Allowed

Smt. Kamal Mahadeo Mulye v. Kokan Railway Corporation and Ors.

Bombay HC24 Jul 2005FA/989/2002

Case brief

AI extract

What is this about?

In a civil appeal, the High Court held that illegal encroachment and destruction of property prior to acquisition notification falls outside the Land Acquisition Act. The trial court erred in dismissing the suit on maintainability grounds. The appeal was allowed, impugned judgment set aside, and suit remanded for fresh decision on damages.

What did the court decide?

Impugned judgment and decree set aside; suit remanded to trial Court to be decided afresh on merits of damages and specific relief within specified time.

Smt. Kamal Mahadeo Mulye Vs Kokan Railway Corporation and Ors. — Land Acquisition | Bombay HC (2005)

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 IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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 CIVIL APPELLATE JURISDICTION

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 FIRST APPEAL NO. 989 OF 2002

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 Smt. Kamal Mahadeo Muley ]
 Occ.: Agriculturist & Household ] APPELLANT
 R/o : At Post Nivsar, Tal. Lanja, ] (ORIGINAL
 Dist. Ratnagiri. ] PLAINTIFF).

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 Versus

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 1) Konkan Railway Corporation ]
 Through Executive Director, ]
 Konkan Railway Bhavan, Vashi, ]
 New Mumbai. ]
 ] RESPONDENTS
 2) Special Land Acquisition ] (ORIGINAL
 Officer, Konkan Railway -1, ] DEFENDANTS).
 Collector Compound,Ratnagiri ]
 ]
 3) The Collector, ]
 Ratnagiri. ]

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 Mr. R.D. Suryawanshi Advocate for Appellant.

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 Ms. Kiran Bhagalia with Ms. Asha Bhambani, Advocate
 for Respondent No. 1.

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 Mr. A.R. Patil, AGP for the Respondent no. 2 and 3.

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CORAM : ABHAY S. OKA, J.

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 DATE : 24TH JULY, 2006

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 P.C.

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 1) I have heard the submissions of the learned

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 counsel appearing for the parties. On 15th June 2006,
 by consent of the learned counsel appearing for the
 parties, the appeal was finally heard.

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 2) The Appellant is the original Plaintiff. The
 Appellant filed a suit for payment of compensation on
 account of the damage caused to her immovable property
 by the Respondents. The claim for damages is to the
 tune of Rs.1,93,000/-. A prayer was made in the suit
 for removal of encroachment made by the Respondents and
 in the alternative for compensation of Rs.65,000/-.
 The case of the Appellant is that she is a widow and is
 the owner of land bearing survey number 330 admeasuring
 33 Are as well as land bearing survey number 334-A
 admeasuring 2 Hectare and 2 Are situated at Mauje
 Nivasar, Tal. Lanja, District Ratnagiri. According to
 the case of the Appellant, the area of 20 gunthas out
 of land bearing survey number 330 was acquired for
 public purpose at the instance of the first respondent.
 Similarly area of 84 gunthas out of land bearing survey
 no. 334-A was acquired for public purpose at the
 instance of first Respondent. Out of aforesaid two
 lands, the dispute in the suit is as regards area of 13
 gunthas out of survey number 330 and area of 26 gunthas
 out of survey no. 334. The said portions of the land
 were not acquired on the date of the suit. The said
 portions of the land are hereinafter referred to as
 "the suit land". According to the case of the
 Appellant on the suit land there was one toilet block
 admeasuring 1.5 meter in width x 1.8 meter in length
 having height of 2 meter which was made up of simple
 walls and Mangalore Tiles. The total cost of the

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 toilet was stated to be Rs.1,200/-. According to her
 case there were 60 Jambhul trees on the suit land and
 the total cost of Jambhul trees was Rs.78,000/-.
 According to the Appellant there was a wall (gadga)
 made up of stones having height of 3 feet and length of
 400 meters having total cost of Rs.80,000/-. According
 to the case of the Appellant, a PVC pipeline was laid
 on the suit land for bringing water from a Canal.

