Dismissed

The State of Maharashtra v. Shri Hari Shankar Gavande and Ors.

Bombay HC6 Sept 2007FA/69/1996

Case brief

AI extract

What is this about?

Appeal by the State challenging compensation awarded for land acquisition for Waghad dam involving Bagayat lands with guava trees. Court dismissed appeals, upholding separate assessment and the fixed rate per tree.

What did the court decide?

All appeals filed by the State were dismissed.

What the court decided

The State of Maharashtra Vs Shri Hari Shankar Gavande and Ors. — Land Acquisition | Bombay HC (2007)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CIVIL JURISDICTION

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FIRST APPEAL NO.54 OF 1996

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The State of Maharashtra Appellant vs. Deoram Fakira Palmahale & ors. Respondents Mrs.G.P. Mulekar, Addl.G.P. for the appellant. Mr.R.M.Haridas i/b.Mr.P.N.Joshi for respondents.

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ALONG WITH FIRST APPEAL NO.55 OF 1996 The State of Maharashtra Appellant vs. Balkrishna Ramchandra Palmahale &ors. Respondents Mrs.G.P. Mulekar, Addl.G.P. for the appellant. Mr.R.M.Haridas i/b.Mr.P.N.Joshi for respondents.

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ALONG WITH FIRST APPEAL NO.56 OF 1996 The State of Maharashtra Appellant vs. Jagannath Moru Sonawale & ors. Respondents Mrs.G.P. Mulekar, Addl.G.P. for the appellant. Mr.R.M.Haridas i/b.Mr.P.N.Joshi for respondents.

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ALONG WITH FIRST APPEAL NO.57 OF 1996 The State of Maharashtra Appellant vs. Bhagwat Pandhaarinath Palmahale & ors. Respondents

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Mrs.G.P. Mulekar, Addl.G.P. for the appellant.

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Mr.R.M.Haridas i/b.Mr.P.N.Joshi for respondents.

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ALONG WITH FIRST APPEAL NO.58 OF 1996
The State of Maharashtra	Appellant
vs.
Waman Vithal Palmahale & ors.	Respondents

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Mrs.G.P. Mulekar, Addl.G.P. for the appellant.

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ALONG WITH FIRST APPEAL NO.59 OF 1996
The State of Maharashtra vs.	Appellant
Seetaram Anaji Palmahale & ors.	Respondents
Mrs.G.P. Mulekar, Addl.G.P. for the appellant.
Mr.R.M.Haridas i/b.Mr.P.N.Joshi for respondents.

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ALONG WITH FIRST APPEAL NO.60 OF 1996
The State of Maharashtra vs. Ramchandra Tulshiram Bhagwat & ors.	Appellant Respondents
Mrs.G.P. Mulekar, Addl.G.P. for the appellant.
Mr.R.M.Haridas i/b.Mr.P.N.Joshi for respondents.
ALONG WITH FIRST APPEAL NO.61 OF 1996
The State of Maharashtra vs. Laxman S. Gavande	Appellant Respondent
Mrs.G.P. Mulekar, Addl.G.P. for the appellant.

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Mr.R.M.Haridas i/b.Mr.P.N.Joshi for respondents.

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ALONG WITH

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FIRST APPEAL NO.63 OF 1996

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The State of Maharashtra Appellant vs. Laxman J. Gavande & ors. Respondents

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Mrs.G.P. Mulekar, Addl.G.P. for the appellant.

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Mr.R.M.Haridas i/b.Mr.P.N.Joshi for respondents.

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ALONG WITH FIRST APPEAL NO.64 OF 1996 The State of Maharashtra Appellant vs. M.V.Pawar Respondents

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Mrs.G.P. Mulekar, Addl.G.P. for the appellant.

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	ALONG WITH FIRST APPEAL NO.65 OF 1996
The State of Maharashtra	vs.	Appellant
Laxman Eknath Thete		Respondents

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Mrs.G.P. Mulekar, Addl.G.P. for the appellant.

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Mr.R.M.Haridas i/b.Mr.P.N.Joshi for respondents.

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ALONG WITH FIRST APPEAL NO.66 OF 1996 The State of Maharashtra Appellant vs. Laxman E. Thete & ors. Respondents

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Mrs.G.P. Mulekar, Addl.G.P. for the appellant.

