Jagoba S/O Vithobaji Kotgale ... vs State Of Maharashtra Through Its ...
2022 Latest Caselaw 13374 Bom

                                                         1                          24.CAO.1473-2018.odt




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

                 CIVIL APPLICATION (CAO) NO. 1473 OF 2018
                                     IN
               MISC. CIVIL APPLICATION (ST) NO. 18259 OF 2018
                    ( Jagoba s/o Vithobaji Kotgale (Dead) Thr. LRs
                                          Vs.
                             State of Maharashtra & Anr. )

Office Notes, Office Memoranda                         Court's or Judge's orders
of Coram, Appearances, Court's
orders     or    directions and
Registrar's orders


                                  Mr. J.B. Kasat, Advocate for the Review Applicant/s.
                                  Mr. D.L. Dharmadhikari, Advocate for the Cross objector/s.
                                  Ms. Mayuri Deshmukh, A.G.P. for the Non-applicant/ Respondent
                                  Nos. 1 & 2/State.



                                  CORAM:       AVINASH G. GHAROTE, J.

DATED : 21st DECEMBER, 2022

The application seeks leave to file Review Petition against the judgment dated 16.02.2018 in Cross Objection (XOB) No. 46/2017, whereby this Court has enhanced the compensation of Rs. 75,000/- per hectare with ancillary benefits granted by the learned Reference Court to Rs. 2,50,000/- per hectare. The ground raised is that the applicant who is the acquiring body, was not made aware of the pendency of the Cross Objection and was not made a party thereto, which was also the position before the learned Reference Court, and therefore, had a right to be heard while enhancing the compensation and since the position on record reflected that it was not made a party, the application for leave 2 24.CAO.1473-2018.odt

ought to be allowed. Reliance is placed upon Maharashtra Industrial Development Corporation, Nagpur Vs. Fakira Punja Mongare and another, 2007 (1) Mh.L.J. 162 para 7.

2. Mr. Dharmadhikari, learned counsel for the original claimants/cross objectors, vehemently opposes the same contending that the acquiring body has no legal right to challenge the judgment in the Cross Objection, as it is not a necessary party. Reliance is placed upon Uttar Pradesh Awas Evam Vikas Parishad Vs. Gyan Devi (Dead) By L.Rs. and another, 1995 (2) SCC 326.

3. It is not in dispute, that the review applicant is the acquiring body or the authority for whom the acquisition has been made. The provision of Section 50(2) of the Land Acquisition Act specifically confers a right upon the local authority or the company concerned for whom the acquisition is made, to appear and adduce evidence for the purpose of determining the amount of compensation. This being the matter, at the outset in the proceedings under reference itself, the review applicant ought to have been made a party, which was not so. It is not a case, as if, the claimants can be said to be unaware of the position, that the acquisition was been made for the purpose of the review applicant, as the compensation to be paid to the claimant in Execution Proceeding No. 7/1994 was demanded from the review applicant and according to the learned counsel for the claimants even today stands deposited with the Executing Court. It 3 24.CAO.1473-2018.odt

is therefore apparent, that knowledge can also be attributed to the claimants as to for whom the land was being acquired. This being so, in light of Section 50(2) of the Land Acquisition Act, the acquiring body ought to have been impleaded as a proper and necessary party. In Gyan Devi (supra) itself, reliance on which is placed by Mr. Dharmadhikari, learned counsel for the original claimants, this position has been considered by the Hon'ble Apex Court in the following words:

"22. We may now come to the stage of the proceedings before the court in a reference u/s 18 of the L.A. Act made at the instance of a person having interest in the land being acquired. At this stage also Section 50(2) of the L.A. Act envisages that the local authority has a right to appear and adduce evidence before the Court. This right is independent of the right that is available to the local authority to appear and adduce evidence before the Collector. Even though the local authority had failed to appear before the Collector inspite of notice or had appeared in response to notice and had adduced evidence the local authority may consider it necessary to adduce evidence to rebut the evidence adduced by the person who has sought the reference and to defend the award made by the Collector. Failure to give notice at this stage would result in denial of the said right of the local authority. Before we consider the remedy that is available for seeking redress against the denial of this right we may examine whether the local authority has a right to be impleaded as a party in the proceedings before the reference court. That raises the question whether the local authority can be regarded as a necessary or a proper party. The law is well settled that a necessary party is one without whom no order can be made effectively and a proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision of 4 24.CAO.1473-2018.odt

the question involved in the proceeding. (See: Udit Narain Malpaharia v. Additional member, Board of Revenue [1963] Supp. 1 SCR 676. A local authority for whom land is being acquired has a right to participate in the acquisition proceedings in the matter of determination of the amount of compensation while they are pending before the Collector and to adduce evidence in the said proceedings. While it is precluded from seeking a reference against the award of the Collector it can defend the award and oppose the enhancement of the amount of compensation sought before the reference court by the person interested in the land. Moreover the local authority has a right to appear and adduce evidence before the reference court. Having regard to the aforesaid circumstances, we are of the opinion that the presence of the local authority is necessary for the decision of the question involved in the proceedings before the reference court and it is a proper party in the proceedings. The local authority is, therefore, entitled to be impleaded as a party in the proceedings before the reference court.

24. u/s 50(2) of the L.A. Act the company for whom land is being acquired is also entitled to appear and adduce evidence for the purpose of determining the compensation. Since the company for whom land is acquired stands on the same footing as a local authority whatever has been said with regard to an local authority would apply to a company. It is, however, made clear that matters which stand finally concluded will not be reopened."

4. This position has also been considered by this Court in Fakira Punja Mongare (supra) relied upon by Mr. Kasat, learned counsel for the review applicant. The above position clearly indicates, that the acquiring body is not only a proper party but a necessary party in proceedings under Section 18 of the Land Acquisition Act 5 24.CAO.1473-2018.odt

or even thereafter as it is the body for whom the acquisition is made and is responsible for making the payment, and therefore, is vitally concerned with the determination of the compensation. That being the position, the application, which seeks leave to file the review petition is hereby allowed. Leave is granted.

CIVIL APPLICATION (CAO) NO. 1528 OF 2018

The application seeks condonation of delay of 142 days in filing the review petition. Though the same is vehemently opposed by Mr. Dharmadhikari, learned counsel for the original claimants/cross objectors, however considering the quantum of delay and accepting the reasons given, the application is allowed.

2. Office to register the Review.

MISC. CIVIL APPLICATION (ST) NO. 18259/2018

Issue notice to the non-applicants /respondents, returnable on 09.01.2023.

2. Mr. Dharmadhikari, learned counsel waives notice for the original cross objectors/legal heirs of the claimants.

3. Ms. Deshmukh, learned AGP waives notice for the non-applicant/respondent Nos. 1 and 2/State.

4. The cross-objectors/respondents to file the reply by 09.01.2023.

6 24.CAO.1473-2018.odt

CIVIL APPLICATION (CAO) NO. 1529/2018

The application seeks stay of the judgment dated 16.02.2018 passed in Cross Objection (XOB) No. 46/2017.

2. The Office note dated 04.09.2018 indicates that the entire compensation amount as per the judgment dated 16.02.2018 in Cross Objection stands deposited in this Court, considering which, the application is allowed.

JUDGE SD. Bhimte

Signed By:SHRIKANT DAMODHAR BHIMTE

Signing Date:22.12.2022 17:52