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 3) On 16th February 1993, the toilet block was
 demolished by the first Respondent after oral notice
 thereof given by a Junior Engineer of the first
 Respondent. The Junior Engineer recorded said fact on
 a chit and stated that compensation will be paid to the
 Appellant. He stated that the toilet block was
 required to be removed for facilitating movement of
 certain equipment. After demolition of toilet block
 without informing the Appellant, 60 Jambhul trees were
 destroyed by the first Respondent. According to the
 case of the Appellant, while constructing the Railway
 line on the adjoining portion of land which was
 acquired, large amount of earth was dumped on the suit
 land which covered the water pipeline and the wall
 constructed on the suit land. According to the

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 Appellant for irrigating her other land she was drawing
 water from the suit land. As a result of the
 encroachment made by the respondent on the suit land,
 the water source was completely damaged and she was
 required to construct a well on her other property by

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 spending Rs.30,000/- which is at a distance of 2.5 kms.
 away from the other agricultural land of the Appellant.
 According to the Appellant out of land bearing survey
 no. 334 admeasuring 26 gunthas which is part of the
 suit land, an area of 13 gunthas cannot be used by her
 as a result of activities of first respondent.
 According to the Appellant a number of letters making
 grievances were written by her to the Respondents. For
 the first time by communication dated 3rd September
 1997, the second Respondent informed that she has been
 already paid the compensation in respect of the
 acquired land and therefore she was not entitled to any
 compensation.

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 4) The first Respondent filed written statement.
 The first Respondent admitted that toilet block was in
 existence. However the first respondent disputed the
 price of toilet block. The first respondent disputed
 that there were Jambhul trees on the land and that
 there was a wall constructed and a pipeline laid.
 However there was no denial of the allegation that the
 suit land was not acquired in accordance with law.
 Apart from general denial, it was contended in the
 written statement that on 5th October 1995 the
 Appellant has been informed that for the extra area
 which was required for construction of Railway line a
 proposal is already submitted for acquisition and
 compensation will be paid in accordance with the
 provisions of the Land Acquisition Act, 1894. The

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 written statement was filed by 2nd and 3rd Respondents
 containing general denials. It was stated that though
 few trees were removed, the same was done with the
 prior approval of the Appellant.

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 5) The learned Trial Judge framed issues which are
 as under :

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 1) Does Plaintiff prove that defendants
 have cut off 60 Jambhul trees from the land of
 plaintiff which was not acquired and without
 her consent ?

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 2) Does she prove that defendants have
 damaged pipeline and compound wall as alleged ?

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 3) Whether she is entitled for damages as
 prayed ?

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 4) Whether she is entitled for the
 possession of the suit property as prayed ?

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 5) Whether she is entitled for further
 interest as prayed ?

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 6) What order and decree ?

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 2A) Whether this Court has jurisdiction to
 entertain and try the suit ?

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 2B) Whether suit is premature?

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 The same were answered as indicated below :

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 1) Does not survive,
 2) Does not survive,
 3) No,specifically under the present suit,
 4) No
 5) No
 6) As per final order.
 2A) No
 2B) Yes.

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 6) The learned trial Judge held that acquisition
 proceeding in respect of area of 13 gunthas out of
 survey no. 330 and half guntha out of survey no.

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 334(A) were pending and the question of compensation
 will be decided in the said proceeding. The learned
 trial Judge held that as and when compensation is
 awarded, the Appellant will have a remedy under Section
 18 of said Act to make a claim for enhancement. The
 learned Judge held that a Civil Suit was not
 maintainable for challenging acquisition proceeding.
 The learned Judge, however, did not record any specific
 finding on issue Nos. 1 and 2.

