Kashinath Dudhaji Gaikwad vs The State Of Maharashtra And Anr

CNR No : HCBM010256602011

FA-20-2012.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO. 20 OF 2012
KASHINATH DUDHAJI GAIKWAD )...APPELLANT
V/s.
THE STATE OF MAHARASHTRA AND ANOTHER )...RESPONDENTS
Mr.Sagar Joshi, Advocate for the Appellant.
Mr.A.R.Patil, AGP for the State-Respondent.
CORAM : ABHAY AHUJA, J.
th
RESERVED ON : 18 APRIL 2026
th
PRONOUNCED ON : 7 SEPTEMBER 2026
JUDGMENT :
1. This is an appeal filed by the Appellant for enhancement of
compensation for the acquired land and cattle shed, being aggrieved by
th
the judgment and award dated 9 September 2010 passed in Land
Acquisition Reference No.9 of 2001 partly allowing the reference and
directing the Respondents to pay additional compensation for his house
on the acquired land.
2. Mr. Joshi, learned Counsel appearing for the Appellant has
submitted that the Appellant was the owner of the land bearing Survey
No.71, Hissa No.2 (B), situate at Village Lonad, Taluka: Bhiwandi, Dist.
Thane. The said land was acquired by the Respondents vide
avk 1/15
Uploaded on - 09/09/2026 Downloaded on - 09/09/2026 20:32:53

FA-20-2012.doc
Notification issued under Section 4 of the Land Acquisition Act, 1894,
th
(the “Act”) on 12 February 1981 and Notification issued under Section
th rd
6 on 10 December 1983. Ultimately, the Award was made on 23
September 1986 and the possession of the land was taken by Acquiring
th
Body on 19 January 2000.
3. The Appellant received the amount of compensation in view of
acquisition of the aforesaid land. However, the said amount was not
sufficient. The Appellant therefore made an Application under Section
18 of the Act, being Land Acquisition Reference No. 9 of 2001 before
the Special Land Acquisition Officer, Thane, by way of a reference
seeking enhancement of compensation for the acquisition of the land.
In the said reference, the Appellant stated that the Appellant through
th
his Advocate submitted a representation/letter dated 29 October 1999
nd
and thereafter on 22 September 2000 for issuing the amount of
th
compensation which letter was answered by the Respondents on 10
January 2021 and an amount of Rs. 96,957/- was given to the
Appellant by cheque. Thereafter, the Respondents/acquiring body also
paid an amount of Rs. 1,40,537/-. The Appellant, therefore, prayed for
enhancement on the ground that the valuation report which was
submitted by the Appellant was not taken into consideration. The said
valuation report of Shri Vaidya was produced on record by the
avk 2/15
Uploaded on - 09/09/2026 Downloaded on - 09/09/2026 20:32:53

FA-20-2012.doc
Appellant below Exhibit 27. After filing the application for reference,
the Applicant/Appellant realized that the amount of compensation
towards loss of milk business remained to be claimed in the application
for reference, and therefore, an application was made by the Appellant
below Exhibit 15 seeking compensation towards loss of milk business.
In the said application below Exhibit 15 the Applicant/Appellant had
stated that while making an application for reference under Section 18
of the Act, the compensation towards loss of milk business remained to
be claimed and it being a bonafide mistake, by way of an application
for amendment, the Applicant/Appellant was praying for compensation
towards loss of milk business. In the said application for amendment
below Exhibit 15, the Applicant/Appellant stated that the
Applicant/Appellant was carrying on a milk business in a stable which
was abutting his residence and for the purpose of carrying on such milk
business, the Applicant/Appellant purchased buffaloes. The Appellant
was having 10 she buffaloes. The Appellant gave in tabular form the
amount which the Applicant/Appellant used to receive by selling the
milk for the period from August, 1986 to March, 1989 totalling 32
months and for these 32 months, the Applicant/Appellant totally
computed the compensation at the rate, more particularly mentioned in
the application for amendment.
avk 3/15
Uploaded on - 09/09/2026 Downloaded on - 09/09/2026 20:32:53

FA-20-2012.doc
4. The table given by the Appellant is as under:
Sr. Month Average Annual benefit
No. income
1. August 1986 to December 1986 Rs. 2583/- Rs. 12,913/-
5 months
2. 02.01.1987 to 31.12.1987 Rs. 2889/- Rs. 34,607/-
12 months
3. 03.01.1988 to 31.12.1988 Rs. 3606/- Rs. 43,280/-
12 months
4. 04.01.1989 to March 1989 Rs. 3228/- Rs. 9,684/-
3 months
Total 32 months Rs. 2140/- Rs. 1,00,484/-
5. The Appellant thus computed 150 months from 1989 to
September 2001 i.e. the period between the milk business he had to
stop in view of the acquisition of his land and the period of making
reference. Thus, the Appellant computed at Rs.4,71,000/- and 30% for
solatium which comes to Rs.1,41,300/- with 9% interest on it, which
totals to Rs.6,54,690/-.
6. The Appellant to substantiate his case of loss of milk business
produced on record the account book for the aforesaid period in which
there are entries of persons to whom the Appellant used to sell milk. In
the said account book, the rate of milk is also mentioned to the left side
and to the right side the description given is for expenses which the
Appellant was required to purchase the fodder etc. There is entry in the
avk 4/15
Uploaded on - 09/09/2026 Downloaded on - 09/09/2026 20:32:53

