Bombay High Court

Namdeo Chandrabhanji Damedar vs State Of Maha. Thru. Secty on 24 May, 2017

Bench: B.P. Dharmadhikari

 Judgment.                                                           fa772.07

                                       1



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


                     FIRST APPEAL NO. 772 OF 2007.

 Namdeo Chandrabhanji Damedar,
 Aged 47 years, Occ - Cultivator, 
 resident of Brahmanwada Thadi, 
 Tq. Chandur Bazar,
 District Amravati.                                 ..... APPELLANT.


                                  VERSUS 


 1.State of  Maharashtra,
 Through Secretary,
 Government of Maharashtra, 
 Department of Revenue,
 Mantralaya, Mumbai - 400 032.              ..... RESPONDENT.


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

Mrs. S.W. Deshpande, Advocate for the Appellant.

Ms. N.P. Mehta, A.G.P. for Respondent.

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

                               CORAM       :  B.P. DHARMADHIKARI, 
                                                                  J.
                                                                     

                               DATE        :  MAY 24, 2017.

 ORAL JUDGMENT :

Heard Mrs. S.W. Deshpande, learned Counsel for the

Judgment. fa772.07

appellant and Ms. N.P. Mehta, learned A.G.P. for respondent

State. At the outset learned A.G.P. expressed her difficulty as

full records were not available with her.

2. This Court has notified the matters for final hearing

in Summer Vacation well in advance and hence, request of

learned A.G.P. for adjournment is rejected.

3. Learned counsel for the appellant submits that trial

Court has adopted a perfunctory approach and has not delved

into the merits of the controversy at all. According to her, it

may not be proper to evaluate the rival contentions on merits at

this stage, as Trial Court itself has not done it. She points out

that State of Maharashtra through its Secretary, Department of

Revenue was party respondent in the reference proceedings.

However, while delivering judgment on 30.12.2006, Civil

Judge, Senior Division, Achalpur has rejected Land Acquisition

Reference No. 22/1989 (New No. 18/1994) only on the ground

that necessary party namely the Executive Engineer, Public

Works Department, Achalpur was not respondent before it.

Judgment. fa772.07

She contends that as State Government itself was party,

Executive Engineer need not be joined separately as party

respondent. Without prejudice, she adds that appellant is

ready and willing to add that officer as party respondent and

matter may be sent back to Reference Court for fresh

consideration.

4. In order to demonstrate superficial approach

adopted by the Reference Court, she has taken me through the

judgment as also the material available on record.

5. Learned A.G.P. appearing for State has stated that

State of Maharashtra through its Revenue Department was

impleaded as party respondent in Reference proceedings.

Acquisition was for Public Works Department and therefore,

that department of State Government or Head of that

department ought to have been joined as party respondent.

She further adds that perusal of the impugned judgment

reveals that the amount awarded was received without any

protest and hence, Reference application under Section 18 of

Judgment. fa772.07

the Land Acquisition Act was barred. She further claims that

from discussion in paragraph no.7 of the impugned judgment,

it appears that the claim petition was not filed within 6 weeks,

as required by Section 18[2] of the Land Acquisition Act, 1894

and as delay cannot be condoned, reference proceedings ought

to have been dismissed.

6. Mrs. Deshpande, learned counsel in brief reply

submits that no objection on the ground of limitation was

raised either by the Land Acquisition Officer while accepting

filing of then in written statement before the Reference Court.

Similarly the documents looked into to conclude that

compensation was not received under protest, was never

pointed out to the present appellant. Thus the Reference Court

has used that document on its own without any opportunity

and hence that finding is incorrect. She has invited attention to

evidence of expert Shri Sharad Umale to state that his evidence

on number of trees and yield from each trees as also his report

at Exh.49 is un-controverted and hence at least for fruit bearing

trees adequate compensation could have been granted.

Judgment. fa772.07

7. After hearing respective counsel, I find that the

question to be looked into in this appeal is - (1) Whether the

Reference Court was justified in rejecting the reference on the

ground that the Executive Engineer, Public Works Department

was not joined as party respondent ? And (2) Whether the

payment was received by the appellant without reserving his

right to file reference proceedings ?

