Sk. Abdul Rashid S/O Abdul Latif vs The State Of Maharashtra,Through ...
2017 Latest Caselaw 7599 Bom

fa.1066.14.jud                            1


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

                      FIRST APPEAL NO.1066 OF 2014

Sk. Abdul Rashid s/o Abdul Latif,
Aged about 49 years,
Occupation - Agriculturist,
R/o At Satranjipura, Prem Sewa Patel,
Ganipatel Bada Garage, Nagpur.                                      .... Appellant

       -- Versus -

01]    The State of Maharashtra,
       through Collector, Nagpur District,
       Nagpur.

02]    The Special Land Acquisition Officer No.1,
       V.I.D.C., Nagpur, Collectorate, Nagpur.

03]    The Executive Engineer,
       Goshikhurd Project,
       Division Nagpur.                                       .... Respondents


Shri S.P. Kshirsagar, Advocate for the Appellant.
Shri H.D. Dubey, A.G.P. for Respondent Nos.1 & 2.
Mrs. U.A. Patil, Advocate for Respondent No.3.

                CORAM           : KUM. INDIRA JAIN, J.

                DATE            : SEPTEMBER 27, 2017.


ORAL JUDGMENT :-

This appeal takes an exception to the judgment and

award dated 23/02/2011 passed by the learned Joint Civil Judge,

Senior Division, Nagpur in L.A.C. No.37/2007. By the said

judgment and award, Reference Court enhanced compensation

for land, but declined to enhance compensation in respect of

trees. Being aggrieved with the refusal to enhance

compensation for the trees, appellant has preferred this appeal.

02] For the sake of convenience, the parties are referred

in their original status as they were referred before the

Reference Court.

03] The facts giving rise to the appeal may be stated in

nutshell as under :

i. Applicant's land bearing survey no.140/3,

admeasuring 4.03 hectares, situated at village

Nandikheda, Tahsil Bhiwapur, District Nagpur was

acquired by non-applicants for construction of

Goshikhurd Project. Award was passed by non-

applicant no.1 on 08/02/2001. Applicant received

compensation of Rs.5,42,189/- for the acquired land.

ii. Reference under Section 18 of the Land Acquisition

Act, 1894 (hereinafter referred to as 'the Act' for

short) came to be filed by applicant for enhancement

of compensation. The main grievance of applicant in

the reference was that Special Land Acquisition

Officer has not considered the claim in respect of

trees, well, productivity and quality of the acquired

land. Applicant claimed enhancement of

compensation to the tune of Rs.10,07,500/- for the

acquired land.

iii. Non-applicants resisted the reference vide written

statement [Exh.5]. According to non-applicants, in

view of the settled position of law, applicant was not

entitled to separate compensation for trees and once

the compensation for the acquired land was granted,

there was no question to pay separate compensation

for the trees.

iv. Applicant examined himself and placed reliance on

certain documents. On behalf of non-applicants, Land

Acquisition Officer came to be examined. Considering

the oral and documentary evidence, Reference Court

partly allowed the claim and directed non-applicants

to pay Rs.1,30,000/- per hectare towards market

value of the land along with all other consequential

benefits. At the same time, claim in respect of the

trees came to be rejected.

04] Heard Shri S.P. Kshirsagar, learned Counsel for

appellant, Shri H.D. Dubey, learned A.G.P. for respondent nos.1 &

2 and Mrs. U.A. Patil, learned Counsel for respondent no.3.

Learned Counsel for appellant submitted that in an application

under Section 18 of the Act, applicant has given the details of

the fruit bearing trees and claimed compensation of

Rs.4,58,000/- for those trees. It is submitted that Reference

Court relying upon judgment of the Hon'ble Supreme Court in

State of Haryana vs. Gurucharan Singh & another - [AIR

1996 SC 106] denied the compensation for trees. It is

submitted that the judgment of the Hon'ble Supreme Court in

K.A.A. Raja & others vs. State of Kerala & another -

[(1994) 5 SCC 138] has not been considered and the Reference

Court without taking into consideration condition, age, number of

trees and total yield rejected the enhancement of compensation

in respect of the trees.

05] Referring to the observations of the Reference Court

in paragraph 14 regarding non-examination of an expert to prove

the value of trees, submission is that instead of outrightly

rejecting the claim, Reference Court ought to have given an

opportunity to applicant to examine an expert. In this

connection, learned Counsel for appellant relied upon the

judgment of the Hon'ble Supreme Court in Ramanlal Deochand

Shah vs. State of Maharashtra & anr. with connected appeal

- [(2013) 14 SCC 50 and judgment of the learned Single Judge

of this Court at Aurangabad Bench in Narayan Deorao Gore

(died) through L.Rs. vs. State of Maharashtra - [2011(3)

Mh.L.J. 592] and submitted that the claim need not be

discarded merely on technicalities and it was incumbent on the

Reference Court to grant full opportunity to the claimant to put

forth his case. Learned Counsel submitted that in case expert

report is necessary, matter may be remanded to Reference Court

for fresh decision.

