Dattatrya Genba Darekar & Others vs The State Of Mah.& Another
2017 Latest Caselaw 6887 Bom

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                                                         FIRST APPEAL 165 OF 1997.odt


           THE HIGH COURT OF JUDICATURE AT BOMBAY,
                    BENCH AT AURANGABAD.

                        FIRST APPEAL NO. 165 OF 1997


01     Dattatraya Genba Darekar,
       Age 27 Years, Occ. Agri.

02     Shahaji Genba Darekar,
       Age 19 Years, Occ. Agri.

03     Bhiva Bolhu Darekar,
       Age 43 Years, Occ. Agri.

04     Tukaram Appaji Darekar,
       Age 39 Years, Occ. Agri.

05     Dnyandeo Appaji Darekar,
       Age 35 Years, Occ. Agri./Service,

06     Sampat Appaji Darekar,
       Age 30 Years, Occ. Agri.

07     Sahadu Kondiba Darekar,
       Age 36 Years, Occ. Agri.

08     Jagesh Kondiba Darekar,
       Age 32 Years, Occ. Agri./Service,

09     Ashok Kondiba Darekar,
       Age 29 Years, Occ. Agri.

10     Vasant Haribhau Darekar,
       Age 26 Years, Occ. Agri.

11     Dilip Haribhau Darekar,
       Age 24 Years, Occ. Agri.

12     Sharad Haribhau Darekar,
       Age 24 Years.




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13     Ankush Haribhau Darekar,
       Age 18 Years.

14     Mina Bhivsen Darekar,
       Age 18 Years.

15     Kum. Asha Bhivsen Darekar,
       Her M/G. Bhiva Bolhu Darekar,
       Age 14 Years.

16     Kum. Usha Bhivsen Darekar,
       Her M/G. Bhiva Bolhu Darekar,
       Age 12 Years.

17     Sau. Nirmala Dattatraya Darekar,
       Age 20 Years.

18     Laxmibai Genba Darekar,
       Since deceased
       Through Legal heirs.
       (Applicant Nos.1, 2 & 20 are sons already on record)

       18-A] Shakuntala Gitaram Gunaware,
             Age: 55 years, Occu. Household,
             R/o Hiradgaon, Tq. Shrigonda,
             Dist. Ahmednagar.

       18-B] Indubai Vitthal Nawale,
             Age: 50 years, Occu. Household,
             R/o Bhangaon, Tq. Shrigonda,
             Dist. Ahmednagar.

       18-C] Sindhubai Dnyandeo Gunaware,
             Age: 45 years, Occu. Household,
             R/o Hiradgaon, Tq. Shrigonda,
             Dist. Ahmednagar.


19     Appa Bolhu Darekar,
       Since deceased
       Through Legal Heirs.
       (Applicant Nos.4 to 6 & 22 are sons already on record)




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                                                               FIRST APPEAL 165 OF 1997.odt


       19-A] Babaibai Appa Darekar,
             Age: 95 years, Occu. Household,
             R/o Hiradgaon, Tq. Shrigonda,
             Dist. Ahmednagar.

       19-B] Dwarkabai Kisan Gunaware,
             Age: 68 years, Occu. Household,
             R/o Hiradgaon, Tq. Shrigonda,
             Dist. Ahmednagar.

       19-C] Nandini Ramchandra Damgude,
             Age: 52 years, Occu. Household,
             R/o Hiradgaon, Tq. Shrigonda,
             Dist. Ahmednagar.

20     Genba Bholu Darekar,
       Age 52 Years.

21     Vitthal Kondiba Darekar,
       Age 40 Years.

22     Zumbar Appaji Darekar,
       Age 32 Years.

Nos.21 and 22 are the General Mukhtyar
of the Appellant Nos.1 to 20 and Occu.
of all is Agriculturists and all R/o. Hiradgaon,
Tal. Shrigonda, District : Ahmednagar.                  ... APPELLANTS
                                                              (Ori. Claimants)

       V E R S U S


01     The State of Maharashtra
       [Summons to be served on the 
        G.P., Mumbai High Court,
        Bench at Aurangabad]

02     Shri Udhav Alias Manohar Bhivsen
       Darekar, Aged 26 years, Occ. Agri.,
       R/o Hiradgaon, Tal. Shrigonda,
       District Ahmednagar.                             ... RESPONDENTS
                                                              (Ori. Respondents)




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                                                                     FIRST APPEAL 165 OF 1997.odt



                                    ...
Mr. R. R. Karpe, Advocate for the Appellants.
Mr. B. V. Virde, A.G.P. for Respondent No.1 / State.
Mr. V. P. Latange, Advocate for Respondent No.2.
                                    ...


