FIRST APPEAL NO. 280 OF 2019

25th February 2020

Petitioner Counsel: Mr. D. A. Bide Mr. V. B. Wayal
Respondent Counsel: Mr. P. M. Kulkarni
Act Name: Land Acquisition Act, 1894 Indian Evidence Act, 1872

HeadLine : Land Acquisition Act (1894), S. 18 – Compensation for thatched hut, cattle-shed, gobar gas plant – Determination of – No attempt to adduce evidence on record by claimant to facilitate court for assessment of valuation of all these items – Claimant not entitled for compensation for these items.

Section :
Section 4(1) Land Acquisition Act, 1894 Section 11 Land Acquisition Act, 1894 Section 18 Land Acquisition Act, 1894 Section 23(1-A) Land Acquisition Act, 1894 Section 23(2) Land Acquisition Act, 1894 Section 28 Land Acquisition Act, 1894 Section 34 Land Acquisition Act, 1894 Section 54 Land Acquisition Act, 1894 Section 45 Indian Evidence Act, 1872 Section 60 Indian Evidence Act, 1872 Section 61 Indian Evidence Act, 1872

Cases Cited :
Para 13: Chimanlal Hargovinddas Vs. Special Land Acquisition Officer, reported in AIR 1988 Supreme Court 1652
Para 14: Chindha Fakira Patil (deceased) through L.Rs. Vs. Special land Acquisition Officer, reported in 2011 (6) Bom. C. R. 735

JUDGEMENT

1. Admit. The matter is taken up for finality on merit with consent of both sides.

2. The instant appeal calls-in-question the quantum of compensation amount determined by the learned Reference Court, Aurangabad, in LAR No. 136 of 2006 filed by the appellant-original claimant under Section 18 of the Land Acquisition Act, 1894 (for short “Act of 1894”).

3. The factual aspects relevant to the present appeal in brief are that the agricultural lands Gut Nos. 171, 172, 190 and 191 admeasuring 00.46 R, 00.81R, 00.43 R and 00.92 R respectively of the appellant-claimant located at village Leha (Jahagir) Taluka Phulambri, District Aurangabad were placed under acquisition for submergence area of Wakod medium project. The notification under section 4(1) of the Act of 1894 was published in the official Gazette on 13-02-1997. After compliance of procedural formalities, the SLAO, proceeded to make award as contemplated under Section 11 of Act of 1894. The appellant-claimant did not accept the price determined by the Special Land Acquisition Officer (“SLAO”) for his acquired lands, fruit bearing trees and other improvement carried out in the field. Therefore, he accepted the compensation amount offered by the SLAO under protest and filed the Reference petition under Section 18 of Act of 1894 for indulgence of the Court to determine the just and reasonable market value of the lands under acquisition. The learned Reference Court dealt with the Reference petition of appellant-claimant and on appreciation of entire oral and documentary evidence adduced on record partly allowed the Reference Petition and agreed to enhance the market price of acquired lands from Rs.494 per R calculated by SLAO to market price @ Rs. 2100/- per R. But, the learned Reference Court found reluctant to allow any enhancement in the valuation of fruit bearing trees as well as the improvements carried out in the lands. Therefore, the claim of appellant - claimant for enhancement of compensation for fruit bearing trees, improvement etc. was rejected by the learned Reference Court. Being aggrieved by refusal of learned Reference Court to enhance the compensation for fruit bearing trees, improvements etc. and also the improper determination of market price of acquired lands, the appellant-claimant rushed to this Court and preferred the present appeal under Section 54 of the Act of 1894 for redressal.

4. The learned counsel appearing for appellant-claimant, at the threshold, fairly conceded that the appellant-claimant has no any grievance about the market price of acquired lands fixed by the learned Reference Court. However, the appellant-claimant has strong objection in regard to the mode and manner in which the learned Reference Court dealt with the evidence of horticulturist, who was the expert in the agriculture field. The PW-2 Dr. Patil was the Government approved valuer, having requisite educational qualification. He visited to the lands of the claimants under acquisition and carried out the inspection. He prepared the valuation report of fruit bearing trees as per norms prescribed by the Government. The learned Reference Court ought to have appreciated the evidence of experts for determination of value of acquired trees. The learned counsel for appellant harped on the circumstances that the learned Reference Court did not consider the evidence on record in proper manner. The findings expressed by the learned Reference Court for discarding the evidence of experts are erroneous, illegal and based on misinterpretation of provisions of law. According to learned counsel, there was no dispute about the existence of trees and its number in the acquired land. The SLAO granted the compensation for trees as well as improvements in the lands. The number of trees in existence in the acquired land were also reflected in the report of joint measurement and spot inspection carried out by the Government Personnel. The learned counsel for appellant fervidly submits that the respondent-State has acquired the lands and various trees, thatched huts, cattle shed etc. for medium irrigation project. Therefore, the just and reasonable compensation is essential to be received to the appellant-claimant for the loss caused to him due to compulsory acquisition proceeding.

