1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. FIRST APPEAL NO.372 OF 1993. The State of Maharashtra through the Collector, Nanded. ... Appellant. Versus 1. Narayan S/o Ambaji Koli, Age 58 years, Occ.Agril., R/o Bhokar, Dist.Nanded, (deleted as per order below Exh.35 dt.16.11.1988). 1A. Sambaji S/o Narayan Koli, Age 45 years, Occ.Agril., R/o Bhokar, Tq. Bhokar, Dist. Nanded. 1B. Gunaji S/o Narayan Koli, Age 40 years, Occ.Agril., R/o as above. 2. Maroti S/o Yellappa Koli, Age 50 years, Occ.Agril., R/o Bhokar, Dist.Nanded. ... Respondents. ... Mrs.V.A.More, A.G.P. for the appellant. Mr.B.B.Lakhkar, advocate for the Respondents. ... CORAM : V.R.KINGAONKAR,J. Date : 07.12.2009. 2 ORAL JUDGMENT 1. This appeal is directed against judgment and decree rendered by leaned Joint Civil Judge (S.D.), Nanded in Special Civil Suit No.74/1983. The suit for recovery of possession of agricultural land bearing Survey No.241/2, admeasuring 2 acres 81 Ares situated at Bhokar, came to be decreed. 2. Original plaintiffs had filed suit as paupers with leave of the Court. According to them, they are owners of land S.No.241 which is their ancestral property. They used to cultivate the said land. Somewhere in 1981 some Officers of the Government entered the suit land and started construction work. On inquiry, it was revealed that entry was taken in the revenue record for the year 1980 regarding ownership of the Government to the extent of 2 acres land which, in fact, was owned by them. They obstructed the construction work. The concerned Officers silenced them by telling that the required compensation would be paid in respect of 3 the said two acres land. They were made to believe that the said land was acquired by the Government for the construction of residential quarters to be made available for Police personnel. They were neither paid anything. Their representations were unheeded. Consequently, they filed the suit for vacant possession of the suit land with a prayer to issue mandatory injunction for demolition of the structures which were raised thereon. They also alternatively pleaded that in case such mandatory injunction was not to be granted then they may be compensated to the tune of Rs.3,61,360/- (Rupees three lacs sixty one thousand three hundred sixty) along with solatium and interest on the basis of assumption that such amount would be payable to them had the land been acquired. 3. The defendant (appellant) resisted the suit by filing written statement (Exh.24). The appellant denied all the material averments made by the plaintiffs. It was denied that land S.No. 241 was divided in two parts. It was further denied that the plaintiffs had been dispossessed 4 from the suit land. It was denied that the plaintiffs owned the land which was used for construction of the Police quarters. 4. The parties went to trial over issues settled below Exh.25 by the learned Civil Judge. They adduced oral and documentary evidence in support of the rival contentions. The learned Civil Judge came to the conclusion that the plaintiffs/Respondents were owners of the land in question. He also recorded finding that without acquisition of the land and without following due procedure, the plaintiffs were dispossessed by the appellant and the work of construction of the residential quarters was completed. The learned Civil Judge held that the compensation could not be determined inasmuch as it was not a land acquisition reference case and as such decree for mandatory injunction and direction to restore possession of the plaintffs was the only proper remedy. Hence, the impugned judgment and decree was passed. 5. Heard learned A.G.P. Smt.V.A.More, and 5 learned counsel Mr.B.B.Lakhkar, for the Respondents. 6. The record shows that the plaintiffs owned entire Survey No.241. The material on record would show that in the year 1952 the land S.No.241 was shown to have been divided in two parts, one bearing S.No.241/1 and another S.No. 241/2. The revenue record, including copies of Pahanipatrak (Exh.5) and the 7/12 extracts (Exhs. 6 to 8) go to show that the plaintiffs are the owners of both these parts of S.No.241. The plaintiffs placed on record copies of representations made by them to the Collector and the Superintendent of Police. It appears that the concerned Officers made the plaintiffs to believe that the suit land was being acquired. It was only after the repeated demands, which fell on deaf ears, that the plaintiffs realised that they were taken for a ride. This case is illustrative of high-handedness on the part of the concerned officials of the Government. The plaintiffs had lost the land which was source of their livelihood. 6 7. The testimony of PW Chittaranjan Vanjare, purports to show that copies of the sale deeds (Exh.66 and Exh.67) were issued as per the original documents. He was working as Clerk in the office of Sub-Registrar at Bhokar. The version of PW 2 Maroti purports to show that he and his family members were owners of the suit land. He states that the two (2) acres land was taken over by the Government for construction of residential quarters. He deposed that he had given various applications to the Superintendent of Police and the Collector as well as Executive Engineer of B & C Department. He produced relevant office copies of such representations sent by him. His version purports to show that alternatively he was entitled to compensation of Rs.3,50,000/-. According to him, open plots were being sold at rate of Rs.3/- to Rs.4/- per sq.ft. at the relevant time. It has come on record that the land in question is surrounded by developed area. There is township of Bhokar around the place. The very fact that residential quarters of Policemen were constructed at the place is indicative of potentiality of the use of the land 7 in question for non-agricultural purpose. It has come on record that adjoining lands were converted in to non-agricultural use and was being sold as per the rates per sq.ft. after sanctioning of the lay out plans. 