Mah. State Electricity ... vs Kalpana Rukhabdas Jain (Dead) ...
2016 Latest Caselaw 5876 Bom

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          IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                            
                    NAGPUR BENCH, NAGPUR




                                                    
                        Writ Petition No.1851 of 2008


      1. Maharashtra State Electricity
         Transmission Co. Ltd.,




                                                   
         Company incorporated under the
         Companies Act, having its registered
         office at Bandra (East), Mumbai,
         through its Executive Engineer,
         EHVT Lines Construction Division,




                                         
         Katol Road, Nagpur.
                             
      2. Maharashtra State Electricity
         Transmission Co. Ltd.,
         Company incorporated under the
                            
         Companies Act, having its registered
         office at Bandra (East), Mumbai,
         through its Executive Engineer,
         EHV O & M Division, Katol Road,
         Nagpur.                                        ... Petitioners
      
   



           Versus


           Kalpana wife of Rukhabdas Jain,





           Aged 72 years,
           Occupation - Agriculture,
           Resident of "Ravi", Ladpura, Itwari,
           Nagpur, Tahsil and District Nagpur,
           since deceased, through L.R.:





           Shri Ravindra son of Rukhabdas Jain
           Gahankari,
           Aged Major,
           Occupation - Not known,
           Resident of Nathnagar, Jalna,
           District Jalna, Pin - 234173.                   ... Respondents




    ::: Uploaded on - 10/10/2016                    ::: Downloaded on - 11/10/2016 00:26:59 :::
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            Shri G.E. Moharir, Advocate for Petitioners.




                                                                                       
            Shri A.J. Thakkar, Advocate for Respondent.




                                                              
                   Coram : R.K. Deshpande, J.

Dated : 6th October, 2016

Oral Judgment :

1. In Misc. Civil Application No.540 of 1992 filed under

Section 16(3) read with Section 10(d) of the Indian Telegraph Act,

1885, the learned District Judge, Nagpur, has passed the judgment

and order dated 22-10-2007 declaring that the respondent-applicant is

entitled to get compensation of Rs.3,50,000/- from the

petitioners/non-applicants in respect of cutting of Subabhul trees

standing in the field of the applicant. The learned District Judge has

further directed payment of simple interest at the rate of 6% per

annum on the said amount from the date of the application,

i.e. 18-9-1992, till the date of the order. This judgment and order

passed by the learned District Judge is the subject-matter of challenge

in this petition by the Maharashtra State Electricity Transmission Co.

Ltd.

2. The undisputed factual position is that total 3,871 Subabhul

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trees standing in the field of the respondent-applicant were cut by the

petitioners for laying down the transmission line. The learned District

Judge has held that there is nothing available on record to show that

all these cut trees were handed over to the respondent-applicant by

the petitioners. The learned District Judge rejects the valuation of

trees as per the report submitted by the Expert, who was examined.

The learned District Judge, however, applies the norms for valuation

of trees, published by the Social Forestry Department of the State

Government, and accordingly the valuation of the trees has been done

at Rs.3,50,000/-, and such compensation is awarded to the

respondent-applicant along with interest.

3. The basic question involved is whether all Subabhul trees cut

were handed over to the respondent-applicant, who was the owner of

the field, in which the said trees were standing. This aspect has been

dealt with by the learned District Judge in paras 46 and 47 of his

judgment, which are reproduced below :

"46. It is argued on behalf of the non-applicants that the compensation need not to be determined in this case because the cut trees were already handed over to the applicant and they were sold by the applicant, and therefore, no damage has

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been caused. In this connection, the non-applicants relied upon

the evidence of their five witnesses. However, the evidence of

these five witnesses is not at all convincing and not at all reliable for several reasons. First of all, there is absolutely no documentary evidence acknowledging the receipt of cut wood by

the applicant or any other person on behalf of the applicant. The non-applicants being the Statutory Body it was necessary to have such documentary evidence. It is said that the cut trees

were handed over to Police Patil. The said Police Patil DW-1 Manohar deposed that he handed over the cut trees to the

applicant but there is no record for that. An employee of applicant by name Waman Raut has deposed that the applicant

disposed off the cut wood but there is no record for that. DW-4 Pradip Dongarkar who is an employee of non-applicants/Board deposed in the cross-examination that he did not ascertain the

position of logs of wood after the date of panchanama. DW-5 Sahebrao who is also employee of non-applicants has not

signed on the panchanama Exh-106 though it was written by him."

"47. Thus, the contention of the non-applicants that no compensation is payable because the cut wood was handed over to the applicant is not at all acceptable."