5. Before embarking into the merits of the matter, it is to be noted that the learned counsel for the appellant-claimant did not address to the issue of market price of acquired lands in this case during the course of his argument. In contrast, he fairly conceded that the appellant-claimant has no any grievances about the market rate of acquired land assessed by the learned Reference Court. Therefore, there is no any propriety to delve into the issue of market price of acquired lands fixed by the learned Reference Court.

6. Now, the crucial point remained to be ponder over is in regard to price-money to be paid to the appellant-claimant for his acquired trees, thatched hut, cattle-shed etc. It was not put into controversy that the impugned award made by SLAO under Section 11 of Act of 1894, contains a document of comparative chart showing the types of trees, its number and valuation as per report of joint measurement as well as after spot inspection of acquired land. The document of comparative chart was the part and parcel of the Award of SLAO. It reveals from the document that there were fruit bearing trees - Jambhul-10, Guava-6, Mango-5, Ber-50 and Coconut-5 in the land Gut No. 171 of appellant-Claimant. There were only 65 Chiku trees under acquisition in the land Gut No. 191. The appellant-claimant has claimed the enhancement of compensation for all these aforesaid trees. It transpired that there would not be any dispute about number of trees and its existence in the acquired land. The SLAO also determine the valuation of these trees but claimant did not accept the same and learned Reference Court also turned-down his claim, which is the subject-matter of present appeal. The point of controversy required to be resolved by calculation of just and proper valuation of fruit bearing trees under acquisition.

7. The appellant-claimant in support of his evidence examined the valuer Dr. V. K. Patil at (Exhibit-16). He was the Government approved valuer. He produced the relevant documents of his educational and professional qualification and certificates etc. (Exhibits- 17 to 20) on record. It is in his evidence that he had visited to the orchard of appellant-claimant at his instance. He personally carried out the inspection of fruit bearing trees, which were seen standing in the land under acquisition. He reduced into writing the details of inspection of trees in presence of panchas as well as other resident of the village. He has given detail particulars of number of trees, its age, height, stem girth, general condition, production capacity, etc. He deposed that he prepared the valuation report of the fuit bearing trees located in the acquired lands as per guidelines issued by Government of Maharashtra under Government Resolution No. HOR 1090/381/4 dated 27th December, 1990. His valuation report was also based on the A. E. Miram’s real property Table method of valuation approved by the Government Department. He produced and proved the relevant documents of requisition letter of claimant (Exhibit-42), Inspection report, valuation report, certificates etc. (Exhibits-28 and 43 to 47).

8. The claimant also adduced the evidence of Shri Babulal Bankar (Exhibit-41), he was the panch witness and resident of village Leha (Jahagir) of appellant-claimant. His evidence fortify the version of Dr. Patil, horticulturist about his visit to the orchard of claimant for inspection of standing trees in the lands under acquisition and its valuation report.

9. The learned Reference Court found reluctant to act upon the evidence of horticulture experts Dr. Patil in this case. The learned Reference Court while discarding the evidence of expert witness Dr. Patil recorded the findings in para No. 14 of the impugned Judgment, which would be reproduced as below -

(Marathi Language)

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10. The minute scrutiny of evidence of Valuer Dr. Patil reflects that the appellant-claimant examined the valuer as an independent witness being Expert in the field of Agriculture and Horticulture Science. The function of Expert is to furnish data with necessary scientific criteria so as to enable the Court to come to an independent conclusion to resolve the impasse for proper adjudication of dispute on merit. The evidence of Horticulturist Dr. Patil is admissible under Section 45 of the Evidence Act, being an opinion of third person on the point of valuation of fruit bearing trees. He was the person specially skilled in such science relating to topic of Horticulture.

11. It is discernible that the learned Reference Court adopted the superficial approach to discard the evidence of Valuer Dr. Patil. The findings are found rest on misconception of provision of Evidence Act. It would fallacious to appreciate that the evidence of expert Dr. Patil was not within the ambit of Section 60 of the Evidence Act. It is to be borne in mind that the provision of Section 60 of Evidence Act contemplates that if the oral evidence of witness refers to an opinion, it must be the evidence of the person, who holds that opinion on these grounds. The Section 61 of the Evidence Act mandates that the contents of documents may be proved either by primary or by secondary evidence. The Law postulates that the contents of document must be proved either by production of the document which is called primary evidence or by copies or oral accounts of the contents, which would be considered as secondary evidence.

