Bombay High Court
Smt. Maimunabi Mohammadali & Ors vs Nagpur Improvement Trust Thr. ... on 28 June, 2017
Bench: S.B. Shukre
J-fa1092.11.odt 1/14
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
FIRST APPEAL No.1092 OF 2011
1) Smt. Maimunabi wd/o Mohammadali,
Major, Occupation - Household,
R/o 35-36, Netaji Nagar, Ganesh Chouk,
Near Juna Pardi Naka, Behind Royal Club,
Nagpur.
2) Smt. Julekhabi w/o Jahrul Hussain,
(since deceased in 1999)
Legal Heirs
a) Shri Riyaz Ahmad s/o Jahrul Hussain,
Aged about 55 years, Occ.- Business,
R/o Kumbhali, Tahsil - Sakoli,
District Bhandara.
b) Smt. Bilkisbegum w/o Nawab Khan
Ahmed Khan, Aged about 53,
Occupation - Household,
R/o Sakoli, District Bhandara.
c) Smt. Nazmabegum w/o Abdul Samad
Shaikh, Aged about 45 years,
Occupation - Household,
R/o Lakhni, District - Bhandara.
d) Shri Wazim Ahmed s/o Jahrul Hussain
Qureshi, Aged 43 years, Occ. - Business,
R/o Kumbhali, Tahsil - Sakoli,
District Bhandara.
e) Smt. Shabana Begum w/o Shaukatali Sayyad,
Aged about 40 years, Occ. - Household,
R/o Balaghat, Madhya Pradesh.
All (b) to (e), through their constituted
attorney Shri Riyaz Ahmed.
3) Smt. Mumtajbi w/o. Noor Ali,
Major, Occ.: Household,
R/o. Near Maroti Temple, Ganesh Ward,
Mohadi, Tah. & Distt. Bhandara.
::: Uploaded on - 01/07/2017 ::: Downloaded on - 02/07/2017 01:10:48 :::
J-fa1092.11.odt 2/14
4) Smt. Jamilabi w.o. Inayatali,
Major (since deceased on 14.3.2003).
Legal representatives :
a. Shri Inayat Ali s/o. Azimullah Chisthi,
Major, Occ.: Retired,
R/o. Village: Killod, Tah.: Saoner,
Distt. Nagpur.
b. Shri Asif Ali s/o. Ianyat Ali,
Major, Occ.: Service,
c. Shri Arif Ali s/o. Ianyat Ali,
Major, Occ.: Business.
d. Shri Imran Ali s/o. Ianyat Ali,
Major, Occ.: Student.
(b) to (d) r/o. 35-36, Netaji Nagar,
Ganesh Chouk, Near Juna Pardi Naka,
Behind Royal Club, Nagpur.
e. Smt. Shaishta Parveen Khan w/o. Nisar Khan,
Major, Occ.: Household,
R/o. Near Kamar School, Diwansha Takia,
Mominpura, Nagpur.
5) Smt. Bismillabi w/o. Mir Ahamadali,
(since deceased in 1998)
Legal Heirs :
a. Shri Mir Mushtakali Arif s/o. Haji Sayyad
Ahmad Ali, Aged 46 years,
Occ.: Business, R/o. Main Road, Bhaji Mandi,
Kamptee, Distt. Nagpur.
b. Shri Mir Hassan Ali s/o. Haji Sayyad Ahmad Ali,
Major, Occu.: Business.
c. Shri Mir Layakali s/o. Haji Sayyad Ahmad Ali,
Major, Occ. : Business.
d. Shri Mir Farooqali s/o. Haji Sayyad Ahmad Ali,
Major, Occ. : Business.
e. Smt. Shahid Afrooze w/o. Sayyad Asfakh Ali,
Aged 39 years, occ. : Household.
(b) to (e) R/o. Anand Nagar, Nagpur.
::: Uploaded on - 01/07/2017 ::: Downloaded on - 02/07/2017 01:10:48 :::
J-fa1092.11.odt 3/14
f. Smt. Nahid Anjum w/o. Sayyad Ahmad,
Aged about 42 years,
Occ. : Household, r/o. Kurkheda,
Tah & Distt. Gadchiroli.
