Bombay High Court
Shankarrao Vithobaji Tekade vs Collector Thru Special Land ... on 12 July, 2017
Bench: S.B. Shukre
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
FIRST APPEAL No.170 OF 2005
Union of India,
through its Dept of Defence, Research
and Development Organization, Nagpur. : APPELLANT
...VERSUS...
1. Shankarrao Vithobaji Tekade,
Aged about 80 years,
Occupation : Cultivator,
Resident of Plot No.145,
Dhantoli, Nagpur.
2. Collector, Nagpur,
through Special Land Acquisition Officer,
Nagpur. : RESPONDENTS
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Shri Aurangabadkar, Advocate for the Appellant
Shri S.P. Kshirsagar, Advocate for the Respondent No.1.
Shri S.B. Bissa, Assistant Government Pleader for the Respondent No.2.
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AND
FIRST APPEAL No.180 OF 2005
LRs. of appellant is Shankarrao s/o. Vithobaji Tekade,
brought on record as Aged about 76 years,
per Court's order Occupation : Agriculturist,
dt.26.11.2014.
Tq. Nagpur and District Nagpur.
Legal Heirs of the Appellant :
1. Arvind s/o. Shankarrao Tekade,
Aged about 49 years,
Occupation : Agriculturist.
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2. Shri Parimal s/o.Nilkanth Tekade,
Aged about 24 years,
Occupation : Education.
3. Shri Shrikant s/o. Nilkanth Tekade,
Aged about 22 years,
Occupation : Education.
All R/o. Chhoti Dhantoli,
Suley High School, Banerjee Marg,
Nagpur. : APPELLANTS
...VERSUS...
1. Collector, through
Special Land Acquisition Officer,
Nagpur.
2. Union of India,
Ministry of Defence, New Delhi,
through its Secretary. : RESPONDENTS
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Shri S.P. Kshirsagar, Advocate for the Appellants.
Shri S.B. Bissa, Asstt. Government Pleader for Respondent No.1.
Shri Aurangabadkar, Advocate for Respondent No.2.
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CORAM : S.B. SHUKRE, J.
th
DATE : 12
JULY, 2017.
ORAL JUDGMENT :
1. This common judgment disposes of First Appeal
No.170/2005 and 180/2005, which question the legality and correctness
of the judgment and order dated 5th November, 2004, rendered in Land
Acquisition Case No.51/1996 by 9th Ad-hoc Additional District Judge,
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Nagpur.
2. Two agricultural lands of the claimant, Shankarrao Vithobaji
Tekade, who is respondent No.1 in First Appeal No.170/2005 and the
appellant in First Appeal No.180/2005, were acquired compulsorily by
the State Government for serving the purpose of Ministry of Defence,
New Delhi. These lands bearing Survey Nos.20/1 and 135/2 were from
village Bothali, District Nagpur. The acquired land from Survey No.20/1
admeasured 3 hectare 37 R and the acquired land from survey No.135/2
admeasured 2 hectare 42 R. Section 4 Notification was published on
26.11.1992. The compensation that was awarded by the Special Land
Acquisition Officer was accepted by the claimant under protest. It was
the contention of the Union of India, the appellant in First Appeal
No.170/2005, that this contention was wrong and the amount of
compensation awarded by the Special Land Acquisition Officer was
received by the claimant without any protest or demur and as such
reference application filed under Section 18 of the Land Acquisition Act,
1894 was not maintainable. The claimant, refusing to accept this
contention, filed an application under Section 18 and the application was
partly allowed by the impugned judgment and order. But, here again the
impugned judgment and order could not completely satisfy the grievance
of the claimant as the claimant thought that even his acquired land
bearing survey No.20/1 should have been found to be an irrigated land
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and same rate of compensation as was applied to the acquired land
bearing survey no.135/2 should have been applied to that land. This is
how, both these appeals have been filed in the instant case.
3. I have Heard Shri Aurangabadkar, learned counsel for the
Union of India, Shri Kshirsagar, learned counsel for the claimant and Shri
S.B. Bissa, learned A.G.P. for the State in both these appeals.
4. I have gone through the record of the case including the
impugned judgment and order.