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 7) The learned Counsel for the Appellant submitted
 that the grievance of the Appellant in the suit was
 that without following due process of law, a part of
 the suit land was illegally taken over by the
 Respondents and the property therein was damaged. He
 submitted that suit was maintainable as there was no
 challenge in the suit to any acquisition proceeding
 under the said Act of 1894 but challenge was to the
 illegal acts of the Respondents of committing
 encroachment on the suit land without following due
 process of law. He submitted that there are clinching
 admissions made by the witness examined by the first
 Respondent and in view of the said admissions, the
 Appellant was entitled to a decree. He submitted that
 after the dismissal of the suit, the Appellant was
 supplied a copy of Award dated 31st October 2000 which
 is made under Section 11 of the said Act in respect of
 additional land out of the suit land. Though a formal
 application for additional evidence is not made, by

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 consent of the learned counsel appearing for the
 Respondents, a copy of the said Award is taken on
 record of the First Appeal which is marked as Article
 "X" and by consent of the counsel appearing for the
 parties the same has been read in evidence. The
 learned counsel for the Appellant pointed out that
 compensation has been awarded at the market rate
 prevailing on 27th August 1999 which is the date of
 publication of Notification under Section 4(1) of the
 said Act of 1894 and no compensation has been paid for
 loss or damage caused.

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 8) The learned Counsel appearing for the first
 Respondent submitted that as an award is already made
 under Section 11 of the said Act, now the remedy
 available for the Appellant was to apply under Section
 18 of the said Act of 1894. She submitted that in
 substance, the challenge in the suit is to the award on
 the ground that compensation has been denied to the
 Appellant. She, therefore, submitted that the trial
 Court has rightly held that Civil Court had no
 jurisdiction to entertain the suit. She submitted that
 there is no merit in the appeal and the same deserves
 to be dismissed. The learned A.G.P. for the 2nd and
 3rd Respondents adopted the submissions made by the
 learned Counsel for the first Respondent.

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 9) I have considered the submissions. I have
 perused the pleadings and notes of evidence. I have

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 also perused a true copy of the award which is produced
 on record. It is not in dispute between the parties
 that the suit land was not acquired as on the date on
 which the cause of action for filing the suit arose.
 On the date on which the suit was filed, the suit land
 was not the subject matter of any concluded acquisition
 proceeding. The Respondents have not challenged the
 title of the Appellant to the suit land. A copy of the
 award which is placed on record of the appeal shows
 that Notification dated 27th August 1999 was published
 under Section 4(1) of the said Act of 1894 by which a
 part of the suit land namely area of 13 Are out of
 survey 330 and 1/2 Are out of survey no. 334-A was
 notified for acquisition.

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 10) One Shri. Sudhir Madhav Kulkarni, a Sectional
 Engineer of the first Respondent was examined on behalf
 of the first Respondent admitted in his
 examination-in-chief that first Respondent used area of
 13 and 1/2 gunthas out of the suit land for dumping
 purposes and the said area was not acquired earlier.
 He stated that there was a toilet / latrine on the said
 area of 13 and 1/2 gunthas and the area of the toilet
 was 1.5 meter x 1.8 meter having height of 2 meters.
 He stated that the approximate cost of the toilet block
 was Rs.500/-. He admitted that it was not possible to
 retain the said toilet block while constructing a
 tunnel on the nearby acquired land. In the cross
 examination, he admitted that the work of dumping on

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 area of 13 and 1/2 gunthas was carried out in the year
 1993-1994. He admitted that the toilet block was
 demolished in the same year. He admitted that before
 dumping the material on the suit land, the first
 Respondent had not informed the Appellant in writing.
 He admitted that before the acquisition proceedings,
 first Respondent had not measured the un-acquired land.
 During his cross examination, he further stated that on
 the portion of the suit land used for dumping purposes,
 there were 30 to 40 Jambhul trees owned by the
 Appellant. He stated that he was unable to state
 whether the entire land of the Appellant was surrounded
 by a wall (gadga). He stated that the cost of compound
 wall on the acquired land was paid to the Appellant.
 He admitted that the flow of water on the suit land is
 now closed due to the construction of the Railway track
 and the tunnel on the adjoining land. He stated that
 he was not aware whether the Appellant had to spend
 Rs.30,000/- for digging a well due to closure of water
 flow. He admitted that first Respondent had not paid
 any compensation in respect of area of 13 and 1/2
 gunthas out of the suit land which was used for dumping
 purposes. He volunteered that acquisition proceeding
 in respect of area of 13 and 1/2 gunthas was in
 progress. It is pertinent to note that his deposition
 was recorded on 31st August 2001 and still he did not
 disclose that award is allegedly made on 31st October
 2000. It is also pertinent to note that the 2nd and
 3rd Respondents did not examine any other witness and

