Common Judgment:
Both these appeals are arising out of the judgment and award dated 25.4.2005 passed by the Civil Judge, Senior Division, Pusad [Reference Court] in L.A.C. No.72/1992. The First Appeal No.477/1995 is filed by the land owner taking an exception to the inadequate amount of compensation awarded by the Reference Court; whereas, the First Appeal No.153/1997 is filed by the State stating that the compensation awarded by the Reference Court is exorbitant. Hence both these appeals are being disposed of by this common judgment.
2] Land Gat No.62 area 1.61 H.R. situated at village Lakh, Tahsil Digras, District Yavatmal is owned by the land owner. Out of this, area of 93 R was acquired for the purpose of laying irrigation canal, through the land vide notification dated 4.9.1986. The Land Acquisition Officer declared the award on 29.7.1989, fixing the compensation @ Rs. 16,000/- per hectare. Dissatisfied with this award the land owner sought reference mainly on the grounds that the acquired land is adjoining to the gaothan; village Lakh is just 8 K.M. from the town Digras; and is thickly populated having panchayat, veterinary hospital, school and other facilities. His further grievance was that because of passing of the canal through middle of the land it is divided into two pieces i.e. one admeasuring 56 R and other admeasuring 12 R. Because of the small size of these two pieces of land they are practically un-cultivable.
3] After considering the oral as well as documentary evidence, learned Reference Court assessed the market value of the land by adopting unit of square feet and held that the land owner is entitled to get compensation @ Rs.5/- per sq.ft. According to him, at this rate and by taking 25% of the area towards development the price per hectare comes to Rs.3,75,000/-. The learned Reference Court accepted the case of the land owner that because of the severance, the smaller pieces of lands area 56 R and 12 R, have been rendered useless and therefore, awarded compensation @ Rs.3,75,000/- for the entire area of 1.61 H.R., although the area of land acquired is admeasurs 93 R only.
4] Dissatisfied with this award, the land owner has preferred an appeal. The grounds putforth are: the learned Reference Court lost sight of the fact that the land acquired is adjoining to gaothan of village Lakh and because of this situation it has acquired non-agricultural potentiality. The village Lakh is just 8 K.M. away from Digras town. Further, the Reference Court did not award compensation for severance of the land.
5] The grounds putforth by the State are : the Reference Court calculated the rate in terms of sq.ft., when the acquired land is a cultivable agricultural land. Converting the land into sq.ft. and then fixing the price per square feet is wrong approach of the learned Reference Court. Further there is no base for awarding compensation @ Rs.5/- per sq.ft. Absolutely, no evidence has been adduced by the land owner to claim this much amount. Despite the fact that only area of 93 R was acquired the Reference Court awarded compensation for entire land of Gat no.62 i.e. 1.61 H.R. It is thus submitted that the compensation which is awarded being exorbitant may be disallowed by restoring the award passed by the Land Acquisition Officer.
6] Points for my consideration are:
1] What is the fair and just compensation for the land area 93 R acquired?
2] Whether the land owner is entitled to additional compensation for severance?
7] The land owner examined himself and relied upon oral evidence of one Pritish Tayade, the then Sarpanch of village Lakh and in addition decision rendered by the Reference Court in L.A.C. No.73/1992 wherein compensation @ Rs.8/- per sq.ft. was fixed. The Reference Court in paragraph 13 observed that the petitioner did not adduce any expert evidence to show the quality and fertility of the land. He further observed that no expert evidence has been adduced to prove that the land which is divided into two fragments have become useless because of the severance.
8] An attempt was made by the land owner to prove the market value of the land on the basis of income capitalization method. After considering this evidence, at the end of paragraph 14 of the judgment, the learned Reference Court held that the price per hectare comes to Rs.1,12,500/-. Immediately, thereafter the learned Reference Court observed that: “In reality, petitioner might be getting more income by way of crops as since last 8 to 10 years there is high rate of cotton crop.”Adverting to comparable sale instance, the learned Reference Court observed in paragraphs 15 that :
“As far as third method is concerned, admittedly the petitioner has not placed on record any sale instance for making comparison of such land with those sale instances.”
9] In that view of the matter, oral evidence that of land owner himself and Pritish Tayade, the then Sarpanch of the village and the decision rendered by his predecessor in L.A.C. No.73/1992 in respect of the land of the same village was the material before the learned Reference Court to fix the market value of the acquired land. On the basis of the oral evidence, the learned Reference Court was of the view that the acquired land is just at a distance of 300 meters from existing gaothan. It is adjoining the Lakh- Chirkuta road. It is fit for housing purpose as it is adjoining the road. The village Lakh has population of about 5 thousand and it is expanding.
