Pandurang Shamraoji Pande vs State Of Mah. Thru. Collector And 2 ...
2017 Latest Caselaw 2613 Bom

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                                     1



       IN THE HIGH COURT OF JUDICATURE AT BOMBAY, 
                  NAGPUR BENCH, NAGPUR.



                     FIRST APPEAL NOs. 703 OF 2007
                            AND 325 OF 2012.

                                   ........

FIRST APPEAL NO. 703/2007.

Pandurang s/o Shamraoji Pande, Aged about 58 years, Occupation - Agriculturist, resident of Mitnapur, Tq. Babhulgaon, District Yavatmal. ..... APPELLANT.

VERSUS

1.State of Maharashtra, Through Collector, Yavatmal.

2.The Special Land Acquisition Officer, Bembla Project, Yavatmal Tq. and District Yavatmal.

3.The Executive Engineer, Bembla Canal Division, Yavatmal, Tq. and District Yavatmal. ..... RESPONDENTS.

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--------------------------

None for the Appellant.

Ms. Haider, A.G.P. for Respondents.

--------------------------

WITH

FIRST APPEAL NO. 325/2012.

Vidarbha Irrigation Development Corporation, through its Executive Engineer, Bembla Canal Division, Yavatmal. ..... APPELLANT.

VERSUS

1.Haribhau s/o Shamrao Pande, Aged about 61 years, Occupation - Nil, resident of Mitnapur, at post Naigaon, Tq. Babhulgaon, District Yavatmal.

2.The State of Maharashtra, Through Collector, Yavatmal.

3.The Special Land Acquisition Officer, Bembla Project No.1, Yavatmal.

 4.Pandurang Shamrao Pande,





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 Aged about 60 years,
 Occupation - Labour,

resident of Mitnapur, Tah. Babhulgaon, Tahsil Babhulgaon, District Yavatmal. ..... RESPONDENTS.

--------------------------

Shri S.K. Bhoyar, Advocate h/f. Shri J.B. Kasat, Advocate for the Appellant.

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                               CORAM       :  B.P. DHARMADHIKARI, 
                                                                  J.
                                                                     

                               DATE        :  MAY 24, 2017.


 ORAL JUDGMENT : 
  

Matters are listed in Summer Vacation with previous

notice to the parties. Same were called out on 23.05.2017 and

at the request of Shri S.K. Bhoyar, learned Counsel holding for

Advocate Shri J.B. Kasat and Ms. Haider, learned A.G.P. the

same came to be adjourned to today. Shri D.A. Sonone,

learned counsel appearing for Pandurang Shamraoji Pande was

absent yesterday and is not present even today.

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2. It is not in dispute that the appellant V.I.D.C. has

acquired the land ad-measuring 2 H. 3 R forming survey no.54

of village Naigaon, Tahsil Babhulgaon, District Yavatmal.

Notification under Section 4 of the Land Acquisition Act, 1894

is dated 04.01.2000 and award has been passed by the Land

Acquisition Officer on 03.09.2001. Compensation has been

awarded @ Rs.66,648/- per hector. Respondent Haribhau

Shamrao Pande contested the land acquisition proceedings.

3. Not satisfied with the compensation awarded,

Haribhau filed Land Acquisition Case No.524/2006 and

claimed compensation @ Rs.2,50,000/- per hector. His brother

Pandurang filed an application in those proceedings and

pointed out his separate title for the part of the acquired land.

He claimed that Gut Nos. 54/1 and 54/2 needed to be shown

separately and acquired accordingly by the V.I.D.C. He claimed

to be owner of and therefore, entitled to compensation for 1.36

H of acquired land. His application was allowed and

accordingly he has participated in Land Acquisition Case

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No.524/2006.

4. Joint Civil Judge, Senior Division, Yavatmal has vide

judgment dated 02.02.2011 awarded rate of Rs. 1,45,000/- per

hector along with other benefits. This enhancement is

questioned by the acquiring body namely V.I.D.C. in Appeal No.

