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2021 DIGILAW 1596 (BOM)

Executive Engineer v. Ashok S/o Panjabrao Pise

2021-11-25

V.M.DESHPANDE

body2021
JUDGMENT V.M.DESHPANDE, J. 1. This appeal filed by the Executive Engineer, Vidarbha Irrigation Development Corporation (VIDC), Bembla Project, Yavatmal and the cross-objection filed by claimants -Ashok Panjabrao Pise and two others, are being decided by this common judgment since these two proceedings arise out of the judgment and decree passed by the learned 1st Ad-hoc District Judge, Yavatmal in Land Acquisition Case No. 476/2003, dated 19/12/2006. 2. Heard Shri Amol B. Patil, learned counsel for appellantVIDC, Mr. S.V. Ingole, learned counsel for the respondents/claimants/ cross-objectors and Ms. Shamsi Haider, learned Assistant Government Pleader for the State authorities, in detail. 3. The facts giving rise to these two proceedings are in very short compass and those are detailed herein below : 4. The State of Maharashtra disclosed its intention to acquire various properties for public purpose for construction of Bembla project by publishing Notification under Sec. 4 of the Land Acquisition Act, 1894 (hereinafter referred to as "the LA Act " for the sake of brevity), on 4/2/1999. The notification under Sec. 6 of the L.A. Act to acquire the property of the crossobjectors, was lastly published on 31/1/2000. (In this judgment, the cross-objectors will be referred to as 'claimants ' for the sake of brevity.) The property which was acquired by the State belonging to the claimants was a plot bearing plot No. 133 along with the structure standing thereon. The plot area is 91.40 sq.meter along with structure standing thereon, situated at village Dighi, Tah. Babhulgaon, Dist.Yavatmal, which was used by the claimants as their residential house. The proceedings were registered as Land Acquisition Case No. 4/47/97-98 of village Dighi, Tah. Babhulgaon, Dist. Yavatmal before respondent - Special Land Acquisition Officer (SLAO), Bembla Project, Yavatmal. On 10.04.2002, the learned SLAO declared the Award under Sec. 11 of the L.A. Act. Insofar as claimants are concerned, the SLAO fixed the market price of open portion of the plot as Rs.6,855.00 and he fixed the market price of constructed area as Rs.1,85,725.00. Thus, he granted Rs.1,92,280.00 as a market price for plot area and constructed area. Along with this, statutory components were also awarded to the claimants. 5. The claimants were dissatisfied with the fixation of market price of their acquired property. Thus, he granted Rs.1,92,280.00 as a market price for plot area and constructed area. Along with this, statutory components were also awarded to the claimants. 5. The claimants were dissatisfied with the fixation of market price of their acquired property. Therefore, though under protest they accepted the amount offered by the SLAO, within the period of limitation, they filed the proceedings in the Reference Court under Sec. 18 of the L.A. Act. The proceedings filed by the claimants under Sec. 18 of the L.A. Act were registered as Land Acquisition Case No. 476/2003. It appears that the said was allotted on the file of learned Ad-hoc District Judge-1, Yavatmal, who ultimately decided the same by the impugned judgment. 6. Before the Reference Court, the claimants claimed Rs.1,010.00 per square meter as market price for open plot and Rs.2,850.00 per square meter for constructed area. They also claimed Rs.85,000.00 for wooden material and damage, Rs.20,000.00 towards gobar gas plant and Rs.25,000.00 towards compensation for change of business and place for resettlement. 7. The claim put forth by the claimants was contested by the Executive Engineer, Bembla Project, Yavatmal by filing written statement (Exh.17). In view of the rival pleadings, following three issues were struck below Exh.18 :- "1] Whether the petitioners are entitled to enhance compensation ? If yes, to what extent ? 2] Whether the reference petition is filed within limitation ? 3] What costs and order ?" 8. In order to prove their case, for and on behalf of the claimants, claimant Ashok Panjabrao Pise entered into the witness box. He was thoroughly cross-examined. The claimants also examined Shri Chandrashekhar Wankhade, a Valuer. His evidence is at Exh.45. Through him, the claimants proved the Valuation Certificate (Exh.46). Needless to mention, Shri Wankhade, a Valuer was also cross-examined by the appellant and the learned District Government Pleader for the State. The record shows that no officer stepped into the witness box for and on behalf of the State. After hearing the learned respective counsel and after appreciating all the evidence, the learned Judge of the Reference Court partly allowed the reference and directed the authorities that they are liable to pay Rs.62,580.00 as an enhanced compensation together with 12% additional component on the enhanced compensation from the date of Notification dated 04.02.1999 till the date of Award dated 10.04.2002. They were also directed to pay 30% solatium on the enhanced amount of compensation. They were also directed to pay interest @ 9% per annum on the enhanced amount of compensation from the date of Award i.e. 10.04.2002 till one year. The authorities were also directed to pay interest @ 15% per annum on the aggregate amount of compensation from the date of Award i.e. 10.04.2002 till its actual realization. 9. Appellant - Executive Engineer, Bembla Project Division, Yavatmal was aggrieved by the said judgment and therefore, an appeal was preferred before this Court under Sec. 54 of the L.A. Act read with Sec. 96 of the Code of Civil Procedure. 