5. Now, following points arise for my determination :
(i) Whether the application filed under Section 18 of the
Land Acquisition Act, 1894 was maintainable ?
(ii) Whether the acquired land bearing survey No.20/1,
admeasuring 3 hectare 37 R ought to have been
adjudged to be an irrigated land and compensation
accordingly granted ?
6. Shri Aurangabadkar, learned counsel for the Union of India
has taken me through the evidence of the parties as well as the proved
documents to support the contention that the amount of compensation
awarded by the Special Land Acquisition Officer was accepted by the
claimant without any protest and as such Section 18 reference
application was not maintainable. Shri S.P. Kshirsagar, learned counsel
for the claimant also relies upon the same evidence - oral and
documentary to refute the contention.
7. If one considers the oral as well as documentary evidence
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available on record one would instantly come to a conclusion that there
is no substance in the argument of learned counsel for the Union of India
and merit in the submission of learned counsel for the claimant.
8. The claimant in his evidence has specifically stated on oath
that he accepted the compensation awarded by the Special Land
Acquisition Officer under protest. He has also proved in his evidence two
documents vide Exhs.-44 and 45 showing that there was a protest raised
by him when he said that the compensation awarded by the Special Land
Acquisition Officer was meager. This evidence has not been controverted
in any manner by the learned Assistant Government Pleader, who
conducted cross-examination on behalf of the respondent before the
Tribunal. The documents at Exhs.-44 and 45 have gone entirely
unchallenged. Therefore, it is not possible to accept the argument that
there is no evidence of protest brought on record by the claimant. On
the contrary, the evidence now shows that there was indeed a protest as
required under Section 18 of the Land Acquisition Act and, therefore, the
reference application filed under this provision of law was maintainable.
The first point is therefore, answered as in the negative.
9. Now, the evidence adduced by PW 1 claimant as well as
PW 2 Mohan Phate - the expert valuer is considered in its entirety, one
would find that the claimant has also successfully established the fact
that even the acquired land bearing survey No.20/1 was irrigated. There
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is an elaborate evidence tendered by PW 1 as well as PW 2 in this regard.
This evidence shows that there was a Well in existence, which is also
seen from the document vide Exh.-36, a 7/12 extract in respect of land
survey No.135/2, on the land survey No.135/2. The evidence of these
two witnesses further show that the claimant had constructed a storage
tank and also laid a pipeline for irrigating both of his lands. He has been
quite specific in his assertion that he used to irrigate his lands and take
three crops annually. This evidence also has gone totally unchallenged.
When an agriculturist establishes the fact of taking of three crops
annually, the only inference that can be drawn is that cultivation of land
and taking of crops thrice a year in a tropical region like Vidarbha is not
possible unless there is a perennial source of water for watering the
crops. When such evidence has gone completely unchallenged, the
inevitable conclusion would be that the claimant has successfully
established the fact that even his other land bearing survey No.20/1 was
irrigated perennially. The Tribunal, however, considering this evidence
perfunctorily observed that from the material available on record one can
see that the land bearing Survey No.20/1 was not an irrigated one and a
dry crop land. This finding is against the evidence available on record
and, therefore, is perverse and deserves to be quashed and set aside.
Accordingly, I find that the land bearing survey No.20/1 was an irrigated
land and it deserves the valuation for its market value at the same rate as
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has been done in case of other acquired land bearing survey No.135/2,
which was of Rs.4,00,000/- per hectare. I find that even the market
value of land survey No.20/1 was the same as the market value of survey
No.135/2 which is of Rs.4,00,000/- per hectare, as found by the
Reference Court. The second point is also answered accordingly.
10. In the result, First Appeal No.170/2005 deserves to be
dismissed and First Appeal No.180/2005 deserves to be allowed.
11. The First Appeal No.170/2005 stands dismissed and First
Appeal No.180/2005 stands allowed and it is directed that the enhanced
compensation for the acquired land bearing survey No.20/1,
admeasuring 3 hectare 37 R be given at the rate Rs.4,00,000/- per
hectare on which same directions regarding solatium, future interest etc.
as given in the impugned award shall be applicable.
12. Rest of the impugned award is confirmed.
13. The parties to bear their own costs.
14. Both appeals are disposed of accordingly.
JUDGE
okMksns
