1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. FIRST APPEAL NO.353 OF 1995 Madanlal Bhaniram Jaju Died, Through L.Rs: 1-A) Shakuntala Madanlal Jaju Age-75 years, Occ:Household, R/o-Bazar Peth, Akole, Tq-Akole, Dist-Ahmednagar, 2) Vijay Madanlal Jaju, Deceased through L.Rs: 2-A) Shailaja Vijay Jaju, Age-54 years, Occ: Household, 2-B) Sachin Vijay Jaju, Age-33 years, Occ:Business & Agri. 2-C) Samir Vijay Jaju, Age-28 years, Occ:Business & Agri. Appellant Nos. 2-A) to 2-C) R/o- Bazar Peth Akole, Tq-Akole, Dist-Ahmednagar. 2-D) Smita Shailesh Toshiwal, Age-31 years, Occ:Household, R/o- Girja, 19-B1. Ambika Nagar, Nagar-Pune Road, Kedgaon (Devi), Tq. & Dist-Ahmednagar. 3) Sanjay Madanlal Jaju, Age-51 years, Occ:Business & Agri. R/o-Bazar Peth, Akole, Tq-Akole, Dist-Ahmednagar, 2 4) Prabha Kanyalal Maheshwari, Age-48 years, Occ: Household, R/o C/o- Chhaya Enterprises, 504, Sadashiv Peth, Opposite Hatti Ganpati, Tq. & Dist- Pune. 5) Pushpa Ashok Sarda, Age-44 years, Occ:Household, R/o-Galli No.8, Azad Road, Near Parshva Jewelers, At & Post Jaysingpur, Tq-Shirol, Dist-Kolhapur. .... APPELLANTS. VERSUS 1) The State of Maharashtra, Through: Government Pleader, High Court, Bench at Aurangabad. 2) Badrinarayan s/o Bhaniram Jaju, Age-Major, Occ: Agri., R/o-Akole, Tq-Akole, Dist-Ahmednagar. .... RESPONDENTS. ... Mr.L.V. Sangit Advocate i/b. Mr. V.J. Dixit Advocate for the Appellants. Mr.M.L. Dharashive Advocate for Respondent No.1. None present for Respondent No.2. ... CORAM: K.K. TATED, J. DATE : 9TH JUNE, 2009. 3 ORAL JUDGMENT: 1. Present First Appeal preferred by original claimants against the Judgment and award dated 13th January, 1994 passed by Civil Judge, Senior Division, Sangamner in Land Acquisition No.35 of 1991. Learned counsel appearing on behalf of the Appellants states that in the present First Appeal, the Appellants are restricting their claim only in respect of classification of the land i.e. Jirayat and/or Bagayat land. He states that though in the First Appeal, they claimed compensation in respect of acquired land at the rate of Rs.60,000/- per acre, he is not pressing the same. 2. In the present case the Special Land Acquisition Officer (for short S.L.A.O. ) issued notification under Section 4 of the Land Acquisition Act dated 1st September, 1983 for acquiring Appellants land for the purpose of Upper Pravara Project Right Bank Canal. After following due process of law, S.L.A.O. declared award dated 26th August, 1988 and awarded compensation of Rs.17,991/- towards 74 R s. of land from village Sugaon Bk. Being aggrieved by the said award passed by the S.L.A.O. Dated 26th August, 4 1988, the Appellants, original claimants preferred Reference under Section 18 of the Land Acquisition Act dated 19th October, 1988 claiming compensation to the tune of Rs.1,10,000/-. The Reference Court by Judgment and award dated 13th January, 1994, awarded compensation in respect of acquired land at the rate of Rs.8,000/- per acre treating the acquired land as Jirayat land. The Reference Court mainly relied on the previous Judgment in Land Acquisition Reference No. 32 of 1991 arising from the same notification dated 1st September, 1983. 3. The learned counsel appearing on behalf of the Appellants submitted that the Reference Court erred in coming to the conclusion that the land involved in the present Reference is Jirayat land and on that basis the Reference Court awarded compensation at the rate of Rs.8,000/- per acre. It is the case of the Appellants that the Reference Court ought to have held that the land involved in the present land acquisition matter is Bagayat land and therefore the Appellants are entitled to compensation at the rate of Rs. 10,000/- per acre. Learned counsel for the Appellants submitted that the Reference Court failed to consider 5 the evidence of PW1 at Exhibit 18, in which the deponent specifically stated that he used to take Bagayat crops i.e. Sugar cane, ground-nuts, wheat, tomato etc. The deponent further stated that there is well in another adjacent land belonging to him and he used to take water from the said well also. Learned counsel for the Appellants further pointed out that the Appellants used to get water from Shrikrishna Pani Purwatha Sanstha, Sugaon. He further pointed out that the deponent specifically stated in his evidence that he installed pipe line in his