeline in all the lands, which is not the case of claimants themselves as brought on record during the deposition of PW 1 Arjun. In his cross-examination, he has admitted that he has given present and future age of the trees by approximation. He had not asked for any evidence from the claimants regarding the year of plantation. We are inclined to so infer in spite of the fact that he claimed to have seen the receipts of plantation. If he had seen the receipts of plantation, there was no reason for him to fix the age of the trees by approximation (guess work in other words). Even without testing the soil in the laboratory he has ventured to depose that the lands were good quality lands with black cotton soil. He has also admitted in the cross examination, “rough notes and registers are made subsequently”. Thus he has taken the risk of not reducing his notes to writing at the time of spot inspection.
29. We do not wish to analyse oral evidence of Dage Khan, the attesting witness to much depth. Suffice it to say that witnesses are partisan witnesses and their evidence demonstrates tendency to exaggerate at the costs of truth and is, therefore, required to be accepted with pinch of salt.
30. In the bunch of xerox copies of cases relied upon by learned counsel for the respondents, we may refer to decisions which we find relevant to the matter at hands.
31. In the matter of State of Maharashtra v. Pralhad Magar, 1996 Vol. 1 B.C.J 247, learned Single Judge of this High Court fixed the market value of pot-kharab land equal to 50% of market value given for Jirayat land. Even if we accept this as a precedent, we must say that the Reference Court has erred on this count. After fixing that Jirayat land in the sale instance was sold at Rs. 3,00,000/- per Hectare and, therefore, the market price for Bagayat land is Rs. 6,00,000/- per Hectare, learned Judge has awarded compensation for pot-kharab land at 50% of respective category of lands i.e he has granted compensation for pot-kharab lands of claimants Chindha and Laxman at 50% of market price of the land i.e at Rs. 3,00,000/- per Hectare. Even after accepting the ratio of the case relied upon, market price for pot-kharab land could not have been granted at rate exceeding Rs. 1,50,000/- per Hectare i.e Rs. 1,500/- per Are (50% of market price of Jirayat land). It may not be out of place to say that pot-kharab land of Jirayat land of claimant Santosh should fetch still lesser price, may be Rs. 75,000/- per Hectare.
32. State of Maharashtra v. V.R Shinde, 1993 B.C.J 230 was relied upon for the purpose of justifying the action of Reference Court in fixing market price at double the rate at which land in the sale instance was sold by holding that the acquired lands are Bagayat lands whereas land in the sale instance is Jirayat land. In this matter, Division Bench of this High Court has held that the lands under acquisition were extremely fertile and capable of yielding perennially irrigated crops like sugar-cane and, therefore, valuation of acquired lands at a rate double than the valuation of dry crop land was held justifiable. We may only comment that so far as matter at hands is concerned, none of the lands are capable of yielding crop like sugar-cane which requires perennial irrigation, as is evident from the trend of crops taken.
33. In 2005 AIR SCW 345, Assistant Commissioner-cum-L.A.O Bellary v. S.T Pompanna Setty, the Supreme Court has observed that for the purpose of compensation awardable in case of land with fruit bearing trees, when compensation is awarded on the basis of yield, multiplier 10 is considered proper and appropriate. The case was relied upon to support the valuer's report who appears to have taken same multiplier. Reliance was also placed upon the judgment of learned Single Judge of this High Court at Nagpur in the matter of State of Maharashtra v. Shridhar, 2005 (1) Mh. L.J 958 : 2005 Vol. 1 All MR 51 in order to justify the action of the Reference Court in granting separate compensation for fruit bearing trees. In this matter, learned Single Judge had found that separate compensation awarded for orange trees was normal practice based on Land Acquisition Manual.
34. On these aspects, a reference to couple of other decisions of the Supreme Court is inevitable, which were relied upon by learned AGP. In the matter of State of Haryana v. Gurcharan Singh, 1995 Supp (2) SCC 637 : AIR 1996 SC 106, which was relied upon by learned AGP, it was observed as follows:
“The definition of the land includes the benefits to arise from the land as defined in section 3(a) of Act. 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.”
35. Thus, for compensation of the land with fruit bearing trees, separate compensation for land and fruit bearing trees was disapproved. In fact, in this case the Supreme Court has also observed as follows:
“Under no circumstances, the multiplier should be more than 8 years multiplier as it is settled law of this Court in catena of decisions that when the market value is determined on the basis of the yield from the trees or plantation, 8 years multiplier shall be appropriate multiplier.”
36. In (1991) 4 SCC 8 : AIR 1991 SC 2027, Koyappathodi M. Ayisha Umma v. State Of Kerala., Supreme Court held thus in para No. 6:
“It is thus settled law that in evaluating the market value of the acquired property, namely, land and the building or the lands with fruit bearing trees standing thereon, value of both would not constitute one unit; but separate units; it would be open to the Land Acquisition Officer or the Court either to assess the lands with all its advantages as potential value; and fix the market value thereof or where there is reliable and acceptable evidence available on record of the annual income of the fruit bearing trees, the annual net income multiplied by appropriate capitalisation of 15 years would be the proper and fair method to determine the market value but not both. In the former case the trees are to be separately valued as timber and to deduct salvage expenses to cut and remove the trees from the land. In this case, the award of compensation was based on both the value of the land and trees. Accordingly, the determination of the compensation of the land as well as the trees is illegal. The High Court laid the law correctly.”