325/2012. Pandurang has already filed First Appeal claiming

further enhancement vide First Appeal No. 703/2007. He is

seeking rate of Rs. 2,50,000/- per hector. Both these appeals

are placed together for final hearing. Record shows that VIDC

was directed to deposit amount as awarded by the Reference

Court and claimant was permitted to withdraw the amount on

furnishing security to the satisfaction of the Trial Court. After

this order dated 04.03.2012 in Civil Application No. (F)

203/2011, it appears that prayer for withdrawal was

considered again on 02.02.2013 when Civil Application No.

884/2013 was looked into. This Court then found that

withdrawal can be permitted on the basis of a joint praecipe

signed by Haribhau as well as Pandurang, and subject to

furnishing security to the satisfaction of the Reference Court.

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 Time of two weeks was given to file that praecipe.    After this  

order dated 02.07.2013, that amount allowed to be withdrawn

on 04.07.2012, continued to lie with the Reference Court only.

On 16.07.2013 after hearing all counsel, this Court has

granted time of one week as last chance to file joint pursis

before the Reference Court. Material on record does not show

whether any joint pursis was filed within the stipulated time by

Haribhau and Pandurang. It is not clear whether the amount

deposited by VIDC is still with the Reference Court or it has

been withdrawn by the two brothers namely - Haribhau and

Pandurang. Shri Bhoyar, learned counsel fairly states that he

has no instructions about subsequent developments.

5. Short contention of Shri Bhoyar, learned counsel is

enhancement from Rs. 66,648/- per hector awarded by the

Land Acquisition Officer to Rs. 1,45,000/- by the Reference

Court is without recording any reasons. He has invited

attention to relevant discussion as contained in paragraph

no.17 of the judgment to urge that after holding that sale of

land at village Mitnapur vide Exh.32 was not a comparable

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sale instance, inconsistent approach is adopted in paragraph

no.17. Though there is time gap of one year only in said sale

instance and date of notification under Section 4 of Land

Acquisition Act in present matter, the trial Court has mentioned

the same to be of 9 years and has also added escalation of 15%

per annum for a period of 9 years. He therefore, contends that

the judgment dated 02.02.2011 in Land Acquisition Case

No.524/2006 is unsustainable and liable to be quashed and set

aside.

6. Without prejudice he points out that Pandurang

brother of Haribhau has filed separate Land Acquisition Case

No.106/2004 under Section 18 of the Land Acquisition Act,

allegedly to the extent of 1 H 36 R and vide judgment delivered

on 29.04.2006 the Reference Court namely 4th Joint Adhoc

Additional District Judge, Yavatmal has awarded compensation

@ Rs. 70,000/- per hector. He submits that thus, in relation to

very same land the Reference Court has arrived at two different

rates in two different proceedings. He contends that in this

situation, as non-application of mind is apparent, the matter

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needs to be placed back before the Reference Court for fresh

consideration.

7. Ms. Haider, learned A.G.P. appearing on behalf of

the State Government states that she has no instructions on

merits as office of the Government Pleader is trying to search

out necessary papers and instructions are still awaited.

However, she points out that judgment dated 29.04.2006 in

Land Acquisition Case No.106/2004 may not have been

pointed out to the Reference Court when it decided Land

Acquisition Case No.524/2006 on 02.02.2011.

8. In the light of these arguments the only question

which needs to be looked into by this Court is - Whether Land

Acquisition Case Nos.524/2006 and 106/2004 could have

been decided by separate judgments by the Reference Court ?

9. It is not in dispute that both the Land Acquisition

Reference cases arise out of Land Acquisition Case

No.41/47/2000-01 of village Naigaon wherein Survey No. 54

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ad-measuring 2 H 3 R land came to be acquired. In judgment

delivered on 29.04.2006 in Land Acquisition Case

No.106/2004, date of notification under Section 4 is stated to

be 24.02.2000, while in judgment dated 02.02.2011 in Land

Acquisition Case No.524/2006 it is stated to be 04.01.2000.

However, date of award is same i.e. 03.09.2011 and

compensation awarded is also the same i.e. Rs. 66,648/- per

hector. It is not in dispute that very same acquisition i.e. very

same land was questioned in two different proceedings under

Section 18 of the Act by two brothers.

