Partly allowed

Executive Engineer, Bembla Project Division, Yavatmal and Another v. Manik Panjabrao Kalmegh and Others

Bombay HC2 Dec 2021XOB/65/2017

Case brief

AI extract

What is this about?

The High Court allowed the appeal partly, setting aside the enhancement of compensation for 1824 Awala trees and a borewell awarded based on inadmissible evidence in a review, while upholding the compensation for land and other fruit trees.

What did the court decide?

The award enhancing compensation for 1824 Awala trees and one borewell in Survey No.17 is set aside. Appellants must refund that portion to the respondent within four months.

Executive Engineer, Bembla Project Division, Yavatmal and… — Landlord and Tenant | Bombay HC (2021)

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20-J-FA-492-17.odt

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY, NAGPUR BENCH, NAGPUR

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FIRST APPEAL NO.492 OF 2017

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APPELLANTS:1. Executive Engineer,
On R.A. Bembla Project Division,
Ori. N.A. No.1 Yavatmal.
Ori. N.A. No.4 2. Vidarbha Irrigation Development
 Corporation through Executive Director,
 Sinchan Bhawan, Civil Lines, Nagpur.
V E R S U S

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RESPONDENTS:1. Manik Panjabrao Kalmegh,
ON R.A. Aged 61 years, Occ. Cultivator,
Ori Applicant R/o Barad, Post-Pahur,
 Tq. Babhulgaon, District Yavatmal.
Ori. N.A. No.2 2. State of Maharashtra
 Through the Collector, Yavatmal,
 Tq. and Dist. Yavatmal.
Ori. N.A. No.3 3. Special Land Acquisition Officer,
 Benefited Zone, Yavatmal,
 Tq. and Dist. Yavatmal.

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Tq. Babhulgaon, District Yavatmal.

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WITH

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CROSS-OBJECTION NO.65 OF 2017 IN FIRST APPEAL NO.492 OF 2017

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APPELLANTS:- 1. Executive Engineer, Bembla Project Division, Yawatmal. 2. Vidarbha Irrigation Development

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Corporation through Executive Director, Sinchan Bhawan, Civil Lines, Nagpur.

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20-J-FA-492-17.odt

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V E R S U S
RESPONDENTS1. Manik Panjabrao Kalmegh,
 Aged: 61 years, Occupation:
 Cultivator, R/o Barad, Post-Pahur,
 Taluka: Babhulgaon, District
 Yawatmal.

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2. State of Maharashtra, through Collector, Yawatmal, Taluka Yawatmal, District : Yawatmal.

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3. Special Land Acquisition Officer,

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Benefited Zone, Yawatmal, Taluka: Yawatmal, District : Yawatmal. CROSS OBJECTOR: Manik Panjabrao Kalmegh.

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Shri M.A. Kadu, Advocate for the appellants.

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Shri Kalyan Chiwarkar, Advocate h/f Shri Anand Parchure,
Advocate for respondent No.1 / Cross-Objector.
Shri A.S. Fulzele, Addl. G.P. for the respondent Nos. 2 and 3.

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CORAM: A.S. CHANDURKAR AND G. A. SANAP, JJ.

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ARGUMENTS WERE HEARD ON : 25/10/2021
JUDGMENT IS PRONOUNCED ON : 02/12/2021

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JUDGMENT : (PER G. A. SANAP, J.)

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1.In this appeal, the appellants have challenged the
Judgment and award passed by the learned Civil Judge, Senior
Division, Yavatmal in LAC No.613/2005 decided on 04/04/2015
and corrected by order dated 05/08/2015 in MJC No.61/2015,
whereby the learned Judge enhanced the amount of compensation
awarded by the Special Land Acquisition Officer (SLAO).

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The respondent No.1 filed the Cross-Objection

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No.65/2017 being aggrieved by the Judgment and award refusing
the claim for enhanced compensation in entirety.