field by borrowing loan from Nabard Bank. He also borrowed loan from co- operative society from Sugaon Bk. for the pipe line purpose only. On the basis of these submissions, learned counsel for the Appellants submitted that the Reference Court ought to have held that the Respondent acquired Bagayat land and therefore the Appellants are entitled to compensation in respect of acquired land on the basis of the rate applicable to Bagayat land. Appellants preferred above Appeal for 37 Gunthas of land only. Foot Note No.4 on Page No.4 of Appeal Memo reads as under: 4. The court below enhanced 6 the claim for the same extent of Rs.3118/-. The appeal has been filed for half of the land i.e. 37 Gunthas to that extent of half land, the compensation awarded Rs. 1557. 4. On the other hand, learned A.G.P. appearing on behalf of Respondent No.1 states that the Appellants failed to produce any cogent evidence to show that when the notification under Section 4 of the Land Acquisition Act issued, the Appellants used to take Bagayat crops. He further submitted that the Reference Court after considering the evidence on record, rightly held that the Appellants are entitled to compensation in respect of acquired land on the basis of rate applicable to Jirayat land. On the basis of these submissions, learned A.G.P. submitted that there is no merit in the present First Appeal and the same is liable to be dismissed with costs. 5. As the learned counsel for the Appellants restricted his argument only on the point that land involved in the present acquisition is Bagayat land, it is not necessary to discuss the other evidence. With the assistance of the learned counsel appearing 7 for the parties, I have gone through the Record and Proceedings of the present case. It is to be noted that PW1 Madanlal B. Jaju in his evidence specifically stated that his land is Bagayat land since beginning. He further stated that he used to take crops like sugar cane, ground nuts, wheat, tomato etc. It is the case of the Appellant that in his another adjoining land bearing survey No.87/2 there is a well and he used to take water from the said well also. He further stated that he used to get irrigation facilities from Shrikrishna Pani Purwatha Sanstha, Sugaon. The deponent further stated that he borrowed loan from Nabard Bank as well as co-operative society of Sugaon for pipe line. Even the Appellant produced on record the receipt issued by Co-operative society of Sugaon to support his contention that he borrowed loan from the said society for pipe line. He further produced receipts dated 7th August, 1983, 20th February, 1987, 8th March, 1987 issued by Shrikrishna Pani Purwatha Sanstha, Sugaon to show that he made payment towards their charges for water supply. These documents clearly show that the land acquired by Respondent was Bagayat land. These documents are not considered by the Reference Court at the time of doing 8 classification of the acquired land. Therefore, I hold that the Appellants were holding Bagayat land at the time of issuing notification under Section 4 of the Land Acquisition Act. 6. The Reference Court in Land Acquisition Reference No.32 of 1991 i.e. Connected matter, held that claimants are entitled to compensation in respect of acquired land at the rate of Rs.10,000/- per acre for Bagayat land and Rs.8,000/- per acre for Jirayat land. As the learned counsel appearing on behalf the Appellants made specific statement that except classification of the land, the Appellants are not disputing any other facts in the present First Appeal, I hold that Appellants are entitled to compensation in respect of acquired 37 Gunthas land on the basis of rate applicable to Bagayat land i.e. at the rate of Rs.10,000/- per acre including other benefits as provided by the Land Acquisition Act. The Appellants in Foot Note No.4 in Appeal Memo stated that Appeal has been filed for half of the land i.e. 37 Gunthas only. 7. The Judgment and award passed by the Reference 9 Court dated 13th January, 1994 in Land Acquisition Reference No.35 of 1991 is modified to the extent that the Appellants are entitled to compensation in respect of acquired land at the rate of Rs.10,000/- per acre along with other benefits as per the Land Acquisition Act. 8. First Appeal is partly allowed to the extent as stated above. [K.K. TATED] JUDGE. asb/JUN90/fa353.95