37. In the matters of O. Janardhan Reddy v. Special Deputy Collector, 1994 Vol. 6 SCC 456 and S.L.A.O v. Virupax, 1996 Vol. 6 SCC 154, Supreme Court has laid down that the land owner is not entitled to separate compensation in the well or the tank apart from assessment of the market value of the land assessed, having regard to the availability of irrigation facility.
38. Determination of market price of the lands of the respondents-claimants. On reference to the award by the SLAO, as already discussed in para 3 ante of this judgment, although there were many instances available for comparison, because SLAO himself had collected copies of sale instances during three years preceding the notification under section 4 and because neither the claimants nor the acquiring body had produced any evidence before him, the SLAO appears to have ignored quite a good number of sale instances, by observing that those were of exorbitant prices and might be in peculiar circumstances, he has neglected another group, by saying that prices in those sale deeds were on very very low side and, therefore, detrimental to the interest of the land owners, if those sale instances were accepted for comparison method. It appears that the SLAO took one sale instance from each village which, according to him was “golden mean”. He compared the rate in such transaction with the rates prescribed by the government guide-lines and whichever rate was found to be higher, was accepted by the SLAO as “market price” for the purpose of determination of compensation to the claimants. Eventually, neither of these sale instances seem to have been referred to by the Reference Court, nor either party seems to have persuaded, much less insisted the Reference Court to do so. The details of discarded sale instances are available in the award passed by the SLAO. Those details were not referred before us also, and claimants expected us to consider the sole sale instance that was considered by the learned reference judge and which was brought on record, by them.
39. It is settled legal position that the claimant being in the shoes of the plaintiff before the Reference Court, burden of proving market price and thus compensation, to which the claimant is entitled, is upon the claimant. For any lacunae in his evidence, the claimant will have to suffer and the Court may, at the most, in order to do justice, fill in some gaps, by imagination. We have already referred earlier that, the claimants did not examine either the vendor or vendee. Consequently, we do not have details of the land in the sole sale instance, relied upon by the claimants. We do not know what crops were being grown in the sale instance land. We do not know whether there was any source of irrigation. Learned Reference Judge, has picked up the word ‘jirayat’ (unirrigated) in the sale deed and considering that the lands acquired have wells therein, fixed the market, price at a rate double than the market price per hectare, calculated on the basis of sale instance plus ten per cent rise, because the sale instance was one year prior to notification under section 4 of the Act. The claimants have not bothered to produce on record, 7 × 12 extract of the land referred in the sale deed. (As rightly pointed out by the learned AGP, sale deed makes a general description i.e “land and all the things within and affixed to the same, including the plantation, trees etc.”). Of course, there is no specific reference to existence of any well in this land. The sale deed opens with title “sale deed of jirayat land from village Bilakhed”. Within the body, there is description on one occasion that the land is jirayat land.
40. We have prepared another table for comparing land in the sale instance relied upon by the claimant, with the lands of the claimants, on the basis of revenue assessment, which is as follows:—
Claimant Gat No. Acrage-Hector-Are and Revenue assessment in Rupees. Assessment per Are in paisa. Chindha 57 2.47 8.50 3.4412 (3.44) Sahebrao 42.A/2 0.41 0.75 1.8292 (1.83) Kubabai 42.A 1.61 3.10 1.9254 (1.93) Arjun 87.B 1.61 3.00 1.8633 (1.86) Santosh 41/2 0.82 2.15 2.6219 (2.62) Indubai 151/1 1.38 4.40 3.1884 (3.19) Laxman 42.B 3.17 6.00 1.8927 (1.89) Chintaman 48.A 1.29 2.00 1.5503 (1.55) Daga & Pira 89/2 1.62 3.65 2.2530 (2.25) Shankar 61 1.22 4.70 3.8524 (3.85)
41. For the purpose of above table, we have taken the total acreage of the land (excluding pot kharab) and total assessment of the land as available from 7 × 12 extract at Exhibits 13 to 27. By exclusion of pot Kharab, revenue assessment per Are comes on the higher side, thereby not causing any prejudice to the claimants. The land in the sale instance placed before the reference Court is 96 Are with revenue assessment of Rs. 2.30 and thus, revenue assessment of the land in the said sale deed, per Are is 2.3958 paisa (2.40 ps.). By showing this position to learned Counsel for the respondents-claimants, we had invited them to submit as to why ratio of revenue assessment of the land under sale instance with the land of each of the claimants should not be used for determining the market price of the lands of the claimants, by maintaining the same ratio with the market price, so far as land in the sale instance is concerned, (i.e Rs. 2,65,000/- for 96 Ares @ Rs. 2,76,000/- p.h and therefore, by 10 per cent increase for one year, Rs. 3.00 lacs per hectare for the land in sale instance, as calculated by the reference Court.). Our proposal is tried to be met with, by the learned Counsel for respondents, by relying upon the judgment of Gauhati High Court, reported at AIR 1987 Gauhati 51, Raja Bhairabendra Narayan Bhup v. Collector of Golpara at Dhubari. Relying upon the judgment of the Supreme Court in the matter of Shyamapada, (1976) 3 SCC 66 : AIR 1975 SC 1723, it was observed by Gauhati High Court that, the classification of the land for revenue purpose cannot be the determinative factor to award lesser compensation. In fact, observations from the judgment of the Supreme Court are reproduced in paragraph 3, as follows:—
“In Shyamapada, the Supreme Court has observed’ that while the classification for revenue purpose might have its own rationale, it is not uncommon to find the land, which has a lower classification for revenue purpose, fetching a higher price in the market.”