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The facts leading to the filing of this appeal and the
Cross-Objection are as follows :-

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2.The appellant No.2 is the Acquiring Body. The
appellant No.1 is the Executive Engineer, Bembla Project,
Yavatmal. The respondent No.1 is the original applicant. The
respondent No.2 is the State. The respondent No.3 is the Special
Land Acquisition Officer. The respondent No.1 owned the land
bearing Survey No.14 admeasuring 4.32 HR, Survey No.15
admeasuring 1.40 HR and land bearing Survey No.17
admeasuring 5.87 HR situated at village Barad, Tq. Babhulgaon,
Dist. Yavatmal. The lands were acquired for construction of
Bembla Project. The notification under Section 4 of the Land
Acquisition Act, 1894 was published in the Government Gazette
on 24/07/2003. (hereinafter referred to as the "Land Acquisition
Act"). The respondent No.3 declared the award on 27/06/2005.

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The Land Acquisition Officer granted compensation @ Rs.83,099/-
per hectare for land bearing Survey No.14 and compensation of
Rs.7,27,669/- for fruit bearing trees. The Land Acquisition Officer
granted compensation @ Rs.83,245/- per hectare for land bearing
Survey No.15 and the compensation of Rs.23,600/- for fruit
bearing trees. The Land Acquisition Officer granted compensation
@ Rs.82,904/- for the land bearing Survey No.17. The respondent
No.1 accepted the compensation under protest on 12/07/2005.
He did not agree with the compensation awarded by the Special
Land Acquisition Officer. The respondent No.1, therefore, made a
reference under Section 18 of the Land Acquisition Act.

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3.The respondent No.1 inter alia contended that the
Special Land Acquisition Officer failed to determine the proper
market value of the land as well as the value of the trees. The
Special Land Acquisition Officer did not follow the procedure laid
down under Section 23 of the Land Acquisition Act. The lands
bearing Survey Nos.14 and 15 were irrigated. The land of the
respondent No.1 is situated at the distance of about 500 feet from
village locality. The Special Land Acquisition Officer has failed to
consider the quality and fertility of the land. The land was black
soil land. The compensation awarded for the fruit bearing trees

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was meagre. The Special Land Acquisition Officer did not take all
the aspects into consideration. The respondent No.1 claimed
enhanced compensation of Rs.96,51,110/- for land bearing Survey
No.14 and the fruit bearing trees therein. The respondent No.1
claimed enhanced compensation of Rs.65,69,857/- for land
bearing Survey No.15 and the fruit bearing trees therein. The
respondent No.1 claimed enhanced compensation of
Rs.1,05,42,729/- for land bearing Survey No.17 and the fruit
bearing trees therein.

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4.The appellants and the respondent Nos.2 and 3
opposed the reference by filing their written statement. They have
not disputed the acquisition of land with fruit bearing trees and
the compensation awarded by the Land Acquisition Officer.
According to them, the Land Acquisition Officer while passing the
award, has taken into consideration the relevant factors
mentioned in Section 23 of the Land Acquisition Act. The Land
Acquisition Officer has granted just, proper and reasonable
compensation. The Land Acquisition Officer has not committed
any mistake. They further contended that the Land Acquisition
Officer on the basis of the material, determined the market value
of the land and also the value of the fruit bearing trees. According

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to them, the compensation sought to be claimed by the respondent
No.1 was excessive and exorbitant. There was no basis for
excessive and exorbitant compensation. The respondent No.1 had
been granted an opportunity of hearing before passing the award.
They accordingly pleaded for dismissal of the reference.

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5.The respondent No.1 examined himself in support

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of the reference. PW-2 - Dadan Borkar examined by the
respondent No.1 was the Valuer. PW-3 - Chandrashekhar
Wankhade was examined to prove the valuation of the well and
pipeline. The respondent No.1 placed on record number of
documents. The appellants did not lead oral or documentary
evidence before the Reference Court. The learned Judge on the
basis of the evidence, partly allowed the reference. The learned
Judge granted compensation @ Rs.3,40,000/- per hectare for the
acquired land bearing Survey Nos.14 and 15 and Rs.1,75,000/-
per hectare for land Survey No.17.

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6.The learned Judge directed the appellants to pay
enhanced compensation of Rs.3,000/- per tree for 500 Orange
trees, Rs.4,200/- per tree for 200 Mosambi trees, Rs.2,500/- per

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tree for 50 Lemon trees, Rs.2,000/- for one Guava tree, Rs.5,000/-
per tree for 5 Mango trees, Rs.3,160/- per tree for 10 Ber trees
and Rs.4,000/- per tree for 5 Chiku trees in Survey No.14 to the
respondent No.1. The learned Judge directed the appellants to pay
enhanced compensation of Rs.3,070/- per tree for 500 Awala
trees, Rs.3,160/- per tree for 100 Ber trees and Rs.2,000/- per tree
for 100 Custard Apple trees in Survey No.15 to the respondent
No.1. The learned Judge directed the appellants to pay enhanced
compensation of Rs.1000/- each for 1824 Awala trees and
Rs.40000/- for Bore Well in Gat No.17.