8. Perusal of application under Section 18 preferred by

the appellant shows that it has been filed on 17.03.1988. He

has pointed out in paragraph no.8 that he got knowledge of

contents of award on 25.02.1988 and on same day he applied

for certified copy. Certified copy of award was received on

03.03.1988. He fell ill and was unwell from 04.03.1988 to

15.03.1988. He came to Amravati on 16.03.1988, contacted

his Advocate and then presented the proceedings. In very same

paragraph earlier he has stated that he came to Amravati on

22.01.1988 when he received amount of compensation by

cheque. He has further stated that at that time he inquired

Judgment. fa772.07

about contents of award from the Land Acquisition Officer and

he was informed that notice under Section 12[2] was already

sent to him. He has in paragraph no.9 specifically mentioned

that he received amount under protest. Written Statement filed

by State of Maharashtra is signed by its District Government

Pleader on 03.03.1990. Verification thereto is also signed by

very same District Government Pleader. In verification, the

District Government Pleader has declared that reply in

paragraph 1 to 6 was true to the best information and

instructions furnished to him by the concerned department and

he believed the same to be true and correct.

9. On the basis of these pleadings, issues were drawn.

In written statement there is no defence that reference as filed

was barred by limitation or then it was not tenable as payment

was received without referring right to challenge the award. In

his deposition before the Reference Court, the land owner

Namdeo has specifically deposed that he has accepted the

amount of compensation under protest. He was not cross

examined even in relation thereto. The expert examined by

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him namely Sharad Umale (Exh.67), has pointed out visit to

field on 10.06.1988 i.e. almost 10 years after filing of the

reference application under section 18 of the Act. He has given

number of trees then standing on the field and other details.

His report is at Exh.49.

10. The judgment delivered by the Reference Court

when perused in this backdrop shows a finding in paragraph

no.7 that payment was not received under protest. For

recording this finding the Reference Court has relied upon page

no.247 and its observation that at that page there is a chit

carrying signature of petitioner by which land owner

authorized his son to accept the cheque for compensation on

27.01.1988. No such chit was even put to land owner Namdeo

when he was in witness box.

11. The Reference Court has framed following issued

and answered them, as under :-

  Judgment.                                                             fa772.07




 "               Issues                                Findings



  1(a)           It is proved that reasonable
                 market of the acquired land
                 is not proper assessed by
                 the Land Acquisition Officer ?        ..No.

    (b)          Is applicant entitled to
                 enhanced compensation ?
                 If yes, to what amount.               ..No.

 2.              Is applicant entitled to
                 interest as sought ?                  ..No.

 3.              What order ?                          ..As per final order.

 2(a)            Does the petitioner prove that
                 there were 20 Pevandi Beri
                 Trees over the acquired land
                 as alleged ?                          .. No.

 2(b)            Whether the village Chincholi
                 was developed village at the
                 time of notification u/s.4 of
                 the Land Acquisition Act ?            .. No."

12. In the light of discussion supra, it is apparent that

several questions arise. As rightly pointed out, experts report

Exh.49 has not been discarded by the Reference Court on the

ground that visit is 10 years after filing of the reference

proceedings. His evidence find consideration in paragraph no.5

Judgment. fa772.07

and reference court has not commented upon genuineness of

this report.

13. At this stage it will be appropriate to refer to claim

petition as preferred. In claim petition i.e. in reference

application under Section 18 of the Act, as amended the land

owner has claimed following amounts :

 "(i)            Compensation for acquired 
                 land admeasuring o.45 hect. 
                 (i.e. 48105 sq. ft.) (i.e. rs.15/-
                 per sq. ft.)                          Rs.721575/-

 (ii)            Compensation for 185 orange
                 trees at the rate of Rs.10000/-
                 per tree.                             Rs.1850000/-

 (iii)           Compensation for 20 Pevendi
                 Beri trees at the rate of 
                 Rs.2000/- per tree.                   Rs. 40000/-

 (iv)            Compensation for loss of
                 wire fencing.                         Rs.  30000/-
                                                       -----------------------
                                                       Rs.2641575/-
 (v)             Minus the amount received
                 under protest.                        Rs. 176444/-
                                                       ----------------------
                 Net Balance Claim.                    Rs.2465131/-"





  Judgment.                                                             fa772.07

14. It is to be noted that copy of reference application

supplied with the paper book does not mention the claim as

amended on 20.03.2002. Thus, on one hand, due to N.A.

Potential, compensation per sq. ft. is being sought, while on

the other hand, giving large number of trees, compensation for

fruit bearing trees is also prayed for. The emerging position

therefore, needed appropriate evaluation. If the valuation

report is fabricated or unsustainable, suitable action in that

respect could have been taken. If the report is genuine, hike in

compensation to the extent of fruit bearing trees as supported

thereby could have been awarded. In addition land owner has

relied upon certain sale instance to point out its potential. In