Dwarkabai Popat Patil Through Lrs ... vs The Special Land Acquisition ...
2021 Latest Caselaw 11388 Bom

      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                 BENCH AT AURANGABAD

               963 WRIT PETITION NO. 4731 OF 2020

             DWARKABAI POPAT PATIL (DIED)
                        VERSUS
     THE SPECIAL LAND ACQUISITION OFFICER JALGAON

Shri. A. B. Kale, Advocate for the petitioner
Smt. D. S. Jape, APP for the respondent/State


                                    CORAM : M. G. SEWLIKAR, J.

                                    DATED : 20th August, 2021

PER COURT :-

1.             This is a petition under Article 227 of the

Constitution of India thereby challenging the judgment and

order passed by the learned Ad-hoc District Judge-1,

Amalner dated 5th October, 2009 whereby reference is

abated.



2.             It is the case of the petitioner that the land Gut

No. 74 has been acquired by the Government for the

purpose of approach road on Kadji bridge district Jalgaon.

The learned Special Land Acquisition Officer (SLAO) awarded

compensation. Being dissatisfied with the compensation




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 awarded, petitioner preferred reference under Section 18 of

the Land Acquisition Act for enhancement in the amount of

compensation.



3.             Issues were framed in the reference. Reference

was of the year 1991. Petitioner did not lead evidence for a

pretty long period. The learned trial Court has passed

following order,

                     "This is reference filed under the provision of
               Se. 18 of the L.A. Act for grant of enhanced
               compensation. The opponents appeared in the
               Court and contested the reference.
               2)    That, by filing of the applications Exh.
               76,78, it is informed that the applicant Dwarkabai
               died on 13.4.1999. The applicant of Exh. 76 and
               78 has failed to remain present in the Court failed
               to pursue the applications and therefore, the
               applications were ordered to be filed. Thus the
               applicant is dead and therefore, the reference is
               liable to be abetted due to the death of applicant.
               Hence, order
                                      ORDER

Reference is hereby abetted due to the death of applicant.

No order as to cost."

4. Heard Shri. Kale, learned counsel for the

petitioner and Smt. Jape, learned AGP for the State.

wp4731.20.odt 2 of 6

5. Learned counsel for the petitioner Shri. Kale

submits that counsel for the petitioner did not intimate the

petitioner about the date fixed in the matter. He submitted

that it was impermissible for the Reference Court to decide

the reference without recording evidence. He has therefore

sought intervention of this Court. Learned counsel Shri. Kale

further submits that notice of Reference Court was not given

to the petitioner. For all these reasons he prays for setting

aside the impugned order.

6. Learned AGP Smt. Jape opposed the petition. She

submitted vehemently that despite giving several

opportunities petitioner did not lead evidence and now he

cannot turn around and say that opportunity was not given.

She submits that if this Court comes to the conclusion that

petition needs to be allowed, it may be allowed only on

condition that petitioner shall not be entitled to interest for

the period from the date of dismissal of the reference till this

petition is restored.

7. Petitioner has placed reliance on the case of

wp4731.20.odt 3 of 6

Diwakar Prabhakar Chopade Vs. Sub-divisional Officer, (Land

Acquisition Officer), Aurangabad and others reported in

2019(6) Mh.L.J., 591. In this decision Hon'ble Division Bench

of this Court has held that reference under Section 18 of the

Land Acquisition Act in the light of the mandate as laid down

by Hon'ble Apex court in the case of Khazan Singh Vs. Union

of India has to be decided by the Civil Court on the basis of

material before it on merits.

8. The learned trial Court observed that applicant

did not lead evidence and did not take any steps to adduce

evidence.

9. Smt. Jape, learned counsel placed reliance on the

case of Ramanlal Deochand Shah Vs. State of Maharashtra

and another (AIR 2013 SC 3452) for the proposition that the

petitioner will not be permitted to claim interest from the

date of judgment of Reference Court till the date of order of

this Court. It has been held thus :-

"12. Suffice it to say that in the facts and circumstances of the present case no evidence having been adduced by the defendants-

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                 respondents,      whether   documentary      or

otherwise, there was no question of the appellant relying upon such non-existent evidence. Merely because some documents were referred to in the Draft Award by the Collector, did not make the said documents admissible by them to enable the plaintiffs to refer to or rely upon the same in support of a possible enhancement. If a document upon which the plaintiffs placed reliance was available, there was no reason why the same should not have been produced or relied upon. Inasmuch as no such attempt was made by the plaintiffs, they were not entitled to claim any enhancement."

10. Learned counsel Shri. Kale undertakes that in six

months time petitioner will lead the evidence and assist the

Court in disposing of the reference. In view of this following

order is passed.

                                     ORDER

        (i)     Petition is allowed.

(ii) Judgment and order dated 5th October, 2009

passed by the Reference Court is set aside.

(iii) Reference is restored to file.

(iv) The Reference Court shall permit the petitioner

and State to lead evidence.

(v) Petitioner shall not be entitled to interest for the

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period from the date of dismissal of reference i.e.

5th October, 2009 till the date of this order.

(vi) Learned trial Court shall dispose of the reference

within a period of six months.

                                             [M. G. SEWLIKAR, J.]


ssp




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