Audumbar Anna Borade vs The State Of Maharashtra And ...
2017 Latest Caselaw 3330 Bom

                                        1                                  FA605.2016

           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                     BENCH AT AURANGABAD.


                       8  FIRST APPEAL NO. 605 OF 2016


Audumbar S/o. Anna Borade,
Age : 75 years, Occu. Agriculture,
R/o. Pathrud, Tq. Bhoom,
Dist. Osmanabad.                                                ..  Appellant

              VERSUS

1.   The State of Maharashtra
      Through the Collector,
      Osmanabad, Dist. Osmanabad.

2.   The Special Land Acquisition Officer No. 2,
      Osmanabad, Dist. Osmanabad.

3.   The Executive Engineer,
      Minor Irrigation Division, 
      Osmanabad (Presently as Krishna Khore 
      Vikas Mahamandal), Dist. Osmanabad.                       .. Respondents
                                     ...

Advocate for Appellant             :             Mr. A. R. Devakate
AGP for Respondents no.1 & 2      :              Mr. S.P. Sonpawale 
Advocate for Respondent no.3      :              Mr. D.B. Pawar
                                  ...

                                                 CORAM:  P. R. BORA, J.

DATE : 19TH JUNE, 2017.

ORAL JUDGMENT :-

1. The appellant has challenged the Judgment and Award

passed by the 3rd Joint Civil Judge, Senior Division, Osmanabad

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(hereinafter referred to as the 'Reference Court'), on 10.12.2012 in

Land Acquisition Reference No.73/2004 by filing the present appeal.

2. The appellant had filed the aforesaid reference application

under Section 18 of the Land Acquisition Act, 1894 (hereinafter

referred to as the 'Act') seeking enhancement in the amount of

compensation offered by the Spl. Land Acquisition Officer

(hereinafter in short 'SLAO'). The land admeasuring 1 Hectare 29

Ares owned by the appellant was acquired for Minor Irrigation Tank

to be constructed at village Dudhodi, Tal. Bhoom, Dist. Osmanabad.

The Notification under Section 4 of the Act in that regard was

published on 26.12.1996 and the Award bearing No.1995/LNQ/A/29

under Section 11 of the Act came to be passed on 13.03.2000. The

SLAO had offered the compensation at the rate of Rs.24,500/- per

hectare for jirayat land. Being dissatisfied with the amount of

compensation so offered, the appellant preferred the aforesaid

reference application under Sec.18 of the Act.

3. According to the appellant, the subject land was irrigated

land having two wells therein and he was taking cash crops in the

said land. The appellant had relied upon three sale instances and also

the Valuation Report to substantiate his claim. The learned Reference

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Court after having assessed the oral and documentary evidence

placed on record, determined the market value of the acquired land

at the rate of Rs.47,100/- per acre and accordingly enhanced the

amount of compensation.

4. In the present appeal, it is the contention of the appellant

that, the Reference Court though has fairly determined the market

value as Rs.47,100/- per acre for bagayat land, has committed an

error in awarding compensation for the acquired land at the same

rate though the acquired land is irrigated land. Shri. Devkate, the

learned Counsel appearing for the appellant submitted that, in view

of the Valuation Report on record, which was exhibited by consent of

the learned Counsel appearing for the acquiring body, the Reference

Court should not have recorded such a finding that, there was no

evidence to show that, the subject land was irrigated land. The

learned Counsel further submitted that, in addition to the Valuation

Report, there was a joint measurement report which was also

admitted and the same was also showing the existence of well in the

acquired land.

5. The learned Counsel for the appellant further submitted

that, in his deposition before the Court, the appellant has

4 FA605.2016

categorically stated that the acquired land was irrigated land and he

was taking two crops in a year and also taking sugarcane crop in the

subject land. The learned Counsel submitted that, considering the

evidence as was produced by the appellant, the Reference Court must

have awarded the compensation to the appellant for the acquired

land at double of the rate as was determined for non-irrigated land.

The learned Counsel, therefore prayed for allowing the appeal.

6. Mr. S.P. Sonpawale learned Counsel appearing for the

acquiring body opposed the submissions made on behalf of the

appellant. The learned Counsel invited my attention to para nos.7, 9

and 11 of the Judgment and submitted that, the Reference Court has

considered oral as well as documentary evidence adduced on record

by appellant and has rightly determined the market value of the

acquired land. The learned Counsel submitted that, though the

appellant had undertaken to produce 7/12 extract of subject land on

record, he did not produce the same and in the circumstances the

Reference Court has rightly drawn the adverse inference and has held

that, the appellant had failed in proving that the acquired land was

irrigated land. The learned Counsel submitted that, no interference

is, therefore required in the Judgment and Award so passed.

5 FA605.2016

7. After having considered the submissions advanced by the

learned Counsel appearing for the respective parties and on going

through the impugned judgment and the evidence on record, it is

revealed that, only because the appellant did not or could not file on

record the 7/12 extract of the acquired land, the Reference Court has

declined to accept the contention of the appellant that the acquired

land was irrigated land and had consequently awarded the

compensation for the acquired land holding the same to be

non - irrigated land. In fact when in the cross - examination the

appellant had undertaken to file on record 7/12 extract of his land

evidencing that, there was a well in his land and further that he was

taking cash crops in the said land, it is not understood as to why he

did not place 7/12 extract on record. Even in the appeal no plausible

explanation has been given by the appellant as to why he could not

file the 7/12 extract of his land before the Reference Court.

However, merely for this reason the appellant cannot be deprived of

the just and fair compensation if really his land is irrigated one. As

was pointed out by the learned Counsel for the appellant the joint

measurement report also indicates the existence of the well in the

acquired land. Considering all these facts it appears to me that, the

opportunity needs to be given to the appellant to place

on record 7/12 extract of his acquired land of the relevant

6 FA605.2016

period before the Reference Court and to adduce necessary evidence,

if any, in support of his claim that, the acquired land was irrigated

one. No prejudice is likely to be caused to the respondent if such

opportunity is given to the appellant, since the respondent will have

equal opportunity to rebut the said evidence. To do substantial justice

I deem it appropriate to pass the following order.

O R D E R

(i) The impugned Judgment and Award stands set aside.

(ii) The matter is remitted back to the Reference Court to

decide it afresh with a direction that, the Reference

Court shall permit the appellant to file on record the

7/12 extract of the subject land for the relevant period

and to adduce necessary evidence to support his

contention that, the subject land was irrigated land. It

would be open for the appellant to examine the valuer,

the report of whom, is already filed on record. Needless

to state that, the State and/or the acquiring body will

have equal opportunity to rebut the evidence, which may

be adduced by the appellant and further to adduce any

7 FA605.2016

other evidence in support of their defence.

(iii) The appeal stands allowed in the aforesaid terms.

[ P. R. BORA, J. ]

ggp