fa.1066.14.jud 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
FIRST APPEAL NO.1066 OF 2014
Sk. Abdul Rashid s/o Abdul Latif,
Aged about 49 years,
Occupation - Agriculturist,
R/o At Satranjipura, Prem Sewa Patel,
Ganipatel Bada Garage, Nagpur. .... Appellant
-- Versus -
01] The State of Maharashtra,
through Collector, Nagpur District,
Nagpur.
02] The Special Land Acquisition Officer No.1,
V.I.D.C., Nagpur, Collectorate, Nagpur.
03] The Executive Engineer,
Goshikhurd Project,
Division Nagpur. .... Respondents
Shri S.P. Kshirsagar, Advocate for the Appellant.
Shri H.D. Dubey, A.G.P. for Respondent Nos.1 & 2.
Mrs. U.A. Patil, Advocate for Respondent No.3.
CORAM : KUM. INDIRA JAIN, J.
DATE : SEPTEMBER 27, 2017. ORAL JUDGMENT :-
This appeal takes an exception to the judgment and award dated 23/02/2011 passed by the learned Joint Civil Judge, Senior Division, Nagpur in L.A.C. No.37/2007. By the said ::: Uploaded on - 10/10/2017 ::: Downloaded on - 10/10/2017 23:45:25 ::: fa.1066.14.jud 2 judgment and award, Reference Court enhanced compensation for land, but declined to enhance compensation in respect of trees. Being aggrieved with the refusal to enhance compensation for the trees, appellant has preferred this appeal. 02] For the sake of convenience, the parties are referred in their original status as they were referred before the Reference Court.
03] The facts giving rise to the appeal may be stated in nutshell as under :
i. Applicant's land bearing survey no.140/3, admeasuring 4.03 hectares, situated at village Nandikheda, Tahsil Bhiwapur, District Nagpur was acquired by non-applicants for construction of Goshikhurd Project. Award was passed by non-
applicant no.1 on 08/02/2001. Applicant received compensation of Rs.5,42,189/- for the acquired land.
ii. Reference under Section 18 of the Land Acquisition Act, 1894 (hereinafter referred to as 'the Act' for ::: Uploaded on - 10/10/2017 ::: Downloaded on - 10/10/2017 23:45:25 ::: fa.1066.14.jud 3 short) came to be filed by applicant for enhancement of compensation. The main grievance of applicant in the reference was that Special Land Acquisition Officer has not considered the claim in respect of trees, well, productivity and quality of the acquired land. Applicant claimed enhancement of compensation to the tune of Rs.10,07,500/- for the acquired land.
iii. Non-applicants resisted the reference vide written statement [Exh.5]. According to non-applicants, in view of the settled position of law, applicant was not entitled to separate compensation for trees and once the compensation for the acquired land was granted, there was no question to pay separate compensation for the trees.
iv. Applicant examined himself and placed reliance on certain documents. On behalf of non-applicants, Land Acquisition Officer came to be examined. Considering the oral and documentary evidence, Reference Court partly allowed the claim and directed non-applicants ::: Uploaded on - 10/10/2017 ::: Downloaded on - 10/10/2017 23:45:25 ::: fa.1066.14.jud 4 to pay Rs.1,30,000/- per hectare towards market value of the land along with all other consequential benefits. At the same time, claim in respect of the trees came to be rejected.
04] Heard Shri S.P. Kshirsagar, learned Counsel for appellant, Shri H.D. Dubey, learned A.G.P. for respondent nos.1 & 2 and Mrs. U.A. Patil, learned Counsel for respondent no.3. Learned Counsel for appellant submitted that in an application under Section 18 of the Act, applicant has given the details of the fruit bearing trees and claimed compensation of Rs.4,58,000/- for those trees. It is submitted that Reference Court relying upon judgment of the Hon'ble Supreme Court in State of Haryana vs. Gurucharan Singh & another - [AIR 1996 SC 106] denied the compensation for trees. It is submitted that the judgment of the Hon'ble Supreme Court in K.A.A. Raja & others vs. State of Kerala & another - [(1994) 5 SCC 138] has not been considered and the Reference Court without taking into consideration condition, age, number of trees and total yield rejected the enhancement of compensation in respect of the trees.
::: Uploaded on - 10/10/2017 ::: Downloaded on - 10/10/2017 23:45:25 ::: fa.1066.14.jud 5 05] Referring to the observations of the Reference Court in paragraph 14 regarding non-examination of an expert to prove the value of trees, submission is that instead of outrightly rejecting the claim, Reference Court ought to have given an opportunity to applicant to examine an expert. In this connection, learned Counsel for appellant relied upon the judgment of the Hon'ble Supreme Court in Ramanlal Deochand Shah vs. State of Maharashtra & anr. with connected appeal
- [(2013) 14 SCC 50 and judgment of the learned Single Judge of this Court at Aurangabad Bench in Narayan Deorao Gore (died) through L.Rs. vs. State of Maharashtra - [2011(3) Mh.L.J. 592] and submitted that the claim need not be discarded merely on technicalities and it was incumbent on the Reference Court to grant full opportunity to the claimant to put forth his case. Learned Counsel submitted that in case expert report is necessary, matter may be remanded to Reference Court for fresh decision.