4. It is not in dispute that the case of the petitioners was that all

the trees were handed over to one Manohar Nagorao Kohle, the Police

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Patil, for being handed over to the respondent-applicant. It is an

undisputed fact that all the cut trees were lying in the field and it was

not the case of the respondent-applicant that the petitioners carried

the cut trees and sold the same in the market. In this background, the

respondent-applicant examined herself and her husband along with

the Architect/Valuer. The petitioners examined total five witnesses,

viz. (i) Manohar Nagorao Kohale at Exhibit 93, (ii) Waman Chintaman

Raut at Exhibit 94, (iii) Bhimrao Thakre at Exhibit 95, (iv) Pradip

Dongarwar at Exhibit 101, and (v) Sahebrao Ghangare at Exhibit 102.

5. The document dated 4-10-1991 placed on record is the

permission granted by the Tahsildar, Saoner to cut the trees with an

intimation to the petitioners that minimum damage should be caused

while cutting the trees and the trees cut should be delivered to the

agriculturist. The another document placed on record is the

communication dated 17-7-1992 issued by the petitioners in the name

of the respondent-applicant intimating the permission granted by the

Tahsildar for cutting the trees and informing that the trees have been

cut and they are handed over to the respondent-applicant through

Manohar Nagorao Kohale, the Police Patil, as no one was present for

the respondent-applicant. The said communication further informs

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that the cut trees be disposed of as per the convenience. The

panchanama dated 17-7-1992 is placed on record indicating that the

cut trees were handed over to one Waman Chintaman Raut. The

panchanama is signed by Manohar Nagorao Kohale, Moreshwar

Kakde, Bhimrao Bajirao Thakre and Narendra Nagorao Kohale. The

anther document dated 22-7-1992 placed on record is issued by the

petitioners in the name of the respondent-applicant informing that all

the cut trees were lying in the field of the respondent-applicant and

the same were handed over to her through Police Patil Manohar

Nagorao Kohale with an intimation to Waman Chintaman Raut, the

representative of the respondent-applicant.

6. With the assistance of the learned counsels appearing for the

parties, I have gone through the oral evidence of all the witnesses

examined. On the question of handing over of cut trees to the

respondent-applicant, the documents placed on record are not

disputed, but the husband of the respondent, who entered the

witness-box, does not dispute that Waman Chintaman Raut was

working in his field. He does not state that as to how many trees were

cut. He admits that he had employed one Waman Raut in the field.

During the cutting of trees, he admits that he did not go to the field.

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He further states that his employee informed him about cutting of

trees on telephone, and in spite of that, he did not to the field. He

admits that in the letter at Exhibit 55 dated 23-7-1992, there is a

mention that the wood of cut trees were lying in his field and it was

handed over to the Police Patil. He further states that he did not

inform the MSEB that the wood was not lying in his field and that he

never claimed the custody of the wood from Police Patil. He states

that he is unable to see whether the wood was removed by the Police

Patil or it was lying there.

7. The other witness examined, viz. Manohar Nagorao Kohale,

the Police Patil, signing the panchanama, has deposed completely

against the respondent-applicant. The another witness Waman

Chintama Raut, the servant in the field of the respondent-applicant,

has also deposed against the respondent-applicant. The evidence of

these witnesses is consistent in stating that the cut trees were lying in

the field of the respondent-applicant and they were handed over to the

respondent-applicant.

8. The entire evidence of the witnesses and the documentary

evidence has not been taken into consideration by the learned District

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Judge, which is apparent from the findings recorded. The

overwhelming evidence on record clearly indicates that the cut trees

were handed over to the respondent-applicant and hence there was no

question of giving compensation for that. The determination of

compensation by the learned District Judge was totally unwarranted

and therefore the application should have been dismissed.

9. In the result, the petition is allowed. The judgment and

order dated 22-10-2007 passed by the learned District Judge, Nagpur,

in Misc. Civil Application No.540 of 1992, is hereby quashed and set

aside. The said Misc. Civil Application is dismissed. No order as to

costs.

10. It is informed that an amount of Rs.6,00,000/- was deposited

by the petitioners in this Court and an amount of Rs.4,00,000/- was

directed to be withdrawn by the respondent upon furnishing security.

In view of the fact that the appeal has been allowed and the impugned

judgment and order has been quashed and set aside, the

respondent-applicant is directed to re-deposit the said amount in this

Court along with interest at the rate of 4% per annum from the date of

withdrawal till its re-deposit. If the amount is not deposited within a

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period of two months from today, the petitioners shall be at liberty to

enforce the security to release the said amount along with the interest

at the rate of 4% per annum from the date of withdrawal till its

realization.

JUDGE.

Lanjewar

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CERTIFICATE

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