Bombay High Court
Maharashtra State Electricity ... vs State Of Mahrashtra Through ... on 28 April, 2016
Bench: Prasanna B. Varale
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
: NAGPUR BENCH : NAGPUR.
WRIT PETITION NO. 5774 OF 2013
PETITIONER : Maharashtra State Electricity Distribution
Company Ltd., successor of Maharashtra
State Electricity Board, through its
Executive Engineer, C.C.O. & M Division,
Khamgaon, Dist. Buldhana.
- VERSUS -
RESPONDENTS
: 1] State of Maharashtra,
through Collector, Buldana,
District Buldana.
2] Vasant Shankarrao Khedkar (dead),
through LRs
a] Smt. Gangubai Wd/o Vasant Khedkar,
Aged about 80 years, Wd/o deceased
R/o Khamgaon
b] Ramesh Vasant Khedkar - Son
Aged 55 years, R/o Rekha plot,
Khamgaon.
c] Ravindra Vasant Khedkar - Son
Aged about 45 years,
R/o Yashodham Colony, Khamgaon
d] Nirmalabai Subhashrao Kathote,
- daughter, Aged about 48 years,
R/o Manak Chowk, Jalgaon Jamod
e] Sau. Meena Vitthalrao Kapale - Daughter,
aged about 42 years, R/o Wadner Bholji,
Tal. Nandura.
f] Vanita Madanrao Warudkar - Daughter
Aged about 40 years, R/o Shivaji Nagar,
Malkapur.
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g] Suresh Vasant Khedkar (deceased son)
g-1] Smt. Pushpa Suresh Khedkar,
Aged about 52 years,
g-2] Ku. Chaitali D/o Suresh Khedkar
Aged about 18 years,
g-1 and g-2 both r/o Sutalpura,
Taq. Khamgaon, Dist. Buldhana
g-3] Rushali (Vrushali) W/o Gopal Raut,
aged about 25 years, R/o Sutalpura,
ig Khamgaon, Dist. Buldana.
3] Mohan Shankarrao Khedkar,
aged about 67 years,
R/o Shegaon Road, Khamgaon,
Tah. Khamgaon, Dist. Buldhana.
4] Shankarrao Marotrao Khedkar, (dead),
through LRs.
a] Smt. Indubai W/o Maroti Autkar,
aged about 74 years, R/o Bramhan Wada,
Tah. Chandur bazar, Dist. Amravati.
b] Smt. Ushabai Madhukarrao Bhagwat,
Aged about 69 years, R/o Jaswandi Road
Khan T.C.'s Bunglow, Khandwa (M.P.)
c] Madhukarrao Kacharu Bhagwat,
aged about 69 years, R/o Jaswandi Road
Khan T.C.'s Bunglow, Khandwa (M.P.)
d] Sharad Keshaorao Sakharkar,
aged about 53 years, C/o Sachin Sakharkar,
Ashiyad Colony, shegaon naka,
Behind Ganpati Mandir, Amravati
e] Rajendra Keshaorao Sakharkar, (dead)
through LRs.
e-1] Sharada Rajendra Sakharkar,
aged about 50 years,
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e-2] Manoj Rajendra Sakharkar,
Aged about 30 years.
e-3] Dheeraj Rajendra Sakharkar,
Aged about 28 years.
All Residing near Ganpati Temple,
at and Post Loni (Takali),
Tah. Nandgaon Khandeshwar,
Dist. Amravati.
e-4] Meenal Nitin Zagade,
ig Aged about 26 years.
R/o belora, Tah. Chandur bazar,
Dist. Amravati.
f] Sanjay Keshaorao Sakharkar,
Aged about 49 years, R/o Nanda Market,
Raja Peth, Amravati.
g] Smt. Madhuri Prabhakarrao Wankhede,
Aged about 47 years, R/o Dahane Nagar,
Plot No.11, Benoda road, Amravati.
-------------------------------------------------------------
Mr. Abhijeet L. Deshpande, Advocate for the petitioner.
Ms. Tajwar Khan, Asst.Govt. Pleader for respondent no.1
Mrs. Priya Zoting, Advocate for R.Nos.2(a to f, g-1 to g-3) and 3
Mr. A. V. Bhide, Advocate for the respondent nos.4 (b & c)
None appears for other respondents, though served.
------------------------------------------------------------
CORAM : PRASANNA B. VARALE, J.
DATE : APRIL 28, 2016.
ORAL JUDGMENT
Rule. Rule made returnable forthwith. Looking to the
limited controversy involved in the petition, the petition is taken up for
final disposal at the stage of admission itself.
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2. By this petition, the petitioner - Maharashtra State
Electricity Distribution Company Ltd., challenges the order passed by
the learned Civil Judge, Senior Division, Khamgaon, dated 12.12.2012
in Land Acquisition Case No. 03/1988, thereby rejecting the application
(Exh.126) filed by the petitioner seeking permission to file written
statement.
3.
It is submitted by the learned counsel for the petitioner-
company that the petitioner-company was the company for whose
purpose the land was acquired by the State of Maharashtra. A
reference was filed by the respondents-claimants raising a grievance of
inadequate compensation. The petitioner-company approached this
Court by presenting writ petition challenging the award. The Division
Bench of this Court, by order dated 30.04.2012 referred to the
grievance of the petitioner that it was not joined as a party to the Land
Acquisition Case and in view of the judgments of the Apex Court, this
Court by order dated 30.04.2012 was pleased to set aside the judgment
and order passed by the learned Civil Judge, Senior Division, Khamgaon
in Land Acquisition Case No. 3/1988. The Division Bench of this Court
directed the land owners/claimants to join the petitioner-company as a
party/respondent. The learned counsel for the petitioner, by inviting
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my attention to the order further submitted that a time frame was fixed
by this Court, thereby the respective parties were required to take
certain steps such as land owners were to join the petitioner as party
respondent, within a period of eight weeks from the date of the order
and during said period, the petitioner-company was directed to deposit
an amount of Rs.3,00,000/- in the Reference Court and the land owners
were permitted to withdraw 50% of the amount deposited by the
petitioner on furnishing an Undertaking. On petitioner depositing the
amount, the Reference Court was directed to permit the petitioner to
file the written statement within a period of four weeks. Thereafter,
this Court further directed the Reference Court to decide and dispose of
the reference on its own merits as expeditiously as possible and within a
period of eight months. The parties were permitted to lead additional
evidence or cross-examine the witnesses, which were already examined.
