Research › Search › Judgment

Bombay High Court · body

2017 DIGILAW 1264 (BOM)

Executive Engineer, Vidarbha Irrigation Corporation Bembla Project Division v. Dayalal S/o Navalmal Bhansali

2017-07-04

SHALINI PHANSALKAR JOSHI

body2017
JUDGMENT : 1. The subject of this appeal and cross-objection is the judgment and order dated 20/11/2006, passed by Ad-hoc District Judge1, Yavatmal in Land Acquisition Case No. 425/2003. By the said judgment and order, learned reference court has enhanced the amount of compensation towards open plot of land and also constructed area. Hence, being aggrieved, the Acquiring Body has preferred the appeal. At the same time, being not satisfied with the enhancement granted by the reference court on both the counts, the claimant-respondent no.1 has preferred the cross objection. 2. Brief facts of the appeal can be stated as follows :- Claimant,who is the owner of the house property bearing no. 275 admeasuring 297 sq. mtrs., out of which open area was comprising of 53.70 sq. mtrs. and the constructed portion was admeasuring 243.30 sq. mtrs. The house was situated at the village Dighi, Tal. Babulgaon, District – Yavatmal. By virtue of notification published in the Government Gazette on 4th February, 1999, issued under Section 4(1) of the Land Acquisition Act (hereinafter will be referred to as “Act” for convenience), the said house of the claimant was acquired by the Government. The Special Land Acquisition Officer declared the award on 10/04/2002 and awarded compensation at the rate of Rs.75/- per sq. mtr. for open plot of land and Rs.2,210/- per sq. mtr. for the constructed portion. 3. Being not satisfied with the said amount of compensation, claimant preferred the reference under Section 18 of the Act, contending inter alia that market value of the constructed portion cannot be less than Rs.4,600/- per sq. mtr. It was further submitted that village Dighi is a well developed village, having access to other villages, and the property situated therein can fetch fair market value. The Land Acquisition Officer, has however not considered these aspects, and hence, the compensation awarded by the Land Acquisition Officer was not just and reasonable. He also prayed for compensation in respect of wooden material used for the construction of the house and for the loss suffered by him on account of the change of business and place. 4. This claim petition came to be resisted by appellant herein by submitting that Land Acquisition Officer has considered all the aspects for determination of compensation. He also prayed for compensation in respect of wooden material used for the construction of the house and for the loss suffered by him on account of the change of business and place. 4. This claim petition came to be resisted by appellant herein by submitting that Land Acquisition Officer has considered all the aspects for determination of compensation. He has also considered the sale instances of neigh bouring land and has rightly arrived at the amount of compensation, which is just, reasonable and fair. 5. In support of his claim for enhanced amount of compensation, claimant examined himself and also led the evidence of the Government Valuer, by name, Chandrashekhar Panjabrao Wankhade, to prove the valuation report at Exh.42. 6. On appreciation of the evidence led by claimant, learned trial court was pleased to enhance the compensation for the open plot of land from Rs.75/- per sq. mtr. to Rs.646/- per sq. mtr., whereas as regards the constructed portion, the reference court granted the marginal increase of Rs.50/- per sq. mtr. and held the claimant entitled for compensation at the rate of Rs.2,260/per sq. mtr. 7. Being not satisfied with the judgment and order of the reference court, both the parties have approached this court. 8. As regards the compensation to the open plot of land, that issue is already settled by this court in First Appeal No. 487/2006 connected with other appeals. In the judgment of this court, in the said appeals, delivered on 12th and 13th October, 2010, this court has already fixed the compensation for the open plots situated at village Dighi at the rate of Rs.500/- per sq. mtr. Hence, as the acquired plot in the present appeal is also situated at village Dighi, it has to be held that the claimant is entitled for the same amount of compensation at the rate of Rs.500/- per sq. mtr. in respect of the open plot of land. As the reference court has awarded the said compensation at the rate of 646/per sq. mtr., interference is warranted to that extent in this appeal for reducing the said amount of compensation to Rs.500/- per sq. mtr. 9. As regards the constructed portion on the said