The Executive Enginner Minor ... vs Girjappa S/O Shiva Yele And Others
2017 Latest Caselaw 4237 Bom

                                    1           FA st No. 13202/16 & Ors.

        IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                   BENCH AT AURANGABAD


                FIRST APPEAL STAMP NO.13202 OF 2016

  1.       The Executive Engineer,
           Minor Irrigation Division,
           Osmanabad, Through
           Godawari Marathawada Irrigation
           Development Corporation,
           Aurangabad


  2.       The State of Maharashtra,
           Through the Collector, 
           Osmanabad                        =        APPELLANTS
                                            (Ori. Respondents)
                   VERSUS


  Anil S/o. Somnath Yele,
  Age: 56 years, Occ. Agri.,
  R/o. Wakwad, Tq. Bhoom,
  Dist. Osmanabad                           =        RESPONDENT 
                                            (orig.Claimant)
                                  WITH

                   FIRST APPEAL STAMP NO.13412 OF 2016

  1.       The Executive Engineer,
           Minor Irrigation Division,
           Osmanabad, Through
           Godawari Marathawada Irrigation
           Development Corporation,
           Aurangabad




::: Uploaded on - 13/07/2017               ::: Downloaded on - 15/07/2017 00:19:58 :::
                                     2          FA st No. 13202/16 & Ors.

  2.       The State of Maharashtra,
           Through the Collector, 
           Osmanabad                        =    APPELLANTS
                                            (Ori. Respondents)
                   VERSUS

  1.       Girjappa S/o. Shiva Yele,
           Age 75 years, Occ. Agri.,

  2.       Nama S/o. Shiva Yele
           Age 73 years, Occ. Agri.,

  3.       Sopan S/o. Baji Yele,
           Age: 73 years, Occ. Agri.,

           All R/o. Wakwad, Tq. Bhoom,
           Dist. Osmanabad                  =    RESPONDENTS
                                              (Ori. Claimants)
   
                                  WITH

                   FIRST APPEAL STAMP NO.13420 OF 2016

  1.       The Executive Engineer,
           Minor Irrigation Division,
           Osmanabad, Through
           Godawari Marathawada Irrigation
           Development Corporation,
           Aurangabad

  2.       The State of Maharashtra,
           Through the Collector, 
           Osmanabad                        =    APPELLANTS
                                            (Ori. Respondents)
                   VERSUS

  1.       Limba S/o. Shankar Yele,
           Age: 80 years, Occ. Agri.,

  2.       Mahadeo S/o. Limba Yele,
           Age: 55 years, Occu. Agri.,

           Both R/o. Wakwad, Tq. Bhoom,
           Dist. Osmanabad              =    RESPONDENTS
                                          (Ori. Claimants)




::: Uploaded on - 13/07/2017               ::: Downloaded on - 15/07/2017 00:19:58 :::
                                          3           FA st No. 13202/16 & Ors.

                                   WITH

                   FIRST APPEAL STAMP NO.13425 OF 2016

  1.       The Executive Engineer,
           Minor Irrigation Division,
           Osmanabad, Through
           Godawari Marathawada Irrigation
           Development Corporation,
           Aurangabad

  2.       The State of Maharashtra,
           Through the Collector, Osmanabad
                                                  =    APPELLANTS
                                                  (Ori. Respondents)
                   VERSUS

  Parubai W/o. Ambu Yele
  Age: Major, Occ. Agri 
  & Household,
  R/o. Wakwad, Tq. Bhoom,
  Dist. Osmanabad                                 =    RESPONDENT
                                                    (Ori. Claimant) 

                                   -----

  Mr. Dheple Shantaram R. Advocate for Appellant/s;
  Mr. A.N. Nagargoje, Advocate for Respondent/s.
                                   -----

                               CORAM :  P.R.BORA, J.

DATE :

10 th

July,2017.

ORAL JUDGMENT:

1) In view of the order passed by this

Court on civil Applications for condonation of

delay in the present matters, the present appeals

are taken up for final disposal with the consent

of the learned Counsel for the parties.

