Akbar Umar Teli vs The State Of Mah. Thr. Collector, ...
2017 Latest Caselaw 9392 Bom

                                            1                   Jud.FA 41.06.odt


     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
               NAGPUR BENCH : NAGPUR

                         First Appeal (L.A.) No. 41/2006

 Appellant:-                           Shri Akbar Umar Teli,
                                       aged about 66 yrs, Occ.
                                       Cultivator, R/o. Digras,
                                       Tah. Digras, Dist. Yavatmal.

                                       VERSUS

 Respondents:-                 1.      The State of Maharashtra,
                                       through Collector, Yaotmal.

                               2.      The Collector, Yaotmal.

                               3.      The Sub Divisional Officer &
                                       Land Acquisition Officer, Darwha
                                       (Benefit Zone), Dist. Yaotmal.

                               4.      Sub Divisional Engineer, Vidarbha
                                       Irrigation Development
                                       Corporation, Arunavati Project,
                                       Diggras, Tah. Digras, Dist.
                                       Yeotmal.(amended as per order
                                       dated 07.12.2017)



 Shri A. Z. Jibhkate, Advocate for appellant.
 Shri M. A. Kadu, Assistant Government Pleader for respodent Nos. 1 to 3.
 Shri V. G.Palshikar, Advocate for respondent No.4.
 ___________________________________________________________________________

                                     WITH

                          Cross Objection No. 15/2006


 Appellant:-                           Shri Akbar Umar Teli,
                                       aged about 66 yrs, Occ.
                                       Cultivator, R/o. Digras,
                                       Tah. Digras, Dist. Yaotmal.

                                       VERSUS

 Respondents:-                 1.      The State of Maharashtra,
                                       through Collector, Yaotmal.

                               2.      The Collector, Yaotmal.

                               3.      The Sub Divisional Officer &



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                                                    2                     Jud.FA 41.06.odt

                                             Land Acquisition Officer, Darwha
                                             (Benefit Zone), Dist. Yaotmal.

 Cross-Objector                  4.          Sub Divisional Engineer, Vidarbha
                                             Irrigation Development
                                             Corporation, Arunavati Project,
                                             Diggras, Tah. Digras, Dist.
                                             Yeotmal.(amended as per order
                                             dated 07.12.2017)



 Shri A. Z. Jibhkate, Advocate for appellant.
 Shri M. A. Kadu, Assistant Government Pleader respondent Nos.1 to 3.
 Shri V. G. Palshikar, Advocate for respondent No.4 - Cross Objector.
 ___________________________________________________________________________

                                      CORAM : S. B. SHUKRE, J.

DATE : 07.12.2017.

Leave to amend the cause title of the appeal and

the cross-objection by adding the words "Vidarbha Irrigation

Development Corporation between the "Sub-Divisional

Engineer" and "Arunawait Project, Digras" in respect of the

description of respondent No.4 in the First Appeal as well as

cross-objection is granted to Shri Palshikar, learned counsel for

the cross-objector. Amendment be carried out forthwith.

Oral Judgment :

1. Heard Shri Jibhkate, learned counsel for the

appellant/original claimant. Shri M.A. Kadu, Assistant

Government Pleader for respondent Nos. 1 to 3 and Shri

Palshikar, learned Advocate for newly added respondent No. 4

in the appeal and cross-objection.

3 Jud.FA 41.06.odt

2. Both the appeal and the cross-objection arise out of

judgment dated 3rd January, 2004 rendered in Land Acquisition

Case No. 66/1994 by the Civil Judge, Senior Division, Pusad.

The dispute involves an issue about grant of just and proper

compensation to the original claimant for the land which has

been acquired in the present case for the Arunavati Project,

Tah. Digras, Dist. Yaotmal. The reference application had been

filed in November 1988. At that time, the Vidarbha Irrigation

Development Corporation (for short VIDC) was not in

existence. It was constituted later on and it came into being

in March 1997. Even at the inception, Arunavati Project was

not handed over to the VIDC and therefore, an amendment

was carried out in Vidarbha Irrigation Development

Corporation Act, 1997 by Vidarbha Irrigation Development

Corporation Ordinance, 1998 (Mah. Ord. XV of 1998) whereby

the Act was extended even to Arunavati Project situated in

Yaotmal District. After this amendment , the VIDC should have

been impleaded as a party respondent. However, the VIDC

was not joined as a party respondent.

