Vidarbha Irrigation Development ... vs Narayan Bhaskar Pitale & Ors
2017 Latest Caselaw 4207 Bom

0707 FA  158/2006                             1                        Judgment


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


                        FIRST APPEAL NO. 158/2006 


Vidarbha Irrigation Development
Corporation, through its Executive
Engineer, Medium Project Division,
Nagpur, Plot No.13, Civil Lines, Nagpur.                APPELLANT

                                .....VERSUS.....


1]     Narayan Bhaskar Pitale,
       Aged adult,

2]     Wasudeo S/o Bhaskar Pitale,
       Aged adult,

3]     Laxmikant S/o Bhaskar Pitale,
       Aged adult,

4]     Ku. Nanda D/o Bhaskar Pitale,
       Aged adult, Occu: Nil,

       All R/o. Raghavchintan, 4, Survey
       Nagar, Near Trimurty Nagar, Nagpur.

5]     State of Maharashtra, through Collector,
       Nagpur, Tq. & Distt. Nagpur.

6]     Special Land Acquisition Officer,
       Minor Irrigation Works, Nagpur.                   RESPONDE NTS


       Shri V.G. Palshikar counsel for appellant.
       Shri C.V. Kale, counsel for respondent nos.1 to 4.
       Shri M.A. Kadu, AGP for respondent nos.5 and 6.



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 0707 FA  158/2006                               2                          Judgment



                 CORAM  : DR. SMT. SHALINI PHANSALKAR-JOSHI, J.

               DATE     : JULY 07, 2017.


ORAL JUDGMENT :  

This appeal takes an exception to the judgment and

award dated 02/04/2005, passed by 9th Ad-hoc Additional District

Judge, Nagpur in L.A.C. No. 184/2002, by which amount of

compensation is enhanced to the tune of Rs.4,500/- per orange tree

for 693 trees.

2] The land of respondent nos.1 to 4 was acquired by the State of Maharashtra, vide Notification dated 02/01/1997 issued under Section 4(1) of the Land Acquisition Act, 1894 (hereinafter will be referred to as "Act" for convenience). The award was declared on 01/06/1999. Being dissatisfied with the award, respondents preferred the reference petition under Section 18 of the Act for claiming higher compensation, and as stated above, the reference court has enhanced the compensation.

3] Meanwhile, on 12/03/1995, appellant-Corporation was constituted by the State of Maharashtra and the project for which the land was acquired, was handed over to appellant. However, before the reference court admittedly appellant was not made party. In this appeal, by the separate order dated 06/06/2006, this court

0707 FA 158/2006 3 Judgment

has granted leave to appellant to file appeal against the impugned judgment and award.

4] Now the submission of learned counsel for appellant is that though the appellant was a necessary and proper party before the reference court and since the appellant was not given notice of the claim for higher compensation, the impugned judgment and award is liable to be set aside and the matter is required to be remitted to the reference court for giving an opportunity to the appellant to lead evidence.

5] In support of his submission, learned counsel for appellant has relied upon the decision of the Hon'ble Apex Court in the case of Abdul RAsak and others -Vs- Kerala Water Authority and others, 2002 AIR SCW 477 and the various orders passed by Division Bench of this Court in the First Appeal No.2294/2007 (V.I.D.C. through Executive Engineer -Vs- Shankar @ Shrawan Kisan Mahakulkar and others) dated 24/10/2007, First Appeal No. 1016/2007 (V.I.D.C. Wardha -Vs- Smt. Nathabai Mahadeo Bondhade and others) dated 22/01/2008 and First Appeal No. 664/2009 (V.I.D.C. through Executive Engineer -Vs- Kisan Pandurang Thool and others) dated 10/09/2009 etc.

6] Considering that all these orders were passed by this court in which the present appellant was the party and it was on the same ground that appellant being not given an opportunity in the reference court to lead evidence, in the present case also the matter

0707 FA 158/2006 4 Judgment

needs to be remanded, so that appellant gets an opportunity to contest the claim for enhanced compensation made by the respondents.

7]              Hence the order.


8]              Appeal is allowed.


9]              The   impugned   judgment   and   award   passed   by   the
reference court is set aside.


10]             The matter is remanded to the reference court with the
following directions.


(i)     The   appellant-Corporation   shall   be   deemed   to   have   been

brought on record in the reference case as defendant no.3. The cause title of the reference shall be amended accordingly. The appellant may file its written statement to the claim petition filed by the claimants;

(ii) The statement of the witnesses already recorded on behalf of the claimants need not be recorded afresh;

(iii) The appellant shall be allowed an opportunity of cross-

examining the witnesses which have already been examined.

(iv)    The   claimant   may   adduce   such   other   evidence   as   he   may




 0707 FA  158/2006                              5                          Judgment

propose to do and both the State of Maharashtra and the appellant shall have the liberty of cross-examining such witnesses who are now examined by the claimants;

(v) The appellant shall have the liberty of adducing such evidence as it may propose to do.

(vi) The appellant shall not be entitled to a separate notice of the proceedings. All the parties present, in this Court are directed through their respective counsel to appear before the reference court on 07/08/2017 at 11:00 a.m.

(vii) The reference Court shall expeditiously proceed to try the reference petition and preferrably pass award within six months from 07/08/2017.

11] Appeal is disposed of in the aforesaid terms, with no

order as to costs.

JUDGE

Yenurkar