The trial court has rightly observed that if there is no
document which show that the suit property has been
earmarked as separate land for N.A.use, then, the acquisition
record cannot be brushed aside. The award is made by the very
same revenue officer in his capacity as Special Land Acquisition
Officer. He had before him all the maps, measurements and
records and it is only then, he considered the claim of the
appellants for compensation. In these circumstances, to
displace and dislodge the statements made in the award and
which is of 18th April 1992 at this prima facie state would be
improper. The learned Judge has referred to each of the maps
and it is erroneous on the part of the appellants to urge that
they have been brushed aside. The learned Judge has referred
to them and equally to the further steps taken culminating in
the order dated 24th February 2012. It is after considering all
these materials, that he arrived at a conclusion that the
appellants – plaintiffs have failed to make out a prima facie
case. The Balance of convenience is also not in their favour and
they will not suffer grave or irreparable loss, harm and injury
but construction of the court building is a public project and if it
is stopped at this stage, that would be not in public interest.
The overwhelming public interest is paramount in such cases
whereas if the appellants ultimately succeed, they can be
compensated in terms of money or with appropriate direction.
APPEAL FROM ORDER NO.724 OF 2012
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
Kisham V
. Chintam
Vs
District Collector, Thane
CORAM
: S. C. DHARMADHIKARI, J.
26th March 2013.
Pronounced on :
Citation;2014(3) MHLJ629 Bom
This appeal from order is already admitted by this Court
on 30th July 2012. At that stage, following order was passed.
“Admit. Hearing of the appeal is expedited and
peremptorily fixed on 13th August 2012. Mr.A.R.Patil
waives service of notice of final hearing on
respondent Nos. 1 to 8.”
The Civil Application No.927 of 2012 for interim reliefwas
placed for orders before me and with the consent of the learned
Advocates appearing for parties, the appeal itself is heard and
disposed of at this stage. Accordingly, I have heard the learned
Counsel Mr.Godbole for appellants and learned Advocate
General for respondents.
2]
This appeal from order challenges the order passed by the
trial court below Exh.5 dated 3rd July 2012 in Special Civil Suit
No.85 of 2012. That special civil suit has been filed in the trial
court by the plaintiffs against the State of Maharashtra and its
officials. That is alleging that the appellants plaintiffs, who
shall be hereinafter referred to as plaintiffs, are owners of Gat
No.16, Survey No.70A/1/1/B admeasuring 11.34 Rs situate at
Kalambe village Taluka Shahapur, Dist. Thane and more
particularly described in para 1 of the plaint. In para 2 of the
plaint, the allegation is that the suit property i.e. Gat No.16
bearing S.No.70A/1/1/B admeasuring 11.34 Rs was earlier part
of S.No.70. The area of S.No.70 was 48 acres 23 gunthas. The
said S.No.70 was further divided into 70A, 70B and 70C. The
said subdivision was admeasuring as 70A(48 acres 11
gunthas), 70B (10 Gunthas Khan) and 70C (2 GunthasKhan).
Survey No.70A/1 was part of S.No.70A and area of said
S.No.70A/1 was 48 acres and 2 gunthas. Division of
S.No.70A/1 was 70A/1/1 and 70A/1/2. S.No.70A/1/1 was
further divided into 14 parts i.e. 70A/1/1/1 to 70A/1/1/14.
Out of this subdivision S.No.70A/1/1/13 was subdivided into
70A/1/1/13 and 70A/1/1B. Survey No.70A/1 was divided into
two separate Survey numbers viz., S.No.70A/1/1 (47 acres 33
gunthas) and S.No.70A/1/2 (0 acres and 9 gunthas). Survey
No.70A/1/1 was further subdivided into 14 hissas as follows:
S.No.
Area
Acre
Guntha
============================
“70A/1/1/1
to
70A/1/1/7
20
20
70A/1/1/8 4 70A/1/1/9 4 70A/1/1/10 3 14
9 29
2 27
2 14
70A/1/1/13
70A/1/1/14
Total Area
9
70A/1/1/12
70A/1/1/11
26
14
47
33
Above mentioned areas are as per the Aakar Phod Patrak/ Kami
Jast Patrak of S.No.70A/1/1. It is pertinent to note that area of
S.No.70A/1/1 Hissa 13 is 2 acre 14 gunthas i.e. 94 gunthas i.e.