6. Smt. Hafizunbi w/o. Ashgarali,
(since deceased in 2000)
Legal heirs :
a. Shri Sayyad Asghar Ali s/o. Barkat Ali,
Aged 80 years, Occ.: Nil.
b. Shri Sayyad Nasir Ali s/o. Sayyad Asghar Ali,
Aged about 40 years, Occ.: Service.
c. Shri Sayyad Yousuf Ali s/o. Sayyad Asghar Ali,
Aged about 29 years, Occ.: Business.
d. Shri Sayyad Ahmed Ali s/o. Sayyad Asghar Ali,
Aged about 26 years, Occ.: Business.
e. Shri Sayyad Niyaz Ali s/o. Sayyad Asghar Ali,
Aged about 24 years, Occ.: Business.
f. Miss Rubina Parveen d/o. Sayyad Asghar Ali,
Aged 23 years, Occ.: Student.
g. Miss Rizwana d/o. Sayyad Asghar Ali,
Aged 21 years, Occ.: Household.
All (a) to (g) r/o. Thakur Plots,
Near Madarsa, Tajbagh, Nagpur.
h. Smt. Amnabegum (@ Shamshad begum)
w/o. Hanif Mohammad,
aged about 35 years, Occ.: Household,
R/o. Manas Chouk, Sadar, Nagpur. : APPELLANTS
...VERSUS...
1. The Nagpur Improvement Trust,
a statutory body constituted under
the Nagpur Improvement Trust,
having its office at Near Liberty Cinema,
Sadar, Nagpur, through its Chairman.
2. The Special Land Acquisition Officer,
Nagpur Improvement Trust,
Near Liberty Cinema, Sadar, Nagpur.
::: Uploaded on - 01/07/2017 ::: Downloaded on - 02/07/2017 01:10:48 :::
J-fa1092.11.odt 4/14
3. Shri Wazirali s/o. Gulamali,
(since deceased - through his legal heirs)
(deceased since 1980)
(Legal representatives not brought on record,
in reference case No.9/1973)
a. Smt. Halimabi wd/o. Wazirali,
Major, Occ. : Household,
r/o. Mankapur, Nagpur.
b. Smt. Noorjahan w/o. Sheikh Karim,
Major, Occ. : Household,
Ref. to Registrar's order r/o. Tajbagh, Nagpur.
dt.14.8.2012 appeal c. Shri Ashrafh Ali d/o. Wazirali,
abated against Major, Occ. : Household,
respondent No.3(c) r/o. Azamsha Chouk, Central Avenue, Nagpur.
d. Shri Sayyad Azgarali s/o. Wazirali,
Aged about 46 years, Occ. : Business,
r/o. Azamsha Chouk, Central Avenue, Nagpur.
4. Amirali s/o. Gulamali,
deceased through L.Rs.
I. Ameenabai wd/o. Amir Ali,
Aged about 70 years,
Occ.: Household, R/o. Sindiban Thakur Plot,
Tajabagh Shareef, Nagpur.
II. Smt. Munira Begum w/o. Shaikh,
Major, Occ. Household.
III. Smt. Firoza Begum d/o. Late Ahmed Ali,
Major, Occ. Household.
IV. Ku. Kaniza Begum d/o. Amir Ali,
Major, Occ. Household.
V. Ku. Nafisa Begum d/o. Late Amir Ali,
Major, Occ. Household.
VI. Ku. Shafiqua Begum d/o late Amir Ali,
Major, Occ. Household.
(All II to VI R/o. Tajbagh, Nagpur).
VII. Shri Mehboob Ali s/o. Late Amir Ali,
Major, Occ. Not known.
VIII. Mushtaque Ali s/o Late Amir Ali,
Major, Occ. Not known.
IX. Mumtaz Ali s/o. Late Amir Ali,
::: Uploaded on - 01/07/2017 ::: Downloaded on - 02/07/2017 01:10:48 :::
J-fa1092.11.odt 5/14
Major, Occ. Not known.
(Nos.VII to IX, R/o. Sindiban Thakur Plot,
Tajabagh Shareef, Nagpur.