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 did not lead any evidence regarding acquisition
 proceedings in respect of area 13 and 1/2 gunthas and
 about alleged award allegedly made in respect of the
 said area on 31st October 2000. Though the learned
 Counsel appearing for the parties were unable to throw
 any light on this aspect, it appears from Paragraph No.
 9 of the impugned Judgment that certain documents were
 placed on record alongwith a list at Exhibit 89 to show
 that the acquisition proceeding was completed on 31st
 October 2000 and compensation has been awarded to the
 Appellant.

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 11) From the evidence on record the admitted
 position which emerges is as under:

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 (a) No acquisition proceeding was initiated
 in respect of the suit land till 27th August
 1999 when a Notification under Section 4(1) of
 the said Act of 1894 was published;

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 (b) without acquiring the suit land an area
 of 13 and 1/2 gunthas was taken over by the
 first Respondent in the year 1993-1994 for
 dumping purposes;

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 (c) a toilet on the suit land was
 demolished in the year 1993-1994 and area of
 the toilet was 1.5 meter x 1.8 meter having
 height of 2 meters;

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 (d) There were 30 to 40 Jambhul trees in
 existence on the area used for dumping purposes
 by the first Respondent and the Jambhul trees
 were owned by the Appellant;

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 (e) flow of water to the suit land was
 closed due to construction of Railway track and
 tunnel on the adjoining land.

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 12) Thus it is crystal clear that the respondents
 illegally and un-authorisedly encroached upon area of
 13 and 1/2 gunthas out of the suit land admittedly
 owned by the Appellant. The facts which are disputed
 are as under :

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 i) The existence of a compound wall
 (gadga) along the boundary of the suit land.

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 ii) The exact number of Jambhul trees owned
 by the Appellant on the suit land which were
 destroyed by the first Respondent.

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 iii) Existence of a PVC pipeline on the suit
 land which was allegedly damaged by the first
 Respondent.

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 iv) The flow of water on the suit land was
 utilised by the Appellant as a source of water

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 supply to her other land.

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 (v) The Appellant was forced to construct a
 well on other land by spending Rs.30,000/-.

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 13) So far as Jambhul trees are concerned, the case
 of the Appellant was that there were 60 Jambhul trees
 which were destroyed due to dumping. The witness
 examined by the first Respondent admitted that there
 were 30 to 40 Jambhul trees on the area of 13 and 1/2
 gunthas. Thus the correct position which can be safely
 taken is that 40 Jambhul trees on the suit land were
 destroyed as a result of dumping by the first
 Respondent. The Appellant’s son entered the witness
 box and stated that there were 60 Jambhul trees of 20
 to 25 years age and total cost of the trees was
 Rs.78,000/-. He also deposed that a PVC pipeline on
 the suit land was destroyed and existing compound wall
 having length of 400 meters and height of 3 ft. was
 destroyed due to dumping. He produced on record
 accounts maintained regarding the expenditure incurred
 on digging the well. However, the said accounts were
 not exhibited by the learned trial Judge. The
 Appellant also examined one Narayan Yashwant Shinde in
 support of her case who also deposed about existence of
 Jambhul trees by saying that there were 70 to 80
 Jambhul trees. He also deposed about existence of PVC
 pipeline on the suit land.

