Shri. Deoman S/O Gulabrao Mahalle vs Vaibhavanand Gruha Nirman ...
2017 Latest Caselaw 7514 Bom

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        IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

                 NAGPUR BENCH : NAGPUR



First Appeal No.  838 of 2017 



Appellant  :             Deoman son of Guylabrao Mahalle, aged about
                         73 years, Occ:  Agriculturist, resident of 
                         Shivangaon, Tahsil and District Nagpur

                         Versus

Respondents:             1)   Vaibhavanand Gruha Nirman Sahakari 
                         Sanstha, through its President Raju Tukaramji
                         Pachore, 8/12, Raje Raghuji Nagar, Royal
                         Computer Academy, Sakkardara, Nagpur

                         2) Sanjay Chouriwar,  c/o Palam Collection,
                         Khapri Galli, Near Hanuman Mandir, 
                         Dharaskar Road, Itwari Post Office, Itwari,
                         Nagpur

                         3) Ganpat son of Gulab Mahalle, aged adult,
                         Occ: Agriculturist, resident of Plot No. 104,
                         Sambhaji Nagar,  Pathan Layout, Ring Road,
                         Nagpur

                         4) Krushna son of Gulab Mahalle, aged about
                         adult, resident of 90, Sambhaji Nagar, :athan
                         Layout, Ring Road, Nagpur

                         5) Nana son of Gulab Mahalle (Dead), through
                         legal heirs -

                         A.  Asha wd/o Nana Mahalle, aged about 50
                         years, Occ: Nil, 

                         B. Nikhil s/o Nana Mahalle, aged about 24
                         years, 


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                         C. Monika d/o Nana Mahalle, aged about 20
                         years, 

                         All residents of Shivangaon Gaothan, Tahsil and
                         District Nagpur


Shri Amol Deshpande, Advocate for appellant 
None appears for respondents
-------------------------------------------------------------------------------------------

Coram : S. B. Shukre, J

Dated : 25th September 2017

Oral Judgment

1. Heard learned counsel for the appellant. None appears for

respondents no. 1 and 2-contesting party, though duly served with notice

for final disposal at the admission stage. Heard finally as per order

passed by this Court on 7th July 2017.

2. After hearing learned counsel for the appellant and on

perusal of record of the case, the only point that arises for my

determination is :-

Whether respondents no. 1 and 2 have proved their

entitlement to receive compensation in respect of

0.64 R of land compulsorily acquired by the

Government ?

3. The appellant and respondents no. 3, 4 and 5 are real

brothers who jointly owoned the land acquired in the present case. This

land was Gat Nos. 344/1, 344/2 and 344/3 admeasuring 3.31 hectare =

13 acres. Admittedly, the appellant and his brothers sold total area of

two acres by two sale deeds dated 14.5.1992 and 21.5.1992 for one acre

each to respondent no. 1 Society from land survey number 344/1.

Remaining land of Gat No. 344/1 was still with the land owners. In the

year 2007-08, the acquisition proceedings for acquiring a small portion of

land from and out of Gat No. 344/1 were initiated. It was proposed to

acquire 0.64 HR of land from the said Gat number. Section 4 Notification

was published and Award was also passed under Section 11 of the Land

Acquisition Act by the Land Acquisition Officer on 29.1.2008.

Compensation of Rs. 10,50,000/- was awarded to the land owners. The

amount of compensation is still lying with the Nazir of the District Court.

There is no dispute about these facts.

4. Upon learning of the grant of compensation to the land

owners for compulsory acquisition of 0.64 HR of the land from Gat No.

344/1 by the Government, respondent no. 2, one of the plot owners of

respondent no. 1 Society, filed an application under Section 30 of the

Land Acquisition Act before the Collector for payment of compensation to

the plot holders, contending that the acquired land was purchased by

respondent no. 1 Society. The application was referred to the Court of

Adhoc District Judge-I, MIHAN, Nagpur. The learned District Judge by

his judgment dated 28th July 2014, allowed the application and directed

Nazir of the Court to pay compensation received for the acquired land

from the Government to the plot holders as per their respective plot area.

Being aggrieved thereby, one of the land owners has filed the present

appeal.

5. Upon going through the evidence of P.W. 1 Raju Pachare who

is President of appellant no. 1 Society and sale deeds dated 30.4.1992

and 19.5.1992 (exhibits 72 and 73), I find that onus to prove that the

acquired land was the land which was a part of the land purchased by

respondent no. 1 vide sale deeds (exhibit 72 and 73) that was upon the

applicant who filed an application under Section 30 of the Land

Acquisition Act, has not been discharged by the applicant. There is

absolutely no evidence led by the applicant or respondent no. 1 Society to

prove the claim that the acquired land admeasuring 0.64 HR from out of

Gat No. 344/1 was the land the ownership of which was already

transferred vide sale deed (exhibits 72 and 73) to respondent no. 1

Society which, in turn, transferred the plots laid in it to its members.

When from a larger piece of land comprising of 2.13 HR of Gat No.

344/1, respondent no. 1 Society has purchased only smaller portion of the

land and a substantial portion of the land continued to be under the

ownership of appellant and respondents no. 3,4 and 5, it was essential for

the claimant or respondent no. 1 to have proved that the land acquired in

the present case was only the portion of the land compulsorily acquired

by the State or indeed the portion from out of the pieces of land

purchased by respondent no. 1 vide sale deeds (exhibits 72 and 73).

However, no such specific evidence was ever adduced by the claimant or

respondent no. 1 Society. But, this important aspect of the case, it is seen

from the impugned judgment and order, has been completely missed by

the Reference Court and the result is of an illegal and arbitrary order

passed by it.

6. In the result, I find that respondents have failed to prove their

entitlement to receive the compensation in this case and as such,

application filed under Section 30 of the Land Acquisition Act is liable to

be rejected. The point is answered accordingly.

7. Appeal is allowed. Impugned judgment and order are

quashed and set aside. The claim application filed under Section 30 of

the Land Acquisition Act stands rejected. The compensation amount

deposited with the Reference Court in relation to acquired land of 0.64

HR from and out of Gat No. 344/1 be disbursed to the land owners in

terms of the Award passed under Section 11 of the Land Acquisition Act

after expiry of two months. No order as to costs.

S. B. SHUKRE, J

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