Shushilabai Ajabrao Nagpure v. State Of Mah. Thr. Deptt. Of Revenue, Mantralaya, Mumbai

2023:BHC-NAG:16860

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH AT NAGPUR FIRST APPEAL NO.443/2011 APPELLANT :

Sushilabai Ajabrao Nagpure, Aged about 50 Years, Occ. Farmer, R/o. Mahadeo Nagar, Ramnagar Road, Yavatmal.

...VERSUS...

RESPONDENTS : 1.

The State of Maharashtra.

2.

The Collector, Yavatmal, Tq. & Distt. Yavatmal.

3.

The Special Land Acquisition Officer, Bembala Project Division, Yavatmal, Distt. Yavatmal.

4.

The Executive Engineer, Bembala Project, Yavatmal.

WITH FIRST APPEAL NO.441/2011 APPELLANT :

Manoj Ajabrao Nagpure, Aged about Major, Occ. Farmer, R/o. Mahadeo Nagar, Ramnagar Road, Yavatmal.

...VERSUS...

RESPONDENTS : 1.

The State of Maharashtra.

2.

The Collector, Yavatmal, Tq. & Distt. Yavatmal.

3.

The Special Land Acquisition Officer, Bembala Project Division, Yavatmal, Distt. Yavatmal.

4.

The Executive Engineer, Bembala Project, Yavatmal ----------------------------------------------------------------------------------------------- Shri R.S. Nagpure, Advocate for the Appellant in both appeals Mrs. M.H. Deshmukh, AGP for the Respondent Nos. 1 to 3 in both appeals Shri M.A. Kadu, Advocate for the Respondent No.4 in both appeals ----------------------------------------------------------------------------------------------- CORAM : AVINASH G. GHAROTE, J.

Judgment reserved on : 23/12/2022 Judgment pronounced on : 21/06/2023

J U D G M E N T

1.

Heard Mr. Nagpure, learned counsel for the appellant in both the appeals, Mr. Kadu, learned counsel for the respondent no.4 and Mrs. Deshmukh, learned Assistant Government Pleader for the respondent nos.1 to 3/State.

2.

Both these appeals question the judgment of the learned Reference Court rendered on an application under Section 18 of the Land Acquisition Act, 1894 ("LA Act" hereinafter for short), being dis-satisfied by the quantum of compensation awarded. 3.

The facts in First Appeal No. 443/2011 are as under :

BEMBLA PROJECT, DISTRICT YAVATMAL Village: Pimpalkhuta, Tahsil Babhulgaon, District : Yavatmal DATE OF NOTIFICATION UNDER SECTION 4 OF THE LAND ACQUISITION ACT 17/02/2003 Details Details of property LAO Award Dated Reference Court Award 22/09/2005 Dated 20/03/2009 Village:

Pimpalkhuta, Gat No.297 admeasuring 5.26 HR [Orchard in 2.29 HR and 2.97 HR is under cultivation] Rs.69,115/- per Hectare, for 2.97 HR.

Rs. 30,570/- per hectare for Orchard Land.

( i.e. for the strip of land between two rows of treeswhich is termed as deferred payment, which amount is actually paid with the compensation for the cultivable land) Rs.1,42,500/- per hectare for 2.97 HR and Claim for trees 140 Sweet lime trees ( Mosambi) Rs. 736/- per tree Rs. 1,750/- per tree, 495 Orange Trees Rs. 1109/- Rs.3710/- ( for Orange Trees) Claim in the present appeal Land admeasuring 2.97 HR Rs. 2,50,000/- per hectare For 495 Orange trees Rs. 8880/- per tree Rs.7,160/- per tree For 140 Sweet Lime ( Mosambi) Trees

4.

The facts in First Appeal No. 441/2011 are as under : BEMBLA PROJECT, DISTRICT YAVATMAL Village: Pimpalkhuta, Tahsil Babhulgaon, District : Yavatmal DATE OF NOTIFICATION U/S 4 OF THE LAC ACT 17.02.2003 Details Details of property LAO Award Dated Ref. Court Award Dated 22.09.2005 20.03.2009 Village:

Pimpalkhuta, Gat No.298 admeasuring 5.26 HR [Orchard in 2.06 HR and 3.20 HR is under cultivation ] Rs.69,115/- per Hectare, for 3.20 HR.