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Mr.R.M.Haridas i/b.Mr.P.N.Joshi for respondents.

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ALONG WITH

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FIRST APPEAL NO.67 OF 1996

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The State of Maharashtra Appellant vs. Savliram Rama Gangode Respondents

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Mrs.G.P. Mulekar, Addl.G.P. for the appellant.

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ALONG WITH FIRST APPEAL NO.68 OF 1996 The State of Maharashtra Appellant vs. Hari Pandu Gavande Respondents

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Mrs.G.P. Mulekar, Addl.G.P. for the appellant.

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Mr.R.M.Haridas i/b.Mr.P.N.Joshi for respondents.

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AND ALONG WITH FIRST APPEAL NO.69 OF 1996 The State of Maharashtra Appellant vs. Hari Shankar Gavande & ors. Respondents

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Mrs.G.P. Mulekar, Addl.G.P. for the appellant.

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Mr.R.M.Haridas i/b.Mr.P.N.Joshi for respondents.

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	CORAM : ANOOP V. MOHTA,	J.
	DATED : 6th September, 2007
ORAL JUDGMENT: All these	Appeals are by the	State	whereby	a common
judgement dated 11.2.199	4 passed by the IInd Additional

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District Judge, Nasik has been challenged.

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The operative part of the impugned judgment is as

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follows:

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"1. The claimant in Land Reference No.137 of 1988 for G.No.17 at the rate of Rs.14,000/shall get Rs.4340/for area of 31 ARE and after deducting amount which is already granted Rs.2924/- remaining amount of enhancement would come to Rs.1416.

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.	For	G.N	o.74	present	enh	anced	rate	would	be
Rs.12,500/-	per	hect	are	and	the v	alue	would	be	Rs.7500/-
for 60	ARE	out	of	which	already	paid	amount	of	Rs.3900/-

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is deducted and enhancement would come to the tune of Rs.3600/-.

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claimed in L.R.No.137 of 1988 would get total enhancement of Rs.5496/-.

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In L.R.No.138 of 1988 for G.No.21 as per enhanced rate at the rate of Rs.11,000/value of 40 Are would come to Rs.4400/-. Already Rs.2200/are paid. Only

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remaining amount of Rs.2200/- will be given as enhancement.

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. As regards G.No.76 the extent of 1 hectare 20 Are, new rate applicable would be at the rate of Rs.12,500/-. The value of which will come to the tune of Rs.15,000/-. Rs.7800/are already granted. After deducting the same the enhancement will come to the tune of Rs.7200/-. The claimant in the reference would also entitle to the enhancement of Rs.185957/for guava orchard and Rs.1226 towards injurious affection and severance. Thus total

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compensation which the claimant would get to the tune of Rs.196583/-.

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The claimant in L.R.No.139 of 1988 will get compensation at the rate of rs.12500/for 93 Are from G.No.43. He is entitled to get Rs.11625/out of which Rs.6045 is already paid and he is entitled for enhancement of Rs.5580/towards land and towards orchard of 25 guava trees, he is entitled for

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Rs.9,700/-, towards enhancement. Thus total enhancement

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awarded to him will have to the extent of Rs.15280/-.

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and after deducting amount of Rs.4325/- which is already

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received, he is entitled for Rs.4050/-.

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. For G.No.62 which is 1 hectare 34 Are at the rate of Rs.12,500/this claimant is entitled for Rs.16750/and

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after deducting the amount which is already paid Rs.8710/now he will be entitled to get Rs.8040/-. Thus the claimant is entitled total enhancement of Rs.12090/-.

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is entitled for additional compensation of Rs.2400/-.

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he shall be entitled for additional compensation of Rs.3180/-.

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8.		The cla	imant	in	L.R.No.	144	of	1988		for	land	G.No.77
to	the	extent	of	50	ARE	area	at	the		rate	of	Rs.12,500/-
shall	get	Rs.62	50/-	out	of		which		he		has	received

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Rs.3250/-. Now he shall be entitled to get additional

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compensation of Rs.3000/-.