plot, the claimant has asked for compensation at the rate of Rs.4,600/per sq. mtr., whereas the reference court has awarded the same at the rate of Rs.2,260/- per sq. mtr. mtr. 9. As regards the constructed portion on the said plot, the claimant has asked for compensation at the rate of Rs.4,600/per sq. mtr., whereas the reference court has awarded the same at the rate of Rs.2,260/- per sq. mtr. In this respect, submission of learned counsel for respondent-claimant is that the reference court has not at all considered the evidence of the Government Valuer Shri Chandrashekhar Wankhade, who is examined by the respondent-claimant and his report was also produced on record at Exh.42. It is submitted that in para no.10 of its judgment, reference court has merely referred to the evidence of Shri Wankhade and his report, but has not stated the reasons why it did find it fit to rely upon the said evidence. The reference court has discarded it merely by observing that the witness Shri Wankhade has not issued notices to others or he has also not examined the Gram Panchayat document. It is submitted by learned counsel for respondent-claimant that Shri Wankhade has given in detail the reasons as to why he has valued the costs of construction at Rs.14,91,056/-, he has also elaborated in the report that said construction was fully new and it was in bricks, cement and mortar. No doubt, there was roof of tin shed, but having regard to the fact that the construction was new one and it was in bricks, cement and mortar and also with the use of teak wood. It is submitted that the valuation of the said constructed portion, as given by Shri Wankhade, should have been accepted by the reference court. 10. The reference court in para no.12 of its judgment, has However, considered that the respondent-claimant has not filed any document to show the costs incurred for raw material while constructing the house and has also not maintained the account of expenses incurred in construction. The reference court, therefore, held that the market price as claimed by respondent-claimant at the rate of Rs.4,600/-per sq. mtr. was too exorbitant and excessive. Despite that, learned reference court granted marginal increase of Rs.50/- per sq. mtr. so far as the constructed portion is concerned. 11. The reference court, therefore, held that the market price as claimed by respondent-claimant at the rate of Rs.4,600/-per sq. mtr. was too exorbitant and excessive. Despite that, learned reference court granted marginal increase of Rs.50/- per sq. mtr. so far as the constructed portion is concerned. 11. In my considered opinion, having regard to nature of construction carried out by respondent-claimant and particularly considering the fact that construction was brand new, the compensation which is awarded by the reference court towards the constructed portion, needs to be enhanced from Rs.2,260/- per sq. mtr. to Rs.3,000/- per sq. mtr. 12. As regards the claim made by respondent-claimant towards the compensation for wooden material used in the construction, respondent himself has admitted in his cross-examination that wooden material of the house is with him as he has taken it away, therefore, he cannot be entitled for compensation in respect of the wooden material used. 13. As regards the compensation claimed by respondent for change of business and place, the learned reference court has rightly held that as claimant is benefited by additional component, solatium etc. and even interest on the amount as per Sections 34 and 28 of the Act, he cannot be entitled for any compensation on these heads. 14. Thus, only to the limited extent of enhancing compensation of constructed portion from Rs.2,260/- per sq. mtr. to Rs.3,000/- per sq. mtr., interference is warranted in the impugned judgment of the trial court at the instance of respondent and to that extent, cross objection needs to be allowed partly. 15. The impugned judgment and order of the reference court is modified to the extent that compensation awarded for the open plot of land is determined at the rate of Rs.500/- per sq. mtr., whereas the compensation for the constructed portion is held to be Rs.3,000/- per sq. mtr. The respondent-claimant is accordingly entitled for the compensation at the rate of Rs.500/- per sq. mtr. for open plot of land and Rs.3,000/- per sq. mtr. for the constructed portion. 16. As a result, both the appeal and cross objection are allowed partly. 17. Rests of the judgment of reference court is confirmed. 18. Needless to state that, respondents-claimants will be entitled to the solatium and additional component on the enhanced amount of compensation. 19. Appeal is disposed of in above terms.