Rs. 22,842/- per hectare for Orchard Land.

( i.e. for the strip of land between two rows of trees- which is termed as deferred payment , which amount is actually paid with the compensation for the cultivable land) Rs.1,42,500/- per hectare for 3.20 HR and Claim for trees 599 Sweet lime trees ( Mosambi) Rs. 736/- per tree Rs. 1,750/- per tree, Since Form-E indicates 570 Trees, the compensation at the above rate comes to Rs.9,97,500/- for the entire 570 trees.

Claim in the present appeal Land admeasuring 3.20 HR Rs. 2,50,000/- per hectare For 570 trees Rs.7,160/- per tree

5.

Mr. Nagpure, learned counsel for the appellants submits, as under:

5.1.

That insofar as regarding the age of sweet lime trees is concerned, the age is incorrectly shown as six years, whereas the actual age should be nine years for the reason that Note-2 in Form-E (Exh. 29/pg. 42 to 47 of R & P) prepared by the Horticulture Department, on instructions, states that the age of the sweet lime trees (First Appeal No.

441/2011) was determined as on the date of publication of Section 4 notification, and since the acquisition in the present matter was consequent to the notification dated 17/02/2003 on account of the earlier notification under Section 4 of the LA Act having lapsed, the age of the trees as on the date of Section 4 notification dated 17/02/2003, would be six years plus three years which would come to 9 years 8 months approximately, and therefore, the yield would increase, resulting in increase of value of the trees, for which he places reliance upon the Government Resolution dated 27/12/1990. He therefore submits, that by applying the Mirams Table factor, the value of the trees would be more than what has been calculated by the learned Reference Court. He further relies upon the valuer's report at Exh.

01/02/2003 (pg. 69 of R & P) to claim support for the rate as claimed by him as indicated in the above chart. 5.2.

That in Form-E at Exh. 29 (pg. 47) Note-3 indicates that the spot inspection report in respect of the trees is of October 2000, and therefore, considering that the notification under Section 4 of the LA Act in this regard was 17/02/2003, the trees would have grown by more than two and half years, and therefore, the yield would also be consequently increased, which factor also according to him supports the report of the valuer at Exh. 46 and so also the claim made by the appellant.

5.3.

That in view of the above factors, the average yield was to be determined, based upon a consideration of the age of fruit bearing trees (sweet lime) as more than ten years giving a yield of 100 to 200 kg. per year, instead of 50 to 100 as per Government Resolution dated 27/12/1990.

5.4.

That the market rates of Agricultural Produce Market Committee, Nagpur ("APMC, Nagpur" hereinafter for short) for the relevant period are material for determining the compensation payable for the trees and states, that the rates of the APMC, Nagpur, for orange and sweet lime trees and so also other trees have been

placed on record alongwith Civil Application (CAF) No.230/2019. He submits, that since these rates have been considered by the learned Reference Court in Land Acquisition Case No.838/2006 decided on 18/12/2017 [Sahebrao Pundalikrao Nagpure (Dead), through his L.Rs. Vs. The State of Maharashtra and others], it is permissible for this Court to consider these rates. Though the civil application is opposed by Mr. Kadu, learned counsel for the respondent No.4, however, considering the fact, that the rates of the APMC, Nagpur for the period from 2001 to 2003, have been proved at Exhs. 96 to 98 in Land Acquisition Case No.838/2006 decided on 18/12/2017, it would be permissible for this Court to consider these rates for the purpose of determining the present appeal. Civil Application (CAF) No. 230/2019 is therefore allowed. 5.5.

If the rates of the APMC, Nagpur for the relevant period are considered, the average per quintal rate of sweet lime for three years from 2001 to 2003 comes to Rs. 690/- per quintal and that of oranges to Rs.1121/- per quintal, and therefore, the calculations, will have to redone by considering the aforesaid rates. 5.6.