                                   CORAM                  :  V. K. JADHAV, J. 
                                   RESERVED ON     :  2nd August, 2017.
                                   PRONOUNCED ON :  7th September, 2017.


JUDGMENT: 

. Being aggrieved by the judgment and award passed by

Joint Civil Judge Senior Division, Ahmednagar dated 9th August, 1996

in Land Reference Application No.23 of 1990, the original Claimants

have preferred this appeal.

2 Brief facts giving rise to the present appeal are as follows:

a) The Claimants are the residents of village

Hiradgaon, Taluka Shrigonda, District Ahmednagar.

The Respondent / State has acquired the lands of

the Claimants for construction of percolation tank at

village Hiradgaon. Section 4 notification in respect

of the acquired lands was published on 5 th June,

FIRST APPEAL 165 OF 1997.odt

1986. The lands admeasuring 47 Ares out of Gat

Ares out of Gat No.340 and 6 Hectare 35 Ares out

of Gat No.339 situated at village Hiradgaon were

acquired by the Respondent / State. The Special

Land Acquisition Officer has declared the award

vide LAQ.S.R. No.29 of 1985 on 25 th February,

1988 and awarded the compensation of Rs.95,233/-

as a total compensation for the acquired lands.

b) Being dissatisfied with the inadequate

compensation awarded by the Special Land

Acquisition Officer, the Claimants have preferred

the aforesaid land acquisition reference petition for

grant of compensation at the enhanced rate. It has

been contended by the Claimants that the Special

Land Acquisition Officer has treated the acquired

lands as Jirayat land even though the acquired

lands are Bagayat land on the water of well. It has

also been contended that the Special Land

Acquisition Officer has collected the sale instances

FIRST APPEAL 165 OF 1997.odt

of Jirayat land for the low price and awarded very

meager amount of compensation. It has been

contended that the Special Land Acquisition Officer

has not awarded the compensation for 1000 K-Lime

trees, 15 Babul trees, for well, Tal and levelling,

which are in existence at the time of acquisition.

Thus, the Claimants have claimed the

compensation at the rate of Rs.50,000/- per Acre

for Bagayat land, Rs.25,000/- for well, Rs.5,30,000/-

for lemon trees and Babul trees and Rs.70,000/- for

Tal and levelling. It has been contended that one

CASA Sanstha, a social institution had shown its

willingness to construct a percolation tank in the

acquired land in the year 1975 and requested the

Zilla Parishad, Ahmednagar to prepare a plan and

estimate for the same. The said CASA Sanstha

has taken over the possession of the suit land and

even the officer of Zilla Parishad and Panchayat

Samiti have given outline for the construction work

of percolation tank. However, the said CASA

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Sanstha could not complete the work of

construction of the said percolation tank, Hiradgaon

and as such, the construction work remained

incomplete. Thereafter, the Collector, Ahmednagar

gave a technical sanction for completion of the work

of the said percolation tank and accordingly the

work of the said percolation tank completed by the

Zilla Parishad and the State. According to the

Claimants, even though no acquisition proceedings

initiated technically in the year 1975, they are

entitled for the benefits as per the provisions of the

Land Acquisition Act while awarding the

compensation and interest from the date of

possession.

c) The Respondent / State has strongly resisted the

claim petition by filing the written statement. It has

been contended that the reference petition is not

filed within the period of limitation and as such,

liable to be dismissed on this count alone. It has

been also contended that the Special Land

FIRST APPEAL 165 OF 1997.odt

Acquisition Officer has personally visited the

acquired lands, recorded the measurement, verified

the quality and also collected the sale instances

from the same village while awarding the

compensation. Since no Bagayat crops were found

in the acquired portion, the Special Land Acquisition

Officer has classified the acquired lands as Jirayat

land and awarded the compensation as per the

market rate prevailing at the time of Section 4

notification.

d) Thus, considering the rival pleadings of the parties,

the Reference Court has framed the issues. The

Claimants have examined in all eight witnesses to

substantiate their contention before the Reference

Court and the Respondent / State has examined

two witnesses to substantiate its contention.

e) The learned Joint Civil Judge Senior Division,

Ahmednagar vide its impugned judgment and

award dated 9th August, 1996, has awarded the

FIRST APPEAL 165 OF 1997.odt

compensation for the agricultural land at the rate of

Rs.40,000/- per Hectare by treating the acquired

lands as Bagayat land. However, rejected the claim

of the Claimants to the extent of lemon trees, Babul

trees, well, Tal and levelling. Being aggrieved by

the same, the Claimants have preferred this appeal.