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 14) The witness examined by the first Respondent
 Shri. Sudhir Madhav Kulkarni did not deny in the
 examination-in-chief that compound wall was not in
 existence. In his examination-in-chief he stated that
 during the earlier acquisition proceedings,
 compensation was paid in respect of the compound wall
 which was found during joint measurement. In cross
 examination he admitted that cost of compound wall
 which was paid to the Appellant was only in respect of
 the gadga of the acquired land. Thus the first
 Respondent has not denied in the evidence that a
 compound wall having length of 400 meters and height of
 3 ft. made up of stones was in existence on the suit
 land and that the same was destroyed as a result of
 dumping. There is a consistent evidence led by the
 Appellant regarding the existence of said wall and
 covering of the said compound wall by dumping.
 Therefore the case of the Appellant that there existed
 a compound wall made up of stones having length 400
 meters and height of 3 ft. on the suit land will have
 to be accepted. It will have to be also accepted that
 the said compound wall was destroyed due to dumping.
 However, there is no satisfactory evidence regarding
 the costs incurred by the Appellant on construction of
 the said wall.

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 15) So far as the dispute regarding exact number of
 destroyed Jambhul trees is concerned, the case made out
 by the witness examined by the first Respondent about

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 the existence of 40 trees will have to be accepted.
 The Appellant has specifically come out with the case
 that the cost of each tree was Rs.1300/- as each tree
 was sufficiently old. When the first Respondent
 admitted that 40 trees were destroyed, the case of
 Appellant regarding value of Jambhul trees should have
 been controverted in evidence. However that is not
 done by the first Respondent. Therefore, it will have
 to be accepted that 40 Jambhul trees were destroyed due
 to dumping on the suit land and cost of each tree was
 Rs.1300/-. In the examination-in-chief, the witness
 Shri. Sudhir Kulkarni examined by the first Respondent
 has not denied existence of PVC Pipeline on the suit
 land. However, in cross examination he has denied
 existence of the said pipeline. There is no positive
 evidence on record to show the existence of PVC
 pipeline. There is no evidence on record to show that
 because of obstruction to the flow of water on the suit
 land, the Appellant was forced to construct well on
 other land. Thus, on the basis of the aforesaid
 discussion, following findings of fact will have to be
 recorded.

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 (1) In 1993-1994 the first Respondent
 encroached upon area of 13 gunthas out of

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 survey no. 330 and area of 1/2 guntha out of
 survey number 334-A owned by the Appellant by
 acts of dumping.

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 (2) The toilet block having value of
 Rs.500/-was destroyed due to act of dumping.

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 (3) 40 Jambhul trees of the Appellant
 having cost of Rs.1300/- each were destroyed
 due to dumping.

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 (4) A compound wall having height of 3 ft.
 and length of 400 meter made up of stones was
 destroyed due to dumping. However, there is no
 positive evidence regarding cost of the said
 compound wall.

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 16) That takes me to the other dispute regarding
 jurisdiction of the Civil Court to entertain the suit
 in the light of the fact of completion of acquisition.
 Perusal of the Award shows that market value has been
 fixed as on 27th August 1999 and interest under Section
 23(1)(A) of the said Act of 1894 has been granted from
 27th August 1999. The award also records that acquired
 land has been taken over by the first Respondent by a
 private agreement and therefore acquiring body will
 have to pay rent to the owner. However, the award is
 only as regards the market value of the area of 13 and
 1/2 gunthas as on 27th August 1999, interest at the
 rate of 12% per annum under Section 23(1)(A) of the
 said Act of 1894 from 27th August 1999 on the market
 value and solatium under Section 23(2) of the said Act
 of 1894 on the market value.