95.01 R.
It is further submitted that, the land bearing S.No.70A/1/1
Hissa No.13 situated at Village Kalambe was owned by
Smt.Posanibai Sayana Chintam and Smt.Kuktabai P Chintam.
In the year 1942 said land owners through Shri Pottana applied
for the permission for non agricultural user of S.No.70A/1/1
Hissa No.13. By an order dated 31 st March 1942 Mamlatdar,
Shahapur was pleased to grant permission for non agricultural
use in C.T.S.No.73A Hissa No.13 (S.No.70A/1/1 Hissa No.13)
on the conditions specified in the said order viz., (I) residential
building should be constructed in the land admeasuring 444
sq.yards 4 sq.ft. and latterine admeasuring 6 sq.yards 6 sq.ft as
shown in the sketch prepared by Circle Inspector on 2 nd
February 1942 and signed by the applicants – appellants. Area
admeasuring 904 sq.yds 4 sq.ft was directed to be kept open
and on other conditions stated in the said order.
3]
It is submitted that in furtherance of N.A. order,
measurement was carried out. As per that measurement, the
non agricultural use was permitted and shown as 1365 sq.yds
i.e. 11 gunthas and 3 Rs viz., 11.35 Rs. The plaintiffs relied
upon a map dated 30th December 1957. The allegation is that
in terms of this N.A. order and the measurement of 1957, “Kami
Jast Extract” was prepared showing the details of area of
S.No.70A/1/1 Hissa No.13. The land admeasuring 0 Acre 11
gunthas and 3 aane i.e. 11.20 gunthas was separately shown as
S.No.70A/1/1B, a copy of this extract is also produced on
record. In short the case is that S.No.70A/1/1 was further
divided into two parts namely 70A/1/1/13 and S.No.70A/1/1B.
That description was also given in the plaint at para 4. The
undisputed position emerging from the record is that the
Dist.Judge, Thane on 5th January 1988 sent a proposal for
acquisition of land from Village Kalambe Taluka Shahapur for
construction of Court Building and residential quarters. This
application/ proposal was forwarded by Additional Collector to
Special Land Acquisition Officer with a direction to start
acquisition proceedings under Land Acquisition Act, 1894.
3]
I need not refer to in extenso to the notification under
section 6 and the details pertaining thereto inasmuch as it is
stated in the plaint itself that an award was made in respect of
the land bearing S.No.70A/1/1 Hissa No.13 and the area of
land under acquisition was declared as 83.77 Rs. There is a
reference made by both parties to the Award dated 8 th March
It is then contended that the District Inspector of Land
4]
1992, a copy of which is produced on record.
Records by his order dated 31 st March 1990 implemented new
scheme for the land situate at Village Kalambe and in
accordance with the said scheme, S.No.70A/1/1B was the land
converted into N.A. user by order dated 31 st March 1992 and
was admeasuring 11 gunthas 3 Anna and 4 pai. The plaintiffs
states that on 12th March 2003 they addressed a letter to SLAO
Thane stating that this land, which is now corresponding to Gat
No.16 is admeasuring 11.34 Rs, is a separate non agricultural
land and it is neither mentioned in the notification issued under
section 4 or section 6 of the Land Acquisition Act nor in the
Award dated 18th April 1992. It was further pointed out that
the total area of Gat No.70A/1/1/13 is 94 Rs and proposed
acquisition is only to the extent of 83.77 Rs. Therefore, N.A.
land has not been taken into consideration by SLAO while
passing the award and it is, therefore, not the subject matter of
In furtherance of the acquisition proceedings, new map
5]
the award.
came to be prepared but that was incorrect. The Taluka
Inspector of Land Records addressed a letter to SLAO on 15 th
March 2003 informing him that the map of the land in question
i.e. Gat No.16 appears to be incorrect. It was further pointed
out that a map bearing M.R.No.145 has not been given effect to
in Kami Jast Extract of 1958. The entire Hissa No.13 is shown
on the map with reference to Gat No.16 and, therefore, the map
be modified.
