Rama Nagu Gayakwad And Another vs State Of Maharashtra
2016 Latest Caselaw 2113 Bom

                                      1                     FA 269.1995.odt

          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                     BENCH AT AURANGABAD




                                                                        
                          FIRST APPEAL NO. 269 OF 1995




                                                
                 RAMA NAGU GAYAKWAD (Died)
                 Through Lrs.




                                               
         1-A     Sudhakar Ram @ Rambhau Naga Gaikwad
                 age 35 years, Occ. Agri,
                 R/o Sawargaon Chakla,
                 Tq. Patoda, Dist. Beed.




                                     
         2.      Laxman s/o Nagu Gaikwad,
                             
                 age 50 yrs, Occ. Agri,
                 R/o as above.                      .. Appellants..
                            
                 VERSUS

                 The State of Maharashtra.          ..Respondent..
      


                                    ...
             Advocate for Appellants : Mr K D Bade Patil  
   



                AGP for Respondent : Mr K D Mundhe
                                  ...
                     CORAM : V.K. JADHAV, J.

Dated: May 02, 2016

...

ORAL JUDGMENT :-

1. Being aggrieved by the Judgment and Award

passed by the Joint District Judge, Beed dated

28.2.1995 in LAR No.516/1989 alongwith connected

LARs, the original claimants in LAR No.1151/1989 have

preferred this appeal.

2 FA 269.1995.odt

2. Brief facts, giving rise to the present appeal, are as

under :-

The Government has acquired the land situated at

village Ukanda for the purpose of construction of

Percolation Tank at village Ukanda. The SLAO after

holding the necessary inquiry into this acquisition

proceeding fixed the market value of the land acquired @

Rs.86/- per Aar for jirayat land and Rs.96/- per Aar for

the Bagayat lands. The Special Land Acquisition Officer

had treated all the lands as Jirayat. Being aggrieved by

the same, the present appellants/original claimants

alongwith the other claimants preferred separate

reference petitions claiming the market value of the

acquired land @ Rs.1,000/- per Aar by treating the land

as Bagayat lands. The learned Jt. District Judge, Beed

by its common judgment and order dated 28.2.1995

awarded the compensation @ Rs.200/- per aar for the

acquired land by treating the lands as Jirayat. Hence,

this appeal.

3. The learned counsel for the appellant submits

that, the claimant in LAR No.516/1989 has examined

3 FA 269.1995.odt

herself at Exh.23. Other claimants including the

claimants in LAR No.1151/1989 adopted the said

evidence by filing separate purshis in their respective

petitions. Learned counsel submits that, reference court

has erroneously held that there is no entry of well for

irrigation facility in respect of the land acquired vide

L.A.R. No.1151/1989. Learned counsel has pointed

that, in the award statement 'E' the land gat no.275

which is the subject matter of LAR No.1151/1989 is

treated as partly as bagayat land on the water of well

and, accordingly, compensation has awarded to the

acquired land to the extent of 1H 62R by treating it as

bagayat land. Learned counsel submits that, for the

lands arising from the same land acquisition

proceeding, the Reference Court has granted

compensation @ Rs.1,000/- per Aar for bagayat land.

Learned counsel submits that, the Reference Court has

erroneously treated only the acquired land in LAR

No.516/1989 as Bagayat land and treated other

acquired lands as Jirayat lands. Learned counsel

submits that, mere fact that certain crops are not

shown in the 7/12 extract, no inference can be drawn

4 FA 269.1995.odt

that the land was non-irrigated. The same is on the

back drop that the SLAO himself has treated the land

gat No.275 as bagayat land to some extent.

4. Learned counsel in order to substantiate his

submissions placed his reliance on Chindha Fakira

Patil (D) through L.Rs. Vs. The Special Land

Acquisition Officer, Jalgaon reported in AIR 2012 SC

page 481.

5. The learned AGP for the Respondent-State submits

that, the reference Court has rightly awarded the

compensation by treating the acquired land as Jirayat

Land. The learned AGP submits that, the

appellants/original claimants have not examined

themselves before the Reference Court and, no evidence

lead before the Reference Court to show that the land

which is the subject matter of LAR No.1151/1989 is

bagayat land. The learned AGP submits that,

considering the evidence lead by the original claimants

in LAR No.516/1989 the reference Court has treated the

said land as Bagayat land and accordingly awarded the

5 FA 269.1995.odt

compensation @ Rs.1000/- per aar. So far as remaining

acquired lands are concerned, the Reference Court has

rightly treated the same as Jirayat lands and

accordingly awarded compensation @ Rs.200/- per aar.