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7.Being aggrieved by the enhancement of
compensation, the appellants have come before this Court in
appeal. The respondent No.1 after receipt of the notice in appeal,
filed the cross-objection being aggrieved by the inadequacy of the
enhanced compensation.

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8.We have heard the learned Advocate for the
appellants, the learned Advocate for the respondent No.1 and the
learned Additional Government Pleader for the respondent Nos.2
and 3. We have perused the record and proceedings.

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9.In view of the facts and circumstances, following

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question falls for our determination :-

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Whether the Judgment and award passed by the
learned Civil Judge, Senior Division, Yavatmal
granting enhancement in the compensation payable
in respect of the lands and fruit bearing trees is just,
proper and reasonable ?

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10.The learned Advocate for the appellants submitted

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that the learned Judge has not taken into consideration the
evidence placed on record. The learned Advocate pointed out that
the available evidence on record has not been properly
appreciated and the compensation has been enhanced without
properly appreciating and considering the evidence. As far as the
order passed in Review Application is concerned, the learned
Advocate for the appellants submitted that the learned Judge
without considering the basic provisions of law with regard to the
admissibility of the evidence has taken into consideration the
documents without proof of the contents of the same and granted
exorbitant compensation in respect of 1824 Awala trees and
Borewell in land bearing Survey No.17. The learned Advocate

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took us through the evidence and urged that this part of the award
cannot be sustained at all. The learned Advocate further submitted
that the learned Judge has erred in awarding enhanced
compensation separately for the land and the fruit bearing trees.
In order to substantiate this submission, he has relied upon the
reported decision to which we will make reference at appropriate
place.

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11.The learned Additional Government Pleader
appearing for the respondent Nos.2 and 3 has adopted the
submissions advanced by the appellants.

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12.The learned Advocate for the respondent No.1
submitted that the learned Judge has failed to appreciate the oral
and documentary evidence placed on record and as such,
committed a mistake in denying the quantum of enhanced
compensation claimed in reference application. In the submission
of the learned Advocate, the compensation awarded in respect of
fruit bearing trees is too meagre and therefore, it needs to be
enhanced as claimed by the respondent No.1 in his application
filed under Section 18 of the Land Acquisition Act. The learned

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Advocate submitted that in order to justify the claim for enhanced
compensation in respect of the land as well as in respect of fruit
bearing trees, the respondent No.1 has examined the Valuer. The
learned Advocate took us through the report of the Valuer - PW-2
and submitted that the Valuer has stated reasons in respect of the
conclusion arrived at by him vis-a-vis the market value of the land
as well as the fruit bearing trees. The learned Advocate submitted
that the learned Judge has taken into consideration the decisions
in the earlier references arising out of the same acquisition
proceedings, wherein the sale instances were considered to
determine the market value of the land. In the submission of the
learned Advocate for the respondent No.1, therefore, the learned
Judge was right in granting separate compensation for the land as
well as for the fruit bearing trees.

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13.In order to appreciate the rival submissions, we
have carefully perused the material placed on record and
particularly, the order passed by the Reference Court in Review
Application No.61/2015. The learned Judge, as can be seen from
the order passed in Review Application, reviewed the Judgment
and order dated 04/04/2015 and awarded compensation in

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respect of 1824 Awala trees and one Borewell. The compensation
awarded is @ Rs.1,000/- each for 1824 Awala trees and
Rs.40,000/- for Borewell situated in land bearing Gut / Survey
No.17. Perusal of the award dated 04/04/2015 passed by the
learned Judge would show that the claim for enhancement of
compensation for 1824 Awala trees and Borewell in Gut No.17
was rejected for the reasons recorded in Paragraph No.16 of the
Judgment and award. The learned Judge on the basis of 7/12
extract recorded a finding that the plantation of 1824 Awala trees
was new plantation done in the year 2003-2004 onwards. The
learned Judge recorded finding that there is no substantive
evidence to prove the existence of 1824 Awala trees in Gut /
Survey No.17. It is seen that for want of substantive evidence, this
claim was initially rejected. The order was passed on 05/08/2015
in Review Application. The learned Judge has relied upon second
Joint Measurement Report and three representations made by the
respondent No.1 before the Land Acquisition Officer at the stage
of acquisition proceedings. The second Joint Measurement Report
and the representations submitted to the Land Acquisition Officer
were not part of the record when the award was passed. The
respondent No.2 produced those representations / reply to the

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notices received from the Land Acquisition Officer and the copy of
the second Joint Measurement Report prepared in the year 2003-
2004 with the Review Application.