42. First of all, neither the Supreme Court, nor the Division Bench of Gauhati High Court, has laid down the classification for revenue purpose, to be irrelevant. The observation that the classification cannot be the determinative factor, by Gauhati High Court, does not lay down, not to consider the revenue assessment for the purpose of comparison of lands. Even the observations of the Supreme Court, as reproduced by Gauhati High Court, do not prohibit considering the classification of the land on the basis of revenue assessment, as for comparative study. It only indicates that, there can be instance, where the land classified on lower side for revenue assessment, may fetch a higher price in the market.
43. Here, at the cost of repetition, it must be said that burden of proving the material that will lead the Court to determine the market price, is upon the claimant, who is in the shoes of a plaintiff. Even the Supreme Court has observed that the classification for revenue purpose has its own rationale. Thus, it is not held to be arbitrary. In the absence of material that will indicate that the land under acquisition is identical in all respect with the land in the sale instance produced for comparison, comparison of proportion of revenue assessment per Are would provide a safer and reasonable criteria for comparing the two lands for the purpose of determination of market price of the land under acquisition on the basis of market price of the land in the sale instance.
44. No doubt, in the sale deed, the land is described as jirayat and there is no reference to existence of any well/nadge, or water source for that land. It was, therefore, tried to be demonstrated to us that the lands of the claimants have source of irrigation in the form of well in each of the lands. Therefore, it was pleaded that the reference judge was justified in holding the lands to be irrigated lands and the claimants to be entitled for double market price, as compared to land under sale instance. Certainly, considering double price for land having some irrigation facility, as compared to land having no irrigation facility, is relatively an arbitrary and imaginary parameter than the ratio of revenue assessment of two lands.
45. While insisting to rely upon the sole sale instance, learned Counsel for claimants, never referred to sale instances tabularized in the award by the SLAO, much less submitted as to why those may not be acceptable for comparison. We may reproduce the details of only 4 instances from each of the villages Bhoras and Bilakhed for ready reference which are transactions of Bagayat lands with well as source of irrigation.
Bhoras
Gut No. Area H.R Assessment Price Date Rate/H. 89/1 1.62 3.65 95,000/- 27-5-1993 58,950/- 311 1.92 4.50 45,000/- 29-10-1993 23,438/- 274 2.00 6.45 1,51,000/- 6-4-1995 75,500/- 274 2.11 6.50 1,57,000/- 6-4-1995 74,408/-
46. Giving a rise of 10 per cent to the rate of last two incidents, because those transactions are one year before notification under section 4, market price for well-irrigated land in April 1996 would be about Rs. 83,050/- and Rs. 81,859/- p.h Even the last transaction in the same table at internal page 7 of SLAO's award shows that in March 1996, land Gut No. 319.A-1 was sold @ Rs. 90,164/- p.h
Bilakhed
Gut No. Area H.R Assessment Price Date Rate/H. 49 1.46 4.35 1,40,000/- 28-6-1994 95,890/- 14/2 0.40 1.94 40,000/- 6-12-1994 1,00,000/- 137.B/1 0.40 0.75 1,35,000/- 28-2-1996 3,12,500/- 14/2 0.40 1.94 40,000/- 6-12-1994 1,00,000/-
47. Third transaction above is just couple of months before notification and even if the same is accepted for comparison, rate of bagayat land (irrigated by well) at the relevant time was about Rs. 3,00,000/-. If we consider instances at serial Nos. 2 and 4 above, the price was Rs. 1,00,000/- p.h in December 1994. Giving 15 per cent rise for 1-1/2 year till April 1996, market rate at relevant time would be Rs. 1,15,000/- p.h
48. If we take these details into account, it is evident that sale instance relied upon by claimant, which shows market price @ Rs. 3,00,000/- for jirayat land, is not safe to rely upon. This is because, that being price offered by willing purchaser, there may be some special reasons for which the purchaser was willing to offer Rs. 3.00 lacs per hectare of jirayat land, when trend of the transactions shows that bagayat lands were being sold @ Rs. 1 lakh per hectare or so. In order to rely upon that instance, it was incumbent upon the claimants to show what was special about that jirayat land and not only that, but also to establish on record that acquired lands also enjoy same speciality. There is no material brought on record by the claimants on these aspects. And hence, it is unsafe to rely upon sole sale instance, produced by interested claimant in blind and mathematical manner, as is done by Reference Court. May be using the ratio, proportion of revenue assessment of lands would be safer method, if we are to rely on the said sale instance. As can be seen from the scheme for settlement of assessment, price of the land, yield of principal crops and even agricultural resources are required to be taken into consideration. (Scheme is discussed in para 11 below.) This also explains