IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.408 of 1990. FIRST APPEAL NO.408 of 1990. FIRST APPEAL NO.408 of 1990. The State of Maharashtra ..Appellant versus Vyankat Shrawan Pawar ..Respondent with FIRST APPEAL NO.409 OF 1990 FIRST APPEAL NO.409 OF 1990 FIRST APPEAL NO.409 OF 1990 The State of Maharashtra ..Appellant versus Shankar Bhikaji Bagul ..Respondent with FIRST APPEAL NO.410 OF 1990 FIRST APPEAL NO.410 OF 1990 FIRST APPEAL NO.410 OF 1990 The State of Maharashtra ..Appellant versus Vasant Shrawan Pawar ..Respondent with FIRST APPEAL NO.411 OF 1990 FIRST APPEAL NO.411 OF 1990 FIRST APPEAL NO.411 OF 1990 The State of Maharashtra ..Appellant versus Krishna Punjaji Gaikwad ..Respondents with FIRST APPEAL NO.412 OF 1990 FIRST APPEAL NO.412 OF 1990 FIRST APPEAL NO.412 OF 1990 The State of Maharashtra ..Appellant -2- versus Bhaskar Shamrao Pawar & Anr. ..Respondents with FIRST APPEAL NO.413 OF 1990 FIRST APPEAL NO.413 OF 1990 FIRST APPEAL NO.413 OF 1990 The State of Maharashtra ..Appellant versus Abala Bhimaji Bagul ..Respondent with FIRST APPEAL NO.414 OF 1990 FIRST APPEAL NO.414 OF 1990 FIRST APPEAL NO.414 OF 1990 The State of Maharashtra ..Appellant versus Ravan Sampat Pawar ..Respondent with FIRST APPEAL NO.415 OF 1990 FIRST APPEAL NO.415 OF 1990 FIRST APPEAL NO.415 OF 1990 The State of Maharashtra ..Appellant versus Laxman Bhivsar Kedar ..Respondent with FIRST APPEAL NO.416 OF 1990 FIRST APPEAL NO.416 OF 1990 FIRST APPEAL NO.416 OF 1990 The State of Maharashtra ..Appellant versus Ramrao Ukha Sumbhe ..Respondent with -3- FIRST APPEAL NO.417 OF 1990 FIRST APPEAL NO.417 OF 1990 FIRST APPEAL NO.417 OF 1990 The State of Maharashtra ..Appellant versus Ramdas Chimanrao Gaikwad ..Respondent with FIRST APPEAL NO.745 OF 1991 FIRST APPEAL NO.745 OF 1991 FIRST APPEAL NO.745 OF 1991 The State of Maharashtra ..Appellant versus Ashru Ananda Bagul ..Respondent with FIRST APPEAL NO.746 OF 1991 FIRST APPEAL NO.746 OF 1991 FIRST APPEAL NO.746 OF 1991 The State of Maharashtra ..Appellant versus Sukdeo Tathu Nikam ..Respondent Ms.S.P.Manchekar, AGP in F.A.Nos.408 to 411 to 1990 Ms.G.P.Mulekar, AGP in F.A.Nos.412 to 415 of 1990 Ms.A.A.Mane, AGP in F.A.Nos.416 & 417 of 1990 None for the respondents CORAM : R.Y.GANOO, J. CORAM : R.Y.GANOO, J. CORAM : R.Y.GANOO, J. DATED : 15th April, 2009. DATED : 15th April, 2009. DATED : 15th April, 2009. ORAL JUDGMENT. ORAL JUDGMENT. ORAL JUDGMENT. 1. These appeals can be disposed of by common -4- judgment as the point involved therein is common. The respondents in the aforesaid appeals were claimants in the land Reference No.44 of 1987 to 51 of 1987 and 103 of 1987 to 106 of 1987. The lands of the respondents came to be acquired in accordance with the provisions of Land Acquisition Act (hereinafter referred to as the said Act). The lands were required for the purpose of construction of Percolation tank at Village Pardhadi, Taluka Nandgaon, District Nasik. The process of acquisition was over and the Land Acquisition Officer found that all the pieces of lands sought to be acquired were jirayat and he granted compensation by taking into consideration the assessment of each land. He classified the lands on the basis of assessment and fixed the rate of compensation per hectare. The claimants preferred land reference in accordance with the provisions of Section 18 of the said Act. The respondents in First Appeal No.408 of 1990 claimed additional compensation of Rs.10,000/- on account of well situated in the land sought to be acquired. The Land References were heard by the learned Joint District Judge, Nasik together and by judgment and Order dated 22.6.1989 he decided the land references and granted the compensation in -5- accordance with the rates mentioned in Schedule (B) to the judgment and also granted interest, more particularly set out in the said judgment. The said judgment and order dated 22.6.1989 is challenged in the aforesaid appeals. 2. With the assistance of the learned Assistant Government Pleader, appearing in the aforesaid group of matters, I have perused the record and it must be mentioned that the respondent in the First Appeal No.408 of 1990 claimed that his land was bagayat land. So far as the evidence placed before the learned Joint District Judge, Nasik (hereafter referred to as learned trial Judge). Only two persons gave evidence at the hearing in these references i.e Mr.Vyankat Shrawan Pawar respondent in First Appeal No.408 of 1990 gave evidence. In order to bring on record sale instances, one witness Yeshwant V. Pawar was examined on behalf of respondents and he is said to have purchased the land in the village Parbhadi i.e. the very village where the lands sought to be acquired were situated. Except these two witnesses no evidence was placed before the learned trial Judge. It is pertinent to note that other respondents did not step into the witness box. Why -6- this happened could not be detected on the basis of reading of the impugned judgment. 3. Learned Advocate Mrs. Gita Mulekar had taken lead in advancing submission and other learned Assistant Government Pleaders had supported her contentions. My attention was drawn to the evidence of Vyankat P.W.1 who claims that this land is bagayat, whereas the learned trial Judge had in terms observed that land of Vyankat i.e. respondent in First Appeal No.408 of 1990 was jirayat. My attention was also drawn to the evidence of Yeshwant Pawar, the purchaser of the land whose sole instance was quoted for the purposes for fixing the value of the land. Specific attention was drawn to the evidence of Yeshwant, who has admitted in his examination in chief that the land which he purchased was Jirayat. My attention was also drawn to the text of the sale deed at Exhibit 39 i.e. the very sale deed under which Yeshwant Pawar purchased the land. In the said Deed there is a specific mention that the land which was being sold to Yeshwant was bagayat. This will mean that though the sale instance of bagayat land was sought to be relied upon, the witness who purchased the land admitted that the land was -7- jirayat. 