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14.In order to satisfy ourselves about real factual
position, we have called record and proceedings of the Review
Application. On going through the record and proceedings of the
Review Application, it is seen that the documents as mentioned
above, were simply filed with the Review Application. The
documents were not proved. The documents were not given
Exhibit Numbers. No evidence was adduced to prove the contents
of the documents. The learned Judge despite the strongest
possible objection on the part of the appellants and the respondent
Nos.2 and 3 took those documents into consideration and granted
compensation / enhancement in respect of 1824 Awala trees and
Borewell. It is seen that while deciding Review Application, there
was no substantive evidence on record. The learned Judge
without having substantive evidence on record made a self-
contradictory observation in the Review order. In this respect, the
learned Judge ought to have ensured that the evidence sought to
be relied upon is legally admissible evidence. In our opinion, the

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documents would have become legally admissible evidence
provided the contents of the same have been proved or the
opponent has admitted the contents of the same. In this case on
both the counts, the documents could not have been taken into
consideration. Perusal of the order passed in Review Application
would show that the learned Judge has not followed the
provisions of the substantive and procedural law. The exercise was
carried out by the learned Judge mechanically. The compensation
granted / enhanced was Rs.18,00,000/- to Rs.19,00,000/- on this
count. It is settled legal position that the finding based on
inadmissible evidence cannot be sustained. Such finding has to be
termed as erroneous finding and as such a patent illegality. In our
considered opinion, on this point, we are fully agree with the
learned Advocate for the appellants. In our opinion, the order
passed by the learned Judge was without evidence. It is also seen
that the case was not at all made out to warrant the review of the
order earlier passed by the learned Judge in the reference. We,
therefore, conclude that this part of the award passed by the
learned Judge, cannot be sustained.

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15.In order to satisfy ourselves about the sustainability
of the award, we have gone through the record and the evidence
afresh. The learned Advocate for the appellants relying upon the
decision in the case of State of Haryana Vrs. Gurcharan Singh and
another,reported in1995 Supp (2) SCC 637submitted that the
separate compensation cannot be awarded for the land and the
orchard planted on the said land. The learned Advocate for the
respondent No.1 relied upon the decision in the case of Ambya
Kalya Mhatre (dead) through LRs and others Vrs. State of
Maharashtra,reported in 2012(1) Mh.L.J.9and submitted that the
Hon'ble Supreme Court has explained and clarified the decision in
the case of the State of Haryana (supra) and held that awarding
the compensation separately for the land and fruit bearing trees is
permissible. In order to appreciate the rival submissions, it would
be necessary to reproduce the relevant portion of the Judgment of
the Hon'ble Supreme Court in the case of Ambya Kalya Mhatre
(supra). Paragraph Nos.21 and 22 read thus :-

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"21. The High Court has also held that once the
compensation is awarded for the land, there cannot be
additional or separate compensation for the trees. For
this purpose, the High Court has relied upon the
following observations of this Court in State of Haryana
vs. Gurcharan Singh - 1995 Supp (2) SCC 637 :

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"It is settled law that the Collector or
the court who determines the compensation
for the land as well as fruit bearing trees
cannot determine them separately. The
compensation is to the value of the acquired
land. The market value is determined on the
basis of the yield. Then necessarily applying
suitable multiplier, the compensation needs
to be awarded. Under no circumstances the
court should allow the compensation on the
basis of the nature of the land as well as
fruit-bearing trees. In other words, market
value of the land is determined twice over;
once on the basis of the value of the land and
again on the basis of the yield got from the
fruit-bearing trees. The definition of land
includes the benefits which accrue from the
land as defined in section 3(a) of the Act.
After compensation is determined on the
basis of the value of the land as distinct from
the income applying suitable multiplier, then
the trees would be valued only as firewood
and necessary compensation would be
given."