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 17) On perusal of Section 23 and Section 24 of the
 said Act of 1894 it appears that there is no provision
 in the said Act of 1894 for grant of compensation for
 use of the land prior to initiation of acquisition
 proceeding i.e. prior to the publication of a
 Notification under Section 4(1) of the said Act of
 1894. Interest under Section 34 of the said Act of
 1894 can be granted wherever possession is taken over
 by the Collector under the provisions of the said Act
 of 1894 before the payment of compensation or deposit
 of the compensation. In this case possession of area
 of 13 and 1/2 guntha is not taken over by the Collector
 or by any Officer of the State Government in exercise
 of powers conferred by the said Act of 1894. In fact
 when possession was taken over, a Notification under
 Section 4(1) was not even issued. There is no evidence
 on record to show that the possession was taken over as
 a result of private negotiations. Evidence on record
 shows that the Appellant was forcibly dis-possessed of
 area of 13 and 1/2 gunthas. The 40 Jambhul trees, the
 toilet block and the compound wall were not in
 existence on the date on which Notification under
 Section 4(1) of the said Act of 1894 was issued and
 therefore in view of express language of Section 23 of
 the said Act of 1894, the Appellant will not be
 entitled to any compensation under the provisions of
 the said Act of 1894 as regards the 40 Jambhul trees,
 the toilet block and the compound wall.

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 18) It is true that the said Act of 1894 is a

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 complete code by itself which provides for payment of
 compensation on account of acquisition of a private
 land for public purpose. The authorities under the
 said Act of 1894 have no power to determine and award
 compensation, on account of loss of a property in a
 case where before publication of Notification under
 Section 4(1) of the said Act of 1894, the owner is
 dis-possessed of his property otherwise than by due
 process of law. Similarly no compensation can be
 awarded under the said Act of 1894 on account of
 destruction of the structures and trees made without
 following due process of law which has taken place
 before publication of a Notification under Section
 4(1).

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 19) The prayer in the suit is for payment of
 compensation on account of damage caused by illegal act
 of trespass on the part of Respondents. The Civil
 Court does have jurisdiction to entertain a suit for
 grant of the said prayer. The second prayer is for
 delivery of possession. It is not in dispute that the
 Respondents are claiming that the acquisition is made
 only in respect of 13 and 1/2 gunthas which is the
 subject matter of the suit. It is obvious that now a
 prayer for possession of the said area is not
 maintainable in a Civil Suit. As regards remaining
 area out of the suit land, the Respondents are not

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 claiming any right and are not disputing in any manner
 that the Appellant is in possession thereof.
 Therefore, second prayer in the plaint will not
 survive. So far as third prayer is concerned, the same
 will survive so far as the interest on claim for
 damages is concerned.

¶89

 20) The Trial Court has not at all considered the
 prayers of the Appellant in first and third prayer
 clauses on merits. In my view the suit will have to be
 remanded to the trial Court for deciding the issue as
 regards entitlement of the Appellant to claim of
 damages with interest from the first Respondent. The
 said issue will have to be decided on the basis of
 evidence which is already adduced by the parties.
 However both the parties are free to lead further
 evidence as regards the cost of the destroyed wall.
 The said issue will have to be decided in the light of
 what has been held in this judgment. Hence, I pass
 following order :

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 O R D E R

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 i) The impugned Judgment and Decree is set aside.

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 ii) The suit is remanded back to the trial Court.
 The suit will be decided afresh in accordance with the
 observations made in the judgment. The parties are
 directed to appear before the learned trial Judge on

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 21st August 2006 at 11.00 a.m. It is made clear that
 no further notice will be given to any of the parties.

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 iii) The learned trial Judge is directed to hear and
 decide the suit as expeditiously as possible and
 preferably on or before 31st January 2007.

¶96

 iv) There will be no order as to costs.

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 (v) Writ to be sent forthwith. This Order to be

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 communicated by fax / e-mail to the concerned Court.

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( ABHAY S. OKA, J.)

Smt. Kamal Mahadeo Mulye v. Kokan Railway Corporation and Ors.

Case brief

What is this about?

What did the court decide?

Smt. Kamal Mahadeo Mulye v. Kokan Railway Corporation and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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