10. Perusal of judgment dated 02.02.2011 in Land

Acquisition Case No.524/2006 shows a finding in paragraph

no.15 where there is reference to judgment of this Court in

First Appeal No.435/1992. The Reference Court finds that

Section 4 notification in that First Appeal was issued on

29.12.1988, while it was dealing with Section 4 notification

issued 12 years thereafter. It further found that in First Appeal

no.435/1992, the High Court has awarded compensation of

Rs.83,500/- per hector. In paragraph no.16 the Reference

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Court has looked into sale deed at Exh.32 and the land ad-

measuring there is 38 R and year of sale deed is 1999. It is

located at village Bitnapur, which is away from the village

Naigaon. In paragraph no.17 Reference Court has looked into

the crops grown by Haribhau in the acquired land and

concluded that land of Haribhau appeared to be fertile.

11. This application of mind in paragraph no.17 reveals

that sale instance Exh.32, was of the year 1999 and section 4

notification issued in the matter with which it was concerned

was of the year 2000. Thus, it should have held that Section 4

notification was issued after one year of Exh.32, but, than it has

recorded that Section 4 notification issued in the year 2000 was

9 years after Exh.32. It then mentions that escalation at 15%

per annum for said period of 9 years from 1999-2000 needs to

be added and accordingly rate works out to be Rs. 2,10,000/-.

After this calculation, it speaks of crops grown by the owner in

his field, and found that Exh.32 was of a dry crop land and

then jumps to a conclusion that Haribhau was/is entitled to

receive compensation @ Rs. 1,45,000/- per hector. The logic

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for reaching this figure is not apparent.

12. The other judgment dated 29.04.2006 in Land

Acquisition Case No.106/2004, in paragraph no.18 considers

judgment in Land Acquisition Case No.175/1997 decided on

26.02.2002. There Reference Court has awarded compensation

@ Rs.75,000/- per hector for a land situated at Naigaon.

13. With the assistance of respective learned counsel I

have perused the said judgment of Reference Court at Exh.35

on record of Land Acquisition Case no.106/2004. Exh.35 is the

judgment dated 26.02.2002 and paragraph no.13 shows that

land there was a dry crop land. Award under section 11 was

declared on 25.11.1993, while Section 4 notification was issued

on 14.02.1991. This land is from very same village i.e. village

Naigaon. After this judgment Exh.35 has attained finality.

Rate of Rs. 75,000/- per hector awarded therein as on

14.02.1991 also becomes final. In that event, appropriate

escalation only needs to be allowed from 14.02.1991 till

04.01.2000 or 24.02.2000 when Section 4 notification in the

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instant matter came to be published. This judgment in Land

Acquisition Case No.175/1997 does not find any consideration

in judgment dated 02.02.2011 in Land Acquisition Case

no.524/2006.

14. In this situation, it is apparent that in relation to

very same land and same acquisition proceedings, two

Reference applications under Section 18 of the Act filed by two

real brothers were entertained and decided on different dates

separately by the Reference Court. Brothers or the acquiring

body did not point out pendency of other matter or its possible

impact to that Court.

15. In this situation, looking to the material available on

record, I find that both the matters should have been decided

together so as to sub-serve the interest of justice and also to

advance the welfare legislation. Hence, only to enable that

course of action, judgment dated 29.04.2006 in Land

Acquisition Case No. 106/2004 and judgment dated

02.02.2011 in Land Acquisition Case No.524/2006 are quashed

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and set aside. First Appeal Nos. 703/2007 and 335/2012 are

accordingly partly allowed.

16. Reference Proceedings in Land Acquisition Case Nos.

106/2004 and 524/2006 are restored back to the file of

respective Court. The proceedings are clubbed together for

fresh joint consideration and adjudication. Principal District

Judge, Yavatmal to allot both the matters to one court for this

purpose. The adjudication is expedited and the Court receiving

the matters shall attempt to complete the exercise as early as

possible and in any case within a period of one year. No costs.

JUDGE

Rgd.