1 Jud.FA 683.12.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
First Appeal No. 683/2012
Appellant:- Vidarbha Irrigation Development
(On RA) Corporation, through Executive
Engineer, Minor Irrigation Division,
Wardha.
VERSUS
Respondents:- 1. Ashok Kashinath Timande,
(On RA) aged about 42 yrs, Occ. Cultivator
R/o. Kora, Post Kora,
Tq. Samudrapur, Dist. Wardha.
2. State of Maharashtra through
Collector, (Special Land
Acquisition Officer), Wardha.
3. Special Land Acquisition Officer,
Wardha.
Shri J. B. Kasat, Advocate for appellant
Shri Abhijit Deshpande, Advocate for respondent No.1
Shri M. A. Kadu, Assistant Government Pleader for respondent Nos. 2 & 3.
___________________________________________________________________________
WITH
Cross Objection No. 101/2017
Appellant:- Vidarbha Irrigation Development
(On R.A.) Corporation, through Executive
(Orig. N.A. No.2) Engineer, Minor Irrigation Division,
Wardha.
VERSUS
Respondents:- 1. Ashok Kashinath Timande,
(No.1 Org. Clmt. & aged about 42 yrs, Occ. Cultivator
No.2 Orig.N.A.No.1) R/o. Kora, Post Kora,
(On R.A.) Tq. Samudrapur, Dist. Wardha.
(Cross-objector)
2. State of Maharashtra through
Collector, (Special Land
Acquisition Officer), Wardha.
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2 Jud.FA 683.12.odt
3. Special Land Acquisition Officer,
Wardha.
Shri Abhijit Deshpande, Advocate for cross-objector.
Shri J. B. Kasat, Advocate for respondent No.1
Shri M. A. Kadu, Assistant Government Pleader for respondent No. 2.
___________________________________________________________________________
CORAM : S. B. SHUKRE, J.
DATE : 04.12.2017. Oral Judgment :
This appeal and the cross objection both challenge the legality and correctness of the judgment and order dated 31.08.2010 rendered in Land Acquisition Case No. 181/2004 by the learned Civil Judge, Senior Division, Wardha. The appeal takes an exception to the market value of the land determined by the Reference Court and the compensation granted by it. The cross objection filed by the original claimant questions the assessment of compensation done by the Reference Court. The appeal has been filed by the acquiring body and the cross objection has been filed by the original claimant while other party is the State.
2. It has been submitted by Shri Deshpande, learned counsel for the claimant that whole proceedings under Section 18 of the Land Acquisition Act have been rendered vitiated because notice issued under Section 20 of the Land ::: Uploaded on - 06/12/2017 ::: Downloaded on - 08/12/2017 02:46:24 ::: 3 Jud.FA 683.12.odt Acquisition Act was never received by the claimant. He submits that as the notice was not received by the claimant, the claimant had no idea as to when the reference application was fixed for evidence and the result was that the claimant was absent in the matter. Shri Kasat, learned counsel for the acquiring body, however, strongly disputes the contentions. According to him, Roznama is the record of the Court and it must be given its due credence for what is stated in the Roznama. He submits that if one goes by the Roznama, one would find that the claimant was duly represented by his Advocate on various dates before the Reference Court. He further submits that the object of issuance of notice under Section 20 of the Land Acquisition Act, 1894 is to make aware the applicant of the various dates of the various stages of his application before the Civil Court so that the claimant can take appropriate steps in order to justify his claim for grant of enhancement of compensation. He submits that this object in the present case has been more than fulfilled by the presence of Advocate of the claimant on various dates before the Court. Therefore, according to him, this is not fit case for interference.
3. Learned Assistant Government Pleader for the State submits that Roznama is the reflection of the transactions that ::: Uploaded on - 06/12/2017 ::: Downloaded on - 08/12/2017 02:46:24 ::: 4 Jud.FA 683.12.odt take place on each date in Court's proceedings and therefore, the Roznama needs to be taken into consideration appropriately. He however, concedes to the fact that there is no endorsement made anywhere in the Roznama that the notice issued to the claimant by the Court under Section 20 of the Land Acquisition Act was duly received by the claimant.