3 The learned counsel for Appellants / Claimants submits

that the CASA Sanstha, a social institution, took the possession of the

acquired lands owned by the Appellants / original Claimants on 1 st

December, 1975 and the work of construction of the percolation tank

was started by the said CASA Sanstha on that day itself. The said

CASA Sanstha has informed the Tahsildar, Shrigonda about starting

of the work of percolation tank in the acquired lands at village

Hiradgaon and accordingly, the Tahsildar and Talathi have visited the

acquired lands and prepared Panchanama regarding the existence of

standing crops and trees in the acquired lands on 25th November,

1975. The learned counsel submits that the Zilla Parishad,

Ahmednagar and its officers have prepared a plan, estimate of the

said percolation tank, called as "Hiradgaon Percolation Tank", which

FIRST APPEAL 165 OF 1997.odt

has been produced before the Reference Court marked as Exhibit 61.

However, the Reference Court neither considered the said

Panchanama Exhibit 31 nor considered the date of possession of the

acquired lands as on 25th November, 1975. The Reference Court has

committed grave mistake in holding that the possession of the

acquired lands has been taken on 21st November, 1988. The

Reference Court has wrongly observed that the liabilities of the said

CASA Sanstha cannot be thrust upon the Government with respect to

the payment of interest from the date of possession. The Reference

Court ought to have held that the possession of the acquired lands

was taken in the year 1975. The learned counsel submits that even

though no land acquisition proceedings came to be initiated in the

year 1975, the Claimants are entitled for the benefits as per the

provisions of the Land Acquisition Act while awarding the

compensation and interest from the date of possession. The learned

counsel submits that the Tahsildar and Talathi have visited the

acquired lands and prepared Panchanama regarding the existence of

standing crops and trees on 25th November, 1975. They have visited

the lands bearing Gat Nos.324, 326, 339 and 340 of village Hiradgaon

and prepared Panchanama, which is marked as Exhibit 31. The

FIRST APPEAL 165 OF 1997.odt

Panchanama Exhibit 31 unmistakenly point out the existence of

K-Lime trees in the acquired lands alongwith well, Tal and other

developments. However, the Reference Court has not considered

this important document and on the other hand, observed that the

said Panchanama has been prepared only with the intention to create

evidence in support of the claim of K-Lime trees. The learned counsel

submits that on the point of compensation for trees, the Claimants

have examined PW-1 Zumber Appaji Darekar and PW-6

Pandharinath Laxman Bhujbal and they have deposed on the point of

transportation of the K-Lime plants. PW-1 in his evidence has given

details about the K-Lime trees in the acquired lands and PW-6 has

stated on oath about issuing of receipts for transportation charges

dated 14th May, 1970. The Claimants have also examined PW-7

Gyanba Dinkar Mhaske, who is a person selling the sugarcane juice

in the surrounding area. He has issued the receipts for purchasing

the lime fruits and the same are marked as Exhibits 71 and 72. He

has purchased K-Lime fruits at the rate of Rs.40/- per hundred to

Rs.50/- per hundred. The Claimants have also examined PW-8

Dr.Mukund Ramrao Gaikwad, a Horticulturist. He has submitted his

valuation of the said trees in the acquired lands on the basis of the

FIRST APPEAL 165 OF 1997.odt

documents. However, the Reference Court has not considered the

above mentioned oral evidence and discarded the claim of the

Claimants in respect of the trees etc. erroneously. Even the

Reference Court has not considered the receipts Exhibits 32 to 35.

