Bombay High Court
Union Of India New Delhi vs Smt Premlata Purushottam ... on 21 September, 2016
Bench: Z.A. Haq
1 fa716.96
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
FIRST APPEAL NO.716 OF 1996
Union of India,
through its Secretary,
Ministry of Defence, Delhi. .... APPELLANT
VERSUS
1) Smt. Premlata w/o Purushottam Paldiwal,
Aged about 46 years,
Landlady and Housewife,
C/o. Paldiwal Nursing Home, Giripeth,
Nagpur.
2) State of Maharashtra,
through Collector, Nagpur.
3) Deputy Collector and Land Acquisition
Officer (General), Nagpur. .... RESPONDENTS
______________________________________________________________
Smt. Anjali Joshi, Advocate for the appellant,
Shri V.V. Bhangde, Advocate for the respondent No.1,
Shri S.B. Bissa, A.G.P. for the respondent Nos.2 and 3.
______________________________________________________________
CORAM : Z.A. HAQ, J.
DATED : 21
SEPTEMBER, 2016.
st
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ORAL JUDGMENT :
Heard Smt. Anjali Joshi, Advocate for the appellant, Shri
V.V. Bhangde, Advocate for the respondent No.1/claimant and Shri
S.B. Bissa, Assistant Government Pleader for the respondent Nos.2 and
3.
2.
The claimant had filed application under Section 18 of the
Land Acquisition Act, 1894 impleading the present appellant/Union of
India as non-applicant No.3, the description being as follows :
'Union of India,
through the Secretary, Ministry of Defence,
C/o Chief Construction Engineer, Defence
of India, Research and Development,
Organisation Project, Rani Kothi, Opposite
Reserve Bank of India Quarters, Civil Lines,
Nagpur-440001.'
The reference Court passed award on 10-09-1996
recording that the non-applicants including the present appellant had
neither filed written statement nor had attended the proceedings till
the proceedings were closed for judgment. The appellant has filed this
appeal challenging the award passed by the reference Court. One of
the ground raised by the appellant is that the reference Court has
committed an error in assuming that the summons of the proceedings
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was served on the appellant. According to the appellant, the
description of the appellant in the cause title of the proceedings filed
under Section 18 of the Land Acquisition Act, 1894 was not correct,
that the office of Chief Construction Engineer was at Secunderabad
and not at Nagpur as described in the proceedings before the reference
Court and the alleged service of summons on the office of the Chief
Construction Engineer at Nagpur could not have been treated as valid
service. It is submitted that because of the wrong description of the
appellant in the reference proceedings and the error committed by the
reference Court in assuming that the summons of the proceedings was
served on the appellant, the appellant is deprived of the opportunity of
defending the proceedings, leading evidence and cross-examining the
witnesses examined on behalf of the claimant. It is argued that the
appellant (acquiring body) is not given opportunity to defend as it was
not served with the summons of the proceedings and therefore the
impugned award has to be set aside. To support the submissions,
reliance is placed on the judgment given in the case of NTPC Ltd. v.
State of Bihar and others reported in (2004) 12 SCC 96 and in the
case of Abdul Rasak and others vs. Kerala Water Authority and
others reported in (2002) 3 SCC 228.
4 fa716.96
3. The learned Advocate for the claimant has submitted that
the appellant has not been able to establish that the office of Chief
Construction Engineer at Nagpur was not competent to accept the
summons. It is submitted that if it was so, either the office of Chief
Construction Engineer at Nagpur should not have accepted the
summons or after accepting summons, it should have intimated to the
Court that the summons was wrongly accepted byit.
It is argued that the facts on record show that the office of
Chief Construction Engineer at Nagpur has taken all the steps for
acquisition of the land and all consequential steps for deposit of the
amount in the reference Court and the Collector had also sent the
notice of reference proceedings to the office of Chief Construction
Engineer at Nagpur. It is submitted that in these facts, it is clear that
the summons of the proceedings was properly served on the office of
the Chief Construction Engineer at Nagpur and the reference Court has
not committed any error in proceeding with the matter under the
belief that the present appellant was served with the summons of
proceedings. The learned Advocate has submitted that if the matter is
remanded, it would now not be possible for the claimant to produce
the witnesses (7 in numbers), which were examined on behalf of the
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claimant. Alternatively it is submitted that if at all the matter is to be
remitted to enable the appellant to defend itself, the evidence of the
witnesses examined on behalf of the claimant should not be excluded if
they fail to attend the proceedings. For this submission, the learned
Advocate has relied on paragraph No.12 of the judgment given in the
case of NTPC Ltd. v. State of Bihar and others. It is submitted that
the amount deposited before the reference Court is withdrawn by the
appellant and if the matter is remanded, then the claimant should be
permitted to retain the amount and for that the claimant will abide by
the conditions as may be imposed by this Court.