6]
Therefore, a new map bearing M.R.No.670 was prepared
to show the land under acquisition admeasuring 83.77 Rs from
Survey No.16. A specific remark was inserted in the map that
proceedings for amalgamation and correction with reference to
Gat No.16 are pending with Superintendent of Land Records,
Maharashtra.
It is alleged that the TILR addressed a letter to the
7]
plaintiffs on 22nd July 2004 informing that modification of map
as provided by Section 31A is approved and new map will be
prepared within 15 days. Thereafter, the new map is relied
upon. It is stated that the TILR even addressed a letter to SLAO
Thane informing him that the incorrect map has been corrected.
It is then alleged that on 26 th December 2005, the SLAO Thane
tried to obtain possession of the land S.No.70A/1/1 Hissa No.13
but since the representative of the Civil Court, Shahapur was
not present, the possession was not taken. It is then alleged
that on an application dated 2nd January 2006 of the plaintiff for
measurement of Survey Nos. 10 and 91, it was carried out and
map bearing M.R.932 came to be prepared. It is stated that if
the said map is perused incorrect portion can be traced and the
encroachment is clearly done by defendant No.6, so as to save
certain adjoining owners and their encroachment. It is then
stated that on the application of Civil Court new map bearing
No.1655 dated 2nd April 2008 came to be prepared to show the
boundaries of the land under acquisition. Thereafter on 11 th
August 2008, TILR Shahapur issued a show cause notice to the
land owners – plaintiffs seeking explanation as to why the map
of S.No.70A/1/1 Hissa No.13 bearing M.R.932 dated 2 nd
January 2006 should not be reviewed/ modified/ cancelled.
This show cause notice was replied by the plaintiffs and they
pointed out that such review proceedings are not maintainable.
It is alleged that no order is passed in furtherance of the show
cause notice and reply. Then, it is stated that plaintiffs informed
the learned Dist.Judge Thane regarding encroachment
committed by the owners of S.No.70A/1/1 Hissa No.8 (Gat
No.13 Part). It was pointed out that in view of the revised map
issued, new measurement is required. It is stated that on 25 th
January 2011, the Deputy Director of Land Records, Shahapur
issued a show cause notice requesting the land owners to
remain present at the time of measurement and measurement
was carried out in February 2011 but this measurement was
objected to by the plaintiffs on 9 th February 2011. They also
filed an appeal under section 247 of the Maharashtra Land
Revenue Code on 13th May 2011. By letter dated 20 th May 2011
the District Superintendent of Land Records informed the
plaintiffs that the said appeal is filed for fixing boundaries and
hence not maintainable and disposed of. Thus it is alleged that
the Authority did not allow the plaintiffs to make their
submissions. In the meanwhile, the SubDivisional Officer,
Bhivandi addressed a letter to the Superintendent of Land
Records, Thane requesting him to take appropriate steps to
cancel the mutation Entry No.1 by which Gat No.16 was
formed. Reliance is placed upon a letter dated 31 st March 2011
in that regard and it is alleged that without giving any notice to
the land owners/ plaintiffs, the Deputy Superintendent of Land
Records passed an order dated 2 nd April 2011 cancelling Gat
No.16 and asked the plaintiffs to file objections for the proposed
amendments in the map. Thereafter, the Deputy
Superintendent of Land Records, passed an order on 6 th January
2012 cancelling the map bearing No.670, 932 and 1655 dated
14th August 2003, 1st July 2006 and 2nd April 2008 respectively.
Being aggrieved and dissatisfied by this order the plaintiffs
filed an appeal before the District Superintendent of Land
Records, Thane on 18th April 2012.