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9.	The	claimant	in	L.R.N	o.145/88	for G.	No.78	of	which
36	ARE	area	has	been	acquired,	will be	entitled	to	get
enha	ncement	at	the	rate	of	Rs.12500/-	per he	ctare	which
will	come	to	Rs.4	500/-	out of	which	Rs.2340/-	have	been
paid.	Now he is entit	led for ad	ditional	compens	ation of
Rs.2	160/-.

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10.	The	claimant	in	L.R.No.1	46	of	1988	for	land
G.No.212	area	of	1	hectare 26	ARE	at	the	rate	of
Rs.12,500/-		shall	get	Rs.15750/-	out	of	it	R	s.8190/-

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have been already paid and he is entitled for additional

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compensation of Rs.7560/-.

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11.		The	claimant in L.R.No.	147 of	1988	for	land		54ARE
out	of	G.	No.215 at the	rate	of	Rs.12,50	0/-	is	entitled
to		get	enhanced compensation	of R	s.6750/-	out	of		which

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he has received Rs.3478. Now he is entitled to get

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Rs.3272 as additional compensation.

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.	The	claimant	is	entitle	d	for c	ompensat	ion	towards	245
guava	trees	at	the	rate	of	Rs.800/-	per	tree	to	the
extent	of	Rs.1960	00/-	out	of	Rs.	100952/-		have	been
already	paid.		Now	he	is	entitled	for	the	enhan	cement

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compensation of Rs.95048/- for guava trees and total Rs.98320/-.

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Rs.4640/-. This claimant is not entitled for any

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compensation towards guava orchard.

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13/The claimant in L.R.No.149 of 1988 for his land G.No.277 to the extent of 1 hectare and 6 ARE at the rate of Rs.11,000/is entitled for compensation of Rs..11660/out of which he has been already awarded

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Rs.5665/-. After deducting this amount he is entitled

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to get enhanced amount of Rs.5995/-.

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have been already paid and now claimant shall be

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entitled to get additional compensation of Rs.15070/-.

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and he shall be entitled for additional compensation of

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Rs.4680/-.

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The claimant in L.R.No.152 of 1988 for his land of 54 ARE out of G. No.383 is entitled for compensation at the rate of Rs.12500/per hectare i.e. Rs.6750/out

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of which he has been already paid Rs.3510/-. Now he is

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entitled for additional compensation of Rs.3240/-.

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.	This cla	imant	sha	ll	also	be	entitled	for	compen	sation
of 146	guava	trees	at	the	rate	of	Rs.800/-	per	tree	i.e.
Rs.116800/-	out		of	which	he	has	been	paid	Rs.44	282/-.
Now	he is		entitled		for	addit	ional	compens	ation	of

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Rs.72518/-. Thus, the claimant is entitled for total

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additional compensation of Rs.75758/-.

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this amount, he is entitled to get Rs.3840/-, as

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additional compensation.

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. All the claimants are entitled for 30% solatium on

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the additional compensation and 12% component from the

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date of notification till passing of the award.

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. The claimants shall also be entitled for interest on

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above	amount	at	the	rate	of	9	% p.a.	for	the period	of
one	year	from	the	date	of		taking	possession	by	private
negotiation	and	ther	eafter	at	the		rate	of 15%	p.a.	till

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full realisation of the compensation from the State

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Government.

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. No order as to costs."

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The facts are as follows:

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.	A Notification under Section 4 of	th	e	Land
Acquisition	Act (LA Act) dated 4.2.1981	is	sued	for
acquisition	of lands for sub-mergence of the	Wa	ghad	dam.
All	the claimants/respondents herein have	filed		their
respective	claims. They are from village		Cha	chadgaon,
Tal.	Dindori, Dist.Nashik. The lands in	questi	on	are
Bagayat lands	having fruit bearing trees standing
thereon.
4.	The Special Land Acquisition Officer	has		grouped
these	lands in five groups. The following	is	the	chart
to	disclose the land reference number, gat	nu	mber,	area
acquired, grou	p number, rate granted per hectare and
lastly the comp	ensation awarded.