Appeal restored against
5) Shri Gauharali s/o Gulamali,
respondent No.5 &
respondent Nos.6(a) to Aged about 30 years, Occ.- Service,
6(f), vide Court's order R/o Balaji Mandir Road, Bhilai,
dt.15.4.2015. Madhya Pradesh.
6) Shri Akbarali s/o Gulamali
(since deaceased)
Legal Heirs-
a) Smt. Nazirbi wd/o Akbarali,
Major, Occ. - Household,
b) Shri Nisarali s/o Akbarali,
Major, Occ. - Not Known,
c) Shri Irshadali s/o Akbarali,
Major, Occ. - Not known,
d) Shri Liyakatali s/o Akbarali,
Major, Occ.- Not known,
e) Shri Arifali s/o Akbarali,
Major, Occ. - Not known,
f) Ku. Baby d/o Akbarali,
Major, Occ. - Not known.
All (a) to (f) R/o T.T. Nagar, Bhilai,
Madhya Pradesh.
7) Imamali s/o Hussainali
(deceased)
Legal Heirs-
a) Shaukatali s/o Imamali,
Aged 50 years,
R/o Azamshah Square, Mangalwari,
Nagpur.
L.Rs. Of deceased
respondent No.7(a) and Legal heirs of Respondent No.7(a) Shaukatali Imamali
7(b) are brought on
record as per Court's
order dated 16.7.2010. I. Zahid Ali s/o. Shaukatali,
Aged about 50, Occ. Nil.
II. Akhtar Ali s/o. Shaukatali, since dead, through his L.Rs.
a. Azhar Ali s/o. Akhtar Ali,
Aged about major, Occ. Nil.
::: Uploaded on - 01/07/2017 ::: Downloaded on - 02/07/2017 01:10:48 :::
J-fa1092.11.odt 6/14
b. Afsar Ali s/o. Akhtar Ali.
Aged about major, Occ. Nil.
c. Shrin d/o. Akhtar Ali,
Aged about major, Occ. Nil.
All R/o. Azamshah Chowk, Mangalwari,
Nagpur.
b) Asairali s/o. Imamali
Aged 46 years, R/o. Mangalwari,
Nagpur.
Legal heirs of Respondent No.7(b) Asad Ali Imamali are
I. Nisar Ali s/o. Asad Ali,
Aged about major, Occ. Nil
II. Asif Ali s/o. Asad Ali,
Aged about major, Occ. Nil.
III. Shadat Ali s/o. Asad Ali,
Aged about major, Occ. Nil.
IV. Ishaque Ali s/o Asad Ali,
Aged about major, Occ. Nil.
V. Putlibi d/o. Asad Ali,
Aged about major, Occ. Nil.
VI. Sultana Begum d/o. Asad Ali,
Aged about major, Occ. Nil
All r/o. Azam Shah Chowk,
Mangalwari, Nagpur.
8. Syed Ali s/o. Hussainali
(Deceased)
L.Rs. of deceased.
A. Ashabi wd/o. Syed Ali,
Aged Major.
B. Mukhadanli s/o. Syed Ali,
Aged 45 years.
::: Uploaded on - 01/07/2017 ::: Downloaded on - 02/07/2017 01:10:48 :::
J-fa1092.11.odt 7/14
C. Muzaffarali s/o. Syed Ali,
Aged 40 years.
D. Afadima w/o. Baboo,
Aged 25 years
R A To D R/o. Lalbag Rd., Bhandara.
E. Ku. Halima d/o. Syed Ali,
Aged 18 years, R/o. Azamsha Chowk, Nagpur.
9. Smt. Batulbi w/o. Alisherkhan,
L.Rs. of deceased Aged Major, R/o. Lashkaribagh, Nagpur.
respondent No.9 is
brought on record as per
Court's order
Legal heirs of Respondent No.9 Batulbi wd/o. Alisherkhan
dt.16.7.2010.
1. Mullaji s/o. Sherkhan,
Aged about Major, Occ. Nil.
2. Azmat Bano d/o. Sherkhan,
Aged about Major, Occ. Nil.
All R/o. Lashkari Bagh, Nagpur.
10. Smt. Begumbi w/o. Mahibubali,
Aged major, R/o. Satranjipura, Nagpur. : RESPONDENTS
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
Shri A.G. Gharote, Advocate for the Appellants.
