Gopalkrishna S/O Domaji Aswale vs State Of Maharashtra, Through The ...
2004 Latest Caselaw 675 Bom

JUDGMENT

Anoop V. Mohta, J.

1. Heard. The present appeal has been taken out by the original claimant/appellant herein, against the judgment dated 29th July, 1992 passed in the Land Acquisition Reference Case No. 6/1981, whereby an application under Section 18 of the Land Acquisition Act, 1894 (for short Act) made by the appellant, was also rejected, basically on the ground that applicant had not filed any claim petitions before the Land Acquisition Officer.

Effect of non-filing of basic claims

2. This issue of effect of non filing of claim petition under Section 9 Sub-clause (2) of the Act, goes to the root of the matter, in this case. While rejecting the application learned Judge has considered the Division Bench decision of the Bombay High Court in State of Maharashtra v. Shantabai Shrikrishna Dhamankar and Anr., 1979 Mh. L. J. 673 relevant para is reproduced as under :

"Section 25(2) provides for a contingency where the owner has either refused to make a claim or has omitted to make a claim without sufficient reason in which case the Court cannot award any amount exceeding the amount awarded by the Collector."

"Therefore, the observations of the learned Single Judge in the first appeal, with great respect, were not quite correct, when he observed :

"In none of these sections, does the law require the exact amount of compensation to be specified by the claimants. If the Legislature wanted the claimants to specify the amount in rupees and paise they could have very well done so; but the Legislature knew that the art and science of valuation of the land are not known to every claimant in the country. If therefore, the claimant who was wise enough not to speculate blindly about the valuation, chose to claim only reasonable or proper valuation, valuation as in the instant case, it cannot be said that there was anything in Section 9 or Section 25 which prevented the claimant from making such a claim or the Court from granting adequate compensation."

"In our view, the respondents had not make a specific claim in their reply Exh. 24 in accordance with Section 9(2) of the Land Acquisition Act. That being the case, under Section 25(2) the respondents had omitted to make a claim and that took without sufficient reason. We do not find anything on the record which could be construed as sufficient reason for omitting to make a claim. We are, therefore, of the opinion that the provisions of Section 25(2) would apply and the Court could not grant any amount in excess of the amount awarded by the Collector."

The reference of Dilwarsab V. Babusab v. Special Land Acquisition Officer, AIR 1974 SC 2333, 1975 (1) SCC 158. Relevant para from this Division Bench judgment is reproduced as under :

"Where the parties had not appeared before the Land Acquisition Officer and put forward any specific amount as the compensation due they would not be entitled to any compensation higher than what was awarded by the Land Acquisition Officer."

"In the circumstances we are not able to held that the High Court's judgment is unsupportable though we feel it would have been better if the High Court had written a more reasoned judgment. Considering also the fact that in three of these appeals at least, the parties had not appeared before the Land Acquisition Officer and put forward any specific amount as the compensation due they would not have been entitled to any compensation higher than what was awarded by the Land Acquisition Officer."

The judgment in Dhanalekhshmi Weaving Works v. Regional Provident Fund Commissioner, AIR 1963 Ker. 298 has also cleared the issue.

3. In the present case, apart from the findings as recorded in para 8 of the impugned order. We have gone through the record and evidence led by the parties. The appellant in his evidence A.W. 1 deposed that he might have submitted his objection before the Land Acquisition Officer, he has also admitted that he had not adduced any evidence in the said Land Acquisition Proceeding. Even though, this averments should not be shattered by the opposite side or its officer in his cross-examination. One thing is very clear that there is no statement made and or any thing to suggest the claim for the particular figure or amount. There is no positive statement made even in his examination-in-chief for the particular amount before the Land Acquisition Officer, based on which he is entitled for the enhancement compensation before the reference Court. There is nothing suggested that any particular amount was claimed in his claim petition, if any, filed on the record.

