Vidarbha Irrigation Development ... vs Ganesh S/O Tukaram Kharade And 5 ...
2017 Latest Caselaw 6526 Bom

(Judgment) 2408  FA 610-2013                                                                    1/10


                IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                          NAGPUR BENCH AT NAGPUR.


                                FIRST APPEAL NO. 610/2013 




             Vidarbha Irrigation Development Corporation,
             Through its Executive Engineer,
             Khadakpurna Project Division, Taq. Deulgaonraja,
             Distt. Buldhana.                                                APPELLANT


                                              .....VERSUS.....


             1]   Ganesh S/o Tukaram Kharade,
                    age : Major, Occu: Agriculturist, 

             2]   Martand S/o Tukaram Kharade,
                    age : Major, Occu: Agriculturist, 

             3]   Pralhad S/o Tukaram Kharade,
                    age : Major, Occu: Agriculturist, 

             4]   Harishchandra S/o Tukaram Kharade,
                    age : Major, Occu: Agriculturist, 
                    
                   All R/o. Mehunraja, Tq. Deulgaonraja,
                   Distt. Buldhana. 

             5]    The State of Maharashtra,
                     Through the Collector, Buldhana.

             6]    The Special Land Acquisition Officer,
                     Khadakpurna Project, Buldhana.                           RESPONDE NTS


                           Shri A.B. Patil, counsel for appellant.
                           None present for respondents.




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 (Judgment) 2408  FA 610-2013                                                                                2/10

                                CORAM:  S.B. SHUKRE, J.

                                DATE    : AUGUST 24, 2017.
                 

                                ORAL JUDGMENT :  

This is an appeal preferred against the

judgment and order dated 28/01/2010, delivered by

Joint Civil Judge (Sr. Dn.), Buldhana in L.A.C. No.

39/2006.

2] Two separate pieces of lands, one bearing Gat

No. 29 and the other Gat No. 23, situated at village

Mehunaraja, Taq. Deulgaonraja, District - Buldhana,

were acquired for the purposes of Khadakpurna

Irrigation Project by the State. Section 4 of the Land

Acquisition Act notification was published on

24/10/2001 and the award was passed by the Special

Land Acquisition Officer on 15/06/2005. Both these

lands contained irrigated, semi-irrigated and non-

irrigated portions, and therefore, separate market values

were determined by the Special Land Acquisition Officer

for each of such portions from out of the acquired lands.

                                     3]            As the compensation awarded by the Special




 (Judgment) 2408  FA 610-2013                                                                          3/10

Land Acquisition Officer was not acceptable to the

respondents, they preferred an application under Section

18 of the Land Acquisition Act. It was referred to the

Court of Civil Judge (Sr.Dn.), Buldhana for it's decision

in accordance with law. On merits of the case, the

reference application was partly allowed by the

reference court by passing the impugned award. In the

impugned award, reference court determined market

value of 40 R of irrigated portion of Gat No.29 to be at

Rs.2,80,000/- per hector and the market value of 57 R

from Gat No.29 being the non-irrigated portion to be at

Rs.1,40,000/- per hector. In Gat No.23, 60 R of the land

was found to be semi-irrigated and 14 R of the land was

found to be dry crop land and accordingly, reference

court determined their market values to be at

Rs.2,70,000/- per hector and Rs.1,80,000/- per hector

respectively. There were no trees and so no further

compensation of amount of the trees was granted. Now,

it were the turn of the appellant to feel the

dissatisfaction and that is why the appellant is before

this Court in the present appeal.

 (Judgment) 2408  FA 610-2013                                                                           4/10

                                4]            I  have   heard   Shri   Patil,   learned  counsel   for

the appellant. None appears for the respondents though

duly served on merit. This matter is part heard for about

last two weeks and nobody has turned up so far on

behalf of the respondents. I have gone through the

record of the case including the impugned award. Now,

the only point that arises for my determination is:

"Whether the compensation awarded by the

reference court is just and proper?"

5] In the connected matters arising out of the

same village and same award, the reference court at

Buldhana had determined the market values of different

categories of lands in the following manner.

                                 Category of land           Market value of the land
                                 dry crop land              Rs.1,64,000/- per hector
                                 semi irrigated land        Rs.2,46,000/- per hector
                                 irrigated land             Rs.3,28,000/- per hector



                                6]            For   such   determination   made   by   the

reference court in these connected matters starting with

L.A.C. No. 188/2005 and 67 other L.A.C. cases, decided

on 02/05/2014 by the reference court at Buldhana, the

(Judgment) 2408 FA 610-2013 5/10

appellant has shown, by his acceptance, it to be true and

correct. The appellant has also acted upon such

determination of the market values of the lands involved

in those appeals. This is not disputed by learned counsel

for the appellant.

7] In the present matter, however, variance in

determination of the market values of the lands acquired

as per their category has occurred. The determination

carried out by the reference court in the present case can

be summarized in a table given below.