10] The copy of the judgment and award rendered in L.A.C. No.73/1992 is placed on record at Exhibit 18. Pursuant to the notification, issued under section 4 of the Land Acquisition Act, on 4.9.1986, the land survey no.170 area 3 acres 91 Gunthas out of the total area of 4 acres 5 gunthas was acquired for construction of the canal of village Lakh. In that, Reference Court awarded the compensation @ Rs.8/- per sq.ft. after deducting 25% of the land for development purpose. The perusal of the judgment shows that only one comparable sale instance of the small plot situated at village Lakh was relied upon. The learned Reference Court after referring to various authorities observed that:
“Even in the villages nearby to Tahsil place there are sumptuous rates of plot and such rates are in between Rs.5/- to 8/- per sq.ft. So even if one considers the lowest rate at Rs.5/- per sq.ft., per hectare price comes to Rs.3,75,000/-. So considering the detail discussion made by me above, as I have come to the conclusion that the land in question was having N.A. potentiality and as I have held that remaining portion of land being pieces is of no use for the petitioner, he is entitled for compensation for his entire land of area 01 Hectare – 61 Are by principle of severance e and as provided by S.23(3) of the Act and even considering the fact that due to pieces, such land cannot be cultivable.”
11] Thus the base for fixing the price of land acquired @ Rs.5/- per sq.ft. was the location of the land having non-agricultural potentiality. Although this is guess work and of course is permissible, the fact remains that there is no evidence in rebuttal to counter the oral evidence adduced by the land owner and also logic applied by the reference court while enhancing compensation. In that view of the matter, no interference with the compensation awarded by the learned Reference Court @ Rs.5/- per sq.ft. could be justified. Consequently, there is no merit in the appeal filed by the land owner seeking enhancement of amount of compensation.
12] Although, the area of the land acquired is only 93 R, the learned Reference Court awarded compensation @ Rs.3,75,000/- per hectare for the entire area of 1.61 H.R. To justify this, the learned Reference Court came to the conclusion that because of the passing of the canal through the land, it is divided into two fragments, 56 R and 12 R and both these fragments are useless for cultivation. In paragraph 13 of the judgment, the learned Reference Court admitted that there is no evidence of expert to prove that remaining pieces of the land out of the entire area of 1.61 R have become non-cultivable and of no use. Then there is oral evidence of the land owner and Pritish Tayade. Mr. Kadu, the learned A.G.P. appearing for the State was justified in contending that when for the agricultural land, compensation has been fixed by converting it into unit of sq.ft., mainly on the ground that it has non-agricultural potentiality and is likely to be used for residential purpose, because of expansion of the village, the learned Reference Court was not justified in holding that the fragment of land admeasuring 56 R and 12 R, respectively rendered useless; even this may not be true, if at all it is to be used as agricultural land, since fragments of 56 R and 12 R cannot be treated as small fragments, so as to render cultivation unpractical and unprofitable.
13] There is a substance in the above contention. It seems that the learned Reference Court lost sight of the fact that while fixing the compensation, the non-agricultural potentiality was considered. No comparable sale instance of the agricultural land was produced. As has been observed by the learned Reference Court, no expert's evidence has been produced, nor by adopting income capitalization method, the land owner could prove that he was entitled to compensation @ Rs.3,75,000/- per hectare. What has been relied upon is the judgment rendered in L.A.C. No.73/1992. In that case while fixing compensation, for the land 3 acres 9 gunthas, sale instance of small plot of land was relied upon and purely on guess work the value was fixed @ Rs.8/- per sq.ft.. The same yardstick has been applied here. This poses a question as to whether fragments of 56 R and 12 R have been rendered useless, even for non-agricultural use.
14] Answer to this has to be in the negative. 56 R in terms of sq.feet would be about 50530 sq.ft. and 12 R would be 5227 sq.ft. Considering. areas of both these fragments in terms of sq ft they cannot be treated as useless. Ex-facie, approach of the learned Reference Court is not acceptable. Even the land owner cannot approbate and reprobate. That means while claiming the price in terms of sq.ft. which is generally granted to Abadi [Gaothan] land, he cannot be allowed to say that because of severance two small fragments are created which are useless for cultivation. Dfinitely fragments can be used for residential purposes after its conversion. In that view of the matter the Reference Court's finding that land owner is entitled for compensation of entire 1 H 61 R land although only 61 R land was acquired cannot be sustained. This follows that appeal filed by the State will have to be allowed partly and appeal filed by land owner is liable to be dismissed.
15] The First Appeal no.477/1995[Vishnu Belgumwar ..vs..The State of Mah and ors] filed by the land owner is dismissed.
16] The First Appeal No.153/1997[State of Maharashtra and ors ..vs..Vishnu Belgumwar] is allowed partly. The judgment and award passed by the learned Reference Court is modified to the extent that the land owner is entitled to amount of compensation at the rate of Rs.3,75,000=00 per hectare only for the acquired area i.e. 93 R and not for the entire piece of land i.e. 1.61 H.R. With this modification, the appeal stands allowed partly.
17] The land owner is directed to deposit within 10 weeks from the date of this order the excess amount of compensation [for 68 R], if any received by him, with the Reference Court, along with 6% p.a. from the date of withdrawal of the amount till the date of its deposit. On such deposit the Reference Court shall permit the State to withdraw the said amount.
18] Parties in both these appeals are left to bear their own costs.