Insofar as the compensation for land is concerned, reliance is placed upon the judgment of this Court in First Appeal

No. 457/2015 Tulshidas S/o Shamraoji Nagpure Vs. The State of Maharashtra and others, decided on 01.12.2022, in which, for dry crop land of Village Pimpalkhuta, a rate of Rs.2,10,000/- per hectare has been granted and rate of Rs.2,25,000/- per hectare has been granted for seasonally irrigated land. According to him, since the land in question was irrigated, the claimant would be entitled for Rs.2,50,000/- per hectare. In order to demonstrate that the land was irrigated, he places reliance upon the joint report at Exh. 28 (refer pg. 40 of R & P) which indicates that the land was being irrigated from the adjacent river.

6.

Mr. Kadu, learned counsel for the respondent No.4 counters the aforesaid submissions and states that the correct factors have been applied by the learned Reference Court for determining the rates of fruit bearing trees as well as for the land and the judgment of the learned Reference Court does not need any interference.

6.1.

Mr. Kadu, learned counsel for the respondent No.4 further submits, that though a claim is made that the entire land in both the appeals was irrigated it is based on a single note in the Joint Measurement Report ("JMR" hereinafter for short) "irrigated

from River" and there is absolutely nothing apart from the above entry, either in the 7/12 extract or any other revenue record, to indicate this position, nor any cultivation in that regard is being claimed. There is also absence of any electric bill to show the consumption of electricity for operation of any pump for irrigation of the entire land.

6.2.

For the cultivation of the agriculture land there should be pipeline network for distribution of water, however, no compensation in that regard was ever claimed, which indicates lack of irrigation. It is, therefore, submitted that the land which is not claimed to be under the orchard is not irrigated land but dry crop land and therefore the compensation for irrigated land as claimed in respect thereof cannot be granted.

6.3.

Mr. Kadu, learned counsel further submits that there is a controversy in regard to the number of trees. He draws my attention to the evidence of the claimant-Manoj Nagpure (para 3 of the cross-examination of page 65 of the paper-book), in which it has been averred by the claimant that the plantation of the sweet lemon trees (Mosambi) was made under the Government Horticulture Scheme for which there was 100 % subsidy and entry to that effect

was taken in the 7/12 extract when the plantation was made. However, no such 7/12 extract has been filed and therefore, it is contended by Mr. Kadu, learned counsel that there was no plantation of any sweet lime trees at all. He further relies upon the crossexamination, in which it is admitted by the claimant that there was no document to show that he had sold the crop of sweet lime in any year or any document to show any income from the sweet lime orchard derived.

The claimant in his further cross-examination (pg.66) admits that there was no Well in the acquired land for the purpose of irrigation and though permission was required from the Tahsildar for irrigation from the river no document was filed to indicate any such permission.

6.4.

In reference to the JMR and Form-E, it is submitted that page 45 of the record, that insofar as Gat no.297 is concerned, indicates that as many as 100 orange trees had dried up. The JMR and the valuation was of the year 2000 and considering the fact that Section 4 notification in the present case was dated 17/02/2003, it was not known as to how many trees had survived and therefore

neither Exh. 29 nor Form-E could be relied upon for the purpose of granting any compensation whatsoever.

6.5.

Insofar as the valuation report is concerned, it is contended that the same has been discarded by the Courts below apart from which there is no document placed on record either before the Land Acquisition Officer or the Reference Court regarding rate of the crop prevailing at that time and therefore there is no question of enhancement of compensation.

6.6.

In the alternative, it is contented that in case the claimant is held to be entitled to any compensation on the basis of Exhs.96 to 98, the rates of APMC at Nagpur, then the transportation charges, would be required to be deducted from the total compensation which may be enhanced.

7.

The law of Land Acquisition, in regard to a compulsory acquisition, which deprives the owner of his property, would dictate that benefit thereof ought to be given to the owner by taking a liberal view.