why land of different claimants is assessed with varied assessment. As can be seen from 7 × 12 extracts, assessment rate of 4 claimants is higher and that of remaining 6 is lower than that of rate of assessment of land in the sale instance. [Lands of Sahebrao and Santosh do not have any Well, yet the land of Sahebrao is classified by the learned Reference Judge, as perennially irrigated land. We have already pointed out that the amount of Rs. 26,980/- is awarded by SLAO to Sahebrao towards compensation of his house and not for the well, as tried to be argued by Advocate Shri P.S Patil.] The rate of assessment of land of Sahebrao is lesser and that of Santosh is more than the rate of assessment of sale instance land. [Only lands of Daga and Shankar have wells, which are described as built up Wells, in the panchanama. Wells in the lands of Chindha, Arjun, Indubai, Laxman, Chintaman, are described as “Kachhi Vihir”. Similarly, well in the land of Kubabai, is described as Nadge.] It can be seen that, the rate of revenue assessment of the lands of Chindha, Indubai and Shankar, is higher than the rates of revenue assessment of sale instance land. Rate of revenue assessment of remaining lands of five claimants, is lesser than that of sale instance land, in spite of some source of irrigation.
49. It can be seen that revenue assessment of lands in the same vicinity is varied and Revenue assessment of Sahebrao and Santosh, even without well, is higher than that of some claimants having well. (It is nobody's case that well/Nadge is recent improvement after assessment. It cannot be so presumed, in spite of variation in the rate of assessment, because cult of crop cultivation is same in case of claimants with well and without well. If the well irrigation is recent development, the cult of crop cultivation would have changed.) Taking into consideration all the details about the land, revenue assessment is settled and, therefore, that should provide safe parameter for comparison of “worth” of lands.
50. Price distinctly different than trend of the market then prevailing, can be for special reasons. Very needy vendor may sell it for lower price, whereas needy vendee may purchase it for higher price, than prevailing trend of prices. Unless these special reasons are known, comparison of ratio of assessment would be more safe, just and proper yardstick than comparison of price rate with the land under sale instance. In peculiar cases, Courts would be justified in ignoring market rate in sale instance relied upon by interested party. But since, in the present case, we find at least one transaction from Bilakhed, wherein land Gut No. 137.B/1, was sold @ Rs. 3,12,500/- p.h, we are calculating the price rate of acquired lands on the basis of ratio of assessment. Otherwise, in the absence of special reasons proved on record, we could have ignored the sale instance.
51. In this context, the scheme as contained in Maharashtra Land Revenue Code, 1966 sections 90 to 107 regarding assessment and settlement of land revenue of agricultural lands is required to be given serious consideration. In fact, Chapter VI containing sections 90 to 107 is a special chapter regarding assessment and settlement of land revenue of agricultural lands and section 90 is interpretation clause. Following three definitions may usefully be reproduced:
“(a) “Classification value” means the relative valuation of land as recorded in the survey records having regard to its soil, situation, water and other advantages, and includes the valuation of land expressed in terms of soil units on the basis of the factor scale in the Districts of Nagpur, Chanda, Wardha and Bhandara and Melghat Talukas in Amravati District:
52. (Valuation on the basis of factor scale is applicable to Vidarbha area and, therefore, we are not concerned with it.)
(e) “Settlement” means the result of the operations conducted in a zone to determine the land revenue assessment therein:
(f) “Standard rate” means, with reference to any particular class of land, the value (not exceeding one-twenty-fifth) of the average yield of crops per acre for that class of land of sixteen annas classification.”
53. Section 91 - forecasts as to settlement.
“(1): Before directing a settlement or fresh settlement of any land under section 92, the State Government shall cause a forecast of the probable results of the settlement to be prepared in accordance with such instructions as may be issued for the purpose.
(2) A notice of the intention of the State Government to make the settlement together with proposals based on the said forecast for the determination or revision of land revenue and the term for which the settlement is to be made shall be published for objections in such manner as the State Government may determine.”
54. From sub-sections (3) and (4) of section 91, it is evident that the forecast settlement is required to be circulated to all Members of State Legislature. Sub-section (5) reads thus:
“(5) The State Government shall accept any resolution concerning the said forecast and proposals in which both the Houses concur and shall take into consideration any objections which may be received from the persons concerned, before directing the settlement.”
