Manik Panjabrao Kalmegh vs Executive Engineer Bembla Project Division Yavatmal & Ors.

2024 INSC 844 NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL Nos. OF 2024 (Arising out of SLP (C) Nos. 4494-95 of 2023)

MANIK PANJABRAO KALMEGH …APPELLANT(S)

VERSUS

EXECUTIVE ENGINEER BEMBLA PROJECT DIVISION YAVATMAL & ORS. …RESPONDENT(S)

JUDGMENT

PANKAJ MITHAL, J.

1. Leave granted.

2. The appeal is directed against the common judgment and

order dated 02.12.2021 of the High Court in First Appeal

No.492 of 2017 and in Cross Objection No.65 of 2017 filed

Signature Not Verified therein. The High Court has allowed the appeal of the Digitally signed by RADHA SHARMA Date: 2024.11.07 15:41:33 IST Reason: respondents and had dismissed the cross objections of the

appellant herein.

1

3. The controversy in this appeal is regarding determination

of fair and adequate compensation for the acquired land,

the fruit trees existing thereon and the borewell.

4. The appellant was the owner of the lands bearing Survey

No.14 admeasuring 4.32 hectares, Survey No.15

admeasuring 1.40 hectares and Survey No. 17

admeasuring 5.87 hectares situate in village Barad, taluka

Babhulgaon, District Yavatmal, Maharashtra. The

aforesaid land was acquired for the benefit of Vidarbha

Irrigation Development Corporation by the State of

Maharashtra by issuing a notification dated 24.07.2003

under Section 4 of the Land Acquisition Act, 18941. The

Land Acquisition Officer2 passed an award on 27.06.2005

offering compensation of the aforesaid land to the

appellant as under:

1

Hereinafter referred to as ‘the Act’ 2 In short ‘LAO’

2 S.No. Land Details Amount of land Amount for fruit (per hectare) bearing tree/others

1 Survey No.14 Rs.83,099/- Rs.7,27,669/- 2 Survey No.15 Rs.83,245/- Rs.23,600/- 3 Survey No.17 Rs.82,904/- No compensation for alleged awala trees and borewell.

5. The appellant was not satisfied by the compensation offered

by the LAO. Therefore, he accepted the compensation

amounting to Rs.17,13,445/- under protest and preferred

a reference under Section 18 of the Act for the

enhancement of compensation, claiming an additional

amount of Rs.2,06,88,000/-. The Civil Judge Sr. Division

allowed the reference in part and granted additional

compensation vide judgment and order dated 04.04.2015.

6. The appellant still not satisfied, applied for review of the

aforesaid judgment and order alleging that in respect of

land bearing Survey No.17, he had not been granted any

compensation for the 1824 fruit bearing awala trees

existing thereon as well as the borewell. The review

application was allowed and the compensation in respect of 3 the aforesaid awala trees and the borewell was also

determined and awarded vide order dated 05.08.2015.

7. Thus, aggrieved by the order passed on the review

application granting compensation for the awala trees and

the borewell situate on land bearing Survey No.17, the

respondents preferred an appeal under Section 54 of the

Act before the High Court. The appeal was admitted only

on the limited aspect whether the award of compensation

for the trees and the borewell is permissible in a review, but

subsequently the order admitting the appeal on the above

limited ground was modified and the appeal was ordered to

be heard on merits without any restrictions. In the said

appeal, cross objections were filed by the appellant claiming

further enhancement.

8. The High Court by the impugned order dismissed the cross-

objections of the appellant and partly allowed the appeal

holding that the award of compensation for the awala trees

and the borewell existing on land bearing Survey No.17 is

per se illegal and, thus, the award was accordingly directed

to be modified.

4

9. We have heard Shri Pallav Sisodia, learned Senior Counsel

for the appellant and Shri Uday B. Dube, learned Senior

Counsel for the respondent.

10. The main thrust of the argument of Shri Pallav Sisodia,

learned Senior Counsel for the appellant, is that in

awarding the compensation for the land, reliance was

placed upon an exemplar sale deed of the year 1994 and

since the present acquisition was of the year 2003, 10% rise

per year was allowed in awarding the compensation but

this 10% rise per year ought to have been with cumulative

effect. In this connection, he has relied upon Ramrao

Shankar Tapase v. Maharashtra Industrial Development

Corporation and Others3. The second limb of the

argument of Shri Pallav Sisodia, learned Senior Counsel for

the appellant, is that on lands bearing Survey Nos.14 and

15, there existed 600 orange trees but compensation in

respect of only 500 orange trees have been granted. This

apart, there existed 1824 awala trees and the borewell on

land bearing Survey No.17 as is reflected from the 2nd Joint

Measurement Report4 dated 08.07.2015. However, in

3 (2022) 7 SCC 563 4 In short ‘JMR’

5 respect thereof compensation granted by the reference

court, while considering the review application, has been

set aside illegally by the High Court.