Shri Shashank Agrawal h/f. Shri R.O. Chhabra, Advocate for Respondent No.1.
Shri M.R. Joharapurkar, Advocate for Respondent No.7(a).
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
CORAM : S.B. SHUKRE, J.
th
DATE : 28
JUNE, 2017.
ORAL JUDGMENT :
1. This is an appeal preferred against the judgment and order
dated 10th October, 2005 passed by the President, N.I.T. Tribunal,
J-fa1092.11.odt 8/14
Nagpur in Land Acquisition Reference No.9/1973.
2. The Collector and Land Acquisition Officer, N.I.T., Nagpur
made a reference under Section 18 read with Section 30 of the Land
Acquisition Act to the N.I.T. Tribunal seeking apportionment of the
compensation granted to the legal heirs of the original owner whose
house property bearing Trust Serial No.255-A and Municipal House
No.990, situated at Azamshah Square, Circle No.9-B Nagpur
admeasuring 430 sq.ft. out of total area 6325 sq. ft. was acquired for
public purposes.
3. After issuance of the Notification under Sections 39, 44 and
45 of the N.I.T. Act a public notice was published inviting objections to
the proceedings initiated for compulsory acquisition of the subject
property. In all 10 persons claiming themselves to be the legal heirs of
the original owner filed their application and all of them were heard by
the Land Acquisition Officer before an award under Section 11 of the
N.I.T. Act was passed by him. These 10 objectors were shown as
non-applicant Nos.1 to 10 in the award passed under Section 11 of the
N.I.T. Act. It was passed on 30 th October, 1969. The compensation of
Rs.16,675/- was granted only to non-applicant Nos.1 to 6 while it was
refused to the non-applicant Nos.7,8,9 and 10. The Land Acquisition
Officer recorded a finding that the non-applicant Nos.7,8,9 and 10 have
no right, interest or any claim whatsoever in respect of the acquired
J-fa1092.11.odt 9/14
property, whereas it was held that the non-applicant Nos.1 to 6 were the
legal heirs of Mohammadali s/o. Azamshah, who was son of original
owner Gaurshah. It was also found on the basis of the recorded entries
in the N.I.T. office that the original owner of the acquired property was
Gourshah. The Land Acquisition Officer further found that Gaurshah had
only two sons Azamshah and Mehbubshah and as Mehbubshah died
issueless, the property devolved upon Azamshah and his children. Not
being satisfied with the award, the non-applicant Nos.7 to 10 filed an
application under Section 30 of the Land Acquisition Act seeking
apportionment of compensation in between two rival groups of
claimants, one comprising non-applicant Nos.1 to 6 and the other
comprising non-applicant Nos.7 to 10. For the sake of convenience,
these two rival groups shall now be referred hereinafter as the
non-applicant Nos.1 to 6 and non-applicant Nos.7 to 10.
4. After receipt of the reference under Section 18 read with
Section 30 of the Land Acquisition Act, the N.I.T. Tribunal, gave
opportunity to both sides to adduce evidence and on merits of the case
found that non-applicant Nos.7 to 10 being the legal heirs of Gulamali
who was the real brother of Azamshah and original owner were entitled
to 50% share in the compensation awarded by the Land Acquisition
Officer. The Judgment and Order in this regard were rendered on
10.10.2005 by the N.I.T. Tribunal, Nagpur and now non-applicant Nos.1
J-fa1092.11.odt 10/14
to 6 have preferred this appeal challenging the legality and correctness of
the said judgment and order. This appeal is presently being prosecuted
and defended by the legal heirs of the original rival groups of claimants.
Of course, N.I.T. has also been joined as respondent No.1 while one
group of the claimants in whose favour the award stands, the original
non-applicant Nos.7 to 10, are the remaining respondents.
5. I have heard Shri A.G. Gharote, learned counsel for the
appellants-original non-applicant Nos.1 to 6, Shri Shashank Agrawal,
holding for Shri Chhabra for respondent No.1 and Shri M.R.
Joharapurkar, learned counsel for respondent No.7(a). Rest of the
respondents are absent and nobody appears on behalf of any of them
though duly served with the notice for final disposal.