8]
It is, therefore, alleged that the suit property was never the
subject matter of acquisition. There was no question of
surrendering possession thereof to the defendants. The suit
property was not acquired by the defendants. It was
surrounded by the compound of barbed wires having cement
poles around and separate entrance gates with lock and key and
the same was fully in possession of the plaintiffs since 1942 or
thereabouts. It was completely removed and destroyed high
handedly with the help of local police in the presence of the
members of the Shahapur Bar Association. Thus, the objections
and correspondence has not resulted in the possession of the
plaintiffs being protected and making such allegations and
alleging that the cause of action for the suit arose on 1 st March
2012, when the defendants forcibly dispossessed the plaintiffs
ig
from the suit property that the suit was filed claiming following
reliefs:
“(a) that the suit may kindly be decreed with costs;
(b) that this Court be pleased to direct the
defendants to deliver the vacant, peaceful and
physical possession of suit property to the plaintiffs;
© that the defendants their servant, agent,
representatives and/or any persons claiming through
or under them be restrained by an order and
permanent injunction of this Court from dealing with
disposing of or alienating, encumbering, transferring,
inducting any third party or parting with possession
in respect of the suit property;
(d) that the defendants their servants, agents,
representatives and/or any persons claiming through
or under them be restrained by an order and
9]
permanent injunction of this Court from putting up
any construction and or developing the suit property
and or granting any development right in favour of
any third party, person or persons, in respect of the
suit property;”
An application for interim reliefs was filed in this suit
claiming temporary injunction in furtherance of the aforequoted
prayers. The defendants were served with the papers and
proceedings and they filed their detailed affidavit in reply.
10] In the written statement/ reply of the original defendant
Nos. 3 to 5 it has been alleged that the suit is false, frivolous,
bogus and not bonafide. It has been filed with a view to stall
construction of civil court building. The plaintiffs have
suppressed material facts from the court. The plaintiffs' whole
case is based on existence of Gat No.16. However, that itself is
not existing. What has been pointed out is that Gat No.16 was
never in existence. It was asserted that the property at Mauje
Kalambe Taluka Shahapur now numbered at Gat No.22 (old
S.No.70/1/1/Hissa No.13) was reserved for construction of
court building. It has been acquired in 1992. It admeasures
83.77 Rs. Out of that 0750 Rs is a road from Kalambe to
Borshi. It is a zilla parishad road. That portion has been
excluded and, therefore, the remaining land 07627 Rs stands
in the name of Dist.Court, Thane in 7/12 extracts. The suit
property stated to be admeasuring 01134 Rs which is also a
part of larger property 83.77 Rs. However, in the consolidation
scheme, this area was wrongly assigned Gat No.16. In fact the
area of Gat No.16 has been shown twice and disadvantage of
that is being taken and in fact that Gat No.16 has been
cancelled. Once the Gat No.16 is treated as cancelled, then, the
plaintiffs cannot claim to be owners of the said land. In these
circumstances, they are not entitled to get any interim reliefs.
There is no prima facie case in their favour at all.
11] It was highlighted that old S.No.70A/1/1 Hissa No.13 was
totally admeasuring 09377 Rs. and that is approximately
acre and 14 gunthas. Out of this land 0100 Rs. was separated
for Government mine. That was assigned S.No.70A/1B. The
portion identified by the plaintiffs admeasuring 01134 is part
of S.No.70A/1/1B and that is excluded and after exclusion of
the Government land the S.No.70A/1/1/ Hissa No.13
admeasured 08377 Rs. In these circumstances all averments
in para 4 of the plaint are false. In the rest of the written
statement, this aspect has been highlighted and all allegations
to the contrary have been denied. There is an explanation given
with regard to the notices and orders made from time to time.
12] Upon this material the learned Trial Judge heard parties.
He perused the documents and held that there is no prima facie
case nor is the balance of convenience in favour of plaintiffs and
they suffer no irreparable loss and injury. Rather granting
interim reliefs would cause hindrance and obstacle to the
ongoing construction activity at site viz., construction of court
building. In these circumstances, by the impugned order dated
3rd July 2012, the interim injunction was denied and application
Exh.5 was dismissed.
13] It is this order which is challenged in this appeal.
14] Mr.Godbole, learned Counsel appearing for appellants
ig
submits that the impugned order is ex facie erroneous, illegal
and perverse. He submits that the learned Judge has accepted
version of the respondents – original defendants as if it is
conclusive at this stage. Now such a conclusive opinion being
rendered at an interlocutory stage would mean that the learned
Judge has exceeded his powers. Just as there was version of the
respondents equally, there is an arguable case of the plaintiffs.
