Mukund vs The State Of Maharashtra
2010 Latest Caselaw 106 Bom

                                            1


               IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                             
                      APPELLATE SIDE, BENCH AT AURANGABAD




                                                    
                 CIVIL REVISION APPLICATION NO. 161 OF 2010
                                 ALONGWITH
                 CIVIL REVISION APPLICATION NO. 162 OF 2010




                                                   
     Mukund s/o Bhimrao Kalshetti,
     Age 46 years, Occ. Agriculture,
     R/o shvni Kotal, Tq. Nilanga
     District Latur                                           ...Petitioner




                                           
                  Versus

     1.
                         
           The State of Maharashtra
           Through the Collector, Latur
           Collector Office,Latur
                        
     2     The Executive Engineer,
           Latur Medium Project,
           Division Latur, District Latur                     ...Respondents
      


                                          .....
     Mr. A.B. Kale, advocate for the petitioner
   



     Mr. V. H. Dighe, A.G.P. for respondents
                                          .....

                                                CORAM: S. S. SHINDE, J.

                                                DATED:     27TH OCTOBER, 2010


     ORAL JUDGMENT :-





     1.    Heard counsel for the parties.

2. Rule. Rule made returnable forthwith. By consent of the parties,

heard finally.

3 These Revision applications are filed being aggrieved by the

order dated 28.1.2010, passed by learned Civil Judge, Senior Division,

Nilanga in L.A.R. No. 493 of 1998 and 494 of 1998, thereby dismissing

Land Acquisition References filed by the petitioner.

4 It is the case of the petitioner that the land bearing survey No.

36/2 admeasuring 45 R situated at village Shivani Kotal, Tq. Nilanga,

District Latur belonging to the petitioner have been acquired by the

respondent authorities for the purpose of Masalga Medium Project at

Shivani Kotal, Tq. Nilanga.

The Land Acquisition Officer has published notice U/sec. 4 of

the Land Acquisition Act. The award came to be passed and the

petitioner has withdrawn an amount of compensation on 17.9.1992.

After withdrawal of the amount under protect the present petitioner has

preferred the references under section 18 before the Collector and

then after same was transmitted tot he court of learned Civil Judge,

Senior Division, at Nilanga, which were numbered as L.A.R. No. 493 of

1998 (Old No. 68 of 1994) and L.A.R. No. 494 of 1998 (Old No. 69 of

1994).

5 The Land Acquisition References were opposed by the present

respondents by filing written statement. The petitioner had filed

application for adjournment as to submit evidence in support of his

claim during this period. Though the Court has granted adjournment

on three occasions, but as on the day when the matter was listed

before the court on 28.1.2010, the advocate who has appearing for the

petitioner was not feeling well as he was suffering from heart disease

and he had filed leave note on 12.1.2010 itself and has requested the

lower court to grant leave from 15.1.2010 to 17.2.2010. Inspite of

leave, which was sanctioned by the District Judge and was circulated

to the Court, the learned Civil Judge, Senior Division, at Nilanga

without considering this aspect has proceeded to decide the matter

exparte and without there being any evidence has dismissed the

References. Hence, these Revision Applications.

6 Learned counsel appearing for the petitioner submitted that the

order passed by learned Judge is without application of mind and is

against the principles of natural justice. It is further submitted that the

Court below should not have dismissed the reference, merely on

technicalities. It is further submitted that the Land Acquisition

Reference, ought to have been decided on merits. The learned

counsel appearing for the revision petitioner, invited my attention to the

grounds in the Civil Revision Application, and submitted that the

impugned Judgment and Order deserves to be set aside. In support of

his contention, the learned counsel for the revision petitioner, placed

reliance on the reported Judgment of this Court, in case of Kawadu

Madhav Bansod Vs. State of Maharashtra & another, reported in

2004(4) Bom.C.R. 495. Relying on the said Judgment the learned

counsel appearing for the revision petitioner, would urge that the facts

of the case in hand and the facts of the case which is cited supra are

similar. In the said case this Court has taken a view that the reference

cannot be rejected on technicalities. Learned counsel appearing for

the revision petitioner, invited my attention to para No. 7 of the said

judgment and submitted that in the interest of justice, the impugned

Judgment and Order deserves to be set aside.

