Syed Abudl Aziz Syed Ashraf & Ors vs The State Of Mah & Ors
2016 Latest Caselaw 1321 Bom

                                          1                      FA No. 424/2007

            IN THE HIGH COURT OF JUDICATURE OF BOMBAY




                                                                          
                       BENCH AT AURANGABAD

                            FIRST APPEAL NO.424 OF 2007




                                                 
      1)       Syed Abdul Aziz s./o Syed
               Ashraf, Age: 68 Yrs.,




                                                
               occu. Agril.
               R/o Parbhani, Dist. Parbhani.


      2)       Syed Raheman s/o Abdul Aziz




                                       
               Age: 35 Yrs., occu. Agril.
               R/o as above.
                             
      3)       Syed Abrahim s/o  Syed Abdul
                            
               Aziz, Age: 38 Yrs., 
               occu. Agril, r/o as above.                 =    APPELLANT
                                                         (orig.claimants)
      


               VERSUS
   



      1)       The State of Maharashtra
               Through Collector, Parbhani.





      2)       The Special Land Acquisition
               Officer, Parbhani.
               District Parbhani.                  =        RESPONDENTS 
                                       -----





      Mr.BS Kudale, Advocate for Appellants;
      Mr.PG Borade, AGP for Respondents.
                                       -----
                                   CORAM :    P.R.BORA, J.

      DATE OF RESERVING JUDGMENT  :  
                                     29
                                        th
                                           
                                           March,2016.
                                                      
       
      DATE OF PRONOUNCING JUDGMENT:- 7    
                                       th
                                          APRIL, 2016. 

                                                         




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                                           2                     FA No. 424/2007

      JUDGMENT:

1) Aggrieved by the Judgment and Award

passed in L.A.R.No.435/1993 on 30th December, 2003

by 1st Ad hoc District Judge, Parbhani, the

original claimants have preferred the present

appeal. The Reference has been dismissed by the

learned Reference Court.

2)

It is the contention of the appellants

that without giving any opportunity to the

present appellants, the Reference Court has

dismissed the Reference. The learned Counsel for

appellants submitted that the Reference Court

could not have rejected the Reference on the

ground that the appellants failed to adduce any

evidence. In order to support their contentions

The learned Counsel has relied upon the following

judgments, -

i) Khazan Singh (Dead) by L.Rs. vs. Union of India - 2002(2) Mh.L.J. 259

ii) Subhash s/o Babulal Rajput Vs. State of Maharashtra and anr. - 2012 (2) Mh.L.J. 395;

iii) Appasaheb s/o Mohanrao Chede Vs. State of Maharashtra - 2011 (3) Mh.L.J.

In view of the law laid sown in the aforesaid

judgments, the learned Counsel has, therefore,

prayed for remand of the matters with a direction

to the Reference Court to allow the appellants to

adduce necessary evidence in support of their

claim and to decide the claim afresh.

3) Learned AGP has resisted the contentions

raised by the learned Counsel for the appellants.

Taking me through the impugned judgment, the

learned AGP submitted that ample opportunities

were given to the appellants to adduce evidence

in support of the contentions raised by them in

the Reference, however, the appellants failed to

adduce any evidence and in such circumstances,

the learned Reference Court was constrained to

decide the Reference on the basis of the

available material on record.

4) The learned AGP further submitted that

while deciding the Reference, the Reference Court

has taken into account the relevant circumstances

and as such, no fault can be found in the order

so passed by the Reference Court. The learned

AGP alternatively submitted that if this Court

remands the matter back to the Reference Court

for disposal afresh, the appellants, i.e.

original claimants, shall be disentitled from

claiming any interest of the entire intervening

period and the respondents shall not be saddled

with burden of said interest for the reason that

the appellants were admittedly not diligent in

prosecuting the claim so filed by them.

5) In so far the submission made on behalf

of the learned AGP as regards award of interest

in case the matter is remitted back to the

Reference Court, is concerned, the Reference

Court will definitely take into account the

circumstances whether to award interest to the

claimants of the period if it reaches to the

conclusion that the delay has been caused because

of lapse on their part and will take appropriate

decision on the said point.

6) After having heard the arguments

advanced by the learned Counsel appearing for the

respective parties, a question, which arises for

my determination is, "Can the impugned Award be

sustained whereby the claim of the appellants has

been dismissed on the ground that no evidence was

adduced by the appellants/claimants ? and whether

the matter can, therefore, be remanded to the

Reference Court for its disposal afresh?"

