(Judgment) 3108 FA 626-2013 1/5
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH AT NAGPUR.
FIRST APPEAL NO. 626/2013
1] Vidarbha Irrigation Development Corporation,
through its Executive Engineer, Purna
Medium Project Division, Amravati. APPELLANT
.....VERSUS.....
1] Ramesh Shivgovind Jaiswal (since deceased)
through his legal heirs,
1(i) Sanjay Rameshchandra Jaiswal,
1(ii) Sau. Sandhya Sureshchandra Jaiswal,
Both R/o. Sadar Bazar, Paratwada,
Vitthal Mandir Ward No.5,
Post Paratwada, Tq. Achalpur,
District - Amravati.
2] The Special Land Acquisition Officer,
(Minor Irrigation Works), Amravati.
3] The State of Maharashtra, through
Collector, Amravati. RESPONDE NTS
Shri M.A. Kadu, counsel for appellant.
Shri S.U. Nemade, counsel for respondent no.1(i) & 1(ii).
Ms. R.V. Kalia, AGP for respondent nos.2 and 3.
::: Uploaded on - 07/09/2017 ::: Downloaded on - 08/09/2017 01:29:24 :::
(Judgment) 3108 FA 626-2013 2/5
CORAM: S.B. SHUKRE, J.
DATE : AUGUST 31, 2017.
ORAL JUDGMENT :
Heard finally by consent.
2] The learned counsel for the appellant has
invited my attention to the judgment of this Court commonly delivered in a bunch of appeals starting with First Appeal No. 924/2013 delivered on 30/04/2015, wherein this Court has taken a view that as the Acquiring Body was not joined as necessary party in the reference proceeding, the law laid down by the Hon'ble Supreme Court in the case of Abdul Rasak and others
-Vs- Kerla Water Authority and otheres, AIR 2002 SCW 477, would apply to the facts of those cases, and therefore, this Court remanded all those appeals back to the reference court for fresh adjudication in accordance with law.
3] Shri Kadu, learned counsel for the appellant submits that facts of this case being different, and that ::: Uploaded on - 07/09/2017 ::: Downloaded on - 08/09/2017 01:29:24 ::: (Judgment) 3108 FA 626-2013 3/5 there is no demand for any remand of the appeal, this appeal itself can be decided on merits by this Court. This is, however, disputed by the learned counsel for the respondent no.1. The learned AGP appearing for the respondent nos.2 and 3 submits that an appropriate order be passed in this matter.
4] It is not in dispute that the appellant which is Acquiring Body was not party in the reference proceedings before the reference Court. The Hon'ble Supreme Court, in the case of Abdul Rasak (supra), has held that, "An Acquiring Body like the appellant is the necessary party and in it's absence no claim for enhancement of compensation could be adjudicated". If this is so, I do not think that it would be fair on the part of this Court to proceed to decide this appeal on its own merits. If, the Hon'ble Supreme Court has held that no claim for enhancement of compensation can be adjudicated upon in the absence of a necessary party like the appellant, this Court would not be within law to consider merits of the appeal. Even otherwise, if any attempt is made to distinguish the facts of the instant ::: Uploaded on - 07/09/2017 ::: Downloaded on - 08/09/2017 01:29:24 ::: (Judgment) 3108 FA 626-2013 4/5 case and the attempt meets with any success, I am afraid, the repercussion on the fate of the other matters, quite similar to the present case, which have been already remanded by this Court to the trial court, possibly could be such as the reference Court in those matters would feel compelled to adopt the same view as may be taken by this Court if the appeal is decided on merits. If this is to happen, a great prejudice would occur to all those parties before the reference court after remand of their respective cases. This is one more reason why I am not inclined to accept the argument of the learned counsel for the appellant.
5] In this view of the matter, I find that this case also deserves to be remanded to the reference court for a fresh decision in accordance with law by quashing and setting aside the impugned order. I may add, to invoke remand power, no specific prayer has been made in the memo of appeal, but having regard to provisions of Order 41 R 33 of C.P.C., such power can certainly be exercised by the Court on it's own, to do justice between the parties.
::: Uploaded on - 07/09/2017 ::: Downloaded on - 08/09/2017 01:29:24 :::
(Judgment) 3108 FA 626-2013 5/5
6] In the result, appeal is allowed.
7] The impugned award is quashed and set
aside.
8] The matter is remanded back to the reference
court for a fresh decision in accordance with law.
9] Parties to bear their own costs.
JUDGE
Yenurkar
::: Uploaded on - 07/09/2017 ::: Downloaded on - 08/09/2017 01:29:24 :::