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---------------------------------------------------------------Land Ref. G.No. Area Group Rate granted acquired No. per hectare ----------------------------------------------------------------

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Compensation awarded

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1 -------------------	2 ----------	3 4 -----------------------------------	5		6
			Rs.		Rs.
1)137/88 17		31 ARE V	10,000/-		2924/-
	74	60 ARE III	6,500/-		3900
	368	8 ARE III	6,500/-		520/-
2)138/88 21		40 ARE II	5,500/-		2200/-
	76	1 H.20 ARE III	6,500/-		7800/-
3)139/88 43		93 ARE III	6,500/-		6045/-
4)140/88 51A		67 ARE III	6,500/-		4325/-
	62	1.34 H. III	6,500/-		8710/-
5)141/88 52		1.38 H. III	6,500/-		8970/-
6)142/88 64		40 ARE III	6,500/-		2600/-
7)143/88 69		53 ARE III	6,500/-		3445/-
8)144/88 77		50 ARE III	6,500/-		3250/-
9)145/88 78		36 ARE III	6,500/-		2340/-
10)146/88 212		1.26 H. III	6,500/-		8190/-
11)147/88 215		54 ARE III	6,500/-		3478/-
12)148/88 264		91 ARE I	4,000/-		3640/-
13)149/88 277	H. 1.06	ARE II	5,500/-		5665/-
14)150/88 354	H.2.50	ARE III 6,500/-			16180/-
15)151/88 380		78 ARE III	6,500/-		5070/-
16)152/88 383		54 ARE III	6,500/-		3510/-
17)153/88 388 -------------------	----------	64 ARE III ----------------------------------	6,500/-		4160/-
5. to		The different rates the respective	to the claimants.	guava The	trees were responde	granted nt/original

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claimants therefore made references under Section 18 of

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the LA Act for enhancement of the compensation.

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6.	All	these	references have	been	clubbed	togeth	er for
hearing	and	for	the purposes	of	disp	osal.	The
appellants	con	tested	the same.	How	ever,	without	filing
written	sta	tement.	The	claiman	ts/respond	ents	witnesses
were	cross-examine	d	by the	appella	nts	through	the
learned Dist issues have b	rict Governmen een framed:	t Pleader.	The following two
(i)	Whether	the	claimants prove	that	the	co	mpensation
awarded by	Special Land	Acquisiti	on Officer is
inadequate?
(ii) What ad	ditional amoun	t of comp	ensation, if any

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claimant is	entitled to get?
7.	After	considering the	material on	the	record,	the
trial	Court,	as reproduced	above,		awarded	the
compensat	ion separately for	the land and for the guava
trees. The	refore, all these app	eals by the State.

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8.	The	learned	cou	nsel	appear	ing	for	the	appellants	has
strongly	relied	on	K	.A.A.R	aja &	ors.		v.	State	of
Kerala	&	anr.,	(1994)	5	SCC	138,	State	of	Haryana	v.
Gurtcharan	Sin	gh	&	anr.,	1995	Supp.	(2)	SCC	637	and

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Airports	Author	ity of India	v.	Satyagop	al	Roy	&	ors.,
(2002)	3 SCC	527 and	basically	contended		that	in view	of
the	above	judgements,	the trial	Court		and	even	the
Special awarded present ca	Land the compensatio ses.	Acquisition n separately as done	Officer in the	ought		not	to	have
9.	She	has strongly	relied on	para	8	of	the	Airports

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Authority of India (supra) , the relevant portion of

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which reads thus:

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	"8. It is settled law t market value of the acquire	hat in evaluat d property,	ing the namely,
	land and building or fruit-bearing trees standing t both is to be determined not as separate units but as one unit....."	the land hereon, value	with of
10.	Admittedly, in the present case,	the trial C	ourt as
well	as the Special Land Acquisition	Officer have	not
considered	and awarded the compensation	based on	the
principle	of multiplier. The assessm	ent is	admittedly
based	on the sale instances in	other similarly	situated
lands.	The judgements of the S	upreme Court,	therefore,
as	relied are totally distinct and	distinguishable	on
the f	acts of the present cases.	All the	above
judgements	of the Supreme Court exc	ept the princ	iple as
quoted	above were dealing with the	cases of	multiplier.
The	principle as noted above is	not in	dispute.
However,	there is nothing to show	from all	these

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judgements that there is total bar not to grant such compensation as awarded in the present cases, that is by granting the compensation separately also for the guava trees apart from the land.