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22. We are afraid that the High Court has
misread the said decision in regard of valuing
the land and trees separately. If the land value
had been determined with reference to the sale
statistics or compensation awarded for a nearby
vacant land, then necessarily, the trees will have
to be valued separately. But if the value of the
land has been determined on the basis of the
sale statistics or compensation awarded for an
orchard, that is land with fruit-bearing trees,
then there is no question of again adding the
value of the trees. Further, if the market value
has been determined by capitalizing the income
with reference to yield, then also the question of
making any addition either for the land or for

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the trees separately does not arise. In this case,
the determination of market value was not with
reference to the yield. Nor was the
determination of market value in regard to the
land with reference to the value of any orchard
but was with reference to vacant agricultural
land. In the circumstances, the value of the trees
could be added to the value of the land."

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The above quoted paragraph in the said Judgment
would show that if the value of the land has been determined with
reference to the sale statistics or the compensation awarded to the
nearby vacant land, then the trees will have to be valued
separately. In order to consider the applicability of proposition to
the facts of the appeal before us, it would be necessary to go
through the Judgment of the Reference Court as well as evidence
on record. The learned Judge has awarded separate compensation
for the land and for fruit bearing trees. The learned Judge while
determining the market value of the lands, bearing Survey Nos.14
and 15 relied upon the Judgment in LAC No.48/2007. It is at
Exh.68. The land covered in Exh.68 has been acquired for the
same project and the said land is situated at village adjoining to
the village of respondent No.1. The learned Judge found that the
Judgment at Exh.68 would be the proper guide to determine the
compensation of the land / real market value of the land bearing

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Survey Nos.14 and 15. The learned Judge on the basis of the
Judgment at Exh.68 quantified market value of the land bearing
Survey Nos.14 and 15 @ Rs.3,40,000/- per hectare. It would be
necessary for us to see basis for deciding the compensation in LAC
No.48/2007 by the concerned Reference Court. Perusal of this
Judgment at Exh.68 and particularly, Paragraph No.7 would show
that the sale deed of the year 1994 which was marked as Exh.35
in the said reference was taken into consideration for the purpose
of quantifying compensation of the land. In the said reference, the
market price of the irrigated land situated adjoining to the village
of the respondent No.1 was determined at Rs.3,40,000/- per
hectare. In the Judgment at Exh.68, number of Judgments arising
out of the references of the village Kolhi were considered and the
compensation @ Rs.1,70,000/- was awarded for the dry crop
lands. It is therefore, apparent that in the Judgment at Exh.68, the
basis for deciding the compensation was the sale instance. The
Reference Court while deciding the reference at Exh.68 granted
10% rise per year from 1994 for the purpose of determining the
market value of the land. The learned Judge on consideration of
the Judgment at Exh.68 found that the sale instances relied in the
said references are comparable and as such, accepted the same.

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It is therefore, apparent on the face of record that the learned
Judge determined the market value of the lands on the basis of
the sale statistics referred in the Judgment at Exh.68. Therefore, it
could not be said that in this case, income capitalization method
was adopted by the learned Judge while determining the market
value of the land Survey Nos.14 and 15.

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16.The land Survey No.17 was dry crop land. The
learned Judge relying upon the Judgment in LAC No.165/2006 at
Exh. 66 has quantified the market value of the land bearing
Survey No.17 @ Rs.1,75,000/- per hectare. The learned Judge
found that the Judgment in LAC No.165/2006 at Exh.66 is the
best evidence to determine the market price of the land Survey
No.17. We have perused the Judgment in LAC No.165/2006 at
Exh.66. In LAC No.165/2006, the sale deeds produced on record
were not found comparable with the land in question. The learned
Judge relied upon the Judgment in LAC No.167/2006, which
pertains to the agricultural land situated at Village Barad and
acquired for the said project. The land in question was dry crop
land. The land bearing Survey No.17 and the lands from the
Judgment in LAC No.167/2006 were found identical and similarly
situated. The learned Judge in our case while determining the

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compensation in respect of dry crop land Survey No.17 accepted
this Judgment as the best evidence. In our view, on this count, the
Judgment of the Reference Court cannot be set aside. Even if it is
assumed for the sake of argument that no sale instance was relied
upon in LAC No.165/2006, the respondent No.1 would be entitled
to get the enhanced compensation @ Rs.1,75,000/- per hectare
being dry crop land, inasmuch as it would be 50% less than the
enhanced compensation awarded for the irrigated land bearing
Survey Nos.14 and 15.

