Bombay High Court
Maroti Kashiram Wadikar vs The State Of Mah And Ors on 29 June, 2017
Bench: P.R. Bora
1 FA No.3252.16&other
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO.3252 OF 2016
Nivrutti S/o. Vithoba Bhingole (died)
and other
Bharat S/o. Nivrutti Bhingole
Age: 42 years, Occu. Agril,
Radhi W/o. Sakharam Kote
Age:36 years, Occu. H.H.
R/o. Masobachiwadi, Tq. Nilanga,
Dist. Latur ...APPELLANTS
(Orig. Claimants)
VERSUS
1. The State of Maharashtra
Through the Collector, Latur
2. The Spl. Land Acquisition Officer,
(P.T. & I.T.) Latur
3. The Executive Engineer,
Minor Irrigation Division,
At. Latur ...RESPONDENTS
WITH
FIRST APPEAL NO.3249 OF 2016
Vithoba S/o. Shyamrao Wadikar
Age: Major, Occu. Agri.,
R/o. Masobachiwadi, Tq. Nilanga,
Dist. Latur ...APPELLANT
(Orig. Claimant)
VERSUS
1. The State of Maharashtra,
Through the Collector, Latur
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2 FA No.3252.16&other
2. The Spl. Land Acquisition Officer,
(P.T. & I.T.) Latur,
3. The Executive Engineer,
Minor Irrigation Division,
At Latur ...RESPONDENTS
WITH
FIRST APPEAL NO.3250 OF 2016
Vishwanath S/o. Ramrao Kadam
Age: Major, Occu.: Agri.,
R/o. Masobachiwadi, Tq. Nilanga,
Dist. Latur ...APPELLANT
(Orig. Claimant)
VERSUS
1. The State of Maharashtra,
Through the Collector, Latur
2. The Spl. Land Acquisition Officer,
(P.T. & I.T.), Latur
3. The Executive Engineer,
Minor Irrigation Division,
At Latur. ...RESPONDENTS
WITH
FIRST APPEAL NO.3251 OF 2016
Ambaji S/o. Narshing Chapate
Age: Major, Occu. Agri.,
R/o. Masobachiwadi, Tq. Nilanga,
Dist. Latur ...APPELLANT
(Orig. Claimant)
VERSUS
1. The State of Maharashtra,
Through the Collector, Latur
2. The Spl. Land Acquisition Officer,
(P.T. & I.T.), Latur
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3 FA No.3252.16&other
3. The Executive Engineer,
Minor Irrigation Division,
At Latur. ...RESPONDENTS
WITH
FIRST APPEAL NO.3308 OF 2016
Maroti S/o. Kashiram Wadikar
Age: Major, Occu.: Agri.,
R/o. Masobachiwadi, Tq. Nilanga,
Dist. Latur ...APPELLANT
(Orig. Claimant)
VERSUS
1. The State of Maharashtra,
Through the Collector, Latur
2. The Spl. Land Acquisition Officer,
(P.T. & I.T.), Latur
3. The Executive Engineer,
Minor Irrigation Division,
At Latur. ...RESPONDENTS
...
Mr. Sontakke Gajanan K., Advocate for Applicants;
Mr. P.G. Borade, AGP for Respondents/State
Mr. Amol D. Shinde, Advocate for Respondent No.3
...
CORAM : P.R. BORA, J
DATE : 29/06/2017
ORAL JUDGMENT:
1. Heard finally. Since all these five appeals are
arising out of common judgment and award passed by the
Court of Civil Judge, Senior Division, Nilanga on 10th
November 2010 of in LAR No. 101/2002, with four
connected other Land Acquisition References, I deem it
appropriate to decide all these appeals by common
reasoning.
2. Shri Sontakke, learned Counsel appearing for
the appellants, submitted that the Reference Court has
rejected the Reference petitions vide the impugned
judgment and award for the reason that witness
Vishwanath who had deposed in the said Reference
petitions on behalf of the claimants did not make himself
available for cross examination by the opponents and the
second reason that though the claimants have relied upon
the valuation report prepared by one Shri A.V.Phulari, they
did not examine the said valuer before the Court and, as
such, there was no opportunity for the acquiring body or
the State to cross examine the said witness. Learned
Counsel submitted that the Reference Court has thus not
rejected the Reference petition on merits but on some
technical grounds. Learned Counsel submitted that the
Reference Court could not have rejected the reference
petitions on these grounds.
3. Learned Counsel, on instructions, submitted
that the witness who was examined by the appellants in
the Reference Court to substantiate the contentions raised
in their respective applications would remain present
before the Reference Court for cross examination in the
event the matters are remitted back. Learned Counsel
submitted that an opportunity also needs to be given to
the appellants to examine Shri A.V. Phulari to prove the
valuation report.
4. Learned Counsel, relying upon the judgment of
the Honourable Apex Court in the case of Ramanlal
Deochand Shah & Anr. V. State of Maharashtra & Anr.