8. On behalf of the appellant, only DW 1 Atmaram entered the witness box. He was Village Talathi at the relevant time. He deposed as regards the entries in the revenue record. He states that land S.No.241/2 corresponds to G.No. 609. His version purports to show that the Police quarters are constructed in the said land. He admits that S.No.241/1 and S.No.241/2 are adjoining each other. He further admits that there is no middle boundary (........) between the said lands. Both the said lands were locally called "..........." and were sub-divided after division of S.No.241. He admits, unequivocally, that land S.No.241/2 is not part of Gaothan area nor it is part of grazing land. Thus, the said land was never used as pasture land or the land as open space of the village i.e. Gaothan. There is absolutely no material on record to show that 8 the said land was the Government land and could be used for construction of the residential quarters of the Police Department. Needless to say, the construction work was carried out without proper verification of the record about ownership of the said land. The trial Court called the Tahsildar to explain the circumstances. The order of the trial Court was not complied with. The Tahsildar did not produce any graphic and pictorial material on record to trace back as to how entry in name of the State was taken in the revenue record in 1952. Under these circumstances, the findings of the trial Court are based on sound appreciation of the evidence and need not be disturbed. 9. At this juncture, learned counsel for the Respondents (plaintiffs) make a statement that the Respondents would be satisfied if compensation is awarded instead of mandatory injunction granted by the trial Court. The trial Court was of the view that alternative reliefs could not be granted because the land was not acquired. I think that in an appropriate case 9 like present one, alternative relief could be granted U/o VII Rule 7 of the C.P.C. if there was satisfactory evidence to evaluate the market value of the land in question. The plaintiffs have placed on record the material to show that the land in question was having good potential for non-agricultural use. Considering the evidence on record, it may be gathered that compensation of Rs.3,50,000/- (Rupees three lacs fifty thousand) as claimed by the plaintiffs is quite reasonable and fair. The compensation could be granted on the assumption that the market value of the land could be determined though the suit was not by way of reference U/s 18 of the Land Acquisition Act. 10. Mr.Lakhkar, learned advocate for the plaintiffs/Respondents would submit that the multiplicity of litigation can be avoided by awarding the compensation inasmuch as again after the decree the appellant is likely to acquire the land and the Respondents will be required to await further to get their dues. 10 11. Considering the foregoing discussion, I have no hesitation in holding that the impugned decree requires modification. It would be in the interest of justice to award compensation of Rs. 3,50,000/- (Rupees three lacs fifty thousand) to the Respondents (plaintiffs) instead of the decree for vacant possession. At the same time, having regard to the manner in which the construction work is carried out by the concerned Officers of the appellants and the plight of the Respondents, I am of the opinion that they are entitled to exemplary costs and further compensation of Rs.50,000/- (Rupees fifty thousand). The alternative relief needs to be granted with a rider that if the amount is not paid within a specified time then the plaintiffs will be entitled to receive actual possession by demolition of the structures and if necessary with the aid of special task force because the local Police may not help them. 12. In the result, the impugned judgment and decree is partly modified. Instead of decree for possession, a decree nisi is substituted in 11 the following way : "(i) The plaintiff do recover compensation of Rs.3,50,000/- (Rupees three lacs fifty thousand) along with 30% solatium and interest at the rate of Rs.12% p.a. from the date of dispossession till realisation of the entire amount. The interest may be calculated up till the date of withdrawal of such amount or any part thereof in the trial Court by the plaintiffs. The plaintiffs will be further entitled to amount of Rs.50,000/- (Rupees fifty thousand) towards additional compensation on account of mental agony and sufferance due to high-handed acts of the appellant. This amount will not carry any interest and shall be payable within a period of four (4) months hereafter. (ii). The plaintiffs do recover costs of both the Courts as well as exemplary costs of Rs. 15,000/- (Rupees fifteen thousand) which shall be paid by the appellant within a period of four (4) months as above. 12 (iii). If the above amounts are not paid within a period of four (4) months, the plaintiffs will be entitled to receive vacant possession of the suit land by demolition of the standing structures and if necessary through the Collector and with assistance of Special task force or S.R.P, if so required. (V.R.KINGAONKAR,J.) asp/office/fa37293