That is based on the fact that non agricultural order of 1942 has
not been cancelled. The Kami Jast Patrak of 1957 is also not
cancelled. Therefore, a prima facie case is made out inasmuch
as the portion of 11.34 Rs cannot be said to be part of the
acquired land. There is a prima facie case because this portion
has been carved out as separate area. The learned Judge has
failed to advert to the materials with regard to separate area.
Mr.Godbole has relied upon the 1942 non agricultural order,
Kami Jast Patrak, the maps and the measurement records
prepared from time to time to urge that once the action of the
respondents was highhanded and arbitrary, then, the trial court
should have been careful enough in scrutinising the record. He
should not have permitted the defendants to proceed and make
construction once there is an arguable case made out. The
plaintiffs may or may not succeed at the trial but once there are
serious issues arising and they require trial and adjudication,
then, the learned Judge should have not refused interim
injunction.
15] Mr.Godbole complains that there is absolutely no
discussion on the map in the judgement and order. Inviting my
attention to page 38/39 of the appeal paperbook, which
contains paras 18 and 19 of the impugned order, Mr.Godbole
submits that the learned Judge has merely noted rival
contentions but has failed to take into account the consequences
of N.A.orders, Kami Jast Patrak, maps which show that despite
the acquisition, there is a substantial portion of the land which
is a private property and which cannot be touched except by
due process of law. An attempt is made by the respondents –
original defendants to demonstrate that the said land is also
part of the acquired land. Such an attempt and the highhanded
act of the respondents led to the institution of the suit. For all
these reasons, merely because the construction activity of court
building is going on, is no ground to refuse interim injunction.
16] Mr.Khambata, Learned Advocate General appearing on
behalf of the respondents on the other hand has submitted that
the appellants are not entitled to interim reliefs. An interim
order is discretionary and equitable relief. The appellants have
not approached the Court with clean hands. The appellants are
guilty of suppressing material facts. The appellants never had
any right in the property. The appellants' land stood acquired
and stood vested in the State. Once the appellants have no
right, title and interest of any nature in the immovable property,
then, the present suit was not maintainable. If it was not
maintainable, then, interim injunction could not have been
granted. The trial court is right in denying the same as there is
no prima facie case, balance of convenience is not in favour of
the appellants and the appellants will not suffer any loss or
injury. Instead public interest would suffer adversely if the
court building does not come up and in these circumstances, the
interim injunction should not be granted. The learned Advocate
General in the alternative and on merits has argued that the
trial Judge has given weightage to primary documents and
records in relation to the land. These primary records indicate
that there is absolutely no foundation for the suit claim. The
Gat No.16 does not exist. The order passed on 24 th February
2012 cancells all earlier entries. Mr.Khambata has pointed out
that the very compilation which has been relied upon by the
appellants and containing documents will show that the
appellants have collected compensation for the portion of 11.34
Rs. Even if that is assuming to be a non agricultural land, that
is part and parcel of the acquired land. If it is part and parcel of
the same and has been taken over by the State in accordance
with law after paying compensation, then, there is absolutely no
prima facie case.
17] Mr.Khambata has relied upon the documents and
submitted that the order passed in 1942 styled as N.A.order is
of no assistance to the appellants. If there is no separate survey
number given to the suit land, even in 1971 and assuming that
this 1942 N.A. order was in force, then, the appellants cannot
claim any interim injunction. Mr.Khambata has taken me
through all the documents, including 7/12 extracts and has
urged that even after the N.A. order of 1942, there is no
creation of separate plot. The N.A.Order itself cannot amount
to creation of a separate or new plot. He submits that the Kami
Jast Patrak is not a primary document. It was never acted upon.
In these circumstances, if the primary record does not indicate
that there was any separate plot, which stood out of acquisition
proceedings and which continued to belong to the appellants,
then, their claim itself falls to the ground and is untenable. The
interim injunction.
trial judge, therefore, has rightly dismissed the application for
18] With the assistance of both the learned Counsel, I have
perused the appeal paper book and the compilation of
documents tendered by Mr.Godbole. Mr.Godbole has placed
reliance upon the 7/12 extracts and has stated that it shows
that the land belongs to the appellants and has been
demarcated as Gat No.16 (NA), admeasuring 11.34 Rs.
