Banubai Hyeerkhan L.Rs. Miyakhan ... vs The State Of Mah And Ors
2016 Latest Caselaw 6103 Bom

                                        1                   FA No.3814/2008

            IN THE HIGH COURT OF JUDICATURE OF BOMBAY




                                                                      
                       BENCH AT AURANGABAD

                          FIRST APPEAL NO.3814 OF 2008 




                                              
      Banubai w/o Hyderkhan (died through
      L.Rs.)




                                             
      Miyakhan s/o Hyderkhan Pathan
      Age: 35 Yrs., occu. Labourer,
      R/o Kazi Part, Parli Vaijnath
      Through Next Friend of maternal
      Uncle Sk.Abdul Age: 50 Yrs., 




                                     
      occu. Agril. R/o Parli Vaijnath,
      Dist.Beed.                               =    APPELLANT
                              ig                 (orig. Claimant)

               VERSUS
                            
      1)       The State of Maharashtra.

      2/2      Banubee died through L.Rs. -
               Rasidbee w/o Shaikh Gani,
               Age" 53 Yrs., occu. Labourer,
      

               R/o Khokadpura,Manwat Patil's
               House, Manwat.
   



      3/3      Hamidabee w/o Layat 
               Age: 40 Yrs., occu. Labour
               R/o Ismalpura, Parli Vaijnath
               Dist.Beed.





      4/4) Ashabee w/o Shaikh Ismail
           (Appeal against Resp.No.4/4 
           stood dismissed, vide order
           dt.3.3.2010)                 =    RESPONDENTS
                                        (Resp.Nos. 2 to 4 





                                        orig. claimants) 
                               -----
      Mr. SS Tope, Advocate for Appellant;
      Mr. SP Deshmukh, AGP for Respondent No.1-State;
      Resp.No.2/2 duly served;
      Mr.   MH   Shaikh,   Adv.   h/for   Mr.   G.R.Syed,   Adv.   For 
      Resp.No.3/3;
                                    -----




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                                              2                     FA No.3814/2008

                                   CORAM :  P.R.BORA, J.

DATE :

17 th

October,2016.

ORAL JUDGMENT:

1) Heard. The present appeal is filed

against Judgment and Order passed by Ad hoc

District Judge-1, at Ambejogai on 7th July, 2008

in LAR No.420/196. The aforesaid Reference

Application was filed by one Banubi wd/o

Hyderkhan claiming enhancement in the amount of

compensation awarded by Special Land Acquisition

Officer towards acquisition of 17 acres of land

belonging to her. She died during pendency of

the Reference Application and her legal heirs

were brought on record and they have prosecuted

the matter further. The Reference Court has

dismissed the Reference Application and the said

order is impugned in the present appeal.

2) Shri Tope, learned Counsel appearing for

appellant, inviting my attention to the

observations made by the Reference Court in Para

7 of the impugned judgment, submitted that though

all the objections made by the Reference Court

are in favour of the appellant, that she is

entitled for the enhanced amount of compensation,

ultimately, the Reference Court has dismissed the

Reference Application on the ground that no

positive evidence as about the market rate was

adduced by the appellant.

. The learned Counsel further submitted

that perusal of the impugned judgment would

reveal that the entire material was available

before the Reference Court so as to determine the

market value of the acquired land and in the

circumstances, though no positive evidence was

adduced on behalf of the appellant, the Reference

Court could not have dismissed the Reference

Application. The learned Counsel, therefore,

prayed for allowing the appeal and determine the

market value @ Rs.3,000/- per acre as was claimed

by the appellant in the Reference application.

In the alternative, the learned Counsel submitted

that the matter may be remanded to the Reference

Court for deciding it afresh on the basis of the

available evidence on record. The learned

Counsel further prayed that an opportunity needs

to be given to the appellant to produce on record

the further evidence in support of his claim.

3) Shri Deshmukh, learned AGP, was fair

enough in submitting that the Reference

Application could not have been dismissed by the

Reference Court in view of the observations made

by the said Court. The learned AGP, therefore,

conceded for remitting back the matter to the

Reference Court for deciding it afresh.

4) I have carefully read the impugned

judgment. It is surprising that though many of

the observations made by the Reference Court in

many words suggest that compensation as awarded

by the Special Land Acquisition Officer was

inadequate, the Reference Court has dismissed the

Reference Application filed by the claimants. In

the Issues framed, first issue was, - "Does the

petitioner prove that awarded compensation is

inadequate?" and the Reference Court has answered

the said issue in the affirmative. When the

issue was answered in the affirmative, it is not

understood as to how the Reference Court has

dismissed the Reference Application. The

observations made by the Reference Court support

the claim of the appellant/claimants that the

compensation as awarded by the Special Land

Acquisition Officer was inadequate and the market

value as was determined by the Special Land

Acquisition Officer while determining the amount

of compensation was not the real market value of

the acquired lands.

. Some such observations need to be

reproduced herein below, which are thus, -

i) That, the Special Land Acquisition Officer has not taken into account the market rate

on the date of publication of the notification under Section 4 of the Land Acquisition Act;

ii) It is difficult to accept that the Special Land Acquisition Officer has followed the proceedings properly and determined the

amount of compensation correctly;

iii) No evidence is placed on record to show

that notice under Section 9 of the Act was served on deceased Banubi;

iv) No evidence is existing to show that at the time of joint measurement, Banubi was present;

v) Considering the Award at Exh.17, I am inclined to accept the submissions made on

behalf of the petitioner that inadequate compensation is awarded.

These are some of the observations and it has to

be stated that there are many more such

observations by the Reference Court leading to an

inference that the Special Land Acquisition

Officer had not determined the market price of

the acquired lands correctly.

5) From the observations made in Para 8 of

the impugned judgment, it is further clear that

the claimants had adduced their oral evidence and

had also placed on record one sale instance at

Exh.53. The reasons, for which the Reference

Court had refused to rely on the sale instance

brought on record by the claimants, are wholly

erroneous.

6) After having gone through the impugned

judgment, it is apparently revealed that the

Reference Court has utterly failed in applying

its mind. The entire approach of the Reference

Court was incorrect. Even though certain

evidence was available on record, the Reference

Court has failed in appreciating that evidence.

7) For the aforesaid reasons, the impugned

judgment cannot be sustained and deserves to the

quashed and set aside and the matter needs to be

remitted to the Reference Court for deciding it

afresh. It will be open for the claimants to

adduce additional evidence, if so desired to

substantiate the contentions raised by them in

the Reference Application. Needless to state

that the State will also have an opportunity to

produce evidence in rebuttal of the contentions

raised by the claimants.

8) In the result, the following order, -

ORDER

i) The impugned Judgment and Order

is quashed and set aside;

ii) ig The matter is remitted back to

the Reference Court for deciding the

same afresh by giving adequate

opportunities to the parties to the

Reference Application for adducing

evidence;

iii) Considering the fact that the

subject acquisition is of the year 1983,

the Reference Court shall expeditiously

decide the Reference Application and

preferably within six months from the

date of receipt of the writ of this

Court;

iv) The R. and P., if received from

the trial court, be sent back forthwith.

                       v)              The   appeal   is   disposed   of   in 




                                                      
                       the   aforesaid   terms.     Pending   civil 

application, if any, stands disposed of.

                              ig                    (P.R.BORA)
                                                    JUDGE 
                                              
                            
      bdv/