55. It is evident from sub-sections (1), (2) and (5) that the revenue assessment to be settled is required to be published and the interested persons have a right to raise objections, which are required to be considered on merits.
“Sec. 94: Assessment how determined:—
(1) xxxxxxxxx
(2) The matters specified in clause (a) of this sub-section shall ordinarily be taken into consideration in forming groups, but those specified in clause (b) thereof may also where necessary be taken into consideration for that purpose:—
(a)(i) physical configuration, (ii) climate and rainfall, (iii) prices and (iv) yield of principal crops;
(b)(i) markets, (ii) communications, (iii) standard of husbandry, (iv) Population and supply of labour, (v) agricultural resources, (vi) variations in the area of occupied and cultivated lands during the last thirty years, (vii) wages, (viii)ordinary expenses of cultivating principal crops including the value of the labour in cultivating the land in terms of wages.
56. Thus, it can be seen that the rate of revenue assessment is fixed by elaborate procedure by taking into consideration all advantages and disadvantages of the land including the prices of the lands. Therefore, unless the price of the land is increased after fixing the revenue assessment, because of improvements, the ratio of revenue assessment should provide a reasonably safe method for determining market prices of lands under acquisition by maintaining the same ratio with the market price of sale instance land.
57. No doubt, by virtue of section 95, there is bar in taking into consideration increase in average yield due to improvements at the expenses of the holders. It is this factor that may vary the price of the land which otherwise should be proportionate to the ratio of the revenue assessment, since revenue assessment is determined by taking into consideration almost all the factors relevant to the merits of the land. By virtue of section 93, it is evident that the settlement continues to be in force for a period of 30 years and until the commencement of the term of a fresh settlement. Thus, improvements during one settlement must be getting due consideration at the time of next settlement and, therefore, we are of a considered view that unless new improvement has come into existence after the assessment, the ratio of revenue assessment does provide a reasonable and reliable parameter for determining the ratio of market price and thus compensation payable for the land acquired.
58. By considering the ratio of revenue assessment of the land under sale instance (Rs. 2.40 Ps. per Are) and the revenue assessment of the lands of the claimants, reasonable market price can be arrived at as follows by following the same ratio with the market price of sale instance land (Rs. 3,00,000/- per Hectare). We must remind ourselves that the claimants themselves had not expected more than Rs. 3,00,000/- per Hectare, while placing their claims before Special Land Acquisition Officer.
Claimant Ratio of per Are revenue assessment Market price of claimant's land on the basis of ratio P.H (Rs.) Amount of compensation. (Rs.) Chindha 3.44/2.40 4,30,000/- 4,90,200/- for 1.14 Hectare + 6,450/- for 6 Are Pot Kharab. Sahebrao 1.83/2.40 2,28,750/- 93,787.50 for 41 Are Kubabai 1.93/2.40 2,41,250/- 3,88,412.50 for 1.61 Hectare. Arjun 1.86/2.40 2,32,500/- 3,74,325/- for 1.61 Hectare Santosh 2.62/2.40 3,27,500/- 2,29,250/- for 70 Are, Rs. 8187.50 Ps. for 10 Are Pot Kharab. Indubai 3.19/2.40 3,98,750/- 4,14,700/- for 1.04 Hectare. Laxman 1.89/2.40 2,36,250/- 7,48,912.50 Ps. for 3.17 Hectare. 11812.50 Ps. for 20 Are Pot Kharab. Chintaman 1.55/2.40 1,93,750/- 2,49,937.50 Ps. for 1.29 Hectare Daga 2.25/2.40 2,81,250/- 4,55,625/- for 1.62 Are. Shankar 3.85/2.40 4,81,250/- 5,87,125/- for 1.22 Are.
59. [Notes: We have awarded 25% of market price for Pot Kharab land.
60. By error, Reference Court has granted compensation only for 17 Ares instead of 70 Ares to Santosh. We have confirmed correct acreage of 70 Ares plus 10 Ares Pot Kharab that was acquired from the land of Santosh, by referring to award by SLAO and 7×12 extracts and compensation for correct area is being awarded, in the interest of justice, although there is no cross-objection/appeal.)
61. S.L.A.O as well as the Reference Court have granted compensation to Shankar only for 73 Ares and 49 Ares are considered to be under fruit garden of Pomegranate for which separate compensation is awarded. But on reference to 7/12 extract of G. No. 61 owned by Shankar (Exh. 23), it is evident that from cultivation year 1993-1994 till 1996-1997, entire acreage of 1.22 Hectare is shown under Pomegranate garden. In the light of ratio laid down by the Supreme Court, therefore, Shankar will have to be paid higher out of the two methods of calculation of compensation i.e either compensation of the land or compensation of fruit bearing trees. Hence, we have calculated compensation for entire land of Shankar i.e 1.22 Hectare.]
62. Rates calculated by us on the basis of ratio of revenue assessment are on the higher side than rates in the transactions of Bagayat lands considered by S.L.A.O Being proportionate to the sale instance market price, it would be just and proper to award compensation at these rates, so far as market price of the lands is concerned.