Mr.Godbole, then, has relied upon a Kami Jast Patrak and has
submitted that insofar as Hissa No.13 is concerned, there is an
endorsement in the remark column that a portion admeasuring
11.34 Rs is a N.A. plot and has been assigned another survey
number i.e. 70A/1/1B. Mr.Godbole then relied upon a map at
page 91 of the paper book and submits that even that shows
that there is Gat No.16 as well and this is a revised/ corrected
map. Mr.Godbole has also relied upon the minutes of the
meeting dated 26th December 2005 to urge that Gat No.16 is
not included in the acquired portion and, therefore, is not a part
of the acquired land. Mr.Godbole also relies upon a letter dated
11th August 2008 addressed by the Taluka Inspector of Land
Records, to the plaintiffs and the Panchanama dated 1 st March
2012.
19] Thus, relying upon all this it is the case of the appellants
that there was a separate portion and which was not part of the
acquired land and which fact was known to the respondents,
yet, they proceeded to take it over highhandedly and without
due process of law.
20] In that regard, what has been clarified by the State
Government is that it is false to suggest that any such attempt
has been made or any high handed act has been performed.
The documents on record reflect the correct position at site. It
has been pointed out that a notification under section 4 of the
Land Acquisition Act was issued on 24 th April 1989 in respect of
plot of land S.No.70A/1/1/Hissa 13 admeasuring 83.77 Rs from
village Kalambe Taluka Shahapur, the acquisition was for
construction of Court building and residential quarters of
judicial officers. The declaration under section 6 of the L.A.Act
was issued on 19th April 1990. The suit plot admeasuring 11.34
Rs is part and parcel of the acquired land admeasuring 83.77
Rs. The 7/12 extract of the acquired land are relied upon and
equally the Award dated 18th April 1992.
21] Mr.Godbole produces for my perusal the award in this case
and what that clarifies is that the acquired land includes the suit
property. On 18th April 1992, the award, a copy of which is at
page 72 of the compilation, in the column “land notified for
acquisition” and “area”, states as under:
“(C) Lands notified for Acquisition:
The lands finally notified for acquisition in the
Section 6 notification is as under:
Taluka
S.No.H.No.
Village
(2)
Area:
0.83.77
Kalambe Shahapur 70A/1/113
Approx.area
H.
Rs.
The lands proposed for acquisition has been
jointly measured by the surveyors of the additional
D.I.L.R., Thane and the representative of the
acquiring body. Joint measurement plans and
statements were kept upon for inspection of the
interested persons. No disputes about the areas of
the lands showing joint measurement plans and
statements was raised by any of the interested
persons. I, therefore, accept and confirm the area of
the land under acquisition for the purposes of Award
as shown below:
“It was found that a pacca road is passing
through this land under acquisition. This road is
already shown in the joint measurement plans. The
area under this road is 0.7.50 acres under the road.
So excluding area of 0.7.50 area from total area of
0.83.77 Acres, the area under acquisition, and liable
for compensation is 0.76.27 Acres.”
22] To my mind, when this was the material produced, then,
the trial Court rightly called upon the appellants plaintiffs to
demonstrate as to how they still claim that the suit property is
not part of the acquired land. In that regard, what has been
relied upon is the consolidation scheme. The clarification given
is that in the year 1990, which is prior to the Award, a
consolidation scheme was implemented for the entire village
Kalambe under the provisions of Bombay Prevention of
Fragmentation and Consolidation of Holdings Act, 1947. At
that time, various survey numbers were converted into Gat
numbers and consolidated village maps were prepared and
corresponding numbers were given in a separate booklet for the
village. The acquired land under the said scheme were forming
Gat No.22. However, due to inadvertence, the suit plot
admeasuring 11.34 Rs was shown as separate piece of land on
the village map prepared by the concerned Department. The
7/12 extract for separate gat number was also prepared by the
then consolidation officer erroneously. Then reliance is placed
also on certain correspondence and maps but what has been
through out the stand of the State is that once there was an
acquisition and vesting as the possession was also taken over on
31st January 2006, whereas the suit is filed in the year 2012,
then, merely by relying upon some isolated act, the appellants –
plaintiffs cannot file the instant suit and claim interim
injunction. They have yet to prove their case. The burden is
squarely on them. At the prima facie stage, they are unable to
dislodge the contents of the Award and other overwhelming
documentary evidence.
