Dr.Ramchandra Ramnarayan Totla vs State Of Maha., Thr Collector, ...
2017 Latest Caselaw 2637 Bom

   fa817.07                                                                           1



             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                           NAGPUR BENCH

                       FIRST APPEAL  NO.  817  OF  2007


  Dr. Ramchandra s/o Ramnarayan
  Totla, aged about 59 years, 
  occupation - Medical Practitioner
  and Agriculturist, r/o Karanja, Tq.
  Karanja, District - Akola.                         ...   APPELLANT

                    Versus

  State of Maharashtra
  through Collector, Akola,
  (Land Acquisition Officer (R)
  P.K.V. Akola, Tq. & Dist. Akola.                           ...
  RESPONDENT


  Shri A.J. Thakkar, Advocate for the appellant.
  Ms. Shamsi Haider, AGP for the respondent.
                     .....

                                          CORAM : B.P. DHARMADHIKARI, J.

MAY 26, 2017.

ORAL JUDGMENT :

The appeal was taken up for final hearing in

Summer Vacation on 23.05.2017. As nobody appeared for the

appellant on that day, the matter came to be adjourned to

24.05.2017. There was no appearance for the appellant on

24.05.2017 also hence after hearing the learned AGP for

sometime, appeal came to be dismissed with direction to pay

cost of Rs.2,000/- to High Court Legal Services, Sub-

Committee, Nagpur.

2. On next day i.e. on 25.05.2017, Shri Thakkar,

learned counsel appeared for the appellant and pointed out his

difficulty. He stated that he had gone out of station and had

planned to come back to Nagpur within time but because of

some disturbance, could reach only in the evening of

24.05.2017. He, therefore, requested for granting him an

opportunity to argue the appeal on merits.

3. Ms. Haider, learned AGP for the respondent fairly

gave no objection.

4. As the matter was first taken up in Summer

Vacation and as I do not find absence of bonafides on the part

of the appellant, the parties were directed to argue the matter

today i.e. 26.05.2017. Accordingly, appeal has been taken up

for final hearing.

5. As Shri Thakkar, learned counsel has argued the

matter finally, the order dated 24.05.2017, dismissing the

appeal is recalled.

6. Shri Thakkar, learned counsel for the appellant has

made three submissions.

(A) The Land Acquisition Officer has forwarded reference under Section 18 of the Land Acquisition Act, 1894, in the same matter to Court at Akola and also to Court at Washim because of this the land owner filed an application under Section 24 of the Civil Procedure Code before the District Court at Akola which then had power to administer the court even in Washim. The Joint District Judge, Akola on 03.01.1996 directed that the Land Acquisition Case (LAC) No. 9 of 1995 pending on the file of the Civil Judge, Senior Division, Washim, should be transferred to the Court of IInd Additional District Judge and Additional Sessions Judge, Akola, for being tried with LAC No. 10 of 1994 on his file. In the face of this order, impugned award/ judgment of Reference Court dated 28.06.2005 delivered by the 4 th Ad-hoc District Judge, Washim, in LAC No. 149 of 2003 is without jurisdiction.

(B) Shri Thakkar, learned counsel submits that

the appellant continued to appear at Akola Court and was not aware of the proceedings taken up at Washim. According to him, the impugned judgment dated 28.06.2005 in fact relies upon the evidence of land owner recorded at Akola only. Because of this situation, though on 10.10.2003, process was paid to examine approved valuer Shri Paradkar to bring on record value of land, Shri Paradkar could not be examined at Washim. The impugned judgment, therefore, denies effective opportunity to bring on record market price to the appellant. He relies upon sale instance looked into in Reference Court to urge that grant of compensation at Rs.14,000/- per Hectare is unsustainable and compensation ought to have been awarded @ Rs.25,000/- per Acre.

(C) Lastly, without prejudice to above contentions, he submits that beneficial cultivation of acquired land was disturbed and obstructed by the respondent right from 1972 though Section 4 notification came to be published on 07.03.1991. Civil Suits were required to be filed, complaints were made, still land was dug or soil was removed. The appellant had, therefore, also sought damages from the respondents for this wrongful act. All this has been totally lost sight of by the Reference Court.

