Sampatlal S/O Ganapatlal Mundada vs State Of Mah. Thru. Collector, ...
2017 Latest Caselaw 2600 Bom

   fa1208.08                                                                        1



             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                           NAGPUR BENCH

                      FIRST APPEAL NO.  1208  OF  2008


  Shri Sampatlal s/o Ganapatlal
  Mundada, aged - Adult, occ. -
  Agriculturist, r/o Malegaon,
  Tq. Malegaon, Dist. Washim.                      ...   APPELLANT

                    Versus

  The State of Maharashtra
  through Collector, Washim.                       ...   RESPONDENT


  Shri V.K. Paliwal, Advocate for the appellant.
  Ms. Shamsi Haider, AGP for the respondent.
                      .....

                                        CORAM : B.P. DHARMADHIKARI, J.

MAY 23, 2017.

ORAL JUDGMENT : (PER B.P. DHARMADHIKARI, J.)

Heard Shri Paliwal, learned counsel for the

appellant and Ms. Shamsi Haider, learned AGP for the

respondent.

2. The learned Assistant Government Pleader has

expressed some difficulty as the entire record is not available to

her to assist the Court.

3. After hearing the respective counsel for some time, I

find that the question of valuation of acquired land i.e. Survey

No. 113/9, ad measuring 2 Hectare 36 R has not been

appropriately and independently gone into. In the light of this

observation, I have heard the respective counsel.

4. Shri Paliwal, learned counsel submits that for

irrigation project, Survey No. 113/2-C ad measuring 92 R and

Survey No. 113/9 ad measuring 2 Hectare and 36 R were

acquired. The possession was taken long before publication of

Section 4 notification i.e. on 01.10.1994. Notification under

Section 4 came to be published in Government Gazette on

27.11.1997 i.e. almost three years thereafter. He has taken me

through the relevant record to show that only land owner and

expert produced by him viz., Narendra Wasudeo Patil have

been examined before the Reference Court. The respondent

did not enter witness box and did not even challenge the

assertions on oath made by land owner or his witness. In this

situation, grant of compensation only for one well or then

presumption about possibility of utilization of balance land for

growing other crops because of large number of other trees on

it, are all misconceived. Panchnama prepared at the time of

handing over possession or thereafter has not been produced by

the respondent to contradict the land owner. He strongly relies

upon revenue record filed on the file of Reference Court to

demonstrate that crops mentioned therein, including sugarcane

newly planted, are overlooked by the Reference Court. He

submits that the Reference Court has to independently apply its

mind without getting influenced by the Award of the Land

Acquisition Officer and that has not been done in the present

matter.

5. The learned AGP has supported the judgment of the

Reference Court. She submits that Reference Court has found

some anomaly on record because of large number of trees and

the proportionate land required for growing other crops. She

submits that crops grown are also looked into and thereafter a

specific finding that there was only one well in the field with

pipeline has been reached. She further states that when

possession was already taken in the month of October 1994,

how sugarcane thereafter could have been grown in both fields,

has not been explained by the appellant. According to her,

taking overall view of the matter, the finding that the land is

partly irrigated is just and proper and on that basis

compensation has been worked out. She comments upon the

expert Shri Patil by urging that his evidence appears to be far

from truth and he has given large number of trees, which is

unsustainable and uncomprehendable.

6. Acquisition of two lands i.e. Survey No. 113/2-C ad

measuring 92 R and adjacent land Survey No. 113/9 ad

measuring 2 Hectare 36 R is not in dispute. In final award, a

copy made available for perusal of this Court, dated 28.08.2000

in paragraph 15, the Land Acquisition Officer has endorsed that

acquiring agency has taken possession of land without

permission of the Collector and hence that agency has to pay

rental compensation to land owners. In this backdrop, the fact

that the possession was taken on 01.10.1994 and Section 4

notification appeared in Government Gazette on 27.11.1997

assumes importance.

7. Shri Paliwal, learned counsel has stated that as per

his instructions, the appellant - land owner has not received

any rental compensation from the acquiring agency. The

learned AGP points out that there is no whisper about rental

compensation in Reference Petition filed before Reference

Court or in the Appeal before this Court, as such she is not in a

position to comment upon its payment or otherwise.

8. The record shows that 7/12 extracts from the year

1986-87 onwards up to the year 1994-95 of the Agricultural

land ad measuring 0.92 R are produced as Exhs. 24 to 24-H.

Similarly, identical record in relation to other field ad

measuring 2 Hectare 33 R is produced vide Exhs. 24-I to 24-O.

In Exh. 24-N in the year 1994-95, sugarcane is shown planted

in 60 R portion of this 113/9 field. New plantation of

sugarcane is also recorded on 1.50 Hectare portion thereof. In

Exh. 24-O for next year i.e. 1995-96, dam is mentioned on this

land. However, five trees of mangoes, 53 chandan trees, 2

trees of Jambhul and 10 trees of Babul are mentioned in both

these documents as also earlier documents. Thus, sugarcane

was already planted before possession was taken. The

documents prima facie show that sugarcane existed on 0.60

Hectare part of 2 Hectare 36 R piece. New plantation of

sugarcane was on 1.50 Hectare portion thereof. Thus, this

sugarcane plantation has got nothing to do with land Survey

No.113/2-C which has been largely looked into by the trial

Court while recording reasons.

9. The affidavit evidence adduced by the appellant

land owner contains specific assertion about number of trees,

plantation of sugarcane and existence of two wells. There is no

effective cross examination about it. He has not been

contradicted by pointing out any earlier spot panchnama

prepared while taking possession or while carrying out joint

inspection. The evidence of his expert Narendra Wasudeorao

Patil shows the visit to the field in the year 1996. This visit

dated 21.02.1996 and the position on the spot seen by him is

deposed to in paragraph 2 of his affidavit. Again his cross

examination is too general.

10. I find that the respondent has not adduced any

evidence in defence. It seems that though possession was

shown to have been taken in the month of October 1994, land

owner may have remained in possession thereafter and

therefore, could show various trees to his expert on

21.02.1996. However, at this stage, I am not inclined to record

any conclusive finding as the respondent may have some

material with it which may throw some light on this aspect.

11. As I find that the impugned judgment delivered by

the Reference Court does not adequately deal with the

grievance of land owner, the same is accordingly quashed and

set aside. The proceedings in Land Acquisition Case No. 39 of

2004 are restored back to the file of Ad-hoc District Judge-I or

other Competent Court at said place. That Court shall give

parties fresh opportunity to lead evidence. It is open to the

respondent to file documents, if any. After the documents are

filed and parties lead evidence, the trial Court shall take fresh

decision on all counts in accordance with law. The proceedings

in the said matter are expedited and the said Court shall arrive

at fresh decision within one year from the date of

communication of this judgment to it.

12. Accordingly, First Appeal is partly allowed and

disposed of. However, in the facts and circumstances of the

case, there shall be no order as to costs.

JUDGE ******

*GS.