23] The State has also clarified that when the plaintiffs were
taking undue advantage of an error committed by Government
officers, that in January 2012 the District Superintendent of
Land Records, Thane initiated proceedings under section 32(1)
of the Consolidation Act (Act of 1947) to rectify the error
regarding S.No.16 and also to correct corresponding mutation
entry and revenue record. He issued public notice on 12 th
January 2012. An opportunity was given to the appellants –
plaintiffs to file their objections, they were given hearing and
ultimately he passed an order on 24 th February 2012 to rectify
the error. That there stood any existing land and outside
acquisition as a separate piece of N.A. land to the extent of
11.34 Rs (Gat No.16) was appellants' claim and which has been
specifically rejected. All earlier maps prepared by the
department are cancelled. Even the 7/12 extracts and mutation
entries were cancelled and correspondingly the mutation entry
No.547 dated 27th February 2012 was inserted in the revenue
records. In these circumstances and when all the procedures
were completed, tenders were floated and allocation of
Rs.30.30 Crores for the project of construction of court building
has been made, the construction is going on, that this is not a fit
case where a public project can be halted or its implementation
thwarted in the manner suggested by the appellants. To my
mind, each of this material was relevant and germane and the
trial court did not commit any error in taking that into account.
The trial court has applied the correct principles and has
observed that prima facie the only dispute is as to whether the
suit property forms a part of the acquired land. In that regard,
the Survey Nos.70A/1/1 Hissa No.13 (Gat No.22) is the
ig
acquired land and what is the extent and how much it
admeasures has been, then, considered and with reference to
specific records. Each of the documents that Mr.Godbole relies
upon have been considered in paras 21 and 22 of the impugned
order. It is not as if the trial court ignored any material or
brushed aside any relevant document. Each and every
document produced including the Akar Fod Patrak was taken
into consideration. However, even after the land admeasuring
11.34 Rs was shown as non agricultural, there is no 7/12
extract in relation to the same. Mr.Godbole states that this is an
incorrect finding because there is a 7/12 extract and which
clearly shows the land as N.A. He relies upon the 7/12 extract
of 1990 in this behalf. He also relies upon the Kami Jast Patrak.
However, once there is an order passed on 24 th January 2012, it
may have been challenged but it is yet not disturbed or
interfered with, leave alone set aside, then, the trial court did
not commit any error in holding that any such documents or
maps cannot be now taken into consideration, once they are
cancelled. The trial court has rightly observed that if there is no
document which show that the suit property has been
earmarked as separate land for N.A.use, then, the acquisition
record cannot be brushed aside. The award is made by the very
same revenue officer in his capacity as Special Land Acquisition
Officer. He had before him all the maps, measurements and
records and it is only then, he considered the claim of the
appellants for compensation. In these circumstances, to
displace and dislodge the statements made in the award and
which is of 18th April 1992 at this prima facie state would be
improper. The learned Judge has referred to each of the maps
and it is erroneous on the part of the appellants to urge that
they have been brushed aside. The learned Judge has referred
to them and equally to the further steps taken culminating in
the order dated 24th February 2012. It is after considering all
these materials, that he arrived at a conclusion that the
appellants – plaintiffs have failed to make out a prima facie
case. The Balance of convenience is also not in their favour and
they will not suffer grave or irreparable loss, harm and injury
but construction of the court building is a public project and if it
is stopped at this stage, that would be not in public interest.
The overwhelming public interest is paramount in such cases
whereas if the appellants ultimately succeed, they can be
compensated in terms of money or with appropriate direction.
24] To my mind, such a conclusion does not suffer from any
error of law or perversity, leave alone, serious legal infirmity
warranting interference in my appellate jurisdiction. By no
stretch of imagination, the observations and findings at this
prima facie stage can be said to be perverse. In such
circumstances, I have no alternative but to dismiss this appeal.
The appeal is accordingly dismissed. No costs. Civil
application, if any, to stand dismissed in view of dismissal of the
appeal.
(S. C. DHARMADHIKARI, J)
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