4. After hearing, the following points arise for consideration :
i) Whether the reference Court has committed an error in
proceeding against the appellant assuming that the
summons of proceedings was served on the appellant ?
ii) Whether the impugned award is proper or is required to
be interfered with ?
5. The claimant has impleaded Union of India, through
Secretary, Ministry of Defence as the non-applicant No.3 in the
reference proceedings. The address is given as "C/o Chief Construction
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Engineer, Defence of India, Research and Development, Organisation
Project, Rani Kothi, Opposite Reserve Bank of India Quarters, Civil
Lines, Nagpur-440001". Considering the description of Union of
India/non-applicant No.3 in the reference proceedings, the summons
of the proceedings should have been served on the Secretary, Ministry
of Defence. It is undisputed that the summons was not served on the
Secretary, Ministry of Defence. The reference Court committed an
error in concluding that the summons of the proceedings was served
on the Union of India. The service of summons on the Chief
Construction Engineer at Nagpur or any one from his office cannot be
said to be a valid service as the non-applicant in the reference
proceedings was Union of India, through Secretary, Ministry of
Defence.
6. The averments in paragraph Nos.2 and 3 of the
memorandum of appeal show that the Additional Chief Construction
Engineer at Nagpur office had informed by the letter dated 12-02-1996
that the summons was received and then steps were taken on behalf of
the appellant, however, by the time the appellant could put in
appearance before the reference Court, the matter was closed for
judgment. It is stated that an application praying for setting aside
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ex-parte order was also filed which was rejected.
In the above facts, it cannot be said that there is any lapse
on the part of the present appellant in attending the proceedings
before the reference Court.
7.
In view of the above, in my view, the award passed by the
reference Court is required to be set aside and the matter has to be
remitted to the reference Court for deciding the proceedings, afresh.
8. Hence, the following order :
i) The impugned award is set aside.
ii) The reference Court shall decide the proceedings, afresh,
permitting the parties to file pleadings, amend pleadings,
file documents, examine witnesses and cross-examine the
witnesses.
iii) The representative of the appellant, the respondent
No.1/claimant and the representatives of the respondent
Nos.2 and 3 shall appear before the learned 6 th Joint Civil
Judge (Senior Division), Nagpur on 26-10-2016 at 11-00
a.m. and abide by the further orders.
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iv) The decision on the point whether the evidence of
witnesses (7 in numbers) examined on behalf of the
claimant should be considered or excluded if they fail to
appear for cross-examination, shall be taken by the
reference Court after considering the relevant aspects i.e.
what steps are taken by the concerned party to produce
those witnesses.
v) As the matter is old, the reference Court shall dispose the
proceedings within four months.
vi) The orders passed by this Court on 09-07-1997 and
14-08-1997 show that the claimant was permitted to
withdraw the amount on furnishing bank guarantee for
withdrawing the amount of Rs.35,00,000/- and solvent
security for withdrawing the balance amount. In the order
passed by the Hon'ble Supreme Court in Petition for
Special Leave to Appeal on 19-02-1998 it is recorded that
the claimant has withdrawn the amount on furnishing
bank guarantee for withdrawal of Rs.35,00,000/- and
solvent security for withdrawing the balance amount.
The claimant is permitted to retain the amount on
renewing the bank guarantee and solvent security
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regularly till the disposal of the reference. The claimant
shall also file an undertaking before the reference Court
stating that if the reference Court finds that the claimant
is not entitled for the amount withdrawn by her, the
claimant will redeposit the amount alongwith interest as
may be determined by the reference Court within two
months. The undertaking shall be filed till the date of
appearance. If the undertaking is not filed, the Executing
Court shall take steps to recover the amount from the
claimant.
The appeal is allowed in the above terms. In the circumstances,
the parties to bear their own costs.
JUDGE
adgokar
10 fa716.96
CERTIFICATE
I certify that this Judgment uploaded is a true and correct
copy of original signed Judgment.
Uploaded by : P.M. Adgokar. Uploaded on : 26-09-2016.
P.A. to Hon'ble Judge.
