Bombay High Court
Uttam Sahebrao Marade & Ors vs State Of Mah on 20 July, 2017
Bench: P.R. Bora
1 FA3398.2008
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD.
910 FIRST APPEAL NO. 3398 OF 2008
Sitaram S/o. Bapu Marade,
Age : 62 years, Occu. Agricultural,
R/o. Poundul, Tq. Patoda,
Dist. Beed. .. Appellant
Versus
State of Maharashtra
Through Collector Beed. .. Respondent
-----------
Mr N. P. Bangar, Advocate for the appellant
Mr S. M. Ganachari, AGP for respondent/State
----------
WITH
FIRST APPEAL NO. 3395 OF 2008
Havasrao S/o. Jagannath Bhosle,
Age : 53 years, Occu. Agricultural,
R/o. Poundul, Tq. Patoda,
Dist. Beed. .. Appellant
Versus
State of Maharashtra
Through Collector Beed. .. Respondent
-----------
Mr N. P. Bangar, Advocate for the appellant
Mr S. M. Ganachari, AGP for respondent/State
----------
WITH
FIRST APPEAL NO. 3396 OF 2008
Bhujang S/o Sahebrao Marade
Age : 60 years, Occu. Agricultural,
R/o. Poundul, Tq. Patoda,
::: Uploaded on - 01/08/2017 ::: Downloaded on - 08/08/2017 00:45:12 :::
2 FA3398.2008
Dist. Beed. .. Appellant
Versus
State of Maharashtra
Though Collector Beed. .. Respondent
-----------
Mr N. P. Bangar, Advocate for the appellant
Mr S. M. Ganachari, AGP for respondent/State
----------
WITH
FIRST APPEAL NO. 3397 OF 2008
1. Uttam Sahebrao Marade,
Age : 65 years, Occu. Agricultural,
R/o. Poundul, Tq. Patoda,
Dist. Beed.
2. Chandrakant S/o. Uttam Marade
Age : 42 years, Occ & R/o. As above.
3. Prakash S/o. Uttam Marade,
Age : 37 years, Occu & R/o. As above.
4. Bapu S/o. Uttam Marade,
Age : 22 years, Occu & R/o. As above. .. Appellants.
Versus
State of Maharashtra
Through Collector Beed. .. Respondent.
-----------
Mr N. P. Bangar, Advocate for the appellant
Mr S. M. Ganachari, AGP for respondent/State
----------
CORAM : P. R. BORA, J.
Dated: July 20, 2017
ORAL JUDGMENT :-
1. All these appeals can be decided by a common Judgment
3 FA3398.2008
since they are arising out of a common Judgment and the Award
passed by the reference Court. The lands which are subject matter in
the present appeals were acquired for the purpose of Narayan Gad
Medium Project at village Poundul, Tal. Patoda, Dist. Beed.
Notification under Section 4 of the Land Acquisition Act (hereinafter
referred to as the 'Act') was published on 10.10.1988 and the Award
under Section 11 came to be passed on 12.07.1991. The Special Land
Acquisition Officer had offered the compensation at the rate of
Rs.170/- & Rs.210/- Per Are. Dissatisfied with the amount of
compensation so offered, the appellants had preferred the reference
applications under Section 18 of the Act. All those reference
applications were decided by a common Judgment and Award passed
on 07.04.2005. The Reference Court determining the market value of
the acquired lands at the rate of Rs.500/- per Are for jirayat lands,
enhanced the amount of compensation. The present appeals are filed
seeking enhancement in the amount of compensation so awarded by
the Reference Court.
2. The learned Counsel at the outset brought to my
notice that, the companion appeals arising out of the same
acquisition proceedings and filed against the same common
Judgment and Award have been decided by this court
(Coram: Shri. S.V. Gangapurwala, J.) on 21.12.2013. The learned
4 FA3398.2008
Counsel tendered across the bar the copy of the said Judgment
delivered in First Appeal No.233/2006 with the connected appeals.