06] Per contra, learned Counsel for respondent no.3 submitted that burden is always on the claimant to prove his case. It is submitted that considering the evidence, Reference ::: Uploaded on - 10/10/2017 ::: Downloaded on - 10/10/2017 23:45:25 ::: fa.1066.14.jud 6 Court found that applicant is not entitled for separate compensation in respect of the trees. The submission is that valuation of the trees could have been proved by the best evidence of an expert. Having not done so, Reference Court was right in rejecting the claim towards trees. On the law relating to burden of proof, learned Counsel relies on the following judgments :
i. Basant Kumar & others vs. Union of India & others - [(1996) 11 SCC 542.
ii. State of Maharashtra vs. Prashram Jagannath Aute - [2007(5) Mh.L.J. 403].
iii. Vidarbha Irrigation Development Corporation, Deulgaon-Raja vs. Kamlaji Balaji Jadhav & others - [2011(1) Mh.L.J. 231].
07] It is apparent from the reasonings recorded by the Reference Court that compensation on account of trees came to be rejected as applicant has not examined any expert regarding value of the trees and did not produce any material to show valuation of the trees. In Narayan Deorao Gore's case (supra), the learned Single Judge at Aurangabad Bench observed in paragraph 10, which reads thus :
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"10. Coming to the first contention of the Counsel appearing for the revision petitioner that Land Acquisition Reference should not have been rejected, on the ground of not filing documentary evidence is concerned, this Court in case of Kawadu Madhav Bansod (supra), has taken a view that the said order rejecting the reference on the ground of failure of the revision petitioner to adduce evidence cannot be taken to be adjudicated, and therefore, same cannot be treated to be an Award. Therefore, the ground i.e. no documentary evidence is filed by the revision petitioner, cannot be a ground to reject the reference. This Court in the aforesaid case in para No. 7 has observed thus :-
'It is true that the adjudication made by the Civil Court on the reference has to be regarded as an award, whether an enhanced compensation is given or not. But in that event the Court should consider the material on record, even if the party is absent and has failed to adduce evidence. Unless the material on record is considered the order cannot be said to be an adjudication. In the instant case the ground given for the dismissal of reference by the Civil Court is that the applicant (present revision petitioner) remained absent and did not adduce any evidence to show that a proper ::: Uploaded on - 10/10/2017 ::: Downloaded on - 10/10/2017 23:45:25 ::: fa.1066.14.jud 8 compensation was not paid to him and that he is entitled to more compensation than paid. The above order clearly shows that the reference was dismissed only for the reason of failure of the applicant (present revision petitioner) to adduce evidence. Thus the material on record is not considered by the Civil Court. It is not considered as to how the compensation awarded by the Land Acquisition Officer was correct. So the order cannot be taken to be an adjudication and therefore the the same cannot be treated to be an award. The order passed by the Civil Judge, Senior Division, Yevatmal also cannot be treated to be a dismissal of the reference in default. The learned Counsel for revision petitioner submitted that the case could not be dismissed in default also.' (Emphasis supplied).
Therefore, in my opinion, the Court below should not have rejected the reference, on the ground of failure of the revision petitioner to adduce evidence.
Yet in another unreported Judgment in the case of Shri Kamalkar S/o Laxman Suryawanshi V/s. State of Maharashtra, in Civil Revision Application No. 1965 of 2005 and in other two connected matters, this Court has taken a similar view. Therefore, I have no hesitation, to hold that the reference filed by the revision petitioner, should not have been dismissed, ::: Uploaded on - 10/10/2017 ::: Downloaded on - 10/10/2017 23:45:25 ::: fa.1066.14.jud 9 merely on the ground of failure of the revision petitioner to adduce evidence."
08] Having given due consideration to the submissions advanced on behalf of appellant, this Court finds considerable force in the submissions made on behalf of appellant that Reference Court ought not to have discarded the claim in respect of the trees for want of evidence of an expert without giving an opportunity to the claimant to adduce such evidence. Reference Court should have given full and sufficient opportunity to claimant to put forth his case and after appreciating the contentions and evidence should have decided the reference. As the same has not been done, the appropriate course available is to remit the matter to the Reference Court for its decision afresh in respect of compensation claimed by the applicant for trees. To this limited extent, the order passed by the Reference Court needs to be modified. Hence, the following order :
ORDER I. Clause (vii) of the operative part of impugned order dated 23/02/2011 in L.A.C. No.37/2007 is set aside.::: Uploaded on - 10/10/2017 ::: Downloaded on - 10/10/2017 23:45:25 ::: fa.1066.14.jud 10
II. Reference Court upon recording additional evidence and hearing the arguments shall dispose of L.A.C.
No.37/2007 within six months from the date of receipt of copy of this order.
III. The registry to send back the record and proceedings immediately to the concerned Court.
IV. Parties to appear before the Reference Court on 1st November, 2017.
V. Appeal stands disposed of in the above terms.
VI. No order as to costs.
*sdw (Kum. Indira Jain, J)
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