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11. Admitt	edly, th	ere was no written statement filed	by
the State.	There	was no objection of any kind raised	at
the relevant	point	of time in this regard.	The
submission,	therefore,	as raised for the first time	in
the present	appeals	just cannot be accepted. There	is
no such	ground	raised in the present appeals except	the
specific grou	nd t	hat "the learned Judge has erred	in
awarding compensatio per tree."	n for the gua	va trees at Rs.800/-
12. Even	otherw	ise while granting the compensation,	the
trial Court	has	taken note of quality of land and	its
rates based on the ma recorded in para 9 as u	terial availab nder:	le on record, as
"9. ......	No	doubt claimants are claiming Rs.2	0,000/-
per hectare	for	Rabbi land, Rs.25,000/- for the	paddy
land and Rs.30,000/- land."	to Rs.40,000	/- for the Bagait
This was	based	on the evidence led by the res	pective
claimants.	The	assessment, therefore, as made based	on

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the q	uality	of the land in no	way be treated as	total
assessment	of	land along with the	guava trees. Th	ere is
no	separate	and specific finding	given in this	regard.
Therefore,	the	submission that	while granting	the
compensatio	n	and while assessing	the lands in	question,
both	the	Authorities have applied	its mind and	taken
into	consid	eration the guava trees	is not correct.	The
record	and	reasoning shows other	wise. It is	necessary,
while	asse	ssing the valuation of	land, to give	detailed
reasoning	in	respect of the land	and building or	the
land	with	fruit-bearing	trees standing	thereon.
Normally	it	is necessary f	or the Authorities,	as
observed	by	the Apex Court	in Airports Authority	of
India	(supra)	that both need to	be determined not as	a
separate	unit	but as one unit.	However, in the	absence
of	any	specific challenge raised	at the relevant	time
now,	at	this stage of the pro	ceeding, there is no	point
in re	manding	the matter back	for re-assessment	or
re-valuation.		As recorded,	the notification	under
section	4	of LA Act was passed	in 1981, the basic	order

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was passed in 1986 and the impugned judgement and award

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is of the year 1994.

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13.	As noted,	the	proced	ure is	not	foreign	in	so	far as
the	assessing	the	land	value	based	on	the		comparable
sale	instances.	The	Apex	Cou	rt i	n Airpo	rts	Aut	hority of
India	(supra)	has	a	ccepted	this	principle		by	saying

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"Therefore,		it	wou	ld	be	open	to	the Land Acquisition
Officer	or	the	court,		either	to	asse	ss the land with all
its	advant	ages	and	fix	the	mar	ket	value thereof on the
basis	of	co	mparable		sale	instan	ces.	In case where
comparable		sale		inst	ances	are	not	available and where
there	is	rel	iable	and	ac	ceptable	evi	dence on record of
the	an	nual	incom	e	mult	iplied	by	appropriate multiplier
for	its		capitalis	ation	.	In	the	case of fruit-bearing
trees	their	net	yiel	d	is	to	be	taken into consideration,
that	is	to	sa	y,	by	deducting		expenses incurred for

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getting the yield and also the value of the timber and

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expenses to cut and remove the trees from the land."

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14.	As		noted, i	n the present cases,	both	the
Authorities		ba	sed on	the comparable sale ins	tances	and
the	orders		passed	in respective references	and	after
considering		the	materi	al and evidence placed	by	the
parties	on		record,	assessed the land separa	tely.	In
these	cases,		admittedly	there was no	question	of
applying	any		multiplier.	In this ba	ckground,	the
submission		that	both	the Authorities erred in	law	by
granting		com	pensation	separately is not accep	table.	As

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recorded, in the facts and circumstances, it is not

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feasible to remand the matter again on this ground.

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15.	In	so	far	as	the	ground	of	rate	per	tree	as
recorded	based		on	the	mater	ial	available	on	re	cord	which

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includes		various	ra	tes	such g	uava tre	es	ranging	from
Rs.800/-		to	Rs.1000/-	pe	r tree,	the	trial	Court	cannot
be	said	to	have	erred	in law	by g	ranting	the	average
rate	of	Rs.800/-	per	tree	as	observed.	T	he finding	of
facts		as arr	ived	at	just	cannot	be	overlooked	specially
when		there is	no	con	tra-material	placed	on	record.	The
finding		therefore	is	with	in the	frame	work	of law	and
record.		I am	o	f the	view	that there	is	no case	to

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interfere with the finding recorded in impugned

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judgement.