8.

Though the 7/12 extract may not indicate an entry in respect of the concerned agricultural land of it being irrigated from the river, yet what has been relied in the present case is the JMR,

which contains the note that the land is irrigated by taking water from the river. The JMR having been done in the presence of the Taluka Inspector of Land Records, the same is binding upon the respondents and specifically when the respondents have not questioned the entries therein before the LAO by leading any evidence to rebut the entry. The respondents would thus now be estopped from contending otherwise than what has been stated in the JMR.

9.

Agricultural cultivation, even today in the interior villages is not done by laying a pipeline in a scientific manner but in most of the areas the old systems are being followed. Merely because pipelines have not been found to have been laid, that would not mean that the field is not irrigated. In many areas in the interior, the age old system of watering the field by digging irrigation ditches and spreading a network of such ditches in the field for distribution of water is followed. Considering the costs of laying a pipeline, it cannot be said that absence of a pipeline would lead to a presumption of absence of irrigation. Such presumption is clearly unwarranted.

10.

The plea raised by Mr. Kadu, learned counsel for the respondent no.4, regarding the number of trees based on the fact that though there was a subsidy and the same was not reflected in the 7/12 extract is clearly nullified by the finding in the JMR of 570 sweet lime (Mosambi) trees being in existence. Though the JMR was of the year 2000 and the acquisition was under the notification dated 17/02/2003, the respondents, then ought not to have relied upon the JMR of the year 2000 for the purposes of acquisition and ought to have done another JMR in the year 2003 or thereafter. Nothing prevented them from doing so. However, since the respondents choose to proceed ahead on the basis of the JMR of the year 2000, it is not now open for them to raise a plea contrary to the JMR. No objection to the entries in the JMR appear to have been taken either before the Land Acquisition Officer or the Reference Court by the respondents, which again indicates the consent of the respondents to the figures in the JMR in respect of both the matters. 11.

The contention that during the duration 2000 to 2003, as many as 100 orange trees had dried up, then necessarily required the respondents to conduct another JMR, which has not been done. Thus, the existence of 570 sweet lime trees now cannot be disputed

by the respondents, as they cannot be permitted to take advantage of their own lapses.

12.

Insofar as the plea for deduction on account of transportation as raised by Mr. Kadu, learned counsel for the respondent no.4 is concerned, such deduction could be permissible, if anything was brought on record that the goods were transported to a distant place and were not sold at the nearby market. No such plea has been raised earlier, as a result of which, there is no such material on record, in order to claim any such deduction. 13.

In regard to the number of trees permissible per hectare, it is material to note that the general method commonly used in agriculture is a grid of 10 ft. X 10 ft., for the overall growth of a fruit bearing tree.

14.

The Government Resolution dated 27/12/1990 prescribes the average yield statement of fruits trees (irrigated food crops) which for the sake of ready reference is reproduced as under:

15.

The rates of the APMC, Nagpur for various fruit bearing trees for the period 2001 to 2003 [Exhs. 96 to 98 in Land Acquisition Case No.838/2006 decided on 18/12/2017 (Sahebrao Pundalikrao Nagpure (Dead), through his L.Rs. Sau. Leelabai Sahebrao Nagpure and others Vs. The State of Maharashtra, Through Collector, Yavatmal Tq. and Distt. Yavatmal and others)] are as under:

16.

The basic deductions to be made are on account of cultivation charges, manure, insecticides, maintenance, watch and ward, packing, transportation etc., which is indicated by the Government Resolution dated 10/07/2002 as under:

17.

The further deductions, are on account of cultivators' risks and profits which is attributable to the risk taken by the cultivators and the skill in carrying on the enterprise. In case the fruit bearing trees are planted with a view to obtain regular income the orchard becomes an enterprise. As per the Govt Circular No. LON- 4275/A-2 dated 18/12/1975, 10% of the gross income is permissible to be deducted on this count.

18.