The said receipts speak about the construction of Tal in the acquired

lands and also levelling. However, the Reference Court has not

considered the said evidence only on the ground that while filing the

objections before the Special Land Acquisition Officer, the Claimants

have not claimed the compensation for levelling etc. and they did not

produce any documentary evidence before the Special Land

Acquisition Officer. The learned counsel submits that on the point of

market rate, the Claimants have examined PW-4 Sitaram Eknath

Nawale and proved the contents of sale-deed Exhibit 12. As per the

sale-deed Exhibit 12, the land admeasuring 12 Gunthas has been

sold for a consideration of Rs.10,000/-. However, the Reference

Court has not considered the said sale instance for the reason that

the same pertains to small portion of land, different village and further

relied upon the judgment and award passed in earlier LAR No.49 of

1988 wherein the compensation at the rate of Rs.20,000/- per Hectare

for Jirayat land has been awarded. The learned counsel submits that

FIRST APPEAL 165 OF 1997.odt

the Reference Court has not considered the market value of the

acquired lands as on the date of Section 4 notification in respect of

the acquired lands and ignoring the sale instance Exhibit 12 when

admittedly no sale instance was available of village Hiradgaon,

awarded the compensation at the very meager rate of enhancement.

4 The learned AGP submits that though the said CASA

Sanstha had started the work initially, it is a matter of record that the

work could not be completed due to one or other reason.

Subsequently, the work of percolation tank was completed by the

Government. Accordingly, Section 4 notification was published in

respect of the acquired lands on 5th June, 1986 and the possession of

the acquired lands was taken on 21st November, 1988 by the

Government for construction of the said percolation tank. There is no

question of granting the interest from the date on which the said

CASA Sanstha had taken the possession of the acquired lands as

alleged. There is no evidence to the effect that said CASA Sanstha

had carried out the said work of construction of percolation tank at

village Hiradgaon in the acquired lands under the supervision of the

Government authorities. Since the said work remained incomplete, at

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the request of the social worker of Shrigonda Taluka, the Government

has decided to complete the said work and accordingly, the

acquisition proceedings came to be initiated. The learned Judge of

the Reference Court has therefore, rightly observed that the liabilities

of the said CASA Sanstha cannot be thrust upon the Government so

far as the payment of interest from the date of possession from the

year 1975 is concerned. The learned AGP submits that Panchanama

Exhibit 31 is a highly suspicious document. There are erasers and

scoring on the Panchanama Exhibit 31. It has been prepared in order

to manipulate the number of K-Lime trees. It is also significant that

near about 10 Panch Witnesses including the interested persons have

signed the Panchanama and even the Police Patil, who has signed

the Panchanama, is also a nearest relative of the Claimants. The

Reference Court has therefore, rightly observed that the Panchanama

Exhibit 31 has been prepared only in order to support the claim

regarding the compensation for K-Lime trees. The learned AGP

submits that vide document Exhibit 96, the Claimants have

unequivocally admitted that there are no trees, houses and Vasti in

the acquired portion. Furthermore, the general power of attorney of

the Claimants have filed applications before the Special Land

FIRST APPEAL 165 OF 1997.odt

Acquisition Officer on 22nd July, 1987 regarding compensation for well

and those applications are marked as Exhibits 100 and 101

respectively. The Claimants have claimed the compensation only for

15 Babul trees and there is no reference to K-Lime trees in the

application Exhibit 101. Though PW-1 general power of attorney has

denied the contents of the application as well as his signatures below

the applications, the Reference Court has compared his admitted

signature with those signatures and observed that both the signatures

are belonging to one and the same person. The learned AGP submits

that so far as the oral evidence adduced by the Claimants is

concerned, the Reference Court has rightly observed that the

Claimants had prepared a scheme for getting more and more

compensation and in pursuance of the same, created the

documentary evidence in support thereof. The learned AGP submits

that PW-7 is a got up witness. There is no reason for a person selling

sugarcane juice in the various villages to issue receipts Exhibits 71

and 72 pertaining to the garden of K-Lime fruits. The Reference Court

has therefore, rightly disbelieved the oral evidence led by the

Claimants in this regard. The learned AGP submits that so far as the

oral evidence of PW-8 Dr. Mukund Gaikwad is concerned, admittedly,

FIRST APPEAL 165 OF 1997.odt

at the time of his visit, no K-Lime trees were in existence and he has

worked out his valuation report on the basis of certain information

supplied to him by the interested Claimants. The learned AGP

submits that there is no reference of fruit bearing trees in the award.