7.

On the other hand, learned A.G.P. has justified the impugned

judgment and order on the ground that the same cannot be faulted

with any error and prayed for dismissal of these Revision Applications.

8. I have heard learned counsel appearing for the parties at length.

In my view, the impugned Judgment and Order deserves to be

interfered with and required to be quashed and set aside.

At the outset, it has to be clarified that the present Civil Revision

Applications are maintainable, in view of the law laid down by this

Court in the case of Kawadu Madhav Bansod (supra), as the facts

involved in the instant case are similar to the facts of that case.

9 Coming to the first contention of the Counsel appearing for the

revision petitioner that Land Acquisition References should not have

been rejected, on the ground of technicalities is concerned, this Court

in case of Kawadu Madhav Bansod (supra), has taken a view that

the said order rejecting the reference on the ground of absence of

counsel for the petitioner cannot be taken to be adjudicated, and

therefore, same cannot be treated to be an Award. Therefore, the

ground on which the references are rejected cannot be a ground to

reject the references. This Court in the aforesaid case in para No. 7

has observed thus :-

"

It is true that the adjudication made by the Civil Court on the reference has to be regarded as an award,

whether an enhanced compensation is given or not. But in that event the Court should consider the material on record, even if the party is absent and has failed to

adduce evidence. Unless the material on record is considered the order cannot be said to be an

adjudication. In the instant case the ground given for the dismissal of reference by the Civil Court is that the applicant (present revision petitioner) remained absent

and did not adduce any evidence to show that a proper compensation was not paid to him and that he is entitled to more compensation than paid. The above order clearly

shows that the reference was dismissed only for the reason of failure of the applicant (present revision petitioner) to adduce evidence. Thus the material on record is not considered by the Civil Court. It is not considered as to how the compensation awarded by the Land Acquisition Officer was correct. So the order cannot be taken to be an adjudication and therefore the the same cannot be treated to be an award. The order passed by

the Civil Judge, Senior Division, Yevatmal also cannot be treated to be a dismissal of the reference in default. The

learned Counsel for revision petitioner submitted that the

case could not be dismissed in default also." (Emphasis supplied).

Therefore, in my opinion, the Court below should not have

rejected the references, on the ground of failure of the revision

petitioner to adduce evidence.

Yet in another unreported Judgment in the case of Shri

Kamalkar S/o Laxman Suryawanshi V/s. State of Maharashtra, in

Civil Revision Application No. 1965 of 2005 and in other two

connected matters, this Court has taken a similar view. Therefore, I

have no hesitation, to hold that the references filed by the revision

petitioner, should not have been dismissed, merely on the ground of

technicalities.

10 I have given due consideration to the submissions, advanced

by the Counsel for the revision petitioner and I find considerable force

in his arguments. Therefore, in my opinion, the claim of the revision

petitioner should not have been discarded/rejected, merely on

technicalities. The Court below, should have given sufficient and full

opportunity to the revision petitioner to put-forth his case through his

duly instructed lawyer and after appreciating his contentions at length,

the references should have been decided.

11 In the result, the impugned Judgment and orders dated

28.1.2010, passed by learned Civil Judge, Senior Division, Nilanga in

L.A.R. No. 493 of 1998 and L.A.R. No. 494 of 1998 are quashed and

set aside and the matters are remitted back to the learned Civil Judge,

Senior Division, Nilanga. The Reference Court, upon hearing

arguments of both the parties, shall dispose of the L.A.R. No. 493 of

1998 and L.A.R. No. 494 of 1998 within three months from the date of

receipt of copy of this order.

12 The Registry to send back the record and proceeding, if any,

immediately to the concerned Court. Rule made absolute in the above

terms. The Civil Revision Applications are disposed of.

*****