The Collector, Through Special ... vs Jagan S/O Yadorao Pathe And ...
2017 Latest Caselaw 3339 Bom

                                              1




                IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

                                   NAGPUR BENCH : NAGPUR



First Appeal No.  761 of 2015



Appellants              :          1) The  Collector, through Special Land 

                                   Acquisition Officer, Z. P. Works, Nagpur

                                   2) Executive Engineer, Minor Irrigation 

                                   Division No. 2, Z. P. Works, Nagpur 

                                   versus

Respondents             :          1)  Jagan son of Yadorao Pathe, aged 

about 70 years, Agriculturist

2) Smt Shevantabai w/o Jagan Pathe,

aged about 65 years, Occ: Household,

Both residents of Khapa, Tahsil Narkhed,

District Nagpur

Shri S. B. Bissa, Asst. Govt. Pleader for appellants

Ms Rajkumari Rai, Advocate for respondents

Coram : S. B. Shukre, J

Dated : 19th June 2017

Oral Judgment

1. Heard. Filing of Paper Book dispensed with.

2. This is an appeal preferred by the State challenging legality

and correctness of the judgment and order passed in LAC No. 141 of 2006

on 3rd May 2013 by the Civil Judge, Senior Division, Nagpur. By the

judgment and order impugned in this appeal, the Reference Court granted

enhanced compensation for 0.39 HR of perennially irrigated land of the

respondents which was situated at mouza Khapa (B) and acquired for the

purpose of construction of percolation tank.

3. The main plank of the objection taken by the appellants is

that the impugned judgment and order are not based upon any admissible

evidence. Learned Assistant Government Pleader submits that the sale

deed relied upon by the Reference Court were not admitted in evidence

and they were marked as Articles A, B and C only and still the same were

appreciated and relied upon by the Reference Court. He further submits

that the sale deeds in question were post acquisition as they were

executed in December 1998 whereas notification under Section 4 of the

Land Acquisition Act was issued on 9.7.1998.

4. On the other hand, learned counsel for the respondents

submits that even though the sale deeds were marked only Articles and

not admitted as exhibits, the fact remains that the appellant did not

choose to cross-examine P.W. 1 Jagan (respondent no. 1) who, in his

detailed evidence filed on affidavit, had stated the relevant rates at which

similar lands were being sold during particular period. She submits that

since such assertion made on oath by respondent no. 1 was not

challenged at all, there was nothing wrong in the approach adopted by

the Reference Court. She further submits that because of failure of the

appellants to attend the Court in order to cross-examine the respondents'

witness, the Reference Court should have passed specific order

directing admitting of sale deeds in evidence, but that was not done by

the Reference Court and as the Reference Court relied upon these

documents while delivering the judgment, now one can say that these

documents were deemed to have been admitted in evidence by that court.

5. On hearing learned counsel for the parties, following point

arises for my consideration:

Whether the impugned judgment and order are perverse ?

6. Considering the fact that the Reference Court has appreciated

the sale deeds as well as relied upon them, I find that such an approach of

the Court could be considered as admitting of the sale deeds in evidence

by deeming effect. Of course, it would have been much better for the

Reference Court to have passed specific order in that regard. But, if the

Reference Court fails to do so and yet appreciates these documents and

even places reliance upon them, one would have to say that by deeming

effect, such documents were admitted in evidence by the Reference Court.

This is all the more evident from the attitude of the appellants.

Appellants were given ample opportunity to cross-examine the sole

witness of the respondents, but the opportunity was frittered away by the

appellants. Nobody appeared before the Court on behalf of the appellants

to cross-examine the only witness of the respondents. In these

circumstances, the Reference Court had no option but to accept as it is the

uncontroverted evidence of the respondents which had appeared in

examination-in-chief of respondent no. 1. Even otherwise, respondent no.

1 had pointed out to the Reference Court the market value of the

similarly situated lands at the relevant time. Since this evidence has gone

absolutely unchallenged, it has to be accepted as probablising case of the

respondents. This is what has been done by the Reference Court.

Therefore, I do not see any perversity or illegality in the impugned

judgment and order. The enhancement of compensation from Rs.

43,079/- to Rs. 78,000/- made by the Reference Court is just and proper

and no interference in the same is called for. Point framed is answered

accordingly.

7. Appeal is dismissed with costs.

S. B. SHUKRE, J

joshi