7. The learned Assistant Government Pleader states

that Washim was Tahsil of Akola district when the order of

transfer was passed on 03.01.1996. However, later on, Washim

itself became independent revenue district and hence the Court

at Akola ceased to have territorial jurisdiction over the subject

matter. The reference proceedings are, therefore, rightly

decided by the Court at Washim. She submits that had the

appellant continued to appear in Reference proceedings at

Akola, as alleged, he would have definitely learnt about

transfer of R. & P. to Washim Court. The inaction on his part,

therefore, demonstrates his negligent conduct. He was not

attending the matter even at Akola. Payment for summons for

examining witness has, therefore, got no relevance. Without

prejudice, my attention is invited to affidavit in examination-in-

chief of the appellant, particularly paragraph No. 8. It is

submitted that even if sale instances mentioned therein are

accepted, at the most rate of Rs.16,500/- per hectare could

have been awarded. Hence, the steps taken by the Reference

Court at Washim are in accordance with law and no fresh

opportunity needs to be given to the appellant.

8. Lastly, she points out that Reference court

functioning under Section 18 of the Land Acquisition Act, 1894,

can look into grievance which emanates from Section 4

notification. All facts which have taken place before

07.03.1991, therefore, are irrelevant and the land owner could

have filed proper proceedings before the Civil Court for that

purpose or then for rental compensation as per policy of State

Government. That has not been done. She, therefore, prays for

dismissal of appeal.

9. The following questions arise for my consideration :

(1) Whether the judgment/ award dated 28.06.2005 delivered by the Additional District Judge at Washim in LAC No. 149 of 2003 is without jurisdiction ?

(2) Whether the appellant got appropriate opportunity to bring on record the market value ?

         (3)               Whether   a   just   compensation   has   been
         award to present appellant ?


         (4)               Whether   the   Reference   Court   could   have

looked into demand for rental compensation or for damages ?

10. The facts at hand show that the appellant was

owning field survey No. 17 in village Inzori, Tq. Mangrulpir,

District - Washim. Out of said field, the State Government

acquired 0.75 Hectare of land for road. The notification under

Section 4 of the Land Acquisition Act came to be published on

07.03.1991 and award was passed on 26.02.1993. Zilla

Parishad, Washim had unauthorizedly started work of

construction of road through his field as alleged by the land

owner and, therefore, he had filed Civil Suit No. 177 of 1986.

His grievance was, he could not cultivate the land because of

this unauthorized interference by the Zilla Parishad. He claimed

compensation for about 20 years for loss of cultivation and

pointed out damages to the tune of Rs. Two lakh.

11. The land owner appears to have filed an application

under Section 24 of the Civil Procedure Code for transferring

LAC No. 10 of 1994 on the file of Second Additional District

Judge, Akola and LAC No. 9 of 1995 pending before the Civil

Judge, Senior Division, Washim in any one court for disposal.

This application was allowed by the Joint District Judge, Akola,

on 03.01.1996. Joint District Judge, Akola, directed Washim

matter to be transferred to Akola for its clubbing and trial with

LAC No. 10 of 1994 at Akola. The land owner does not claim

that he appeared before Washim Court at any time or adduced

evidence in Washim Court. The impugned judgment dated

28.06.2005 in paragraph 4 mentions that land owner examined

himself at Exh. 34 and produced several documents. Shri

Thakkar, learned counsel submits that this was at Akola i.e. in

LAC No. 10 of 1994. I have not hesitation to accept this.

12. In present matter, adjudication by 4th Additional

District Judge, Washim, in LAC No. 149 of 2003 has been

questioned. A perusal of R. & P. of said matter reveals an

application at Exh. 29 moved by the present appellant in

Reference No. 10 of 1994 on 16.01.1996 for adjournment as

records were not received. Said R. & P. also shows an

application at Exh. 32 at Akola for adjournment as counsel was

not available. Exh. 33 is his application at Akola for permission

to file examination-in-chief on affidavit. On 10.10.2003, he

sought leave to issue witness summons to Shri V.G. Paradkar,

Surveyor and also paid necessary process fee for that purpose.