2) Shri Dheple, leaned Counsel appearing

for the acquiring body, submitted that the

Reference Court without there being any

sufficient evidence, has enhanced the amount of

compensation unreasonably from Rs. 270/- per Are

to Rs.1500/-. The learned Counsel further

submitted that only one sale instance was placed

on record by the claimants and that too

pertaining to a very small piece of land

admeasuring 14 Are and relying upon the said sale

instance, the Reference Court has determined the

amount of compensation. The learned Counsel

further submitted that the Reference Court has

failed in appreciating that the sale deed which

was filed on record was not of a comparable land,

and as such could not have been the basis for

determining the market value of the subject

lands. The learned Counsel further submitted

that the Reference Court has also misconstrued

the provisions of Limitation Act and has wrongly

held the Reference Applications to have been

filed within period of limitation. On both the

counts, the learned Counsel submits that the

impugned awards deserve to be quashed and set

aside.

3) Shri Nagargoje, leaned counsel appearing

for the original claimants, resisted the

submissions made on behalf of the acquiring body.

The learned Counsel submitted that the Reference

Court has rightly held the appeals to have been

filed within period of limitation. The learned

Counsel submitted that the award under Section 11

of the Act was passed in absence of the original

claimants and the claimants came to know about

the awards only after section 12(2) notice was

served upon them. The learned Counsel submitted

that after service of the notice under Section

12(2) of the Act, within six weeks the Reference

Applications are filed and they are perfectly

within period of limitation.

4) The discussion made by the Reference

Court reveals that the claimants had filed the

Reference Applications within the period of six

weeks after having come to know about passing of

the awards. I do not see any reason to cause any

interference in the finding of fact so recorded

by the Reference Court as about the limitation.

5) In so far as the objection raised by the

acquiring body as about the error committed by

the Reference Court in determining the market

value, is concerned, I have carefully perused the

discussion made by the Reference Court in that

regard. It is true that only one sale instance

has been relied upon by the Reference Court in

determining the market value of the acquired

land. However, from the record, it is quite

evident that, that was the only evidence before

the Reference Court, since neither the acquiring

body nor the State has adduced any oral or

documentary evidence before the Reference Court

so as to oppose the claim made by the claimants.

In the circumstance, the Reference Court was

having the only option to determine the market

value, may be by doing some guess work on the

basis of the evidence which was adduced before

it.

6) Secondly, it does not appear to me that

the Reference Court has committed any error in

relying upon the said sale instance. The

evidence on record reveals that the sale deed at

Exh.18, which has been relied upon by the

Reference Court was pertaining to 14 Are land,

which was sold by registered sale deed on 6 th May,

1992 for the total consideration of Rs.40,000/-.

Per hectare rate of the said sale instance comes

to Rs. 2857/- per Are. The learned Reference

Court has made a detailed discussion pertaining

to the said sale instance. Since the said sale

instance was pertaining to the year 1992, i.e.

three years prior to issuance of the notification

under Section 4 of the Act, (in the present

matter, Section 4 notification was issued on

24.2.1993 and the Award under Section 11 was

passed on 11.8.1998), the Reference Court has

given increase @ 10% every year and thus total

30% increase was given. After giving the

increase, the Reference Court has discussed the

nature, quality and the location of the said land

and accordingly has determined the value of the

subject land.

7) The Reference Court has not implicitly

relied upon the said sale instance. Though in

the year 1992, the said land was sold @

Rs.28,755/- per Are, having considered the

advantageous position of the said land, the

appropriate deductions are made by the Reference

Court while determining the market value of the

subject lands and the subject lands have been

given the market rate of only Rs.1500/- per Are,

which comes to practically half of the rate which

was received to the said land. It does not

appear to me that the Reference Court has

determined the market value arbitrarily or

excessively or unreasonably on higher side. On

the contrary, it appears that the Reference Court

has considered all plus and minus factors while

determining the market value of the subject

lands. The Reference Court has awarded the

compensation at half of the rate for the Jirayat

lands, which was forming the part of the

acquisition and has accordingly enhanced the

amount of compensation.

8) In so far as the objection that the sale

instance relied upon was of small piece of land,

it has to be noted that majority lands which are

involved in the present appeals, are also small

pieces of lands. The chart, which is reproduced

in the order clause reflects that majority of the

lands were averagely of the same area and only

one Gut No. 59(1) was admeasuring 2 hectares and

25 Are. In the circumstances, the objection

raised by the appellant, that the same criterion

could not have been liable while determining the

market value of the subject lands, cannot be

entertained.

9) After having considered the entire

evidence on record, it does not appear to me that

the Reference Court has committed any error in

determining the market value of the acquired

lands and in enhancing the amount of compensation

accordingly. The appeals being devoid of any

substance, deserve to be dismissed and are

accordingly dismissed, however, without any order

as to cots. Pending civil applications, if any,

stand disposed of.

(P.R.BORA) JUDGE bdv/