06] Per contra, learned Counsel for respondent no.3

submitted that burden is always on the claimant to prove his

case. It is submitted that considering the evidence, Reference

Court found that applicant is not entitled for separate

compensation in respect of the trees. The submission is that

valuation of the trees could have been proved by the best

evidence of an expert. Having not done so, Reference Court was

right in rejecting the claim towards trees. On the law relating to

burden of proof, learned Counsel relies on the following

judgments :

i. Basant Kumar & others vs. Union of India & others - [(1996) 11 SCC 542.

ii. State of Maharashtra vs. Prashram Jagannath Aute - [2007(5) Mh.L.J. 403].

iii. Vidarbha Irrigation Development Corporation, Deulgaon-Raja vs. Kamlaji Balaji Jadhav & others - [2011(1) Mh.L.J. 231].

07] It is apparent from the reasonings recorded by the

Reference Court that compensation on account of trees came to

be rejected as applicant has not examined any expert regarding

value of the trees and did not produce any material to show

valuation of the trees. In Narayan Deorao Gore's case (supra),

the learned Single Judge at Aurangabad Bench observed in

paragraph 10, which reads thus :

"10. Coming to the first contention of the Counsel appearing for the revision petitioner that Land Acquisition Reference should not have been rejected, on the ground of not filing documentary evidence is concerned, this Court in case of Kawadu Madhav Bansod (supra), has taken a view that the said order rejecting the reference on the ground of failure of the revision petitioner to adduce evidence cannot be taken to be adjudicated, and therefore, same cannot be treated to be an Award. Therefore, the ground i.e. no documentary evidence is filed by the revision petitioner, cannot be a ground to reject the reference. This Court in the aforesaid case in para No. 7 has observed thus :-

'It is true that the adjudication made by the Civil Court on the reference has to be regarded as an award, whether an enhanced compensation is given or not. But in that event the Court should consider the material on record, even if the party is absent and has failed to adduce evidence. Unless the material on record is considered the order cannot be said to be an adjudication. In the instant case the ground given for the dismissal of reference by the Civil Court is that the applicant (present revision petitioner) remained absent and did not adduce any evidence to show that a proper

compensation was not paid to him and that he is entitled to more compensation than paid. The above order clearly shows that the reference was dismissed only for the reason of failure of the applicant (present revision petitioner) to adduce evidence. Thus the material on record is not considered by the Civil Court. It is not considered as to how the compensation awarded by the Land Acquisition Officer was correct. So the order cannot be taken to be an adjudication and therefore the the same cannot be treated to be an award. The order passed by the Civil Judge, Senior Division, Yevatmal also cannot be treated to be a dismissal of the reference in default. The learned Counsel for revision petitioner submitted that the case could not be dismissed in default also.' (Emphasis supplied).

Therefore, in my opinion, the Court below should not have rejected the reference, on the ground of failure of the revision petitioner to adduce evidence.

Yet in another unreported Judgment in the case of Shri Kamalkar S/o Laxman Suryawanshi V/s. State of Maharashtra, in Civil Revision Application No. 1965 of 2005 and in other two connected matters, this Court has taken a similar view. Therefore, I have no hesitation, to hold that the reference filed by the revision petitioner, should not have been dismissed,

merely on the ground of failure of the revision petitioner to adduce evidence."

08] Having given due consideration to the submissions

advanced on behalf of appellant, this Court finds considerable

force in the submissions made on behalf of appellant that

Reference Court ought not to have discarded the claim in respect

of the trees for want of evidence of an expert without giving an

opportunity to the claimant to adduce such evidence. Reference

Court should have given full and sufficient opportunity to

claimant to put forth his case and after appreciating the

contentions and evidence should have decided the reference. As

the same has not been done, the appropriate course available is

to remit the matter to the Reference Court for its decision afresh

in respect of compensation claimed by the applicant for trees. To

this limited extent, the order passed by the Reference Court

needs to be modified. Hence, the following order :

ORDER

I. Clause (vii) of the operative part of impugned order

dated 23/02/2011 in L.A.C. No.37/2007 is set aside.

II. Reference Court upon recording additional evidence

and hearing the arguments shall dispose of L.A.C.

No.37/2007 within six months from the date of

receipt of copy of this order.

III. The registry to send back the record and

proceedings immediately to the concerned Court.

IV. Parties to appear before the Reference Court on

1st November, 2017.

V. Appeal stands disposed of in the above terms.

            VI.     No order as to costs.



*sdw                                                   (Kum. Indira Jain, J)