There is no evidence about construction of Tal and levelling. It is

highly unlikely on the part of the Claimants to spend huge amount for

construction of Tal and levelling though as per their case, the said

CASA Sanstha had started the work of construction of percolation

tank in the acquired lands way back in the year 1975. The Claimants

have also not claimed any compensation for construction of Tal and

levelling before the Special Land Acquisition Officer. The learned

AGP submits that the Claimants have relied upon sale-deed Exhibit

12, which pertains to alienation of the small portion of the land from

different village. Even on relying upon the said sale instance in LAR

No.49 of 1988, the Reference Court has awarded the compensation

at the rate of Rs.20,000/- per Hectare for Jirayat land. Thus, the

Reference Court has rightly considered the market value of the

acquired lands at the rate of Rs.40,000/- per Hectare. There is no

substance in the appeal and the appeal is thus, liable to be dismissed.

FIRST APPEAL 165 OF 1997.odt

5 The learned AGP in order to substantiate his contention

placed his reliance on the following cases:

a) Chimanlal Hargovindas Vs. Special Land Acquisition Officer, Poona, reported in, 1988 (3) SCC 751,

b) State of Haryana Vs. Gurcharan Singh, reported in, 1995 (Supp.2) SCC 637.

6 So far as the cost of acquired lands is concerned, land

admeasuring 0.47 Ares out of the land Gat No.324, land 3 Hectare 88

Ares out of the land Gat No.326, land 0.27 Ares out of the land Gat

No.340 and land 6 Hectare 35 Ares out of the land Gat No.339 total

into 10 Hectare 97 Ares came to be acquired for the aforesaid project

from village Hiradgaon, Taluka Shrigonda, District Ahmednagar and

the Appellants / Claimants are claiming the compensation for the

acquired lands at the rate of Rs.1,25,000/- per Hectare corresponds to

Rs.1,250/- per Are. The Appellants / Claimants in order to

substantiate their claim for the enhanced compensation towards the

costs of land, mainly relied upon the sale-deed Exhibit 12. Sale-deed

Exhibit 12 pertains to a small portion of agricultural land admeasuring

12 Ares situated at village Takali Kadewali. The land under sale-deed

FIRST APPEAL 165 OF 1997.odt

Exhibit 12, admeasuring 12 Ares sold for a consideration of

Rs.10,000/-. The Appellants / Claimants have examined PW-4

Sitaram Eknath Nawale to prove the contents of sale-deed Exhibit 12.

Witness Sitaram Nawale has stated about the distance between

village Hiradgaon and Takali Kadewali is about 2.5 kilometers. He

has admitted in his cross-examination that he has not come across

with the sale instances for the lands at village Hiradgaon at the rate at

which sale instance Exhibit 12 took place. He has also admitted that

he has neither purchased or sold land at village Hiradgaon. Though

he is having 20 Acres of land, he has no occasion to cultivate the land

at village Hiradgaon. According to him, he cannot say that if the lands

at village Takali Kadewali and Hiradgaon differs in price and quality.

In view of the above, it is difficult to consider the sale-deed Exhibit 12

as a comparable sale instance to determine the market value of the

acquired lands, which is 10 Hectare and 97 Ares in total. It appears

that Bagayat land admeasuring 12 Ares was sold for a consideration

of Rs.10,000/- vide sale-deed Exhibit 12 and as per the consideration

shown in the sale-deed Exhibit 12, the price of the agricultural

Bagayat land comes at the rate of Rs.83,333/- per Hectare

corresponds to Rs.833/- per Are. The learned Judge of the Reference

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Court has therefore, placed its reliance upon the judgment and award

passed in LAR No.49 of 1988 wherein the Reference Court had an

occasion to deal with the same sale-deed to determine the

compensation at the enhanced rate for the acquired land at village

Hiradgaon itself. On perusal of the judgment and award passed in

LAR No.49 of 1988, it appears that the notification under Section 4

was published in the same year of 1986. The notification under

Section 4 in LAR No.49 of 1988 was published on 23rd January, 1986

whereas in the present case, Section 4 notification was published on

5th June, 1986. In said LAR No.49 of 1988, which has now attained

the finality, the Reference Court has awarded the compensation at the

enhanced rate of Rs.20,000/- per Hectare for Jirayat land. In the

instant case, the Reference Court has rightly considered the acquired

lands as Bagayat land and accordingly awarded the compensation at

the enhanced rate of Rs.40,000/- per Hectare i.e. double the costs of

the Jirayat land.