7) I have gone through the discussion made

by the learned Reference Court. It reveals that

on several times, the matter was required to be

adjourned for the evidence to be adduced by the

claimants. The learned Reference Court has

specifically stated the Exhibit numbers of seven

such applications whereby adjournments were

sought by the original claimants for adducing the

evidence. The learned Reference Court has

further observed that the claimants did not even

produce on record a copy of the notice under

Section 12(2) of the Land Acquisition Act, 1894

(for short, the Act) so as to determine whether

the Reference so filed by the claimants was

within period of limitation.

8) Perusal of the impugned Award further

reveals that in Para 7 thereof the learned

Reference Court has made observations that the

Special Land Acquisition Officer appears to have

considered the relevant facts while determining

the quantum of compensation. It is further

observed that the Special Land Acquisition

Officer appears to have made 3-4 categories of

the lands for acquisition and has dealt in detail

with fertility and other qualities while

determining the compensation.

9) In the Judgments (cited supra) delivered

by this Court, relied upon by the appellants,

similar facts were existing. In the said matters

also the Reference Court had rejected the LARs

under Section 18 of the Act on the ground that

the claimants had failed to adduce any evidence

to support the contentions raised by them in the

respective Reference Applications. Being

aggrieved by the said order, Civil Revision

Applications were preferred before this court,

which came to be allowed. While allowing such

CRAs, in Para 9 of the judgment, this Court has

referred to its earlier judgment in the case of

Kawadu Madhav Bansod Vs. State of Maharashtra and

Anr - 2004 (2) Mh.L.J. 503 and has reproduced the

observations made in Para 7 of the said judgment.

I deem it appropriate to reproduce the said

observations herein below, which are thus, -

"7. 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 same cannot be treated

to be an award. The order passed by the Civil Judge, Senior Division, Yavatmal 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".

10) In the instant appeal also, the

Reference Court has rejected the claim of the

appellants mainly on the ground that the

appellants did not adduce any evidence by

stepping into the witness box. The Reference

Court has further recorded a conclusion that the

claim is beyond the period of limitation.

However, the conclusion so recorded apparently

appears to be unsustainable in view of the fact

that there was nothing on record to show as to on

which date the copy of notice under Section 12(2)

of the Act was served upon the claimants.

11) Though it was sought to be canvassed by

learned AGP that the Reference Court has not

rejected the claim of the claimants on the ground

of default, on perusal of the impugned judgment,

it is revealed that not adducing evidence by the

claimants is the principal reason for rejecting

the claim by the Reference Court. It is thus

evident that the claim has been rejected

impliedly for default on the part of the

claimants in adducing the evidence.

12) The Hon'ble Apex Court in the case of

Khajan Singh Vs. Union of India - 2002 (2)

Mh.L.J. 259 has held that Sections 18 and 26 of

the Act make it clear that the civil court has to

pass an Award in answer to the Reference made by

the Collector under Section 18 of the Act and if

any party, to whom notice has been served by the

Civil Court, did not participate in the inquiry,

it would only be at his risk. It is further

observed that Reference under Section 18 of the

Act cannot be dismissed for default.

13) Having regard to the law laid down by

the Hon'ble Apex Court in the aforesaid judgment

and considering the view taken by this Court in

afore mentioned two judgments, relied upon by the

appellants, the impugned Award cannot be

sustained and the parties deserve to be relegated

to the Reference Court for disposal of the

Reference filed by them on merits. I see no

reason to take a different view than taken by

this Court in the matter cited supra.

14) Learned Counsel appearing for the

appellants makes a statement that on the first

date of hearing, which may be fixed by the

Reference Court, the appellants/claimants will

file all necessary documents including the

relevant sale instances and would complete the

evidence within two months from the first date.

15) For the reasons stated above, I pass the

following order, -

ORDER

i) The impugned Judgment and Award dated

30th December, 2003 in L.A.R.No.435/1993 passed

by 1st Ad hoc District Judge, Parbhani stand

quashed and set aside;

ii) The matter is remanded back to the

learned Reference Court for its disposal afresh

in accordance with law;

iii) The parties are directed to appear

before the learned Reference Court on 20th April,

2016 and shall promptly adduce evidence in

support of their contentions raised in the

Reference or in the Written Statement, as the

case may be;

iv) The Reference Court by recording

necessary evidence and hearing the parties shall

disposal of the Reference as expeditiously as

possible and preferably within a period of two

months thereafter;

v) Registry to send back the Record and

proceedings to the Reference Court forthwith;

16) The First appeal stands partly allowed

in the aforesaid terms. No order as to costs.

Pending Civil Applications, if any, stand

disposed of.

(P.R.BORA, J.)

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fldr 1.4.2016