63. So far as fruit bearing trees are concerned, Reference Court has swallowed the valuation report of valuer, examined by claimants and without recording any reasons as to why he rejects the valuation report of Government Authority (Deputy Director of Fruits Production), which was relied upon by the SLAO.
64. Only 5 claimants had demanded compensation for trees, before the SLAO, whereas six claimants are granted compensation for fruit bearing trees. These details can be tabulated as follows:—
Claimant & date of Demand before SLAO for trees Award by SLAO for trees Award by Ref. Court for trees (Rs.) (Rs.) (Rs.) Chindha 1-4-1997 2,10,000/- 19,580/- 1,47,727/- for seventeen trees in 1.20 H. land Sahebrao 1-4-1997 50,000/- 1,677/- 35,375/- for five trees in 41 R land Arjun 1-4-1994 70,000/- 2,540/- 53,720/- for seven trees in 1.61 R land. Indubai 11-4-1990 No claim — 3,18,934/- for thirty one trees in 1.04 H. land Daga 1-4-1994 2,20,000/- 6,655/- 90,029/- for eleven trees in 1.62 R land. Shankar 1-4-1997 No claim 2,23,085/- 14,31,176/- for Two Hundred seventy nine trees in 49 R. land.
65. Although Chintaman had demanded Rs. 1,35,000/- towards compensation of trees, he is granted no compensation on that count, either by SLAO or by Reference Court, although joint measurement panchanama produced before this Court shows six Jujube trees in his land.
66. We have invited from learned AGP and referred to joint measurement panchanama (Exh. A to Civil Application No. 9109 of 2006) for the purpose of confirming existence of fruit bearing trees. Exhibit A is said to have been drawn on 30-9-1995. The said panchanama and inspection report by valuer can be compared by following table, so far as number of trees are concerned.
Claimant and the date of jt. panchanama Trees as per the joint measurement panchanama Trees as per valuer's report Chindha 1-4-1997 Mango (3) Tamarind (1) Jujube (8) Custard Apple (6) Mango (2) Tamarind (1) Jujube (8) Custard Apple (6) Sahebrao 1-4-1997 Jujube (5) Jujube (5) Kubabai 11-12-1990 Nil — Arjun 1-4-1994 Jujube (7) Jujube (7) Santosh 1-4-1997 Nil — Indubai 11-4-1990 Jujube (3) Jujube (21) Tamrind (07) Mango (03) Laxman 1-4-1997 Nil — Chintaman 5-2-1990 Jujube (6) — Daga 1-4-1994 Jujube (11) Lemon (1) Jujube (10) Lemon (1) Shankar 1-4-1997 Jujube (10) Pomegranate (269) Jujube (10) Pomegranate (269)
67. Learned Counsel for claimants tried to raise doubts about reliability of this joint measurement, when the same was tried to be relied upon by learned A.G.P, for pointing out that in the land of Indubai, number of trees has substantially increased, during inspection by valuer, i.e from 3 to 31. They pointed out that the panchanama does not bear date and hence it should not be believed. By reference to record, learned AGP claimed that it was drawn on 30-9-2005. When number of trees in the lands of all other claimants are accurately, the same as claimed by claimants, there is no reason to disbelieve this panchanama only against Indubai.
68. Learned AGP has also produced copies of Annexure “A”, which shows dates of taking possession by acquiring body and we have recorded the dates below the names of the claimants in the table above. Learned AGP has relied upon those, in order to falsify the report of valuer. Possession of the lands of Arjun, Indubai and Daga was taken in April 1994, 1990 and 1994, that of remaining 3 (Chindha, Sahebrao and Shankar) was taken in April, 1997. Learned Counsel Shri P.S Patil for claimants desired us to disbelieve these possession receipts (pages 16 to 26 of record of C.A.No 9109/06) because only one receipt pertaining to Chintaman bears a panchanama on its backside, whereas other do not. According to this panchanama dated 5-2-1990, there are 10 jujube, 50 Mango, 50 Pomegranate, 50 Guava and 50 Lemon trees. As per joint measurement dated 30.9.1995, there are only 6 Jujube trees. Chintaman did claim Rs. 1,35,000/- towards valuation of trees before SLAO. But, he has not filed any appeal/cross objection for this compensation although same is not granted to him, either by SLAO, or by Reference Court. The 7 × 12 extract of the land of Chintaman produced at Exhibit 24 shows cultivation years 1990-1991 to 1996-1997 and it shows that land is acquired for percolation tank. Position of any cultivation year showing orchard with 210 fruit bearing trees is not on record. If the trees were removed after possession in April 1990, earlier 7 × 12 extract could have been produced. If Chintaman has not persisted in establishing existence of 210 fruit bearing trees and claiming compensation for those, two possibilities are open. One, those trees are removed after acquiring body took possession and Chintaman, hence, does not wish to claim compensation on the basis of yield of fruit bearing trees, OR, two, no such fruit bearing trees were there and that makes the panchanama doubtful, so far as existence of trees is concerned.