7 I do not find any fault in the judgment and award passed

by the Reference Court so far as the compensation granted for the

land at the enhanced rate is concerned.

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8                 The   Appellants   /   Claimants   have   claimed   the

compensation for K-Lime trees 1000 in number and 15 Babul trees.

The Appellants / Claimants are mostly relying upon the Panchanama

Exhibit 31 and the 7/12 extracts Exhibit 19 to Exhibit 22 respectively.

According to the Claimants, initially, the work of the percolation tank at

village Hiradgaon was undertaken and started by one CASA Sanstha

in the year 1975 under the supervision of the Government authorities

such as Panchayat Samiti and Zilla Parishad. Said CASA Sanstha

was providing the edible oil and wheat to the labours engaged in the

construction work of the said Sanstha in lieu of wages. Such work

was also undertaken by said CASA Sanstha at villages Sandgaon,

Ghodegaon, Tandali, Dumala and Dhorje. According to the

Appellants / Claimants said CASA Sanstha had obtained the consent

from the Government to carry out the said work. At the instance of

said CASA Sanstha, the Tahsildar and Talathi visited the site and also

carried out the inspection with regard to the existence of the standing

crops, trees etc. According to the Appellants / Claimants, on 25 th

November, 1975, the Talathi has visited the acquired lands and

carried out the Panchanama, which is marked as Exhibit 31. The

Appellants / Claimants state in their oral evidence that during the site

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visit, existence of 1055 K-Lime trees in land Gat No.339 are

mentioned in said Panchanama Exhibit 31 and also the well.

Existence of 15 Babul trees situated over the Bandh in between land

Gat No.326 and Gat No.324 also noted in the said Panchanama.

9 The Appellants / Claimants have examined witness No.3

Baban Dhondiba Gavane to substantiate their contentions that said

CASA Sanstha though undertaken the construction of percolation

tank, the construction of the percolation tank at village Hiradgaon was

being carried out under the supervision of Panchayat Samiti and Zilla

Parishad and as such, Panchanama Exhibit 31 drawn by the

authorities, is a document unmistakenly pointing out the existence of

K-Lime trees, Babul trees in the acquired lands. Though the

Appellants / Claimants have examined witness No.3 Baban Gavane

and produced on record the abstract (Sub-Estimate No.1) Exhibit 61,

the power of attorney of the Appellants / Claimants PW-1 Zumber

Appaji Darekar, has admitted in para 15 of his cross-examination that

except Panchanama Exhibit 31, he has no other document to show

that the work of construction of the said percolation tank at village

Hiradgaon was carried out by said CASA Sanstha with consent of the

FIRST APPEAL 165 OF 1997.odt

Government. The abstract Exhibit 61 also discloses the work done by

CASA Sanstha for the year 1975-76 and the document Exhibit 61

hardly speaks about the consent of the Government obtained for the

said work undertaken by said CASA Sanstha. In the backdrop of

these, the Panchanama Exhibit 31, which not only bears the

signatures of the Appellants / Claimants but the Police Patil, is highly

suspicious document. Though this Panchanama has been obtained

from the Tahsil office, however, except the signature of the Talathi

alongwith those persons, there is nothing in the contents of the

Panchanama indicating that the Talathi of the said Sajja has drawn

the said Panchanama under the orders from the superior authority.

There are also scoring and erasers, which do not bear the signatures

of the said witnesses in the Panchanama Exhibit 31. The learned

Jude of the Reference Court has therefore, rightly observed that

Panchanama Exhibit 31 has been prepared only in order to support

the claim regarding the compensation for trees.

10 There are two more documents Exhibit 96 and Exhibit 101

respectively. The power of attorney PW-1 has deposed that Appaji

Bolhaji Darekar is his father and he has four brothers by name

FIRST APPEAL 165 OF 1997.odt

Gondaji, Kondiba, Genba Haribhau Bhivsen Bolhaji. He has further

given genealogy of these four brothers and deposed that the

reference petition is filed by all the above persons and he has been

appointed as power of attorney as per the documents Exhibits 13 to

16. Exhibit 96 is an application signed by one of the brother Kondiba

wherein he has given the reference to the well acquired by the

Government from the acquired land Gat No.339 and further stated in

the said application that except the well, there are no houses, trees

etc. in the said land Gat No.339. So far as the document Exhibit 101

is concerned, though it is signed by the power of attorney Zumber

Darekar, witness Zumber Darekar has denied his signature on it.

