Angad Wamanrao Nalawade And ... vs The State Of Maharashtra Through ...
2016 Latest Caselaw 6768 Bom

                                             1                   CRA-98.16.doc




                                                                           
                IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                                   BENCH AT AURANGABAD




                                                   
                  CIVIL REVISION APPLICATION NO. 98 OF 2016




                                                  
     1.       Angad Wamanrao Nalawade,
              Age 75 years, occup. Agril.,




                                          
              R/o Lanjeshwar, Tq. Bhoom,
              Dist. Osmanabad

     2.
                             
              Rajendra Wamanrao Nalawade,
              Age 56 years, occup. Agril.,
              R/o Lanjeshwar, Tq. Bhoom,
                            
              Dist. Osmanabad

     3.       Vasant Wamanrao Nalawade,
              Age 54 years, occup. Agril.,
              Lanjeshwar, Tq. Bhoom,
      

              Dist. Osmanabad                               .. Applicants
   



                      versus

     1.       The State of Maharashtra
              through Collector, Osmanabad





     2.       Special Land Acquisition Officer
              No. 2, Osmanabad

     3.       The Executive Engineer,
              Minor Irrigation Department,





              Osmanabad                                     .. Respondents

                       -----
              Mr. Abhijit S. More, Advocate for applicants
              Mr. A.R. Borulkar, Assistant Government Pleader for
              respondents




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                                           2                    CRA-98.16.doc


                                   CORAM : SUNIL P. DESHMUKH, J.

DATE : 29th November, 2016

ORAL JUDGMENT :

1. Rule. Rule made returnable forthwith. Heard learned

counsel for parties finally by consent.

2. Heard learned counsel appearing for the applicants and

the learned Assistant Government Pleader appearing on

behalf of the respondents.

3. Learned counsel for the applicants states that award had

been passed by the Special Land Acquisition Officer in the

year 2000 and the applicants became aware of the same in

January, 2001 and thereafter the land acquisition reference

had been lodged which had then been bearing no. 1401 of

2002 [new number 131 of 2014] with the reference court [Civil

judge, senior division, Bhoom]. It appears, thereafter the land

acquisition reference was pending and getting transferred

from one court to another. Although one of the applicants is

said to have received notice, however, rest of the applicants

have received no notice about the proceedings being taken up

before land acquisition reference court and eventually it came

to be dismissed by judgment and order dated 22-06-2015

impugned in present civil revision application.

3 CRA-98.16.doc

4. Learned counsel further submits that advocate had been

intimated about the land acquisition references by applicant

who is said to have received notice, however, he did not hear

anything further. In the circumstances, it appears, the

proceedings before the court went unattended and the court

has passed the impugned order.

5. Learned counsel for the applicants submits that

compensation in respect of applicants' property is at stake in

the matter and it is difficult to accept they have delay-dallied

prosecution of the matter. He submits that the record would

indicate that since 2001 the matter did not progress except

getting transferred from one court to another. In the

circumstances, non attendance of the matter ought to be

considered on that background, particularly having regard to

that there was absence of notice to other applicants save to

alleged one. He, therefore, submits that a proper and lenient

view deserves to be taken in the matter.

6. He further submits that in order to give evidence as also

to explain the consideration on the count of limitation as is

appearing in the impugned order, they should be let

opportunity for the same. He further submits that a decision

would be required to be taken based on the facts, evidence

4 CRA-98.16.doc

and the circumstances. For the same, he urges that

opportunity may be afforded to the applicants.

7. Learned counsel for the applicants additionally brings to

the notice of this court, an order passed by this court on

15-06-2016 in civil revision application no. 305 of 2015 which,

according to him, has been passed in the circumstances

similar to the ones in present case.

8. However, ig learned Assistant Government Pleader

appearing on behalf of the respondents opposes, submitting

that the present civil revision application may not be

maintainable.

9. Learned Assistant Government Pleader Mr. Borulkar,

draws attention to a decision rendered by Hon'ble Single

Judge of this court in the case of "Venkat s/o Baburao Karle V/s

State of Maharashtra and Others" reported in 2012 (4) ALL MR 826

wherein, it appears that, while evidence appears to have been

adduced by the claimants, it had been considered that when

the reference is dismissed on the ground of it being filed

beyond prescribed period of limitation, an appeal instead of

civil revision application may lie, observing thus -

" 5. In the instant case, it is found that the claimants have adduced evidence before the reference Court and the reference Court has also appreciated

5 CRA-98.16.doc

the material placed on record while rendering the

decision and has recorded reasons in support of the final order. The reference Court has also considered issue of limitation and found that the Reference

Applications were presented beyond prescribed period. It is not the case that the Reference Applications were dismissed without considering the material placed on record."

10. Learned advocate for the applicants pertinently

distinguishes present situation from the one involved in the

case cited on behalf the respondents - State.

11.

Learned advocate for the applicants, on the other hand

refers to two judgments viz., in the case of " Kawadu Madhav

Bansod V/s State of Maharashtra and Another " reported in 2004 (2)

Mh.L.J. 503 and in civil revision application No.169 of 2005

dated 15th January, 2007 which, according to him, are closer

on facts to the present case and hold that civil revision

application is maintainable.

12. Although, ostensibly, it appears that the reference has

also been thrown out on the ground of limitation, yet one will

have to note that no opportunity in that respect had been

available to the claimants.

13. It appears that there is discernible difference between

the facts and circumstances of the case relied upon on behalf

of the respondents and the ones involved in the present

6 CRA-98.16.doc

matter. Here it is a case of the applicants that they had

absolutely no opportunity to lead evidence on any count,

including that on limitation. Even otherwise, perusal of the

judgment would reveal that the reference has been rejected

overwhelmingly because of non appearance and absence of

evidence on behalf of the claimants.

14. Learned advocate for the applicants further fairly states

that his clients would not claim interest for the period between

the date of dismissal of the reference and the date of

appearance by the applicants before the court, as directed.

15. As such, taking overall view of the situation, I deem it

appropriate that instead of obfuscating the issue in the

matter, and delaying adjudication on merit, to set aside the

impugned order in the interest of justice and grant this civil

revision application. I also deem it appropriate to impose

certain costs on applicants which may, to some extent,

attenuate inconvenience caused to the respondents in the

process.

16. Accordingly, the civil revision application is allowed.

17. The impugned order dated 22-06-2015 dismissing land

acquisition reference is set aside. The land acquisition

7 CRA-98.16.doc

reference bearing no. 131 of 2014 (0ld no. 1401 of 2002) is

restored to its position as had been subsisting immediately

before the impugned order, subject to the condition that the

applicants shall pay costs of ` 5,000/- payable to the

respondents. Costs shall be deposited in the land acquisition

reference court within a period of four weeks from today.

18. The applicants to appear before the land acquisition

reference court on 15-12-2016.

ig It is further expected, the

applicants would co-operate in disposal of the land acquisition

reference expeditiously.

SUNIL P. DESHMUKH, JUDGE

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