69. Submission of learned AGP, by relying upon the dates of possession, it must be said, that there is quite a substance in his submission that the valuer could not have had opportunity to observe trees in the lands of 3 claimants Arjun, Indubai and Daga, whose lands were taken over by acquiring body, at least couple of years before visit of valuer. We may, therefore, be justified in taking number of trees as depicted in the panchanama of joint measurement. For Indubai, it could have been argued that trees were cut by acquiring body. But, as can be seen from the award by the SLAO, she had not laid any claim for compensation towards trees. Claim for compensation of trees, so far as Indubai is concerned, will have to be reduced to compensation of 3 trees only, instead of 31 trees.
70. Otherwise also, coming again to the ratio laid down by the Supreme Court in the matters of State of Haryana v. Gurcharan Sing, 1995 Supp (2) SCC 637 : AIR 1996 SC 106 and AIR 1971 SC 2027, Koyappathodi v. State of Kerala, referred supra in paragraph 9, the claimants are not entitled to compensation by way of market price of the land plus compensation for income from fruit bearing trees. They are entitled to either, may be whichever is higher out of the two.
71. On reference to number of trees in relation to area, none of the claimants, except Shankar, seem to be cultivating fruit garden. As per 7 × 12 extract, entire land admeasuring 1.22 H. of Shankar is covered by 269 Pomegranate trees since 1993-1994 and there is no other crop. Others have very few fruit bearing trees as compared to area of land. Sahebrao, Arjun and Chintaman have only Jujube trees, 5, 7 and 6 respectively, in lands admeasuring 0.41 H., 1.61 H and 1.29 H. Daga has 11 Jujube and 1 Lemon tree in 1.62 H. land. Chindha has 3 Mango, 1 Tamarind, 6 Custard Apple and 8 Jujube trees and his land is 1.20 H. None of these can be said to be systematically developed fruit gardens. These are trees, probably sporadically located. Otherwise also, the land covered by these trees would not be available for cultivation of any other crops, within the circumference of spread over of large trees, such as, Mango and Tamarind. Indubai claimed no compensation for trees before the SLAO. But, even if number of trees said to have been inspected in her land by valuer is taken into account for the sake of arguments, those were 31 trees comprising 21 Jujube, 7 Tamarind and 3 Mango trees. Again, this cannot be said to be a well developed fruit garden. Hence, duel calculation i.e market price and income from fruit yield is not necessary, in case of either of these claimants. At the cost of repetition, it must be said that there is no attempt on the part of Chintaman and Indubai to establish the existence of type and number of trees, before acquiring body took possession. Hence, for giving better option of the two (market price and fruit yield), we are taking into consideration claim of Shankar alone.
72. There are 269 Pomegranate trees in his entire land of 1.22 H., as per 7 × 12 extract. As such, it was erroneous on the part of SLAO to calculate that 6 trees cover 1 R. land and thus only 49 R. land is covered by fruit garden and remaining 73 R land is available for cultivation. 7 × 12 extract shows absence of any other crop cultivation.
73. In the literature provided by learned Counsel for claimants, there is a table of market prices of various fruits for various years and for Pomegranates in the years 1995-1996 and 1996-1997, lowest, highest and average rates per dozen were;
1995-1996 Rs. 10/- Rs. 60/- Rs. 40/- per dozen 1996-1997 Rs. 5/- Rs. 80/- Rs. 35/- per dozen
74. Taking into consideration, the fluctuations, it would be desirable to rely upon latest average price i.e @ Rs. 35/- per dozen. (These rates are provided by Agricultural Produce Market Committee.).
75. According to another table from Government literature, Pomegranate trees aged six years or above, produce 60 to 120 fruits. (Valuer has recorded that these trees were six years old). We can, therefore, take average yield to be about 90 fruit per tree.
76. In the same table, life of Pomegranate trees is said to be 20 to 30 years and thus, these trees were to provide yield for another 14 to 24 years (average 19 years).
77. We have preferred to rely on “average”, because there is no evidence produced by the claimant Shankar of his yield and income, may be of last ⅔ years.
