Dattaraj Narayanrao Desmukh vs The State Of Maharashtra And ...
2017 Latest Caselaw 5504 Bom

                                             1                           951 fa 1534-14 .odt

             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                  BENCH AT AURANGABAD

                               951 FIRST APPEAL NO. 1534 OF 2014


                 Dattaraj s/o Narayanrao Deshmukh,
                 Age  :  60 years, Occu.:  Agriculture,
                 R/o.:  Paithangate, H. No. 5-18-46,
                 Deshmukh Niwas, Aurangabaad.
                                                             ...       APPELLANT
                                                                   ( Ori. Claimant)

                 VERSUS

        1.       The State of Maharashtra,
                 Through Special Land Acquisition
                 Officer, Spl. Unit, Aurangabad.

        2.       The Commissioner-
                 Municipal Corporation, Aurangabad.
                                                             ...       RESPONDENT
                                                                    (Ori. Opponents) 
                                                  
                                   ...
 Advocate for Appellant : Deshmukh Anita D., Shri. K D Jadhav (consent 
                             Not Obtained) 
            AGP for Respondent No.1: Shri. C. V. Dharurkar, 
      Advocate for Respondent No.2 : Shri. Chapalgaonkar S. G.
                                  ... 

                                                 CORAM       :  P. R. BORA, J. 

                                                 DATE        :  03.08.2017

ORAL JUDGMENT :


1)               The present appeal is filed against the judgment and award 

dated 19/03/2014 passed by the Court of Civil Judge Senior Division,

Aurangabad in Land Acquisition Reference No. 15 of 2011. The

aforesaid Reference Application was filed by the present appellant. The

same has been dismissed by the Reference Court mainly on the ground

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that claimant did not adduce any oral and documentary evidence in

order to substantiate his claim. The Learned Counsel relying on the

judgment of the Hon'ble Apex Court in Ramanlal Deochand Shah &

Anr. V. State of Maharashtra & Anr. ( AIR 2013 SC 3452) submitted

that the Reference Court could not have dismissed the Reference

Application on the ground that the claimant did not adduce any

evidence. The learned Counsel, therefore, prayed for remanding the

matter back to the Reference Court with permission to the appellant to

adduce oral and documentary evidence in support of his claim.

2) Shri. S. G. Chapalgaonkar, learned Counsel appearing for

Corporation has opposed the submission made on behalf of the

appellant. The learned Counsel inviting my attention to the discussion

made by the Reference Court submitted that the Reference Court has not

dismissed the Reference Application merely for the reason that no

evidence was adduced by the appellants, but, has also submitted that

the Special Land Acquisition Officer seems to have correctly determined

the market value of the acquired land and, therefore, the Reference

Court did not find it necessary to cause any interference in the amount

of compensation so offered by the Special Land Acquisition Officer.

Learned Counsel further submitted that from the record, it is discernible

that though the Reference Application was filed in the year, 1989 since

no steps were taken by the appellant, the Reference Application could

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not be decided till the year 2011. The learned Counsel submitted that

despite availing all opportunities, the claimant did not adduce any oral

or documentary evidence and as such the Reference Court was

constrained to dismiss the Reference Application. Learned Counsel

submitted that no case is made out even for remand of the matter and

no interference is required in the judgment and award so passed. In the

alternative, learned Counsel submitted that if the matter is to be

remanded back to the Reference Court and if the appellant is likely to be

permitted to adduce necessary evidence, the appellant may be

disentitled from claiming interest of the period of delay which

apparently seems to have caused because of inaction on his part.

3) I have carefully considered the submission advanced by the

learned Counsel appearing for the parties. Perusal of the impugned

judgment shows that non-adducing of oral or documentary evidence by

the appellant is the main reason for dismissal the Reference Application.

Hon'ble Apex Court in the case of Ramanlal Deochand Shah & Anr. V.

State of Maharashtra & Anr. (supra) has observed as under :

"14. The failure or the omission to lead evidence to prove the claim appears in the above context to be a case of some kind of misconception about the legal requirement as to evidence needed to prove cases of enhancement of compensation.

We do not in that view see any reason to deny another opportunity to the landowners to prove their cases by adducing evidence in support of their claim for enhancement. Since, however, this opportunity is being granted ex debito justitiae, we

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deem it fit to direct that if the Reference Court eventually comes to the conclusion that a higher amount was due and payable to the appellant- owners, such higher amount including solatium due thereon would not earn interest for the period between the date of the judgment of the Reference Court and the date of this order. These appeals are with that direction allowed, the judgments and orders impugned in the same modified to the extent that while the enhancement order by the Reference Court shall stand set aside, the matters shall stand remanded to the Reference Court for a fresh disposal in accordance with law after giving to the landowners opportunity to lead evidence in support of their claims for higher compensation. No costs. "

4) In view of the observation so made, it is apparent that the

Reference Court could not have dismissed the application on the ground

that the claimant did not adduce any evidence. The impugned judgment

and award, therefore, cannot be sustained.

5) However, there appears substance in the submission made

by the learned Counsel appearing for the respondent Corporation that

while extending the appellant claimant an opportunity of adducing

evidence, he needs to be disentitled from claiming interest of the period

which has been consumed because of inaction on his part in adducing

the evidence.

6) When the original Reference Application which was filed in

the year 1989 remained to be undecided till the year 2014, a reasonable

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inference can be drawn that the claimant was not diligent in prosecuting

his claim. The permission to adduce necessary evidence to substantiate

his claim, therefore, cannot blanketly granted to the appellant. I,

therefore, deem it appropriate to disentitle the appellant from the

benefit of interest for the period of delay which has been caused at his

instance.

7) From the available record, it cannot be gathered as to when

the matter was fixed for hearing for the first time and at whose instance

the proceeding were delayed. The Reference Court will be in a better

position to ascertain as to because of whose negligence or inaction the

matter could not be proceeded further. If it is found that the matter was

time to time adjourned only at the instance of original claimant, he

cannot be given premium by awarding interest of the said period also.

I, therefore, deem it appropriate to issue necessary directions to the

Reference Court in that regard also. Hence, the following order.

ORDER

1. The impugned order stand set aside.

2. The matter is remitted back to the Reference

Court for deciding it afresh by permitting the

appellant to adduce necessary oral and documentary

evidence in support of his claim. Needless to state

that the respondents will have equal opportunity to

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rebut the said evidence.

3. It is clarified that the claimant will not be

entitled for the interest of the period of delay which

has been caused at his instance. The Reference Court

while deciding the matter, shall also ascertain from

the record as to because of whose negligence the

matter could not be proceeded and since when. The

Reference Court shall disentitle the claimant from the

benefit of interest for the said period by passing a

reasoned order.

5) In view of the fact that the original Reference

Application was filed in the year 1989, the Reference

Court is directed to hear and decide the Reference

Application as expeditiously as possible and

preferably within a period of six months after

receiving the record from this court.

6) The parties to appear before the Reference

Court on 21 of August 2017 so, no further notice

may be required to be issued by the Reference Court.

7) The appeal stands allowed in the aforesaid

terms.

(P. R. BORA) JUDGE

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