4. A reading of paragraph 14 of the impugned judgment goes to indicate that the learned Trial Judge conducted an exercise and ultimately came to the conclusion that the prevailing rate for the Group I Inferior Jirayat Land was about Rs.17/- per hectare. He also observed that some amount of speculation is indeed unavoidable because there is no standard barometer to arrive at conclusion having mathematical precision. It is also required to be mentioned that though the document at Exhibit 39 mentioned the land as bagayat, the learned Trial Judge has observed in paragraphs 14 that the 1/8th portion of the land purchased by Yeshwant was bagayat and rest of the land was jirayat. This observation, in my view, is contrary to the record. The rate fixed by the learned Trial Judge is something which is not in consonance with the well established principals of appreciation of evidence which was placed on record. It is also required to be mentioned that though the respondents claimants had claimed Rs.200/- per hectare for the land which is covered under Pot Kharaba, the learned trial Judge has granted rate at Rs.1000/- per hectare and no reasons are mentioned in arriving at the said -8- rate of Rs.1000/- per hectare. If this is the position, the impugned judgment dated 22.6.1980 suffers from patent defect in as much as observations of the learned trial Judge are not in consonance with the record which was placed before him. If Yeshwant admits that his land was Jirayat, the learned trial Judge could not have observed that 1/8th of the portion of the land purchased by Yeshwant was bagayat and rest of the land was jirayat. Taking the overall view of the matter, it is abundantly clear that the learned Trial Judge has failed to consider the record in the proper perspective and he proceeded to fix the rate which could not have been done by him. The argument advanced by the learned Asst. Government Pleaders that the impugned order is required to be set aside is required to be accepted. 5. It is required to be noted that the respective respondents who were claimants before the learned Trial Judge have not given evidence. Evidence given by one claimant Vyankat appears to have been used for other claimants. Why other claimants have not given evidence is not very clear. In my view, in the interest of justice it is required that opportunity should be given to -9- each claimant to lead evidence if he so desires and then only the claim should be considered. Ofcourse, if a claimant does not wish to lead any evidence, appropriate statement from him could be received and in that case there is no need to examine such claimant. It is also required to be mentioned that only one sale instance is produced before the Court, which in my view is inadequate material to arrive at the just market value of the properties sought to be acquired. The Land Acquisition Officer, based his conclusion on the basis of assessment payable. In such case, I am inclined to observe that to see that no injustice is caused to any of the parties i.e. claimant or State, it would be proper, if the impugned Order dated 22.6.1989 is set aside and the land references are remanded to the trial Court for determination in accordance with the provisions of law afresh by giving opportunity to all the claimants to give evidence if they so desire. It will also be open for the State to lead evidence in support of contention for the purpose of fixing the just price. 6. For the reasons mentioned aforesaid, the aforesaid First Appeals are disposed of by passing -10- the following order. ORDER . The judgment and Order dated 22.6.1989 passed by the learned Joint District Judge, Nasik in Land Reference No.44 of 1987 to 51 of 1987 and 103 of 1987 to 106 of 1087 is set aside. ii. The record and proceeding of the land reference No. 44 of 1987 to 51 of 1987 and 103 of 1987 to 106 of 1987 be send back to the Principal District and Sessions Judge, Nasik. The aforesaid land references are restored to the file of the District Court, Nasik. iii. Upon receipt of the record of the aforesaid reference, the Principal District & Sessions Judge, Nasik, shall assign the aforesaid land references to one Judge who would dispose of these references. iv. Upon the said assignment, the concerned Judge shall issue notices to the claimants in the respective land references who can have the opportunity to lead evidence, if they so desire in support of their respective claim as well as give -11- opportunity to the State to lead evidence, if the State desires and after the completion of the aforesaid procedure, hear the respective parties and decide the land references in accordance with the provisions of law. v. The learned Judge, to whom the references shall be assigned shall take up these references as expeditiously as possible and dispose them of. It is clarified that no views are expressed on merits of the matter. In the facts and circumstances of the case, there shall be no order as to costs. (R.Y.Ganoo, J.) (R.Y.Ganoo, J.) (R.Y.Ganoo, J.)