1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH : NAGPUR
First Appeal No. 761 of 2015
Appellants : 1) The Collector, through Special Land
Acquisition Officer, Z. P. Works, Nagpur
2) Executive Engineer, Minor Irrigation
Division No. 2, Z. P. Works, Nagpur
versus
Respondents : 1) Jagan son of Yadorao Pathe, aged
about 70 years, Agriculturist
2) Smt Shevantabai w/o Jagan Pathe, aged about 65 years, Occ: Household, Both residents of Khapa, Tahsil Narkhed, District Nagpur Shri S. B. Bissa, Asst. Govt. Pleader for appellants Ms Rajkumari Rai, Advocate for respondents Coram : S. B. Shukre, J Dated : 19th June 2017 ::: Uploaded on - 28/06/2017 ::: Downloaded on - 28/08/2017 06:43:37 ::: 2 Oral Judgment
1. Heard. Filing of Paper Book dispensed with.
2. This is an appeal preferred by the State challenging legality and correctness of the judgment and order passed in LAC No. 141 of 2006 on 3rd May 2013 by the Civil Judge, Senior Division, Nagpur. By the judgment and order impugned in this appeal, the Reference Court granted enhanced compensation for 0.39 HR of perennially irrigated land of the respondents which was situated at mouza Khapa (B) and acquired for the purpose of construction of percolation tank.
3. The main plank of the objection taken by the appellants is that the impugned judgment and order are not based upon any admissible evidence. Learned Assistant Government Pleader submits that the sale deed relied upon by the Reference Court were not admitted in evidence and they were marked as Articles A, B and C only and still the same were appreciated and relied upon by the Reference Court. He further submits that the sale deeds in question were post acquisition as they were executed in December 1998 whereas notification under Section 4 of the Land Acquisition Act was issued on 9.7.1998.
4. On the other hand, learned counsel for the respondents submits that even though the sale deeds were marked only Articles and not admitted as exhibits, the fact remains that the appellant did not choose to cross-examine P.W. 1 Jagan (respondent no. 1) who, in his ::: Uploaded on - 28/06/2017 ::: Downloaded on - 28/08/2017 06:43:37 ::: 3 detailed evidence filed on affidavit, had stated the relevant rates at which similar lands were being sold during particular period. She submits that since such assertion made on oath by respondent no. 1 was not challenged at all, there was nothing wrong in the approach adopted by the Reference Court. She further submits that because of failure of the appellants to attend the Court in order to cross-examine the respondents' witness, the Reference Court should have passed specific order directing admitting of sale deeds in evidence, but that was not done by the Reference Court and as the Reference Court relied upon these documents while delivering the judgment, now one can say that these documents were deemed to have been admitted in evidence by that court.
5. On hearing learned counsel for the parties, following point arises for my consideration:
Whether the impugned judgment and order are perverse ?
6. Considering the fact that the Reference Court has appreciated the sale deeds as well as relied upon them, I find that such an approach of the Court could be considered as admitting of the sale deeds in evidence by deeming effect. Of course, it would have been much better for the Reference Court to have passed specific order in that regard. But, if the Reference Court fails to do so and yet appreciates these documents and even places reliance upon them, one would have to say that by deeming ::: Uploaded on - 28/06/2017 ::: Downloaded on - 28/08/2017 06:43:37 ::: 4 effect, such documents were admitted in evidence by the Reference Court. This is all the more evident from the attitude of the appellants. Appellants were given ample opportunity to cross-examine the sole witness of the respondents, but the opportunity was frittered away by the appellants. Nobody appeared before the Court on behalf of the appellants to cross-examine the only witness of the respondents. In these circumstances, the Reference Court had no option but to accept as it is the uncontroverted evidence of the respondents which had appeared in examination-in-chief of respondent no. 1. Even otherwise, respondent no. 1 had pointed out to the Reference Court the market value of the similarly situated lands at the relevant time. Since this evidence has gone absolutely unchallenged, it has to be accepted as probablising case of the respondents. This is what has been done by the Reference Court. Therefore, I do not see any perversity or illegality in the impugned judgment and order. The enhancement of compensation from Rs. 43,079/- to Rs. 78,000/- made by the Reference Court is just and proper and no interference in the same is called for. Point framed is answered accordingly.
7. Appeal is dismissed with costs.
S. B. SHUKRE, J ::: Uploaded on - 28/06/2017 ::: Downloaded on - 28/08/2017 06:43:37 ::: 5 joshi ::: Uploaded on - 28/06/2017 ::: Downloaded on - 28/08/2017 06:43:37 :::