3. In a similar group of appeals starting with First

Appeal No. 791/2009 (State of Maharashtra & ors. Vs. Swapnil

S/o Girdhar Nagpure) decided on 14 th September, 2017, a

submission was made on behalf of VIDC that as the VIDC was

not made a party respondent in the reference application, the

4 Jud.FA 41.06.odt

dispute about enhancement of compensation was required to

be remitted back to the Reference Court for a decision afresh

by relying upon the cases of Abdul Rasak & ors. Vs. Kerala

Water Authority & ors reported in (2002) 3 SCC 228 and

Vidarbha Irrigation Development Corporation Vs.

Santosh Janba Warghane & anr. reported in (2017) 4

Mh. L. J.64. This Court held that those appeals were squarely

covered by the ratio of the said cases of Abdul Rasak and

Santosh (supra). Accordingly, this Court remitted back the

dispute involved in those matters for a decision afresh, to the

Reference Court.

4. In the present case, the facts are similar and

therefore, I do not see any reason for me to take a different

view of the matter. Of-course, Shri Jibhkate, learned counsel

for the appellant submits that according to his knowledge, the

VIDC was represented before the Reference Court. However,

on going through the original reference application filed under

Section 18 of the Land Acquisition Act, I find that the

contention is not consistent with the record. VIDC was never

joined as a party to the proceedings before the Reference

Court. The statement is, therefore, not accepted. Thus, I find

that this appeal and the cross-objection both being squarely

covered by the view taken by this Court in the aforesaid group

of appeals the dispute raised by the Reference Application

5 Jud.FA 41.06.odt

would have to be remitted back, just as it was done earlier.

5. At this stage, Shri Jibhkate, learned counsel for the

appellant submits that at least cost of this matter be saddled

on the VIDC for the reason that the appellant could not be said

to be at fault in not joining the VIDC as a party. He further

submits that it was the duty of the Sub-Divisional Engineer of

Arunavati Project to place on record the change of

circumstances after coming into force the Vidarbha Irrigation

Development Corporation Act, 1997, of which he was well

aware. He also submits that the Sub-Divisional Engineer, as a

matter of fact could not have allowed himself to continue as a

party respondent in his own right and therefore, he ought to

have placed on record the developments of law which

adversely affected his status in the matter, but, he did not.

Shri Palshikar, learned counsel for VIDC objects to this. He

submits that the VIDC could not have been said to be at fault

and in-fact, if the change in the status occurred because of

change of law, the party whose status is affected cannot be

made to pay the cost.

6. I find that there is only half truth in the submission

of learned counsel for the VIDC. The change of law may not

be in the hands of the authorities but is not and cannot be

behind the back of the authorities. It is always within the

6 Jud.FA 41.06.odt

knowledge at least post change of law, of authorities, either

directly or presumptively. If the authorities are directly or

presumptively possessed of knowledge about change of their

status by operation of law, would it not be their duty to bring

this fact on record of the case and if they fail in this duty,

which party is to be blamed? Obviously, the party failing in the

duty, which is the case here, would have to be answerable to

the claim made regarding imposition of cost made on it. In

this way, I find that VIDC would have to bear the cost of the

proceedings.

7. In the result, the appeal and the cross-objection

both are allowed and impugned judgment and order are

quashed and set aside.

8. The reference application, is remitted back to the

Reference Court for its decision afresh in accordance with law

from the stage of evidence. It is made clear that evidence

already tendered by the parties shall be valid and taken into

consideration by the Reference Court. The parties shall be at

liberty to adduce further evidence if they choose to do so.

9. The claimants having been permitted to withdraw

the decreetal amount on furnishing security/surety etc. shall

be bound by those conditions and shall also abide by the final

decree that will now be passed afresh by the Reference Court.

7 Jud.FA 41.06.odt

10. The Reference Court shall allow the VIDC to be

joined as a party-respondent. The amendment in this regard

be carried out within one week from the date of appearance of

the parties.

11. The parties to appear before the Reference Court on

18th December, 2017. The Reference Court shall dispose of

the reference application within six months from the date of

appearance of the parties before it.

12. The parties shall cooperate with the Reference

Court without seeking any adjournment except on the ground

of factors beyond their control.

13. The costs of appeal and the cross-objection shall be

borne by the VIDC.

14. The appeal and cross-objection stand disposed of

accordingly.

JUDGE Gohane