Insofar as the position in First Appeal No.443/2011 is concerned, the learned Reference Court, notes that though reliance is placed by the appellant upon the expert's report at Exh.45 of Dr. Kamalnayan Uttamchand Sanghavi (P.W.2) it also records the lacunae in the report inasmuch as it finds that there is an admission by P.W. 2 that he has not done soil testing of the acquired land; has not mentioned in his report that orange and sweet lime trees were fruit bearing; market rate at Nagpur of these trees was not mentioned; neither any certificate was as to rates by the APMC, Nagpur or any other authority was filed. It is further recorded that though a claim is made that the field was being irrigated by lift irrigation from the adjacent river, no bills for use of water or for that matter any permission from the irrigation department was seen by

him. This has also not been produced on record. It is further recorded in regard to his evidence that he had not verified the 7/12 extract nor seen any document regarding any expenditure incurred by the appellant for the orchard nor has seen any account maintained by the appellant. The learned Reference Court records that P.W. 2 has admitted that he has mentioned the value of trees in his report on the basis of presumption.

19.

The learned Reference Court therefore, in my considered opinion, has rightly relied upon the fruit valuation statement as Exh.29 of the year 2002-03 when the possession of the acquired land was taken as per possession receipt Exh.32, which records that there were only 495 orange trees and 140 sweet lime trees in Gat No.297. The report (Exh.45) of the Expert P.W. 2, therefore is not of much assistance in determining the value of the land either way.

20.

A finding has also been rendered by the learned Reference Court that though the entire land of Gat No.297 Mouza Pimpalkhuta was 5.26 HR the orchard was only an area of 2.29 HR. It has therefore rightly calculated the value of 2.29 HR of land as an orchard and the balance land of 2.97 HR on the basis of dry crop

land, as there does not exist sufficient material on record to indicate that this balance land was being irrigated in any manner, except for the statement made in this regard by the appellant. 21.

Insofar as the calculation of the price for the orchard upon 2.29 HR of land it has come on record that in the year 2002-03 as per Exh.29 (fruit valuation statement) the age of the sweet lime trees in Gat no.297 was 6 years and that of orange trees was 11 years. The yield therefore has been calculated on the basis of the Government Notification dated 27/12/1990, according to which, the average yield for the sweet lime trees of 6 years of age would be 22 to 50 kg. and that for orange trees of 11 years age would to 40 to 90 kg.

22.

The rate of APMC, Nagpur for period 2001-02, of Rs.615/- per quintal for sweet lime and Rs.952/- per quintal for oranges at APMC, Nagpur as stated in the report of P.W. 2 at Exh.45 has been considered for the purpose of determining the rate of the fruit tree and a deduction of 40 % has been made on account of transportation, loading-unloading charges, gradation, plucking, commission agent etc. and a rate of Rs.370/- per quintal for sweet lime and Rs.575/- per quintal for orange has been determined.

23.

Since the notification in the present case under Section 4 of the Land Acquisition Act is dated 17/02/2003, it is rightly contended by Mr. Nagpure, learned counsel for the appellants that the prices of the APMC, Nagpur for the year 2001 has been incorrectly considered. Since the rates of the APMC, Nagpur for the year 2002-03 as considered in Land Acquisition Case No.838/2006 (Sahebrao Pundalikrao Nagpure (Dead) through L.Rs. Vs. The State of Maharashtra, Through - Collector, Yavatmal Tq. & Dist. Yavatmal, decided on 18/12/2017) have been placed on record it would be appropriate to consider these rates. According to this, at APMC, Nagpur the rate of sweet lime in February, 2003 was Rs.618/- per quintal and that of oranges was Rs.1175/- per quintal.

Even if the deduction of 40% as done by the learned Reference Court is considered, insofar as the rate for sweet lime is concerned, there is a difference of only Rs.3/-, which is hardly any difference. However, insofar as the rate for oranges is concerned, considering the rate of Rs.1175/- per quintal for February, 2003 and 40% deduction, it would come to Rs.705/- per quintal (i.e. Rs.7.05 per kg.) and the rest of the calculations made will accordingly increase.

24.