4. The learned Advocate appearing for the appellant further relied on State of Maharashtra v. Janardan Yadav Gavali and Anr., 2003 (3) All M. R. 278 and contended that the reference Court cannot taken into consideration all the material relied on by the Special Land Acquisition Officer, unless it is produced and proved before the Court. He further contended that the burden lies on the State Government to prove that the parties had failed to produce on the record any objection and or any claim and relied also on State of Bihar v. Jihal and Ors., AIR 1964 Pat. 207. The basic contention is that the Collector or the concerned authorities must prove that the claimant had never appeared and or filed any objection or any claim before the Land Acquisition Officer. He relied on State of Madhya Pradesh v. Nagar Palika, Mandsaur, AIR 1981 M. P. 263 to support his case, that the claim for enhancement in absence of any claim petition filed by the claimant before the Land Acquisition Officer after service of notice under Section 9 on the parties is permissible. The facts of case in hand are different and therefore, these judgments are distinguishable. The case referred above (Shantabai), cannot be overlooked, and is binding.

5. The learned Advocate appearing for the appellant, further contended that admittedly, in the present case, Land Acquisition Officer or concerned officer failed to file its written statement on the record to oppose the contention and or averments made by the claimant. Admittedly, there is one pursis dated 29.11.1974 placed on the record. This pursis and or declaration is of dated 29.11.1974. This also endorsed, that no evidence was led by the parties. This also confirmed that no specific amount was claimed or reference was made accordingly before the Land Acquisition Officer. The judgment cited by the learned Advocate appearing for the appellant, therefore in my view are not sufficient to accept his contention that adverse inference should be drawn because State Government or respondents failed to lead evidence or failed to file written statement.

6. One cannot overlook the fact that appellant has not filed specific claim petition. The scheme of the Land Acquisition Act is very clear, it required that the party should file claim or a particular amount for their respective claims, based on it, only the party can further request for enhancement of the compensation as contemplated under Section 25(2) or such other provisions under the Act. In absence of specific claim and as observed in para 8 of the judgment, as well as, in the award dated 12.3.1979, that the land owner Gopalkrishna Domaji Aswale had not field any objection in respect of their claim this itself endorsed that there was no specific amount claimed or raised by the claimant before the Land Acquisition Officer. In view of this the decision given by our Court as reported in Shantabai and Ors. (supra) squarely covered and support the impugned judgment dated 29th July, 1982.

7. The learned Advocate appearing for the appellant further contended that the amended provisions of Section 25 of the Act be made applicable in the case. The amended provision of Section 25 of the Act, is prospective and cannot be made applicable to the case of the appellant. There is no such ground raised in the memo of appeal. However, even otherwise appellant is not entitled for the benefit of such amended provisions of the Act, in the facts of this case.

8. There is no perversity or unreasonableness or anything pointed out from the record, which need to be interfered in the facts and circumstances of the case.

9. One facets which was also argued in so far as the acceptance of amount under protest, as observed in para 9 of the impugned judgment cannot be accepted, in view of the fact that as pointed out by the learned Advocate appearing for the appellant, that there was an endorsement by the Land Acquisition Officer about the protest by the applicant. Those endorsement are on the record in writing. Such endorsement cannot be overlooked. Therefore, in absence of any receipt or endorsement signed by the parties such endorsement prima facie justify as made out by the applicant that the amounts were accepted under protest. The amount can be accepted under protest in various modes, as the mode of acceptance is not prescribed. According to my view, protest can even be implied also. However, this issue is also not helpful to appellant, because of observations and findings in above paras.

10. The learned A.G.P., appearing for State of Maharashtra relied on Damodar Engineer v. Board of Trustees, AIR 1994 SC 1141 : 1994 (1) SCC 370; State of Himachal Pradesh v. Dharam Das, AIR 1996 SC 127 : 1995 (5) SCC 683 : 1995 (2) Rent L.R. 594 and contended that the burden is always on the claimant to prove his case so far as enhancement of compensation is concerned or even otherwise. There is no opposition to this settled laws. However, as appeal itself is dismissed on the reasoning referred above, I am riot dealing with these judgments as referred, in this back ground.

11. However, without going to the controversy further, as an issue above non-filing of specific claims before the Land Acquisition Officer, goes to the root of the matter as referred above, the applicant is not entitled for enhancement of claims as made in the application under Section 18 of the Act.

10. In view of this, the appeal is dismissed. However, there is no order as to costs.