Vidarbha Irrigation Development ... vs Ramesh Shivgovind Jaiswal And 2 ...
2017 Latest Caselaw 6648 Bom

(Judgment) 3108  FA 626-2013                                                                     1/5




                IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                          NAGPUR BENCH AT NAGPUR.



                                FIRST APPEAL NO. 626/2013 




             1]   Vidarbha Irrigation Development Corporation,
                    through its Executive Engineer, Purna 
                    Medium Project Division, Amravati.                       APPELLANT


                                              .....VERSUS.....



             1]    Ramesh Shivgovind Jaiswal (since deceased)
                     through his legal heirs,

             1(i)  Sanjay Rameshchandra Jaiswal,

             1(ii) Sau. Sandhya Sureshchandra Jaiswal,

                    Both R/o. Sadar Bazar, Paratwada,
                    Vitthal Mandir Ward No.5, 
                    Post Paratwada, Tq. Achalpur,
                    District - Amravati.

             2]   The Special Land Acquisition Officer,
                    (Minor Irrigation Works), Amravati.

             3]   The State of Maharashtra, through
                    Collector, Amravati.                                      RESPONDE NTS


                           Shri M.A. Kadu, counsel for appellant.
                           Shri S.U. Nemade, counsel for respondent no.1(i) & 1(ii).
                           Ms. R.V. Kalia, AGP for respondent nos.2 and 3.




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 (Judgment) 3108  FA 626-2013                                                                               2/5


                                CORAM:  S.B. SHUKRE, J.

                                DATE    : AUGUST 31, 2017.
                 

                                ORAL JUDGMENT :  


                                                   Heard finally by consent.



                                     2]            The   learned   counsel   for   the   appellant   has

invited my attention to the judgment of this Court

commonly delivered in a bunch of appeals starting with

First Appeal No. 924/2013 delivered on 30/04/2015,

wherein this Court has taken a view that as the

Acquiring Body was not joined as necessary party in the

reference proceeding, the law laid down by the Hon'ble

Supreme Court in the case of Abdul Rasak and others

-Vs- Kerla Water Authority and otheres, AIR 2002

SCW 477, would apply to the facts of those cases, and

therefore, this Court remanded all those appeals back to

the reference court for fresh adjudication in accordance

with law.

3] Shri Kadu, learned counsel for the appellant

submits that facts of this case being different, and that

(Judgment) 3108 FA 626-2013 3/5

there is no demand for any remand of the appeal, this

appeal itself can be decided on merits by this Court. This

is, however, disputed by the learned counsel for the

respondent no.1. The learned AGP appearing for the

respondent nos.2 and 3 submits that an appropriate

order be passed in this matter.

4] It is not in dispute that the appellant which is

Acquiring Body was not party in the reference

proceedings before the reference Court. The Hon'ble

Supreme Court, in the case of Abdul Rasak (supra), has

held that, "An Acquiring Body like the appellant is the

necessary party and in it's absence no claim for

enhancement of compensation could be adjudicated". If

this is so, I do not think that it would be fair on the part

of this Court to proceed to decide this appeal on its own

merits. If, the Hon'ble Supreme Court has held that no

claim for enhancement of compensation can be

adjudicated upon in the absence of a necessary party like

the appellant, this Court would not be within law to

consider merits of the appeal. Even otherwise, if any

attempt is made to distinguish the facts of the instant

(Judgment) 3108 FA 626-2013 4/5

case and the attempt meets with any success, I am

afraid, the repercussion on the fate of the other matters,

quite similar to the present case, which have been

already remanded by this Court to the trial court,

possibly could be such as the reference Court in those

matters would feel compelled to adopt the same view as

may be taken by this Court if the appeal is decided on

merits. If this is to happen, a great prejudice would occur

to all those parties before the reference court after

remand of their respective cases. This is one more reason

why I am not inclined to accept the argument of the

learned counsel for the appellant.

5] In this view of the matter, I find that this case

also deserves to be remanded to the reference court for a

fresh decision in accordance with law by quashing and

setting aside the impugned order. I may add, to invoke

remand power, no specific prayer has been made in the

memo of appeal, but having regard to provisions of

Order 41 R 33 of C.P.C., such power can certainly be

exercised by the Court on it's own, to do justice between

the parties.

 (Judgment) 3108  FA 626-2013                                                                        5/5

                                6]            In the result, appeal is allowed.



                                7]            The   impugned   award   is   quashed   and   set

                                aside.



                                8]            The matter is remanded back to the reference

court for a fresh decision in accordance with law.

                                9]            Parties to bear their own costs.




                                                                              JUDGE       

                                Yenurkar