Said document application Exhibit 101 was submitted before the

authority on 7th August, 1987 signed by the power of attorney of the

Appellants / Claimants wherein there is a reference about 15 Babul

trees and there is absolutely no reference about the K-Lime trees. So

far as the 7/12 extracts Exhibits 19 to 22 are concerned, on a

separate sheet attached to Gat No.339 Exhibit 22, the K-Lime trees

are shown. However, in the 7/12 extracts produced by the Special

Land Acquisition Officer Exhibits 101 to 105 respectively, there is no

entry about K-Lime trees in the acquired land Gat No.339. It is

FIRST APPEAL 165 OF 1997.odt

pertinent that the same 7/12 extracts in respect of the acquired lands

produced by the authorities are silent about the existence of K-Lime

trees in the land Gat No.339. I do not find any substance in the claim

of the Appellants / Claimants about the K-Lime trees. The Reference

Court has rightly rejected the claim pertains to K-Lime trees. The

Respondent / State has also examined witness No.1 Bhanuds

Bhausaheb Supekar. He was working as a surveyor in Land Record

Department since 1976. In the month of January 1986, he was

attached to the office of Additional D.I.L.R. No.2, Ahmednagar. He

had carried out joint measurement of the acquired lands. In the

month of January 1986, he has visited the lands. He has prepared a

map. The same is produced on record and marked as Exhibit 87. He

has deposed that while carrying out the joint measurement, there

were no fruit bearing trees in the acquired portion. There is nothing in

the cross-examination of this witness to disbelieve his evidence and

even there is no reason to discard the evidence of the surveyor who

has measured the lands as per the directions given to him by his

superiors. There is no reference of fruit bearing trees in the award.

The Appellants / Claimants have not objected for the same during the

acquisition proceedings. There is no reason to discuss the evidence

FIRST APPEAL 165 OF 1997.odt

about the market rate of the fruits of the trees and also about the

evidence of the private valuer. Admittedly, said private valuer witness

No.8 Mukund Gaikwad has no occasion to inspect the K-Lime trees

and he has made the valuation only on the basis of the documents. It

is a meaningless exercise and the Reference Court has therefore,

rightly discarded the same.

11 I do not find any substance in the submissions made on

behalf of the Appellants / Claimants that the Government has

acquired the lands in the year 1975. It appears from the admission

given by witness No.1 for the Appellants / Claimants that the

Appellants / Claimants owned and possessed the total land about 200

Acres. Said CASA Sanstha was a foreign country institute. It further

appears that the agriculturists from the said area have decided to

construct the percolation tank with the help of said CASA Sanstha.

Needless to say that the Appellants / Claimants and other

agriculturists in the surrounding area would have been the benefited

persons if said CASA Sanstha would have completed the work. It

further appears from the record that the Government has come in

picture with regard to the acquisition of these lands for the first time

FIRST APPEAL 165 OF 1997.odt

on 22nd May, 1986 i.e. by publication of the notification under Section

4 and possession of the acquired lands has been taken on 21 st

November, 1988. The Appellants / Claimants have also executed the

possession receipts of handing over the possession to the

Government. The Respondent / State has also examined witness

No.2 Vijaykumar Prabhakar Tirodka to substantiate the same. By any

stretch of imagination, it cannot be said that said CASA Sanstha had

undertaken the said construction work of percolation tank in the

acquired land with the consent of the Government and in fact the

Panchayat Samiti and Zilla Parishad of the area was supervising the

said construction work.

12 So far as the claim of the Appellants / Claimants in

respect of leveling and bunding of the acquired lands are concerned, I

agree with the observations made by the Reference Court that there

was no reason for the Appellants / Claimants to incur huge expenses

for leveling and bunding of the lands on which said CASA Sanstha

has proposed to construct the percolation tank and as such, it is an

afterthought story of the Appellants / Claimants for claiming the

compensation for leveling and construction of Tal.

FIRST APPEAL 165 OF 1997.odt

13 In the light of the above discussion, I do not find any

substance in the appeal and the appeal is thus, liable to be

dismissed. Hence, the following order:

O R D E R

I. The appeal is hereby dismissed. In the

circumstances, there shall be no order as to the

costs.

               II.    The appeal is accordingly disposed of.




                                                             [ V. K. JADHAV, J. ] 
ndm