FA-20-2012.doc
account book showing that the Appellant purchased two she buffaloes
which entry can be found in the month of October, 1986. The account
book also shows the salary given to labourers and medicines required
to be purchased for the purpose of she buffaloes.
7. The Appellant led his oral evidence in which the Appellant
specifically stated about the loss of milk business. To the said
application below Exhibit 15, the Respondents filed their say below
Exhibit 17 and prayed for rejection of the said application. In the said
application below Exhibit 17, the Respondents stated that in the Land
Acquisition Reference No. 9 of 2001, there was no whisper regarding
milk business, and therefore, the Appellant could not have added by
way of an amendment such enhanced compensation. After considering
the application and the reply of the Respondents-Acquiring body, the
th
learned District Judge, Thane, passed an order on 7 July 2004,
thereby allowing the said application below Exhibit 15. In the order
th
below Exhibit 15 dated 7 July 2004, particularly paragraph no.4, the
th th
learned District Judge recorded that on 19 January 2000 and on 7
August 2001, the applications were submitted to the Land Acquisition
Officer regarding the loss of milk business and compensation was
prayed for. Therefore, the learned District Judge was of the view that in
the interest of justice, the permission could have been granted and the
avk 5/15
Uploaded on - 09/09/2026 Downloaded on - 09/09/2026 20:32:53

FA-20-2012.doc
learned District Judge, therefore, allowed the said application. The
learned District Judge also recorded the finding that by permitting such
amendment, the nature of claim compensation would not get changed.
8. The Appellant was cross examined by the Respondents. However,
in the said cross examination, the case of the Appellant for enhanced
compensation for loss of milk business was not at all negated by the
Respondents. On behalf of the Respondents, Special Land Acquisition
Officer was examined. However, in her cross examination she admitted
that she had no personal knowledge about the valuation of the
acquired land. Thus, there was no serious challenge to the prayer of the
Appellant for enhanced compensation towards his house and milk
business.
9. The learned District Judge, Thane, who heard the said reference
application of the Appellant was pleased to finally decide the same by
th
the Judgment and Order dated 9 September 2010 by which Judgment
and Order, the learned District Judge allowed the reference partly and
granted additional compensation for the house of the Appellant on the
acquired land. However, the prayer of the Appellant for enhanced
compensation for loss of milk business was not granted. The learned
District Judge assigned the reasons for the same particularly in
th
paragraphs 14 and 15 of the Judgment and Order dated 9 September
avk 6/15
Uploaded on - 09/09/2026 Downloaded on - 09/09/2026 20:32:53

FA-20-2012.doc
2010. In paragraph 14, the learned District Judge considered the
Architect Report of Mr. Vaidya which was submitted by the Appellant.
The learned District Judge recorded that in the Architect Report of Mr.
Vaidya it was recorded that there was a shelter for animals for
cultivation and there was no case of the Appellant that he was using
she buffaloes for the purpose of cultivation. In my view, the said finding
of the learned District Judge was absurd because the she buffaloes were
never actually used for the purpose of cultivation like plying the soil,
however, cow dung was being used to increase the fertility while
yielding crops. The learned District Judge ought to have considered
that the sketch which was drawn by the Valuer Mr. Vaidya specifically
showed that there was a shed for cattle. It also gives a specific
measurement. Therefore, it was not the case that without there being
any structure of a stable the Appellant stated that he was carrying on
milk business. Under the head 'building' the Architect and Valuer Mr.
Vaidya specifically gave the measurement thickness and nature of
construction of the residence as well as the stable which was being
used for the purpose of animal shed.
10. In paragraph 15 of the impugned Judgment, the learned District
Judge recorded that after publication of the Notice under Section 4 and
6 of the Act, the Appellant had not produced before the Acquiring body
avk 7/15
Uploaded on - 09/09/2026 Downloaded on - 09/09/2026 20:32:53