12. In the matter-in-hand, the claimant’s valuer Dr. Patil testified about his expertise in the field of Science of Horticulture. He deposed that he had visited to the orchard of appellant, carried out the inspection of fruit bearing trees, and thereafter, he prepared the valuation report. He produced the relevant documents of inspection report, valuation report, etc. on record being primary evidence of his opinion. In such circumstances, there is no legal impediment to appreciate the evidence of Valuer Dr. Patil in this case. Moreover, in the primary evidence of documents of valuation report and its allied documents (Exhibits-28 and 43 to 47), the Dr. Patil made reference of Government Resolution, dated 27th December, 1990, the yearly Annual Report of Agricultural Market Committee, Aurangabad and valuation of real property in India by A.E.Miram’s etc. In such circumstances, the findings expressed by the learned Reference Court to discard the evidence of Horticulturist Dr. Patil seems based on highly technical approach. The learned Reference Court unwittingly overlooked the nature of evidence adduced by Dr. Patil being expert opinion. The learned Reference Court misconstrued the provisions of Evidence Act resulting in discarding the evidence of claimants valuer.

13. Be that as it may, the evidence of Horticulturist Dr. Patil is essential to be appreciated in this matter to determine the just and appropriate valuation of trees under acquisition. There was no any endeavour on the part of respondent–Government authority to produced and proved any other report of Government valuer from Horticultural Department to lend support to the valuation of the trees finanalized by the SLAO. Moreover, in view of legal guidelines delineated by Honourable Apex Court in Chimanlal Hargovinddas Versus Special Land Acquisition Officer, reported in AIR 1988 Supreme Court 1652, the valuation report of Dr. Patil is only available on record being document produced and proved in this case. Therefore, it is to be taken into consideration for assessment of value of trees of appellant under acquisition.

14. In these premises, there is no impediment to conclude that the valuation made by claimant’s valuer is more effective for appreciation to fix the market value of fruit bearing trees of the claimant. At this juncture, taking recourse of particular mode adopted by Honourable Apex Court in the case of – Chindha Fakira Patil (deceased) through L.Rs. Versus Special land Acquisition Officer, reported in 2011 (6) Bom. C. R. 735 for calculation of market price of fruit bearing trees on the basis of report of claimant’s valuer, this Court also preferred to determine market value of fruit bearing trees @ 80 % of valuation made by claimant’s valuer Dr. Patil. As per the valuation report of valuer Dr. Patil, the market value for the acquired trees comes to Rs.1168925.64 and 80 % of said valuation accrued to Rs.935140.51. The details of valuation for acquired trees in tabular form shown below:-

Sr.
No.
Acquired Land/Fruit bearing Trees Valuation of Trees as per
Gat No. Type of
Trees
Number
of Trees
Valuation Report
of valuer Dr.Patil
(Exhibit-47)
Court [i.e. 80 % of
the Valuation
Report (Exhibit-47)]
1
171
Mango 5 150225.25 120180.2
2 Ber 50 49190.75 39352.6
3 Guava 6 24651.89 19721.51
4 Jambhul 10 91405.95 73124.76
5 Coconut 5 37286.45 29829.16
6 191 Chiku 65 816165.35 652932.28
Total compensation awarded 1168925.64 935140.51
[ Rs. 11,68,925.64 Ps. * 80 / 100 = Rs.9,35,140.51 Ps. ]

15. Now, turning to the claim for valuation of thatched hut, cattleshed, Gobar Gas plant, etc., there was no any attempt to adduce evidence on record to facilitate the Court for assessment of valuation of all these items of the appellant shown under acquisition. The learned Reference Court also rebuffed the relief of enhancement of compensation for these items for want of evidence on record. In such peculiar circumstance, the reasonable inference would be drawn that no any enhancement of compensation is permissible for these items to the appellant-claimant.

16. In view of the above, this appeal is partly allowed.
(a) The claim for enhancement of compensation for acquired lands thatched hut, Gobar Gas Plant as well as cattle shed etc. made on behalf of appellant is hereby dismissed.
(b) The claim for enhancement of compensation for fruit bearing trees under acquisition stands partly allowed. The appellant-claimant is entitled to receive compensation for fruit bearing trees located in lands Gut No. 171 and 191 to the tune of Rs. 9,35,140.51 Ps. The compensation amount, if any, paid to the appellant-claimant towards fruit bearing trees be deducted from the compensation amount allowed to be enhanced for fruit bearing trees.
(c) The appellant-claimant is also entitled to receive statutory benefit as contemplated under Section 23(1-A) and 23(2) of the Act of 1894 on the aforesaid enhanced compensation amount.
(d) In addition, the appellant - claimant will be entitled to get interest as prescribed under Section 28 and 34 of the Act of 1894 on the enhanced compensation amount.

17. Accordingly, the First Appeal stands disposed of in above terms. No order as to costs.

Decision : Appeal partly allowed.