Bombay High Court

Appasheb vs The State Of Maharashtra on 28 October, 2010

Bench: S. S. Shinde

                                         1


               IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                          
                      APPELLATE SIDE, BENCH AT AURANGABAD




                                                  
                 CIVIL REVISION APPLICATION NO. 127 OF 2010




                                                 
     Appasheb s/o Mohanrao Chede,
     Age 50 years, Occ. Agri.,
     R/o Washi, Tq. Washi,
     District Osmanabad                                    ...petitioner




                                      
                  Versus

     1.
                         
           The State of Maharashtra
           Through the Collector, Osmanabad
           Collector Office,Osmanabad
                        
     2     The Executive Engineer,
           Irrigation Division,
           Osmanabad                                       ...Respondents
      

                                        .....
     Mr. A.N. Nagargoje, advocate for the petitioner
     Mr. V. H. Dighe, A.G.P. for respondents
   



                                        .....

                                             CORAM: S. S. SHINDE, J.

                                             DATED:     28TH 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 19.8.2009, passed by learned Joint Civil Judge, Senior Division,

Osmanabad in L.A.R. No. 636 of 2000, thereby dismissing Land

Acquisition Reference filed by the petitioner.

4 It is the case of the petitioner that the land bearing gat No. 489/A

and 488 /B situated at village Washi, Tq. Washi, District Osmanabad

belonging to the petitioner have been acquired by the respondent

authorities for the purpose of construction of percolation tank at village

Washi.

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

of the Land Acquisition Act on 24.3.1994.

5 Being aggrieved and dissatisfied with the award passed by the

Land Acquisition Officer thereby granting inadequate compensation @

Rs.12,500/- per acre, the petitioner had preferred Land Acquisition

Reference bearing No. 636 of 2000 before the learned Joint C.J.S.D.

Osmanabad. However, on 19.8.2009 the learned C.J.S.D. Osmanabad

dismissed the petitioner's Reference petition on the ground that the

petitioner has not led any evidence to show that the compensation

granted by the S.L.A.O. is inadequate. Hence, this Revision.

6 Learned counsel appearing for the petitioner submitted that the

order passed by learned Judge is without giving opportunity of hearing

to the petitioner 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 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,

only for the reason that the revision petitioner has failed to adduce

any evidence. The 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 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.

Coming to the first contention of the Counsel appearing for the

revision petitioner 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 petitioner 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 petitioner, 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 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 reference, 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 reference filed by the revision

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

failure of the revision petitioner to adduce evidence.

10 I have given due consideration to the submissions, advanced

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