FA-20-2012.doc
anything to show that he was carrying the milk business in the acquired
land. In my view, the learned District Judge failed to consider that in
th
the order passed by his predecessor below Exhibit 15 dated 7 July
2004, particularly in paragraph 4, recorded that the applications were
th th
made before the Land Acquisition Officer on 19 January 2000 and 7
August 2001 in respect of compensation regarding stable and house
and that the said applications were made to the Special Land
Acquisition Officer. Apart from it, the Appellant also made an
th
application before the Land Acquisition Officer on 7 October 1991,
wherein, the Appellant clearly stated that his house and stable had
been acquired by the Respondents. The said application /representation
was made to the Special Land Acquisition Officer and a copy was
forwarded to the BMC Water Department. The Appellant also submitted
an application before the Assistant Engineer of Bhiwandi where in
paragraph 3 the Appellant stated that it was not possible for the
Appellant to make alternate arrangement for the stable, and therefore,
the Appellant had to stop his milk business. In the said oral evidence,
the Appellant mentioned that the Appellant issued notice and
th th th
reminders on 28 March 1989, 7 December 1991, 19 January 2002
th
and 29 October 1999 and inspite of being given an assurance to pay
compensation, the said compensation was not paid.
avk 8/15
Uploaded on - 09/09/2026 Downloaded on - 09/09/2026 20:32:53

FA-20-2012.doc
11. The learned District Judge in paragraph 15 further recorded that
it was only by way of an amendment, that the Appellant was claiming
the compensation for loss of milk business and there was no cogent
evidence which was to be accepted to substantiate his case of loss of
income for milk business. In my view, the evidence produced by the
Appellant was completely brushed aside by the learned District Judge
by such hyper technical approach. Admittedly, the order below Exhibit
15 by which the Appellant’s reference was amended, was not
challenged by the Respondents. Apart from it, there was no cross
examination of the Appellant on the point of loss of milk business.
Thus, the evidence of the Appellant remained unchallenged. The
learned District Judge, therefore, ought to have awarded the
compensation towards loss of milk business.
12. Mr. Patil, learned Counsel appearing for the Respondents has
submitted that the present Appeal is a case of no evidence as the
Appellant has produced no evidence on record linking the accounts
maintained by the Appellant to his milk business. Mr. Patil further
submits that there is also no evidence or explanation on record to show
how the loss of business was due to the acquisition.
13. The issue regarding the enhanced compensation by way of a
reference and amendment in the reference seeking enhanced
avk 9/15
Uploaded on - 09/09/2026 Downloaded on - 09/09/2026 20:32:53

FA-20-2012.doc
compensation was under consideration of the Hon'ble Supreme Court
1
in the case of Ambya Kalya Mhatre vs. State of Maharashtra . The
Hon'ble Supreme Court in paragraph 20 of the said Judgment recorded
that the assumption made by the Hon'ble High Court that when a
reference is sought objecting to the amount of compensation, the claim
for increase will have to be frozen with reference to the amount
claimed in the Application under Section 18 of the said Act, and
therefore, the quantum of claim cannot subsequently be revised or
increased is misconceived. Similarly, the assumption that if the claim
for increase in an application for reference (relating to an acquisition
involving a property consisting of land, building and trees) was only in
regard to the compensation for land and the land owner cannot
thereafter make a grievance seeking increase in regard to the building
or trees in the pleadings before the Reference Court and that in such a
case the Reference Court gets the jurisdiction to determine only the
market value in regard to the land and not in regard to the building
and trees, is also not correct. Further, in paragraph 21, the Hon'ble
Supreme Court recorded that Section 18 does not require a land owner
objecting to the amount of compensation, to make a claim for any
specific amount as compensation nor does it require him to state
1 2011 (9) SCC 325
avk 10/15
Uploaded on - 09/09/2026 Downloaded on - 09/09/2026 20:32:53

FA-20-2012.doc
whether the increase in compensation is sought only in regard to the
land or land and building or land, building and trees. A land owner can
seek reference to a civil Court with reference to any one or more of the
four types of objections permissible under Section 18 of the said Act,
with reference to the Award. His objection can either be in regard to
the measurement of the acquired land or in regard to the compensation
offered by the Collector or in regard to persons to whom it is shown as
payable or the apportionment of compensation among several
Claimants. Once the land owner states that he has objections to the
amount of compensation and seeks a reference to the Civil Court, the
entire issue of compensation is open before the Reference Court. Once
the Claimant satisfies the Reference Court that the compensation
awarded by the Land Acquisition Officer is inadequate, the Reference
Court proceeds to determine the compensation with reference to the
principles in Section 23 of the Act.
14. The Hon'ble Supreme Court further in paragraph 26 recorded
that when a reference is received, the Court causes notice to be issued
specifying the date of hearing for determining the objection of the land
owner/person aggrieved under Section 20 of the said Act. The
Reference Court has to call upon the Claimants to file their Statement
of Claim and call upon the Collector to file his objections to the claim
avk 11/15
Uploaded on - 09/09/2026 Downloaded on - 09/09/2026 20:32:53