The value of a tree, therefore would be yield into market rate, which for sweet lime tree, considering an average yield on account of its age of 6 years as per the notification dated 27/12/1990 is concerned, is shown as 20 to 50 kg. and that for oranges for 11 years is shown as 40 to 90 kg., considering an average yield taken by the learned Reference Court of 70 kg. for oranges, the value of fruit bearing orange tree would be calculated as 70 kg. X 7.05=Rs.493.5. From this, the cost of maintenance, transportation, fuel value etc. will have to be deducted, and considering the same to be 10% the value would come to Rs.444.1/-, to which multiplier of ten years will be required to be added in view of Assistant Commissioner-cum-Land Acquisition Officer, Bellary Vs. S.T.

Pompanna Setty, 2005 (5) ALL MR SC 293, which would make the value of the orange trees as 444.1 X 10 = 4440.10. Considering that there are 495 orange trees in the orchard in Gat No.297, the value of the orange trees would be that 495 X 4440.10 = 21,97,849.5 as against Rs.18,36,450/-, calculated by the learned Reference Court and the value for the 140 sweet lime trees calculated at Rs.2,45,000/- remains the same on account of the negligible difference in the rate as indicated above.

orchard on the land admeasuring 2.29 HR of Gat No.297, having orange and sweet lime trees to the extent as indicated above, the appellant would be entitled to a compensation of Rs.24,42,849.5. Insofar as the balance land of 2.97 HR of Gat No.297 is concerned, there is no material brought on record that there are any trees planted therein and therefore the same will have to be considered on the basis of market rate granted in Tulshidas Shamraoji Nagpure (supra) of Rs.2,10,000/- per hectare as nothing has been brought on record to show that this portion of Gat No.297 was irrigated. 25.

Insofar as the position in First Appeal No.441/2011 is concerned, the learned Reference Court, notes that though reliance is placed by the appellant upon the expert's report at Exh.46 of Dr. Kamalnayan Uttamchand Sanghavi (P.W.2) it also records the lacunae in the report inasmuch as it finds that there is an admission by P.W. 2 that he has not done soil testing of the acquired land; has not mentioned in his report that orange and sweet lime trees were fruit bearing; market rate at Nagpur of these trees was not mentioned; neither any certificate was as to rates by the APMC, Nagpur or any other authority was filed. It is further recorded that though a claim is made that the field was being irrigated by lift

irrigation from the adjacent river, no bills for use of water or for that matter any permission from the irrigation department was seen by him. This has also not been produced on record. It is further recorded in regard to his evidence that he had not verified the 7/12 extract nor seen any document regarding any expenditure incurred by the appellant for the orchard nor has seen any account maintained by the appellant. The learned Reference Court records that P.W. 2 has admitted that he has mentioned the value of trees in his report on the basis of presumption.

26.

The learned Reference Court therefore, in my considered opinion, has rightly relied upon the fruit valuation statement as Exh.29 of the year 2002-03 when the possession of the acquired land was taken as per possession receipt Exh.32, which records that there were only 570 sweet lime trees in Gat No.298. The report (Exh.46) of the expert P.W. 2, therefore, is not of much assistance in determining the value of the land either way. 27.

A finding has also been rendered by the learned Reference Court that though the entire land of Gat No.298 Mouza Pimpalkhuta was 5.26 HR the orchard was only an area of 2.06 HR. It has therefore rightly calculated the value of 2.06 HR of land as an

orchard and the balance land of 3.20 HR on the basis of dry crop land, as there does not exist sufficient material on record to indicate that this balance land was being irrigated in any manner, except for the statement made in this regard by the appellant. 28.

Insofar as the calculation of the price for the orchard upon 2.06 HR of land it has come on record that in the year 2002-03 as per Exh.29 (fruit valuation statement) the age of the sweet lime trees in Gat no.298 was 6 years. The yield therefore has been calculated on the basis of the Government Notification dated 27/12/1990, according to which, the average yield for the sweet lime trees of 6 years of age would be 22 to 50 kg. 29.