4. Mr. Deshpande, the learned counsel for the petitioner
submitted that while the land owners/respondents were directed to join
the petitioner as party respondent to the Reference proceedings within
a period of eight weeks, it was necessary for them to carry out the
exercise of supplying a copy of the plaint to the petitioner within a
period of eight weeks from the date of order i.e. 30.04.2012. The
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learned counsel submits that a copy of the plaint was supplied to the
petitioner on 01.11.2012 i.e. much after expiry of stipulated period of
eight weeks. The learned counsel submits that the petitioner-company,
within 30 days from receiving copy of the plaint, submitted the
application (Exh.126), seeking permission to file written statement on
record. Perusal of the copy of the application shows that the application
was filed on 22.11.2012. The learned counsel then submitted that the
respondents/land owners by raising technical ground submitted their
say opposing the application. The learned Civil Judge, Senior Division,
Khamgaon, by merely observing the fact that the petitioner had
approached the High Court and there are directions issued by the High
Court as well the petitioner failed to file written statement within four
weeks from the date of their joining as party-respondent, rejected the
application. The learned counsel for the petitioner placed reliance on
the judgment of this Court reported in 2015 (4) Mh.L.J. 548 in the case
of Vinita W/o Gangaprasad Sahu .vs. Yashodhara Madhukar Dahiwale.
This Court, in an identical situation wherein identical objection was
raised, by setting aside the order impugned therein, directed the trial
Court to accept the written statement filed by the defendants.
5. On a perusal of the order passed by the Division Bench of
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this Court, dated 30.04.2012 and the technical objection raised by the
respondents/claimants, I find considerable merit in the submission of
the learned counsel for the petitioner. He was also justified in placing
reliance on the reported judgment of this Court in Vinita Sahu .vs.
Yashodhara Dahiwale (supra). There is no dispute on the fact that the
copy of the plaint was supplied to the petitioner-company on
01.11.2012. An application was filed within a period of 30 days i.e. on
22.11.2012. This Court in Vinita Sahu .vs. Yashodhara Dahiwale,
dealing with an identical objection raised, observed at paragraphs 8 and
9 that -
"8. It is to be noted that as per the order passed below
Exhibit-18, after petitioner was added as defendant No.2,
the plaintiff had been directed to comply with the
necessary procedure. It implied supplying copy of the
plaint alongwith necessary documents. Under provisions of
Order-I Rule 10(4) of the Code of Civil Procedure, it is the
duty of the plaintiff to serve a copy of the plaint on a newly
added defendant. Considering the specific averments as
referred to above, it cannot be held that copy of the plaint
had been supplied to the defendant No.2 prior to
20/01/2014. If that be the situation, then the application
dated 17/02/2014 moved by defendant No.2 is within a
period of 30 days from the copy of the plaint being served
on her.
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9. Though it is true that the defendant No.2 had filed
application for temporary injunction, that by itself cannot
take away the right to file written statement if copy of the
plaint itself is not shown to be served. In absence of any
material on record to indicate service of copy of the plaint
on newly added defendant, her stand that the same was
supplied for the first time on 20/01/2014 will have to be
accepted. It is also to be noted that the provisions of
Order-VIII Rule 1 of the Code are directory in nature and
delay if any can be condoned in an appropriate case. The
present is therefore an appropriate case warranting grant
of permission to file written statement.
6. There is also considerable merit in the submission of the
learned counsel for the petitioner that the petitioner being a public
limited company, dealing in distribution of energy, rejection of the
application and depriving the petitioner from filing written statement
would cause a serious prejudice to the petitioner and on the contrary,
no prejudice would be caused to the respondents, if the petitioner is
permitted to file the written statement. The learned counsel further
submitted that if the parties submit their respective submissions i.e.
claim and opposition to the claim of the other side, it would also assist
the Reference Court to decide the claim of the claimants on merits.
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7. Though, Mr. Bhide, the learned counsel made an attempt to
support the order challenged in the petition, I find merit in the
submissions of the learned counsel for the petitioner. Mr. Bhide, the
learned counsel was justified in submitting that because of certain
proceedings, the land owners/claimants are waiting for their rightful
claim in respect of acquisition of their lands and the Reference Court be
directed to decide the proceeding within a time frame. He also
submitted that as the petitioner was casual in submitting its written
statement, this Court may impose some costs on the petitioner-
company.
8. The learned counsel for the petitioner invited my attention
to the order passed by the Division Bench of this Court, dated
03.03.2015 in Writ Petition No. 350/2001, by which the Division Bench
of this Court has taken care of extending the period to decide the
reference by observing that the extension of time sought for shall
commence from vacation of the interim order by this Court, which is
operating in the present writ petition. Thus, there is no impediment in
early disposal of the reference.
9. In the result, the writ petition is allowed.
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The impugned order, dated 12.12.2012 passed by the
learned Civil Judge, Senior Division, Khamgaon on application Exh.126
in Land Acquisition Case No. 03/1988 is quashed and set aside.
Rule is made absolute accordingly. No costs.
JUDGE
Diwale