                                 Gat No.         Category   of Market value
                                                 land

Irrigated land Rs.2,80,000/- per hector 29 (total - 40 R area 97 R) Dry crop land Rs.1,40,000/- per hector

- 57 R Semi irrigated Rs.2,70,000/- per hector 23 (total land - 60R area 74R) Dry crop land Rs.1,80,000/- per hector

8] Both the lands are covered by the same award

dated 15/06/2005 and are from the same village as the

lands involved in the connected matters starting with

L.A.C. No. 188/2005, decided by the reference court on

02/05/2014. These lands, upon going through the

(Judgment) 2408 FA 610-2013 6/10

judgment of the reference court, made available for my

perusal by the learned counsel for the appellant in the

present case, appear to be similar lands involved in the

present case. The learned counsel for the appellant

would also not raise any dispute about such a conclusion

being drawn by this court. If this is so, the determination

of the market value of the lands carried out by the

reference court in another connected matters would also

have to be taken as final determination for the purpose

of this appeal.

9] But then, a question arises as to whether this

can be done in an appeal filed by the Acquiring Body

and no cross appeal or cross objection has been filed by

the claimants thereby indicating their acceptance of the

values determined by the reference court, particularly

when such an exercise is likely to put the appellant in a

situation worse than what the appellant would have

been, had the appellant not filed any appeal. The answer

to this question has been given by the Hon'ble Supreme

Court in the case of Banarasi -Vs- Ram Fal, 2003(9)

SUPREME COURT CASES 606 (para no.22), wherein it

(Judgment) 2408 FA 610-2013 7/10

has been observed by the Hon'ble Supreme Court that,

"While dismissing the appeal filed by the

defendant/appellant before it, modifying of a decree in

favour of the respondent therein in the absence of cross

appeal or cross objection by the High Court was an

interference by the High Court which had the effect of

reducing the appellants to a situation worse than any of

them would have been if they had not appealed."

In this very case, the Hon'ble Supreme Court

has elaborated the scope of the power of the First

Appellate Court under Order 41 Rule 33 to pass any

decree even in the absence of any cross appeal or cross

objection having been filed by the respondents. The

Hon'ble Supreme Court held that, "This power can be

exercised only for doing complete justice and not for

putting the appellant in a distinctly disadvantageous

situation in a case where the respondent has, by not filing

any cross appeal or cross objection, allowed that part of

the decree which is not the subject matter of the appeal

filed by the appellant to attain the finality, unless such an

exercise is necessary, upon saying that the part in appeal

(Judgment) 2408 FA 610-2013 8/10

against by the respondent cannot be separated by the part

in the appeal under consideration, is necessary for doing

complete justice".

10] Surely, in the present case, that part of the

decree not appealed against by the respondent is not

inseparable from that part of the decree which has been

appealed against by the appellant, and therefore, passing

of a decree by putting the appellant to even more

disadvantageous situation does not arise. So, by invoking

the power under Order 41 Rule 33 in the present case, it

would not be possible for this Court to give benefit of the

rates determined in different appeals to the respondents,

having regard to the fact that they have not filed any

cross appeal or cross objection claiming higher

compensation.

11] So, now what remains for this Court is to try

to reconsile the rates determined in the present matter,

as far as possible, with rates given in other matters of

similar nature. When such an effort is made, one would

find that for the rates determined by the reference court

in respect of an irrigated and dry crop land portions of

(Judgment) 2408 FA 610-2013 9/10

Gat No. 29, no interference can be made by this Court as

the rates determined appear to be already on the lower

side than those determined by the reference court in

different connected matters as accepted by the appellant.

At the same time, some interference can be made in

respect of the rates determined for the semi-irrigated

and dry crop portions of Gat No.23 because the appears

to be on the higher side than the rates determined by the

reference court in the connected matters. Applying those

rates, I find that for 60 R semi-irrigated portion of Gat

No.23, instead of Rs.2,70,000/- per hector, the reference

court ought to have determined the rate to be at

Rs.2,46,000/- per hector and for the dry crop portion of

14 R out of Gat No.23, the reference court, instead of

granting rate of Rs.1,80,000/- per hector, ought to have

granted rate of Rs.1,64,000/- per hector. These are the

rates which, in my considered view, represent the true

market value of the semi-irrigated and dry crop portion

of Gat No.23 and accordingly I declare that the

respondents are entitled to receive compensation in

respect of Gat No.23 at the rate of Rs.2,46,000/- per

hector for 60 R of semi-irrigated land and Rs.1,64,000/-

(Judgment) 2408 FA 610-2013 10/10

per hector for non-irrigated portion of 14 R of Gat

No.23. This compensation would be liable to be paid to

the respondents by the appellant, together with the same

interest and other benefits as are granted by the

reference court in the impugned award. Rest of the

impugned award stands confirmed. The point is

answered accordingly.

12] Appeal is accordingly partly allowed.

13] The impugned award is modified in the above

terms.

                                14]           Parties to bear their own costs.



                                                                                JUDGE                

                                Yenurkar