On 10.10.2003, the Court at Akola also granted him hamdast

for completing service on Shri Paradkar. On 19.01.2005, in

LAC No. 149 of 2003, the application is moved at Washim court

pointing out that the matter is received by Washim Court on

transfer from Akola. The adjournment was, therefore, sought.

It was accordingly allowed. Exh. 44 is other application moved

on 18.02.2005 at Washim for calling records of LAC No. 9 of

1995. This material on record, therefore, shows that after the

order dated 03.01.1996, the matter did not continue at Washim

but began at Akola. Some steps were taken at Akola. As

pointed out by the learned AGP, after Washim became separate

revenue district, Akola Court was constrained to forward the

papers to Washim Court. The appellant accordingly appeared

before Washim Court and took some steps and nobody

prohibited him from continuing to appear or examine Shri

expert through Paradkar at Washim Court. Absolutely no

justification has been offered for this lapse on the part of the

appellant. The Court at Washim has delivered the impugned

judgment on 28.06.2005. In this situation, it cannot be said

that the judgment or award by Washim Court in Reference No.

149 of 2003 is without jurisdiction. For the very same reasons,

it cannot be said that the appellant was not given due

opportunity by the Reference Court to bring on record correct

valuation.

13. The affidavit of examination-in-chief (Exh. 34) filed

by the land owner in LAC No. 10 of 1994 is dated 28.08.2003.

He was cross examined at Akola on 10.10.2003. In

examination-in-chief in paragraph 8, he has mentioned few sale

deeds. The relevance of these sale deeds to establish the

comparative nature thereof is not substantiated but even if it is

ignored, in sale deeds executed prior to 07.03.1991, rate of

Rs.10,000/- has been given for land ad measuring 0.81 R on

10.05.1988, Rs.11,000/- for 78 R on 26.05.1989, Rs.15,000/-

for 1 Hectare of land on 26.12.1990 and Rs.16,500/- for one

hectare of land on 16.01.1991. Sale deeds mentioned

thereafter are dated 11.03.1992 and 16.04.1993. There, 84 R

land has been sold for Rs.18,000/- and 86 R of land has been

sold for Rs.20,000/-.

14. Even if all these sale deeds are accepted, it is

apparent that rate of Rs.50,000/- per hectare as claimed by the

land owner is not being substantiated. The trial Court has

looked into various sale deeds and for the reasons found that

Rs.14,000/- per hectare was market value of acquired land on

07.03.1991. In the light of sale deeds pressed into service by

the appellant, which are prior to Section 4 notification, this

application of mind by the Reference Court does not appear to

be erroneous or perverse. No prejudice is, therefore, caused to

the appellant by not examining the so called expert Shri

Paradkar, before the Reference Court.

15. The material on record shows at least two Civil

Suits filed by the appellant in an effort to protect his alleged

possession and to continue cultivation of suit field. It appears

that area of suit field was larger and only 75 R therefrom has

been acquired. It is claimed that because of activities of Zilla

Parishad, effective and beneficial cultivation could not be taken

over the land for 20 years. This grievance cannot be looked

into either by the Land Acquisition Officer while determining

market value under Land Acquisition Act or by Reference Court

while exercising jurisdiction under Section 18 of the Act. If

land owner has suffered such damages or he was entitled for

any rental compensation he could have and ought to have filed

proper proceedings before the appropriate forum for redressal

of his grievance. That has not been done. The Reference Court

could not have taken cognizance of his grievance. If law

permits, land owner can still file appropriate proceedings for

damages or rental compensation. For these reasons I answer

the remaining two questions also against the appellant.

16. In the circumstances, no case is made out

warranting interference in the present appeal. First Appeal is,

therefore, dismissed, however, there shall be no order as to costs.

JUDGE *GS.