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17.It is, therefore, apparent that the market value of
the lands in this case has not been decided on the basis of income
capitalization method. The same has been determined on the basis
of earlier decisions in the land reference cases. In those cases, the
sale deeds were referred to arrive at or determine the market
value of the land. It is pertinent to mention that number of land
references arose due to acquisition of lands for the same project. It
is seen that by and large, the compensation awarded by the
Reference Courts is Rs.3,40,000/- for irrigated land and
Rs.1,75,000/- for dry crop land. In view of this position, it is seen
that the Judgment relied upon by the learned Advocate for the

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appellants is of no help and assistance to substantiate his
submission.

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18.We have minutely perused the evidence of the
respondent no.1 and the evidence of the Valuer - PW-2. We have
perused the cross-examination of the Valuer. The report of the
Valuer is at Exh.76. In the report, the Valuer has stated that the
soil of the land was medium black, porous in texture, rich in
organic matter, well drained and fertile. He has further stated
that the land is ideal for fruit growing. He has further stated that
the general condition of the trees found in the land at the time of
inspection was good and they were healthy. Perusal of the cross-
examination would show that there was no challenge to this part
of evidence and report. It is seen that the PW-1 / respondent No.1
has categorically deposed about the quality of the land and the
management of the land by him. In our view, considering this
evidence, the market value of the land quantified by the learned
Judge could not be said to be excessive and exorbitant. We do not
find any reason to disturb the finding of fact recorded by the
Judge. This finding is supported by the evidence. The learned
Judge has recorded the reasons in support of his finding to
quantify the market value of the land.

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19.It would now be necessary to consider the
challenge to the part of the award which deals with the
enhancement of the compensation in respect of the fruit bearing
trees. The learned Advocate for the appellants submitted that the
Land Acquisition Officer has taken into consideration the first
Joint Measurement Report at Exh.64 to count the number of fruit
bearing trees and awarded the compensation for the same. Before
we proceed to appreciate the submissions on merits with regard to
the quantification of compensation for the fruit bearing trees, it
would be necessary to take into consideration the observations
made by the Land Acquisition Officer in his award at Ext.65. The
relevant observation is under caption "value of the trees". A
specific reference has been made to Survey Nos.14 and 15. The
Land Acquisition Officer has recorded reasons for taking into
consideration the number of trees for the purpose of determining
the compensation of the same. The learned Advocate for the
appellants has not made serious grievance about the facts noted
down in the Joint Measurement Report at Exh.64 with regard to
the number of trees found existing in the land bearing Gut Nos.14
and 15. This Joint Measurement Report was prepared in June,

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1999. The second Joint Measurement Report which was produced
on record with the Review Application was prepared in 2003-
2004. Perusal of the Judgment of the Reference Court would show
that the Reference Court has taken into consideration the number
of fruit bearing trees found existing at the time of preparation of
the first Joint Measurement Report. Therefore, it is not possible to
accept the submissions made on behalf of the appellants with
regard to the number of trees and the age of the trees. As noted
above, the compensation has been awarded for fruit bearing trees
of different varieties. On this count, we are not prepared to take a
different view from the one taken by the learned Judge.

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20.The next important point is with regard to the
sustainability of the order with regard to the quantum of
compensation awarded by the Reference Court. In order to prove
the valuation of the fruit bearing trees, the respondent No.1 has
deposed in his evidence about the quality of the land, the
management of the land and the irrigation facility for the land.
PW-2 Valuer has deposed extensively about the quality of the land,
the management of the land and the modern technique used by
the respondent No.1 for getting maximum yield from the trees.
The report of the Valuer is at Exh.76. At this stage, it is necessary