4. On going through the Roznama of this case, I find that the arguments of learned counsel for the acquiring body are devoid of any substance. I also find that the submission of learned counsel for the claimant needs to be accepted. In the ordinary course, the Roznama would be given its due credit by the Court but, unfortunately, this is a case wherein, on the face of it, the Roznama appears to be written carelessly. The endorsements made in the Roznama in respect of several dates are inconsistent with transactions of the case on those particular dates. On 3rd December, 2005, the Roznama states that both the parties are absent. Here we are concerned with the presence or absence of the applicant. Till that date, no notice under Section 20 of the Land Acquisition Act had been issued and therefore, there is no question of the applicant remaining present before the Court. Yet Roznama depicts the applicant as absent party. The Reference Court issued notice under Section 20 of the Land Acquisition Act on 3 rd December, ::: Uploaded on - 06/12/2017 ::: Downloaded on - 08/12/2017 02:46:24 ::: 5 Jud.FA 683.12.odt 2005 and thereafter, on various dates, the case was adjourned just for return of the notice issued to the applicant. One such date was 29th July, 2006. The Roznama of this date however, does not say anything about service of notice issued under Section 20 of the Land Acquisition Act to the applicant. It straightaway says that the parties are represented by their respective counsel. One does not know as to how the author of Roznama came to the conclusion that the notice had been duly served on the applicant and that the parties were represented by the respective counsel. Admittedly, the second part of the notice showing acknowledgment made by the applicant in receipt of the notice is not forming part of record. This is together with the fact that there is no endorsement in the Roznama that on particular date, this notice was received by the applicant. So , it is very difficult to take various endorsements in the Roznama maintained in this case as correct. One requires to look into the record to verify correctness of entries in the Roznama.
5. On 10th June, 2010, it is stated in the Roznama that the applicant's counsel was present and the matter was fixed for filing of say by the applicant at Exhibit-10. The next date was 26th July, 2010 and on that date, no say was filed and therefore, the matter was adjourned for say to 30 th August, ::: Uploaded on - 06/12/2017 ::: Downloaded on - 08/12/2017 02:46:24 ::: 6 Jud.FA 683.12.odt 2010. The Roznama of 30th August, 2010 discloses that on that date, the say was filed and this say was at Exhibit-11. Exhibit-11 is however, an application filed by the acquiring body raising preliminary objections. It is not the say of the applicant. The order passed below Exhibit-10 on which say has been shown to be filed by the applicant in the Roznama discloses another startling fact. The order categorically says that no say has been filed. These instances should be enough for this Court to reject the Roznama maintained in the present case by the Reference Court. This Roznama has been incorrectly maintained and unfortunately, such incorrect Roznama has been signed by various Presiding Officers without even looking into its contents.
6. So, it is quite clear that this is a case wherein, no notice has been received by the applicant under Section 20 of the Land Acquisition Act and that no sufficient opportunity has been made available to the applicant to present his case for enhancing compensation. The proceedings of the Reference Court are thus, vitiated and therefore, impugned judgment and order can not be sustained in the eye of law.
7. The appeal as well as cross objection both are allowed. The impugned judgment and order are quashed and ::: Uploaded on - 06/12/2017 ::: Downloaded on - 08/12/2017 02:46:24 ::: 7 Jud.FA 683.12.odt set aside. The matter is remanded back to the Reference Court for its trial afresh in accordance with law. Notice under Section 20 of the Land Acquisition Act will not be required as the applicant shall, suo motu, appear before the Reference Court he being willing and so the remaining parties.
8. The parties to appear before the Reference Court on 8th January, 2018. The Reference Court shall dispose of the application within three months from the date of appearance of the parties. The parties shall co-operate with the Reference Court and shall not seek any adjournment unless justified by the circumstances beyond their control.
JUDGE Gohane ::: Uploaded on - 06/12/2017 ::: Downloaded on - 08/12/2017 02:46:24 :::