Bombay High Court
Malje Chindha Pati Died Sakhubai ... vs The Special Land Acquisition ... on 20 August, 2021
Bench: M. G. Sewlikar
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
963 WRIT PETITION NO. 4596 OF 2020
MALJE CHINDHA PATIL (DIED) THROUGH LRS
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 Civil Judge, Senior Division,
Amalner dated 09th April, 2012 whereby reference is abated.
2. It is the case of the petitioner that the land Gut
No. 73/2 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
awarded, petitioner preferred reference under Section 18 of
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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,
"Perused the record, since last 5 years the
applicant though died, but not taking positive
efforts to bring L.R's on record. The Matter is
20 yrs old. The Hon'ble H.C. directed to dispose
off old matters expeditiously. Despite giving
sufficient opportunity, no applicant put forward
to take steps. Thus, matter is abated &
disposed off as LR's are not brought on record."
4. Heard Shri. Kale, learned counsel for the
petitioner and Smt. Jape, learned AGP for the State.
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
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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
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
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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. Petitioner has placed on record certified copy of
the reference which shows that petitioner died before
reference could be made.
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-
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
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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 9th April, 2012 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
period from the date of dismissal of reference i.e.
9th April, 2012 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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