The learned AGP submits that, in the alternate, at the

most, claim of the appellants-claimants can be

considered to the extent of land 1H 62R treated by the

SLAO as Bagayat land. The learned AGP further

submits that in case, if, this Court comes to the

conclusion that, the appellants/original claimants are

entitled for the compensation at the fixed rate for the

irrigated land, in that event, compensation granted for

trees and well is liable to be deducted.

6. It appears that the claimant Muktabai Giri in LAR

No.516/1989 has only examined herself in her reference

petition for herself and on behalf of the other petitioners

in their respective LAR's., The same is also recorded by

the Reference Court in paragraph No.8 of judgment.

The other claimants/petitioners have accepted and also

relied upon the evidence lead by said Muktabai Gire in

LAR No.516/1989 by filing purshis in their respective

6 FA 269.1995.odt

reference petitions. So, in view of the above, even the

Reference Court has recorded that the Court is find it

convenient to decide all five reference petitions by one

common judgment on the basis of common evidence

recorded in LAR No.516/1998.

7. So far as LAR No.1151/1989 is concerned, the

Reference court has observed that, 7/12 extract is

produced at Exh.15 in respect of gat no.275 and in

remarks column, it is mentioned that loan was raised

for the purpose of digging the well but, it is not written

as to whether the well was really dug and whether well

was really in existence. Reference Court has treated the

acquired land which is subject matter of LAR

No.1151/1989 are Jirayat lands. It appears that the

reference court has committed mistake. On perusal of

the Award statement 'E', it appears that from the land

gat no.275 well and trees were acquired and accordingly

compensation is awarded for the same. In view of this,

it cannot be said that well was not in existence in land

gat no.275. Learned counsel for the appellants-

claimants submits that, in the award the SLAO has not

7 FA 269.1995.odt

clarified as to why the land admeasuring 1H 62R out of

total area of 4H 11R of land Gat No.275 only treated as

Bagayat land on the basis of water of well and remaining

land is treated as dry land. Learned counsel submits

that, it appears that, without giving any reasons the

SLAO has treated only 1H 62R land as Bagayat lands.

The learned AGP has also failed to explained the same.

In absence of any reasoning in the award, the claimants

contention is required to be accepted that, entire

acquired land was Bagayat land.

8. So far as the compensation awarded in LAR

No.516/1989 @ Rs.1,000/- per aar the rate awarded for

the bagayat land is concerned, the same has now

attended finality and admittedly the State has not

preferred any appeal against it.

9. In view of the above discussion, in my considered

opinion, the land which is the subject matter of LAR

No.1151/1989 is bagayat land irrigated on the water of

well and reference court ought to have awarded the

compensation by treating the entire acquired land as

8 FA 269.1995.odt

irrigated land @ Rs.1,000/- per Aar, as awarded for the

acquired land which is the subject matter of LAR

No.516/1989.

10. The learned counsel for the appellants/claimants

submits that, if the compensation is awarded @

Rs.1,000/- per aar, treating the entire acquired land as

Bagayat lands, the appellants-claimants are ready to

waive their claim for trees and well and there is no

objection on the part of the appellants-claimants if said

amount is deducted from the enhanced compensation.

In view of this, I proceed to pass following order.

      


                                        O R D E R 
   



                     I.    Appeal is hereby allowed.

II. The Judgment and Award dated 28.2.1985 passed by the learned Jt. District Judge, Beed, in LAR 516/1989 is modified to the extent of LAR No.1151/1989 and thereby

the opponent State is directed to pay the compensation @ Rs.1,000/- (Rs. One Thousand only) per Aar to the claimants for the acquired land.

9 FA 269.1995.odt

III. The appellants-claimants are entitled for enhanced compensation by deducting the

compensation awarded to the well and trees.

IV. Rest of the operative part of the Judgment and award dated 28.2.1985 stands

confirmed.

V. Award be drawn up as per modifications.

VI. Appeal is accordingly disposed of.

VII.In the circumstances, there shall be no order as to costs.

VIIIPending civil application, if any, also stands

disposed of.

Sd/-

( V.K. JADHAV, J. )

...

aaa/-