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to mention that the learned Judge of the Reference Court has not
accepted this report in toto. The enhancement of the
compensation for the trees sought by the respondent No.1 was
higher than the one granted by the learned Judge. Perusal of the
Judgment and report of the Valuer together would show that the
learned Judge has awarded enhancement of compensation for
fruit bearing trees 40 % less than the one quantified by the Valuer.
In our view, therefore, the report of the Valuer cannot be
discarded in toto. The report with regard to the quality of the land
and other related aspects has not been challenged in the cross-
examination. We are, therefore not prepared to discard the
evidence of the Valuer in toto. The report of the Valuer, therefore,
has been rightly made a basis for determining the enhanced
compensation in respect of the fruit bearing trees. The learned
Judge as can be seen from the Judgment has taken into
consideration the award of the Reference Court in LAC
No.519/2007 at Exh.70 for determining the compensation for fruit
bearing trees. The Judgment at Exh.70 was found by the learned
Judge the best guide to determine the compensation for fruit
bearing trees. It is seen that the said Judgment was in respect of
the land of the same village Kopra Barad acquired for the same

¶93

24 20-J-FA-492-17.odt

¶94

project. The Reference Court in the Judgment of LAC
No.519/2007 at Exh.70 has quantified the compensation for fruit
bearing trees of the variety of fruit bearing trees similar to the one
in this case. On minute scrutiny and appreciation of the evidence,
we are of the view that as far as the compensation for fruit bearing
trees is concerned, the learned Judge has not committed any
mistake. The learned Judge has recorded the reasons. The finding
on this point is based on the evidence. The enhancement of
compensation granted in respect of fruit bearing trees, in our view
is just, proper and reasonable. It does not warrant interference. It
is needless to state that while quantifying the market value of the
land and fruit bearing trees, based on the material placed on
record and the circumstances in totality, some guess work would
be required to be done. The fundamental principle needs to be
borne in mind in such cases is that the compensation awarded to
the land loser for the acquired land as well as for the trees which
is source of his livelihood must be just, fair and reasonable. In our
opinion, even subjecting the material placed on record and the
circumstances in totality to the robust guess work, enhanced the
compensation awarded by the Reference Court for the land as well
as fruit bearing trees could not be said to be excessive. In our

¶95

25 20-J-FA-492-17.odt

¶96

view, on this count, the award passed by the Reference Court does
not warrant interference. Similarly, the grievance made by the
respondent No.1 on the point of inadequacy of the enhanced
compensation also cannot be sustained. The evidence on record
does not warrant enhancement of compensation at the rate
claimed by the respondent No.1 in the cross-objection.

¶97

21.In view of the above, we conclude that initial
Judgment and award dated 04/04/2015 does not require
interference and modification. The Judgment and award to the
extent of grant of compensation pursuant to the review order
dated 05/08/2015 in respect of 1824 Awala trees and one
borewell in Gut No.17 cannot be sustained and is required to be
set aside. We accordingly, proceed to pass the following order.

¶98

ORDER

¶99

i] The appeal is partly allowed.

¶100

ii]The Judgment and award to the extent of
compensation awarded for 1824 Awala trees and one
Borewell from Survey No.17 is set aside. The appeal is
partly allowed to this extent.

¶101

20-J-FA-492-17.odt

¶102

¶103

iii]The cross-objection filed by the respondent No.1
is dismissed.

¶104

iv]The appellants have paid the amount of
compensation with all consequential benefits to the
respondent No.1. The respondent No.1 is directed to
refund the amount of compensation paid by the
appellants in respect of 1824 Awala trees and for one
borewell from land bearing Survey No.17 within four
months from today.

¶105

v]Since the respondent No.1 was permitted to
withdraw the entire amount of compensation without
furnishing any security in view of the order dated
27/04/2017, we have not directed refund of the excess
amount of compensation with interest. However, the
excess amount of compensation if not repaid within
four months would carry interest from expiry of said
period at 7.5% per annum till its payment.

¶106

vi]Decree be drawn accordingly.

¶107

(G. A. SANAP, J.)

¶108

 (A.S. CHANDURKAR, J.)

¶109

Choulwar

¶110

VITHAL Digitally signed byVITHAL MAROTRAO MAROTRAO CHOULWAR Date: 2021.12.02 CHOULWAR 17:22:24 +0530

Executive Engineer, Bembla Project Division, Yavatmal and Another v. Manik Panjabrao Kalmegh and Others

Case brief

What is this about?

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Executive Engineer, Bembla Project Division, Yavatmal and Another v. Manik Panjabrao Kalmegh and Others

Case brief

What is this about?

What did the court decide?

What the court decided

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