Bombay High Court

All vs The State Of Maharashtra on 27 October, 2010

Bench: S. S. Shinde

                                          1


               IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                             
                  APPELLATE SIDE, BENCH AT AURANGABAD




                                                     
                CIVIL REVISION APPLICATION NO. 157 OF 2010




                                                    
     1     Prithaviraj s/o Shaktishinh Khomne
           Age major, Occ. Agri.

     2     Yuvraj s/o Shaktishinh Khomne
           Age major, Occ. Agri.




                                       
     3     Meghraj s/o Shaktishinh Khomne
                       
           Age major, Occ. Agri.

     4     Dharmraj s/o Shaktishinh Khomne
                      
           Age major, Occ. Agri.

           All R/o. Khandali, Tq. Ahmedpur,
           District Latur                                     ...Petitioners
      


                  Versus
   



     1.    The State of Maharashtra
           Through the Collector, Latur
           Collector Office,Latur





     2     The Executive Engineer,
           Minor Irrigation Division,
           Local Sector, Latur                                ...Respondents

                                        .....
     Mr. S.S. Manale, advocate for the petitioners





     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 This Revision application is filed being aggrieved by the order

dated 29.1.2010, passed by learned Joint Civil Judge, Senior Division,

Ahmedpur in L.A.R. No. 469 of 2005, thereby dismissing Land

Acquisition Reference filed by the petitioners.

4 It is the case of the petitioners that the land bearing gat No. 701

admeasuring 49 R situated at village Khandali, Tq. Ahmedpur, District

Latur belonging to the petitioners have been acquired by the

respondent authorities for the purpose of construction of Khandali

Storage Tank of village Khandali and Wanjarwadi, Tq.

Ahmedpur,District Latur. The Land Acquisition Officer has published

notice U/sec. 4 of the Land Acquisition Act on 22.3.1999.

5 Being aggrieved and dissatisfied with the award passed by the

Land Acquisition Officer thereby granting inadequate compensation,

the petitioners had preferred Land Acquisition Reference bearing No.

469 of 2005 before the learned Joint C.J.S.D. Ahmedpur. However, on

the date of hearing, the advocate for the petitioners did not attend the

hearing nor intimated the petitioners about the date of hearing. On

every date of hearing, advocate for the petitioners remained absent.

The learned Reference court on 29.1.2010 closed the evidence of the

partitioner's and thereafter dismissed the petition deserving the

petitioners failed to lead evidence and there is no evidence on record.

The advocate for the petitioners has informed the order passed by the

Reference Court on 15.6.2010. Hence, this Revision.

6 Learned counsel appearing for the petitioners submitted that the

order passed by learned Judge is without giving opportunity of hearing

to the petitioners and therefore, the order impugned 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 petitioners, 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 petitioners, 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 petitioners, 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,

only for the reason that the revision petitioners have failed to adduce

any evidence. The learned counsel appearing for the revision

petitioners, 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 the Revision.

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

Application is 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 petitioners that Land Acquisition Reference should not have

been rejected, on the ground of not filing documentary evidence 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 failure of the revision petitioners to adduce evidence cannot

be taken to be adjudicated, and therefore, same cannot be treated to

be an Award. Therefore, the ground i.e. no documentary evidence is

filed by the revision petitioners, cannot be a ground to reject the

reference. 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 petitioners) 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 petitioners) 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 petitioners 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 reference, on the ground of failure of the revision

petitioners 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 reference filed by the revision

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

failure of the revision petitioners to adduce evidence.

10 I have given due consideration to the submissions, advanced

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