( AIR 2013 SC 3452) submitted that the rejection of the
appeals by the Reference Court on such ground is
disapproved by the Honourable Apex Court in the aforesaid
judgment and the Honourable Apex Court did allow the
claimants therein to prove their case by giving necessary
evidence by imposing certain conditions on them.
Learned Counsel further submitted that in companion
matters, this Court has also allowed the appeals on similar
grounds relying upon the judgment in the case of
Ramanlal Deochand Shah & Anr. (supra). Learned
Counsel has placed on record copy of the order passed by
this Court in similar matters i.e. in F.A. No.2502 of 2016
(Babu Shamrao Wadikar vs. The State of Maharashtra and
others), with connected matter dated 6th June, 2017, F.A.
No. 2501 of 2016 (Bhanudas Kashiram Wadikar vs. The
State of Maharashtra and Others), with connected matters,
dated 14.02.2017 and F.A. No. 2697 of 2016 (Manik
Prabhu Malakapure vs. The State of Maharashtra and
others) with connected matters, dated 05.01.2017.
Learned Counsel submitted that the present appeals may
also be allowed on similar terms.
5. Shri Amol Shinde, learned Counsel appearing
for the acquiring body resisted the submissions advanced
on behalf of the appellants. Learned Counsel, inviting my
attention to paragraph no.8 of the judgment, submitted
that ample opportunities were given to the appellants i.e.
original claimants to adduce necessary evidence in support
of their claim, however, the claimants failed to adduce
such evidence and as such, there was no other alternative
before the Reference court except to decide the matters on
the basis of the material available on record. Learned
Counsel submitted that in such circumstances, no fault can
be found with the impugned judgment and award.
Learned Counsel, therefore, prayed for dismissal of the
appeals.
6. I have carefully considered the submissions
advanced by the learned counsel appearing for the
appellants and the learned Counsel appearing for the
acquiring body. I have also perused the earlier judgments
relied upon by the appellants in similar matters. On
perusal of the impugned judgment, it is revealed that the
Reference Court has rejected the reference petitions
mainly on the ground that witness Vishwanath, who
deposed on behalf of the claimants before the Reference
Court, did not make himself available for his cross
examination and has thus ignored his evidence as was
adduced by way of his examination in chief. The second
reason which the Reference Court has assigned for
rejecting the reference petitions is that though the
claimants were relying upon the valuation report prepared
by one Shri A.V.Phulari, they did not examine Shri
A.V.Phulari as their witness.
7. It appears to me that in view of the law laid
down in the judgment of the Honourable Apex Court in the
case of Ramanlal Deochand Shah & Anr. V. State of
Maharashtra & Anr., (supra), the Reference Court could
not have rejected the reference petitions on the aforesaid
grounds. The Honourable Apex Court in the case of
Ramanlal Deochand Shah & Anr. V. State of
Maharashtra & Anr., (supra) held 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 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."
8. Copies of the orders passed by this Court in
companion matters reveal that, relying upon the judgment
of the Honourable Apex Court in the case of Ramanlal
Deochand Shah & Anr. V. State of Maharashtra & Anr.,
the said appeals have been allowed by this Court by
extending an opportunity to the appellants therein to
substantiate their claim before the Reference Court by
imposing certain conditions. In view of the law laid down
by the Honourable Apex Court in the case of Ramanlal
Deochand Shah & Anr. V. State of Maharashtra & Anr., and
in view of the fact that in similar matters this Court,
relying upon the said judgment, has remitted back the
matters to the Reference Court for deciding them afresh by
providing opportunity to the parties to adduce evidence in
support of their respective contentions, I do not see any
reason for taking any contrary view. Hence, the following
order:
ORDER
(i) The Judgment and Award passed in reference
petition No. LAR Nos.101 of 2002, 102/2002, 103/2002,
104/2002 and 105/2002 is set aside.
(ii) The aforesaid reference petitions are remitted
back to the Reference Court for deciding the same afresh
by providing due opportunity to the parties to the
reference petitions to adduce evidence in support of their
respective contentions.
(iii) The parties shall appear before the Reference
Court on 19th of July , 2017.
(iv) Appellants i.e original claimants, without
seeking any further adjournment from the Reference
Court, shall adduce the evidence in support of their claim
on the date which may be fixed by the Reference Court.
Needless to state that the State would have equal
opportunity to cross examine the witnesses which may be
examined by the claimants and it would also be open for
the State to adduce evidence in support of its defense if so
desired.
(v) The Reference Court to decide the reference
petitions as expeditiously as possible and preferably within
the period of six months from the date of appearance of
the parties before it.
(vi) In the event the amount of compensation is
enhanced by the Reference Court, as undertaken by the
claimants, they shall not be entitled for the interest of the
period from 10.11.2010 to 29.6.2017.
(vii) The appeals stand allowed in aforesaid
terms. No costs.
. Pending Civil Applications, if any stand disposed of.
( P.R. BORA )
JUDGE
AGP/