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The detailed finding as recorded for the guava

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trees are in paragraphs 14 and 16 which read thus:

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"14.	It	was	further	arg	ued by the learned counsel	Shri
B.G.Thakre	that	i	n	other	reference which was drawn	by
Spl.Land	Acquisitio	n	Officer	,	he gave Rs.856/- per	tree.
It is	in the	evid	ence	of	P.W.Tanaji that for the	orchard
of	village	Umral	e,	Rs.850/-	per tree were granted	and
their	orchard	had		Lakhano	w variety of guava	fruits
therefore,	they	sh	ould		fetch at least Rs.1000/-	per
tree.	The	stateme	nt	of	valuation of the trees	in
L.A.Case	No.35	of 1	979	for	village Umrale is produce	d to
show th	at for	15	trees	Rs.	44,000/- were valued. It	will
be at	least	at	the	rate	of Rs.900/- per tree.	This
valuation	report	was		made	by the Deputy	Director
Horticulture,	Nasik.			Shri	B.G.Thjakre relied on	several

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text and notifications as to how valuation of the	fruit
bearing trees should be made. He filed a letter	from
the Department of Horticulture from Mahatma	Phule
University Rahuri. He also relied on text book	called
"Maharashtratil Fal zade", page 160. A circular	issued
by Director of Horticulture, Maharashtra State	Pune
dated 5th Jan. 1985 was also pressed in service	for
valuation of the fruits. Shri Thakire further relied	on
judgment of my learned brother in L.R.No.89 of 1985.	He
has also considered valuation of the fruits on the	basis
of its yield. He arrived at the rate of Rs.900/- o	r so
for per guava tree. This land reference is also	arising
out from the lands which were acquired for Waghad	Dam.
Though the same rates cannot be accepted, yet it	cannot
be said that it is not relevant for my purpose.	Shri
B.G.Thakire further filed a report of Deputy Director	of
Horticulture, who had valued 225 guava trees at the	rate

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of Rs.253000/- the rate which will come for more than

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Rs.1000/- per tree.

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16.	I	have	already	pointed		ou	t			that	I	do		not		believe
there	would	have	been	fresh	sapl	in	gs			in	the	la	nd	.		The
rates	which	have	been	shown	at		l	o	w		level	mu	st		have	been
for	the sp	oiled	trees.	Th	ose		tre	e	s		mu	st		ha	ve	been
decayed	due	to	accum	ulation	of		t	h	e		water	in		the		land.
Now	question	before	me	would		be				what	sho	uld		be	the	rate
for	per tree	of	guava.	The		ra	tes			w	hich	are		bro	ught	to

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my notice are	ranging from Rs.800/	- to		Rs.10	0	0/-	per
tree. The rates	which my learned	brother	ha	s	f	ixed	in
L.R.No.89 of 1985	were on the basis	of	the	yie	ld		which
he calculated on	the basis of the	marke	t pr	ice		and	so
on. However, I	find that this	ca	lculatio	n		is	not
available for me.	Therefore, I ca	nnot	take	a	d	vantage	of
calculations made	by my learned	brother	in	L	.	R.No.89	of
1985. The rate	s which have been	found	for		t	he	guava
trees which were	situated is S.No.30/5	are	ve	ry		high	and
it appears that	they were	grafted		guava			trees.
Therefore, this rate	is also not pro	per f	or	adop	ti	on.	I
finally reach to	the statement	of	De	puty			Director,
Horticulture who	valued trees in	L.A.Case	No	.35		of	1979
of village Umrale.	Rates therein are	on	and			average	for
good tree at the	rate of Rs.800/-.	I,	th	erefo	re	,	have

¶153

no hesitation to fix rate of each guava tree in the

¶154

present references. Accordingly I award compensation."

¶155

In view of this, all these appeals filed by the

¶156

State are dismissed. There shall be no order as to

¶157

costs.

¶158

[ANOOP V. MOHTA,J.]

The State of Maharashtra v. Shri Hari Shankar Gavande and Ors.

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The State of Maharashtra v. Shri Hari Shankar Gavande and Ors.

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