FA-20-2012.doc
statement and then proceed with the matter. Where the application
under Section 18 contains the necessary particulars, the Reference
Court may treat the application for reference under Section 18 and
Collector's statement under Section 19 of the said Act, as the pleadings.
The landowner is entitled to specify the amounts claimed by him as
compensation and the heads of compensation for the first time in such
claim statement before the Reference Court. The landowner can also
file an application amending the claim. What is not permitted after the
expiry of the period of limitation specified in Section 18 of the Act is
changing the nature of objections from one category to another. If
reference had been sought with reference to objection to amount of
compensation, the land owner cannot after period of limitation, seek
amendment to change the claim as objection to the measurement or
objection to the apportionment.
15. In the present case, admittedly, the Appellant has not changed
the nature of his objection. The objection of the Appellant is for
enhancement of compensation. The Appellant is not at all changing the
nature of objection either to the measurement or to the apportionment
of the compensation. The Hon'ble Supreme Court has in paragraph 27
recorded that the land owner, particularly a rural agriculturist, when he
loses his land may not know the exact value of his land as on the date
avk 12/15
Uploaded on - 09/09/2026 Downloaded on - 09/09/2026 20:32:53

FA-20-2012.doc
of the notification under Section 4(1) of the Act. When he seeks
reference he may be dissatisfied with the quantum of compensation but
may not really know the actual market value. Many a time, there may
not be a comparable sales and even the Courts face difficulty in
assessing the compensation. There is no reason why a land owner, who
has lost his land, should not get the real market value of the land and
should be restricted by technicalities to some provisional amount he
had indicated while seeking a reference. As noticed above, the Act does
not require him to specify the quantum and all that he is required to
say is that he is not satisfied with the compensation awarded and
specify generally the grounds of objection to the award. Under the
scheme of the Act, it is for the Court to determine the market value.
16. Although Mr. Patil has sought to make out his case submitting
that the Appellant has not produced any evidence on record however
the Appellant has produced on record the account book to substantiate
his case of loss of milk business, which this Court has perused and
which record the linking of the accounts maintained by the Appellant
to his milk business as the names of the customers along with the
quantity supplied during various periods is mentioned therein.
17. The learned District Judge ought to have appreciated that under
Section 3(a) of the Act, land includes the benefits to arise out of the
avk 13/15
Uploaded on - 09/09/2026 Downloaded on - 09/09/2026 20:32:53

FA-20-2012.doc
land. There was a stable in which the Appellant was carrying out milk
business which he had to stop on account of acquisition of land. The
said definition of Section 3(a) of the Land Acquisition Act, also can be
found in Section 3(p) of new Land Acquisition Act, which also states
that land includes benefits that arise out of land. The definition of land
under the Land Acquisition Act is wider than that of definition of
immovable property under the Transfer of Property Act, 1882. The
learned District Judge after taking into consideration the material,
particularly oral and documentary evidence on record, ought to have
granted enhanced compensation for the loss of milk business. However,
by not granting the enhanced compensation towards loss of milk
business, the Appellant had suffered financial loss.
18. Ergo, the compensation awarded for the acquisition of the said
land viz. and bearing Survey No.71, Hissa No.2 (B), situate at Village
Lonad, Taluka: Bhiwandi, Dist. Thane, be enhanced to include the
compensation towards loss of milk business.
19. In the view of the above, the impugned judgment and award
th
dated 9 September 2010 passed in Land Acquisition Reference No. 9
of 2001 is hereby modified and the Respondents are directed to
compensate towards loss of the milk business of the Appellant as per
the calculation submitted by the Appellant in his application for
avk 14/15
Uploaded on - 09/09/2026 Downloaded on - 09/09/2026 20:32:53

FA-20-2012.doc
amendment below Exhibit 15 and as reproduced in paragraphs 4 and 5
hereinabove, in addition to interest and statutory benefits under
Sections 23(1-A), 23(2) and 28 of the Act.
20. The exercise of determining the enhanced amount of
compensation payable as per the modified award shall be carried out
by the Reference Court within a period of three months from the date
on which the writ of this judgment is received by the Reference Court.
The compensation amount shall be deposited by the State Government
within a period of three months from the date on which the enhanced
compensation amount is determined by the Reference Court, less the
amount already received, subject to verification.
21. The appeal stands allowed in the above terms. No costs.
(ABHAY AHUJA, J.)
Digitally
signed by
ARTI VILAS
KHATATE
Date:
2026.09.09
20:25:53
+0530
ARTI
VILAS
KHATATE
avk 15/15
Uploaded on - 09/09/2026 Downloaded on - 09/09/2026 20:32:53
Powered by TCPDF (www.tcpdf.org)