The learned Counsel pointed out that, in so far as the lands involved
in the present appeals are concerned, sufficient evidence was on
record showing that, the lands were fully irrigated lands. The learned
Counsel submitted that, in each of the said land, the existence of well
is evident from the 7/12 extract of the respective lands. The learned
Counsel taking me through the description of the respective
properties as are mentioned in the memo of appeal submitted that, in
some of the matters there are two wells and in one matter there are
four wells. The learned Counsel further submitted that, the crop
statements in respect of each of the subject land reveals that, fruit
bearing trees were existing in all those lands prima facie evidencing
that, there was a facility of water available for the said land. The
learned Counsel submitted that, the Reference Court has however
applied only one parameter and holding all these lands to be dry
lands has enhanced amount of compensation determining the market
value of the acquired lands at the rate of Rs.500/- per Are. The
learned Counsel submitted that, in view of the Judgment delivered by
this Court in the companion appeals, the lands which are the subject
matter of the present appeals required to be held as fully irrigated
lands and the compensation needs to be enhanced in all these
5 FA3398.2008
appeals by determining the market value of the subject lands at the
rate of Rs.1000/- per Are.
3. Shri. Ganachari, the learned AGP opposed the
submissions made by the learned Counsel appearing for the
appellants. The learned AGP inviting my attention to the discussion
made by this Court in the Judgment delivered in First Appeal
No.233/2006 submitted that, there was no sufficient evidence as
about the irrigation facility and it was not proved that the lands were
fully irrigated or seasonally irrigated and as such the Reference Court
has correctly awarded the compensation considering the said lands to
be non irrigated lands. The learned AGP submitted that, even if it is
accepted that, the existence of well is noticeable from the 7/12
extract of the respective lands, the claimants have not adduced any
further evidence to establish that, the well water was being used
effectively for taking crops by them. According to the learned AGP,
the Reference Court was right in holding all those lands to be dry
lands and therefore, no interference is required in the impugned
Judgment and award.
4. I have carefully considered the submissions advanced by
the learned Counsel appearing for the appellants and the submissions
made by the learned AGP appearing for the respondent / state. I have
6 FA3398.2008
also carefully perused judgment in the case of First Appeal
No.233/2006 with the connected appeals delivered on 21.12.2013 by
the learned Single Judge of this court (Coram: S.V. Gangapurwala,
J.). It is not in dispute that, the aforesaid appeals were also filed
against the same common Judgment and Award passed by the
Reference Court, which has been impugned in the present appeals.
5. In the above circumstances, I do not see any reason to
take a different view than recorded in the said Judgment by this
Court. The learned Single Judge in para no.8 of the Judgment has
made the following observations :
8. The evidence appears to have been led in one
Reference. Various 7/12 extracts are filed on record. In
the aforesaid appeals filed by the claimants it appears
that either there is a well in the land acquired or the
claimants have right/share in the well water. It appears
that the claimants have been awarded compensation for
well so also in many of the cases the 7/12 extracts show
that the claimants have right to take well water. The
learned Asstt. Govt. Pleaders have also verified the said
fact. Considering the above, there would no difficulty in
treating the lands acquired as seasonally irrigated lands.
Of-course, there is no positive evidence about the lands
being perennially irrigated but the fact that there is
existence of well, fruit bearing trees, pipeline. The lands
can be assumed as at least seasonally irrigated even
though oral evidence is lacking. The documentary
evidence can be considered.
6. In light of the observation made as above, when I
7 FA3398.2008
scrutinized the evidence in the present matter and more particularly
the documentary evidence placed on record, it is revealed that, in
each of the subject land the existence of well is noticed. It is also true
that, in some of the lands there are more than one well and the
existence of fruit bearing trees is also noticeable. However, it is also a
fact that, the respective claimants have failed in brining on record
any further evidence as about the full use of the well water
evidencing that, the lands were fully irrigated lands. In such
circumstances, relying on the observations made by this Court in the
First Appeal No.233/2006, I also deem it appropriate to hold the
lands which are the subject matters in the present appeals to be
seasonally irrigated lands. It is thus evident that, the appellants in all
these appeals are entitled for enhancement in the amount of
compensation by determining the market value of their acquired
lands at the rate of Rs.750/- per Are and the Award needs to be
modified to the aforesaid extent. Order accordingly. Save and except
the above, the other part of the award is maintained as it is.
The appeals stand partly allowed in the aforesaid terms.
No order as to costs.
( P. R. BORA, J. )
ggp