6. Upon considering the arguments canvassed at the bar, the
only point that arises for my determination is :
Whether the original non-applicant Nos.7 to 10 have
any interest or right in the acquired property ?
7. Upon going through the record of the case as well as
evidence available on record, I find that the original non-applicant Nos.7
to 10 have changed their stand from time to time. Initially, they came
out with a case before the Land Acquisition Officer that the original
owner of the property was Gaurshah, who had two sons Azamshah and
Mehbubshah and that there was also one Vahidshah who was the step
J-fa1092.11.odt 11/14
brother of Azamshah. They further claimed that they were the heirs of
one Hussainali who was the son of Vahidshah. They further claimed that
Gaurshah, father of Azamshah, had transferred the property under
acquisition in favour of Vahidshah by a Will. The Land Acquisition
Officer, found that no Will was ever produced before him and that no
witness was examined by the original non-applicant Nos.7 to 10 in
support of such a claim. Therefore, the Land Acquisition Officer found
that these original non-applicants did not have any concern whatsoever
with the property under acquisition. However, it was claimed by the
original non-applicant Nos.7 to 10 before the N.I.T. Tribunal, that not
Gaurshah, but one Ahmadshah was the original owner of the property
and Ahmadshah had two Sons namely Azamshah and Gulamali and that
they were the legal heirs of Gulamali. Such different stands, it is seen
from the impugned judgment and order, have not been considered at all
by the learned President of the N.I.T. Tribunal. When such different
stands are taken and one can very well see that they are contradictory to
each other, one would have to ascertain as to which one of them is
correct and if no such effort is made, as seen in the present case, the
impugned judgment and order would have to be considered as perverse.
I, therefore, find the impugned judgment and order to be perverse which
ignore the fallacy of the basic pleadings of original non-applicant Nos.7
to 10.
J-fa1092.11.odt 12/14
8. Now, if we consider the evidence available on record,
particularly that of witness No.1 of the original non-applicant Nos.7 to 10
one Noorjahan daughter of Sheikh Karim, we would find that her
evidence creates an absolute confusion over the relationship between the
parties. While, it was contended before the N.I.T. Tribunal that the
original owner Ahmadshah had two sons Azamshah and Gulamali
meaning thereby that Azamshah and Gulamali were the real brothers, in
her evidence Noorjahan states that Ahmadshah was the brother of
Gulamali. Such evidence which was totally against the plea raised in the
reference application ought not to have been accepted and relied upon
by the N.I.T. Tribunal. But, it was considered and it appears that its
cumulative effect was also taken into account in order to record a finding
that since the original non -applicants were the legal heirs of Gulamali
and as Gulamali was the brother of Azamshah and as Ahmedshah was
the original owner, the original non-applicant Nos.7 to 10 each had an
equal share in the amount of compensation. This finding is completely
against the pleadings as well as the evidence available on record.
9. Irrespective of what is stated before, I would say that in a
property owned by one brother, the children of other brother would not
have any claim through inheritance unless the brother, who owns the
property dies issueless and has no class-I legal heirs left behind him.
That is however, not so in the present case. Therefore, even if it is
J-fa1092.11.odt 13/14
assumed, just for the sake of argument, that Gulamali and Azamshah
were the real brothers, still in the absence of any evidence that
Azamshah died issueless, these non-applicant Nos.7 to 10 claiming
through Gulamali, could not successfully lay their claim to a 50% share
in the amount of compensation. The evidence on the other hand shows
that original applicant Nos.1 to 6 were the legal heirs of Mohd. Ali son of
Azamshah.
10. For all these reasons, I find that the impugned judgment and
order are against the pleadings as well as evidence available on record
which have returned perverse and illegal conclusions. Such judgment
and order deserve to be quashed and set aside. On the other hand, I find
that the Land Acquisition Officer in the award passed in the instant case
considered in a rational manner the pleadings as well as evidence
adduced before him and reached proper conclusions which deserve to be
confirmed by this Court.
11. In the result, the appeal is allowed.
12. The impugned judgment and order are hereby quashed and
set aside.
13. The reference application filed under Section 18 read with
Section 30 of the Land Acquisition Act stands dismissed. No costs.
JUDGE
J-fa1092.11.odt 14/14
okMksns
