Bombay High Court
Dashrath Namdeo Gadge Deceased ... vs State Of Maha on 30 March, 2016
Bench: V.K. Jadhav
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO. 977 OF 2004
Dasharath Namdeo Gadge,
(Deceased) Through L.Rs.
1-A) Janardhan Dasharath Gadge,
Age 38 years, Occu. Labour
and agriculture,
1-B) Babasaheb s/o Dasharath Gadge,
Age Major, Occu. Agriculture and
Labour,
1-C) Rukhaminibai Dasharath Gadge,
Age 70 years, Occu. Household
and Labour,
r/o Kapurwadi,
Taluka and District Ahmednagar,
1-D) Shashikala Govardhan Kardile,
Age 23 years, Occu. Labour,
R/o Buranagar,
Taluka and District Ahmednagar. ... Appellants
Versus
The State of Maharashtra,
Through Govt. Pleader,
High Court of Bombay,
Bench at Aurangabad. ... Respondent
WITH
FIRST APPEAL NO. 1268 OF 2004
Ramdas s/o Namdeo Gadge
Age 45 years, Occu. Agriculture,
r/o Kapurwadi,
Taluka and District Ahmednagar. ... Appellant
::: Uploaded on - 01/04/2016 ::: Downloaded on - 31/07/2016 11:05:33 :::
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Versus
The State of Maharashtra,
Through Govt. Pleader,
High Court of Bombay,
Bench at Aurangabad. ... Respondent
.....
Advocate for Appellants : Mr. S. L. Bhapkar
AGP for Respondent State : Mr. K. D. Mundhe
.....
CORAM : V. K. JADHAV, J.
ig DATED : 30th MARCH, 2016
ORAL JUDGMENT:-
1. Being aggrieved by the judgment and award passed by
learned Joint Civil Judge Senior Division, Ahmednagar dated
30.04.1996 in LAR No. 573 of 1993, the original claimants have
preferred the present First Appeal No. 977 of 2004, whereas, being
aggrieved by judgment and award dated 30.04.1996 passed by
learned Joint Civil Judge Senior Division, Ahmednagar in LAR No.
574 of 1993, the original claimant has preferred the present First
Appeal No. 1268 of 2004. Since both the Land Reference
Applications arise out of one and the same award, the present First
Appeals are decided by this common judgment and order.
2. Brief facts giving rise to the present appeals are as follows:
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Both the appellants-original claimants were having 2H 35R of
land each, and the same is acquired for the purpose of construction
of percolation tank. The SLAO has carried out classification of the
lands under acquisition and treated the acquired lands as Jirayat
lands. Consequently, claimants challenged the award mainly on the
ground of classification of land on the market rates. The State has
resisted the claim by filing written statement. Learned Judge of the
reference court has partly allowed the reference applications and
thereby awarded compensation at the rate of 25,000/- per Hector for
the acquired lands to both the claimants. Being aggrieved by the
same, the original claimants have preferred these two separate
appeals.
3. Learned counsel for the appellants submits that even though
there is a well in the acquired land, the reference court has treated
and classified the land as Jirayat land and accordingly, awarded
compensation. Learned counsel further submits that the reference
court has not considered the potkharaba of the acquired land and
even though the claimants have claimed compensation for the same,
the reference court has not awarded any compensation separately
for the potkharaba area. Learned counsel for the appellants submits
that the elder brother of the appellants, whose land is also acquired
by the Government along with the appellants under the same award,
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preferred First Appeal No. 540 of 1997. Learned counsel has
produced copy of the judgment delivered by this Court in the said
First Appeal and has pointed out that this Court, by judgment and
order dated 9.2.2016, partly allowed the said appeal and thereby
enhanced the compensation by granting compensation at the rate of
Rs.500/- per R. in place of Rs.250/- per R.
4. Learned AGP for respondent State submits that the reference
court has considered the acquired area and accordingly, awarded
compensation as per the market rate by relying upon the judgment
delivered in LAR No. 137 of 1993, which has been decided on
30.03.1996. Learned AGP submits that admittedly, both the lands
are acquired under the same award and are of the same village.
Learned AGP submits that therefore, the reference court has rightly
awarded enhanced compensation at the rate of Rs.25,000/- per
Hector which is just and reasonable. Learned AGP submits that
there is no merit in the appeals and thus, the appeals are liable to be
dismissed.