10. The appeal was admitted on 27.03.2008 (Coram : C.L. Pangarkar, J.). Notices were issued to the claimants. They appeared. They also filed cross-objection. The cross-objection was barred by limitation and therefore, they filed an application for condonation of delay. The application for condonation of delay was allowed by this Court (Coram : N.W. Sambre, J.) on 17.12.2018 and the crossobjection was also admitted. 11. After hearing the learned counsel for the appellant and the learned counsel for the claimants, following points fell for my determination : "1] Whether interference is necessary with the judgment and decree passed by the learned Reference Court ? 2] What Order ?" 12. The only point that was agitated before this Court by the learned counsel for the appellant Mr. A.B. Patil, is that the learned Reference Court has committed an error in considering the constructed area as 88.25 sq.mtr., which has been mentioned in the Valuation Report. He submitted that in the Award, the SLAO has calculated the area under construction as 79.25 sq. mtr. Thus, the Refence Court has granted more compensation for area of 9 sq.mtr. 13. As against this, Mr. S.V. Ingole, learned counsel for the claimants submitted that the learned Judge of the Reference Court has fixed the market price as Rs.400.00 per sq.mtr., which is found to be inadequate by this Court in catena of decisions and he pointed out a decision of this Court in First Appeal No. 416/2008 dated 03.12.2019 (V.I.D.C. .vs. Himmatrao Dinanath Kothekar and others), in which reliance was kept on the decision in First Appeal No. 794/2018 dated 25.06.2019, wherein the High Court has fixed the compensation @ Rs.500.00 per sq.meter towards open area of the properties of village Dighi. 14. 14. Fairly, the learned counsel for the appellant has stated that in numerous First Appeals, either filed by V.I.D.C. or by the claimants, various Benches of this Court have found that adequate price is Rs.500.00 per sq. mtr. in respect of the house properties which are acquired for Bembla Project of village Dighi itself. This Court appreciates the fairness of the learned counsel for the appellant. In that view of the matter, the price fixed for the open area by the learned Judge of the Reference Court @ Rs.400.00 per sq.meter is inadequate and needs to be interfered with. 15. Insofar as the submission of the learned counsel for the appellant about excess payment of 9 sq.mtr area is concerned, in my view, that cannot be considered favourably. True it is that in the Award, the area was found to be 79.25 sq.mtr. by the SLAO. Since, the claimants were dissatisfied with the fixation of the price, they approached before the Reference Court by filing reference petition. Therefore, the entire Award qua the claimants was questioned before the Reference Court. Not only that, in order to substantiate their claim, they examined Shri Chandrashekhar Wankhade, a Valuer and he proved the Valuation Report (Exh.46). Perusal of the Valuation Report (Exh.46) would show that built up area was 88.25 sq. mtr. Shri Wankhade was thoroughly cross-examined by the learned counsel for the appellant. However, the learned cross-examiner had not even touched the area in issue as appearing in the Valuation Report. The expert has proved its valuation report, in which he has specifically pointed out the area of construction. In that view of the matter, the submission of the learned counsel for the appellant that the learned Judge of the Reference Court has awarded more compensation in respect of 9 sq.mtr. of land, needs to be discarded. 16. Though, the claimants have claimed compensation of Rs.85,000.00 for wooden material, Rs.20,000.00 for gobar gas plant and Rs.25,000.00 for change of business and place, no cogent evidence was adduced by the claimants before the Reference Court and therefore, in my view, the learned Judge of the Reference Court was absolutely right in disallowing the said. Resultantly, I pass the following order : ORDER 1. First Appeal filed by Executive Engineer, V.I.D.C, Bembla Project Divn., Yavatmal stands dismissed. 2. Cross-objection filed on behalf of respondent nos.1 to 3/ claimants is partly allowed. 3. Resultantly, I pass the following order : ORDER 1. First Appeal filed by Executive Engineer, V.I.D.C, Bembla Project Divn., Yavatmal stands dismissed. 2. Cross-objection filed on behalf of respondent nos.1 to 3/ claimants is partly allowed. 3. The claimants will be entitled to receive compensation @ Rs.500.00 per sq. mtr. in stead of Rs.400.00 per sq.mtr. for 91.40 sq.mtrs and not for 12.15 sq. mtrs., as observed by the Reference Court. 4. Insofar as compensation given by the Reference Court in respect of construction is concerned, the same is maintained. 5. The appellant is directed to pay 12% additional component on the enhanced compensation from the date of Notification dated 04.02.1999 till the date of Award i.e. 10.04.2002. 6. The appellant is also directed to pay 30% solatium on enhanced amount of compensation. 7. The appellant is also directed to pay 9% per annum towards interest on the enhanced compensation from the date of Award i.e. 10/4/2002 till one year. 8. The appellant is also directed to pay interest @ 15% per annum on the aggregate amount of compensation from the date of Award i.e. 10/4/2002 till its actual realization. 9. Learned counsel for the appellant submitted that the enhanced amount along with additional components, as stated above, will be deposited before this Court within a period of four months from today. On such deposit, the claimants will be entitled to withdraw the same. 10. The appeal is disposed of in the aforesaid terms. No order as to costs.