The rate of APMC, Nagpur for period 2001-02, of Rs.615/- per quintal for sweet lime at APMC, Nagpur as stated in the report of P.W. 2 at Exh.46 has been considered for the purpose of determining the rate of the fruit tree and a deduction of 40 % has been made on account of transportation, loading-unloading charges, gradation, plucking, commission agent etc. and a rate of Rs.370/- per quintal for sweet lime has been determined. 30.

Since the notification in the present case under Section 4 of the Land Acquisition Act is dated 17/02/2003, it is

rightly contended by Mr. Nagpure, learned counsel for the appellants that the prices of the APMC, Nagpur for the year 2001 has been incorrectly considered. Since the rates of the APMC, Nagpur for the year 2002-03 as considered in Land Acquisition Case No.838/2006 (Sahebrao Pundalikrao Nagpure (Dead) through L.Rs. Vs. The State of Maharashtra, Through - Collector, Yavatmal Tq. & Dist. Yavatmal, decided on 18/12/2017) have been placed on record it would be appropriate to consider these rates. According to this, at APMC, Nagpur the rate of sweet lime in February, 2003 was Rs.618/- per quintal. Even if the deduction of 40% as done by the learned Reference Court is considered, insofar as the rate for sweet lime is concerned, there is a difference of only Rs.3/-, which is hardly any difference. However, insofar as the rate of sweet lime is concerned, considering the rate @ Rs.618/- per quintal for February, 2003 and 40% deduction, it would come to Rs.370.80 per quintal (i.e. Rs.3.70 per kg.) and the rest of the calculations made will accordingly increase.

31.

The value of a tree, therefore would be yield into market rate, which for sweet lime tree, considering an average yield on account of its age of 6 years as per the notification dated

27/12/1990 is concerned, is shown as 20 to 50 kg. Considering an average yield taken by the learned Reference Court of 50 kg. for sweet lime trees would be calculated as 50 kg. X 3.70 = Rs.185/-. From this, the cost of maintenance, transportation, fuel value etc. will have to be deducted, and considering the same to be 10% the value would come to Rs.166.50, to which multiplier of ten years will be required to be added in view of Assistant Commissioner-cumLand Acquisition Officer, Bellary Vs. S.T. Pompanna Setty, 2005 (5) ALL MR SC 293, which would make the value of the sweet lime as Rs.166.50 X 10 = Rs.1,665/-. Considering that there are 570 sweet lime trees in the orchard in Gat No.298, the value of the sweet lime trees would be that 570 X Rs.1665 = Rs.9,49,050/- as against Rs.9,97,500/- calculated by the learned Reference Court.

Thus, for the orchard on the land admeasuring 2.06 HR of Gat No.298, having sweet lime trees to the extent as indicated above, the appellant would be entitled to a compensation of Rs.9,49,050/-. However, as there is no appeal by the respondents, the judgment in reference will have to be maintained, and the appellant thus would be entitled to compensation of Rs.9,97,500/-. Insofar as the balance land of 2.06 HR of Gat No.

record that there are any trees planted therein and therefore the same will have to be considered on the basis of market rate granted in Tulshidas Shamraoji Nagpure (supra) of Rs.2,10,000/- per hectare as nothing has been brought on record to show that this portion of Gat No.298 was irrigated.

32.

In view of above, the following order is passed. (A) The appellant in First Appeal No.443/2011 is entitled to a compensation of Rs.24,42,849.50 for the orange trees and sweet lime trees in the orchard on the land admeasuring 2.29 HR of Gat No.297. Insofar as the balance land of 2.97 HR of Gat No.297 is concerned, since there is no material brought on record that the balance land was irrigated land the same is considered on the basis of market rate granted in Tulshidas Shamraoji Nagpure (supra) of Rs.2,10,000/- per hectare. First Appeal No.443/2011 is, thus, partly allowed in the above terms.

(B) The judgment impugned in First Appeal No.441/2011, for the reasons recorded, does not need any interference.

(AVINASH G. GHAROTE, J.) Jalit/Bhimte/Wadkar