11. Shri Uday B. Dube, learned Senior Counsel for the

respondent, submitted that the entire record was

considered by the High Court in passing the impugned

order and the court was satisfied that no admissible

evidence was adduced to establish the existence of the

awala trees and the borewell on the land bearing Survey

No.17 on or before the acquisition. The grant of

compensation for the land by allowing 10% increase per

year on the basis of the exemplar sale deed of 1994 is

perfectly justified and it is not in every case that the court

is obliged to allow the said increase cumulatively. In the

event, the court has exercised its discretion not to grant

cumulative increase in the market value, it cannot be said

that the court has acted arbitrarily and has committed any

error of law in determining the fair market value of the land

for the purpose of award of compensation.

12. Let us first examine as to whether the appellant was

entitled to any compensation in respect of 1824 awala trees

6 and the borewell as claimed by him; and as was allowed in

the review application which had ultimately been set aside

by the High Court.

13. The reference court, in the review application, granted

Rs.1,000/- each for 1824 awala trees and a sum of

Rs.40,000/- for the borewell situate on land bearing Survey

No.17.

14. A perusal of the award of the reference court dated

04.04.2015 clearly reveals that it had rejected the claim for

compensation of awala trees as the same were newly

planted and were not fruit bearing at the relevant time. The

plantation was reported to be of the year 2003-2004 which

is subsequent to the proposal to acquire the land. The court

also recorded that no substantial evidence was brought on

record to prove the existence of the aforesaid trees or that

they were fruit bearing trees. The court while allowing the

review application had placed reliance upon the 2nd JMR

which was not part of the evidence. The said report or the

representations in that connection were produced by the

appellant along with the review application and were never

proved and were marked as exhibits. Thus, the said 2nd

7 JMR and the representations were inadmissible in evidence

which could not have been relied upon by the court while

considering the review application. Moreover, the review

application has been allowed in a manner as if the court

considering it, was sitting in appeal or was deciding the

reference afresh. The manner in which it has been decided

was not within the scope of the review jurisdiction and

could not have been allowed, that too on the basis of

inadmissible evidence. Therefore, in our opinion, the High

Court very rightly set aside the grant of compensation for

the alleged awala trees said to be existing on land bearing

Survey No.17.

15. Since the court in review jurisdiction could not have

allowed any additional compensation as the evidence

produced during review was inadmissible, the grant of

compensation for borewell is also unsustainable.

16. Accordingly, no illegality has been committed by the High

Court in passing the impugned order insofar as the relief

granted in a review application was ordered to be set aside.

17. Though, emphasis was also laid for the grant of

compensation for additional 100 orange trees and for 1

8 tamarind tree (imli tree) but we do not find any discussion

in this context by the High Court probably for the reason

that no such argument was pressed before it. The

argument, not raised and pressed before the High Court,

cannot be permitted to be raised for the first time herein

this appeal, more particularly, when there is no evidence to

even substantiate the same except for the 2nd JMR which

has been held to be inadmissible.

18. In determining the market value of lands bearing Survey

Nos.14 and 15, the reference court had relied upon an

earlier judgment in LAC No.48 of 2007 (Exh.68). The land

involved in the aforesaid judgment was also acquired for

the same project situate in the adjoining village. In the

aforesaid judgment, reliance was placed upon an exemplar

sale deed of the year 1994 (Exh.35). Therefore, the reference

court granted increment of 10% per year as per the market

value determined on the basis of the exemplar sale deed of

the year 1994. The aforesaid judgment and order (Exh.68)

is final and conclusive and no evidence or material has

been brought on record to establish that the same was in

any manner modified so as to grant cumulative increase of

9 10% in the market value. Therefore, it would not be a

prudent exercise to award cumulative increase as claimed

by the appellant in the case at hand.

19. In Ramrao Shankar Tapase (supra), this Court only

observed that a cumulative increase of 10-15% per year in

the market value of the land may be accepted in the facts

and circumstances of the case. A plain reading of

paragraph 28 of the aforesaid decision itself would make it

clear that the grant of cumulative increase in the market

value of the land is not an absolute rule and that it is

optional and may be granted in a given case only. In the

instant case, it has rightly not been granted for the simple

reason that the Exh.68 which is a relied upon judgment

pertaining to the same acquisition, no such cumulative

increase was permitted. The said exhibit has to be accepted

wholly and not in part. Thus, there is no arbitrary exercise

of power in simply permitting 10% increase in the market

value as determined on the basis of exemplar sale deed of

the year 1994 as relied upon in the judgment i.e., Exh.68. 10

20. In view of the aforesaid facts and circumstances, we find no

merit in these appeals and the same are dismissed with no

order as to costs.

21. Pending application(s), if any, stands disposed of.

..........………………………….. J.

(PANKAJ MITHAL)

....……………………………….. J.

(R. MAHADEVAN) NEW DELHI;

NOVEMBER 06, 2024

11