78. Above details enable us to calculate total income from each trees during entire life remaining, as under;
79. Rs. 35 × 7½ dozens × 19 years = Rs. 4987.50 per tree
80. Rounding up, life time income from each pomegranate tree can be taken to be Rs. 5000/- and then deducting about 10 per cent for maintenance, each tree is worth Rs. 4500/- [Since life of the tree is available, we have not confined the calculation to highest multiplier of 15 as laid down in (1991) 4 SCC 8 : AIR 1991 SC 2027, but taken into consideration, income for 19 years]. If it is a garden of 269 trees over 1.22 Hectares, compensation on the basis of total yield/income of fruits, on the basis of life time of the trees would be:— Rs. 4500 × 269 trees : Rs. 12,10,500/-. This amount being higher than the market price of the land of Shankar (Rs. 5,87,125/-) on the basis of comparison with sale instance, claimant Shankar would be entitled to this amount, by way of compensation as market price i.e Rs. 12,10,500/- (and not the total of both amounts)
81. Much emphasis is laid by both the learned Advocates about potential capacity of the land and, therefore, they have prayed for grant of enhanced compensation, by taking into consideration such potential value. It was pointed out that Bhoras and Bilakhed are the twin villages situated within a distance of 5 to 10 kms. from Taluka Chalisgaon. There is sugar factory at Bhoras, called Belganga Sugar Factory and there is also State Highway by the side of these villages. Claimant Arjun, during his deposition, also claimed that there are hotels, petrol pumps, plastic industries, crushers and residential houses situated between Chalisgaon and Bhoras. Some details are also tried to be brought on record, in the deposition of Latifkha, who has also deposed that housing societies, petrol pumps and Nylon rope factories are developed between Chalisgaon and Bilakhed. However, this witness belongs to village Kadgaon Tanda and not Bilakhed. He admitted that at the time of acquisition, there were no hotels or petrol pumps, near the land under sale instance, which is said to be within a distance of a kilometre from the acquired lands.
82. All the claims, regarding development, are of the location between twin villages and taluka place Chalisgaon. While claiming potential value, claimants have not been able to produce any instance, where land, adjacent to the acquired lands, has been brought under use for urban development. The fact that the lands are acquired for minor irrigation tank, itself speaks against possibility of any urban development. We are, therefore, not inclined to swallow the contention of learned Counsel for the claimants that there were bright prospects of urban development and, therefore, lands should be considered as lands having potential capacity and, therefore, prices of the lands should be considered much higher than the price of the land under sale instance, relied upon, either by the claimants or by the SLAO.
83. Otherwise also, as the rates, at which we have determined the compensation are by ratio proportion with the revenue assessment of the sale instance land the market price is fixed higher than the expectation placed before the SLAO, by claimants and this should cover potential value, if any.
84. Consequently, the compensation payable to the claimants by way of market price of the land shall be as follows:—
Sr. No. Claimant Amount (Rs.) Total amt. (Rs.) 1. Chindha (Dharma) 4,90,200.00+6,450.00 = 4,96,650.00 ps 2. Sahebrao 93,787.50 = 93,787.50 ps 3. Kubabai (Kushabai) 3,88,412.50 = 3,88,412.50 ps 4. Arjun 3,74,325.00 = 3,74,325.00 ps 5. Santosh 2,29,250.00+8,187.50 = 2,37,437.50 ps 6. Indubai 4,14,700.00 = 4,14,700.00 ps
7. Laxman 7,48,912.50+11,812.50 = 7,60,725.00 ps 8. Chintaman 2,49,937.50 = 2,49,937.50 ps 9. Daga 4,55,625.00 = 4,55,625.00 ps 10. Shankar 12,10,500.00 = 12,10,500.00 ps
(2) respondents-claimants shall be entitled to 30 per cent solatium as under section 23(2) of the Land Acquisition Act, 1894 on the aforesaid amounts.
(3) They shall also be entitled to 12 per cent component on these amounts, for the period between the date of notification under section 4 of the Act (29-4-1996) and the date of award by SLAO (31-3-1999) as under section 23-1(A) of the Act.
(4) Interest under section 28 of the Act shall be calculated only on the remainder amount, after deducting amount as awarded by SLAO, as per column No. 17 in the tabularized annexure to this award, from the total amount arrived at by addition of amounts in paras 1, 2 and 3 above. (Table annexed as Annexure “A”)
(5) The amounts shall cease to carry interest as above under section 28, from, the date of payment to the claimants, or deposit either with Reference Court or this Court, to that extent.
(6) In case the amounts deposited, are credited in FDR, because those are not withdrawn/not allowed to be withdrawn, interest accrued on the amount with the bank, shall also be payable to the claimants proportionately.
(7) Since the claims, as raised before the Reference Court, are found to be extravagant, no orders as to costs and the parties shall bear their respective costs.
85. The award passed by Reference Court is, therefore, set aside and that of the SLAO, shall stand merged into this award. The amounts, if any, already paid, soon after the award by SLAO, or soon after the award of Reference Court, or at any time before passing of this award, shall be taken into consideration for the purpose of computing total payment, as awarded by us. Excess amount recoverable.
86. All the First Appeals are partly allowed as above and disposed of.
87. Civil Application Nos. 6522 of 2002, 8947 of 2006, 6520 of 2002, 6513 of 2002, 6515 of 2002, 6519 of 2002, 8349 of 2006, 6517 of 2002, 6518 of 2002, 6514 of 2002, 8348 of 2006, 6516 of 2002 and 6512 of 2002 in above respective appeals shall not survive, in view of disposal of appeals and hence, shall stand disposed of, accordingly.
ANNEXURE “A”
88. Statement of calculation regarding payment of compensation, including solatium and component AND amount chargeable with interest under section 28 of the Land Acquisition Act, 1894.
(Not reproduced)
Appeals partly allowed.
Comments