5. It appears that the Reference court has given compensation at
the rate of Rs.25,000/- per Hectare i.e. Rs.250/- per R. by relying
upon the judgment delivered in L.A.R. No. 137 of 1993. There is no
dispute that the land under the said Reference No.137 of 1993 and
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the present lands are acquired under the same award and from same
village. On perusal of the record, it appears that the judgment
delivered in L.A.R. No.137 of 1993 is produced before the Reference
court and the same is marked at Exh. 22. The learned Judge of the
Reference court has relied upon the sale transaction between one
Machindra and Minabai. The said sale deed is produced on record
and marked Exh.40. As per the contents of the sale deed it appears
that said Machindra Sold out of 20 R land for consideration of
Rs.20,000/- to said Minabai on 2.5.1989. The land from the sale
instance is also Jirayat land. This Court has considered the said sale
instance alongwith judgment delivered by the Reference Court in
L.A.R. No. 137 of 1993. This Court while deciding First Appeal No.
540 of 1997, has observed that road of 15 ft width was given to the
purchaser by the vendor for approaching the land of purchaser and
even considered the market price of the land under sale instance at
the rate of Rs.1.00 lac per Hectare. Consequently, this Court has
held that even considering addition of road of 15 ft in width, the value
of the land cannot be reduced much. This Court while deciding First
Appeal No. 540 of 1997 considered the reduction in the valuation of
the land to the extent of 50% and accordingly, held that the market
price was at least Rs.50,000/- per hectare i.e. Rs.500/- per R.
6. Admittedly, the land owned and possessed by three real
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brothers came to be acquired under the same award. In the appeal
preferred by elder brother, this Court, while disposing of First Appeal
bearing No. 540 of 1997, awarded compensation at the rate of
Rs.500/- per R. Thus, there is no reason to take any other view and
the present appeals also can be disposed of by awarding the same
rate.
7. Learned A.G.P. submits that the Apex Court has made it clear
that in case the possession is taken prior to the notification, the
claimant has no right to claim interest on compensation under
Section 34 or Section 29 of the Act and the interest on compensation
can be granted from the date of award under section 11 of the Land
Acquisition Act and not from the date of possession. Learned A.G.P.
submits that reference court in the present case, has awarded
interest from the date of possession till the date of realization of
entire amount. Learned A.G.P. submits that the same is required to
be quashed and set aside. Learned A.G.P. in order to substantiate
his submissions, places reliance on the judgment of this Court in the
case of Lalitkumar Himmatlal Shah vs. State of Maharashtra and
others, reported in 2013 (1) Bom. C. R. 132.
8. In the light of above submissions, learned counsel appearing
for the appellant-original claimants brought to the notice of this Court
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the written statement submitted by the State, most particularly
paragraph No. 10 of the said written statement which reads as
under:-
"10. The opponent submit that section 4 notification was
published on 8.6.1989. The award bearing No. LAQ/SR/32/88
dated 12.9.1992. The date of possession is not taken and the
purpose of acquisition is percolation tank. The land is from
village Kapurwadi, Taluka Ahmednagar. District Ahmednagar".
9. It appears from the pleadings of the State that the award came
to be passed on 12.9.1992 and possession of the acquired land was
not taken prior to notification. In view of this, I do not find any fault in
the impugned judgment and award directing interest to be paid from
the date of possession till realization of the amount. Hence, I pass
the following order:-
ORDER
I. Both the first appeals are hereby partly allowed.
II. The impugned judgment and award dated 30.4.1996
passed by learned Joint C.J.S.D. Ahmednagar in L.A.R.
No. 573 of 1993 and 574 of 1993 is modified in the
following manner;-
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The opponent do pay to each of the appellants an
amount of Rs.98,700/- (Rupees Ninety eight thousand
seven hundred only) (i.e. @ Rs.500/- per R for total area
of 2 Hectare 35 R. less amount awarded by the
S.L.A.O.)
III. The rest of the judgment and award in respect of interest
and statutory benefits stand confirmed.
IV. Needless to say that as per the award passed by the
Reference Court, if the amount, is paid to claimants the
same shall be deducted.
V. Award be drawn up accordingly.
( V. K. JADHAV, J.)
rlj/
