Bombay High Court
Gajanan S/O. Bhujangrao Kharat vs Executive Engineer, Minor ... on 14 March, 2022
Bench: Manish Pitale
1/7 28-WP 5418.2021
IN THE HIGH Court OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO. 5418 OF 2021
Gajanan s/o Bhujangrao Kharat vs. Executive Engineer, Minor Irrigation Division,
Washim and another
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Office notes, Office Memoranda of
Coram, appearances, Court's orders Court's or Judge's Orders.
or directions and Registrar's orders.
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Mr. V. K. Paliwal, Advocate for petitioner.
Mr. M. A. Kadu, Advocate for respondent No.1.
Mr. K. L. Dharmadhikari, AGP for respondent No.2.
CORAM : MANISH PITALE J.
DATE : 14/03/2022
Heard Mr. Paliwal, learned counsel for the
petitioner.
2. By this petition, the petitioner has
challenged the order dated 03/03/2020 passed by
the 3rd Joint Civil Judge Senior Division, Washim
(hereinafter referred to as "Reference Court"),
whereby the application filed on behalf of the
petitioner for restoration of reference proceeding has
been rejected.
3. The petitioner is the original claimant
pertaining to acquisition of his land under the
provisions of the Land Acquisition Act, 1894.
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Dissatisfied with the Award passed by the Collector/
Special Land Acquisition Officer, the petitioner
preferred a reference under Section 18 of the
aforesaid Act, seeking enhancement of compensation.
4. After filing of the reference proceeding,
the petitioner failed to lead any evidence in support
of his claim regarding enhancement. The Reference
Court granted last opportunity to the petitioner to do
so, but the same was not availed by the petitioner. It
was ultimately on 07/02/2017, that the Reference
Court passed an order closing the evidence of the
petitioner. The respondents filed a pursis that they
did not wish to lead any evidence.
5. The Reference Court had framed three
issues in the proceedings. The first issue pertained to
the question as to whether the petitioner proved that
he was entitled for enhancement of compensation,
the second issue pertained to the question as to
whether the reference proceeding was initiated
within limitation and the third issue was, as to what
order deserved to be passed in the said reference
proceeding.
6. By Judgment and Award dated
13/07/2017, the Reference Court proceeded in the
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matter and found that there was absolutely no
evidence led on behalf of the petitioner in support of
his claim for enhancement of compensation. It was
held that the reference proceeding was initiated
within limitation, but since no evidence was led in
support of the claim, no case was made out for
enhancement. On this basis the reference application
was rejected and Award passed by the Special Land
Acquisition Officer was upheld.
7. In this backdrop, the petitioner filed the
aforesaid application for restoration of the reference
proceeding. By the impugned order dated
03/03/2020, the restoration application was
dismissed by the Reference Court as not
maintainable.
8. Mr. Paliwal, learned counsel appearing for
the petitioner submitted that there was no finding on
merits rendered by the Reference Court and that
therefore, the application for restoration filed on
behalf of the petitioner was maintainable. It was
submitted that the Judgment and Award of the
Reference Court dated 13/07/2017, could not be said
to be a decree at all in terms of the provisions of the
Civil Procedure Code and that therefore, the
application for restoration was maintainable.
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9. Mr. Paliwal, learned counsel for petitioner
relied upon Judgment of this Court in the case of
Diwakar Prabhakar Chopade and others vs. Sub-
Divisional Officer (Land Acquisition Officer) 2019 (6)
Mh.L.J. 591, to contend that since the Judgment and
Award of the Reference Court was otherwise than on
merits, the application under Order IX Rule 9 read
with Section 151 of the Civil Procedure Code, ought
to have been entertained by the Reference Court.
10. On the other hand, Mr. Kadu, learned
counsel appearing for the respondent No.1 and
Mr.Dharmadhikari, learned AGP appearing for
respondent No.2 submit that a perusal of the
Judgment and Award of the Reference Court would
show that it cannot be said to be an Award otherwise
than on merits. The failure on the part of the
petitioner to lead evidence could not be said to be a
basis for holding that the Reference Court had failed
to decide the matters on merits. It was further
submits that in such circumstances, the petitioner
ought to have availed the remedies available under
the Land Acquisition Act, 1894 in accordance with
law. But, the application under Order IX Rule 9 of the
Civil Procedure Code was not the correct remedy
sought to be invoked by the petitioner and that
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therefore, the present writ petition deserved to be
dismissed.
11. The central question that arises for
consideration in this writ petition is, as to whether
Judgment and Award passed by the Reference Court
on 13/07/2017, could be said to be an Order/Award
otherwise than on merits. If the answer is in the
affirmative then, the petitioner would be justified in
relying upon the Judgment of Diwakar Chopde
(supra), to contend the impugned order deserves to
be set aside. This Court has perused the Judgment
and Order/Award passed by the Reference Court on
13/07/2017. The Reference Court framed three
issues, while proceeding to decide the reference
application of the petitioner. The issues included an
issue pertaining to the question of enhancement of
compensation as claimed by the petitioner. It was
recorded that since no evidence was led on behalf of
the petitioner, no case was made out for grant of
enhancement of compensation. In fact, the Reference
Court specifically held that the reference was filed
within the period of limitation, but no case was made
out on merits for enhancement of compensation, in
the light of the fact that no evidence was led by the
petitioner.
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12. This Court is of the opinion that the
tenor of the said Judgment and Order dated
13/07/2017, passed by the Reference Court is clearly
a decision on merits and it cannot be categorized as
an order passed otherwise than on merits. Once this
conclusion is reached, it becomes clear that the
dictum of law clarified by the Division Bench of this
Court in the case of Diwakar (supra), cannot be
applied to the facts of the present case.
13. Consequence of the same is that the
remedy under Order IX Rule 9 read with Section 151
of the Civil Procedure Code would not be available to
the petitioner before the Reference Court. Therefore,
it cannot be said that the Reference Court committed
any error in holding that such an application filed by
the petitioner was not maintainable, while rejecting it
for want of jurisdiction. The petitioner has failed to
demonstrate any error committed by the Reference
Court. If the contention raised on behalf of the
petitioner is to be accepted, then it would amount to
holding that a claimant like the petitioner would only
have to file an application seeking reference under
Section 18 of the aforesaid Act and after failing to
lead any evidence in the matter, such a claimant
could turn around and contend that any
Order/Award passed by the Reference Court amounts
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to a decision otherwise than on merits. Such a
contention cannot be accepted and therefore, this
Court finds that no interference is warranted in the
present writ petition. Accordingly, writ petition is
dismissed.
14. Needless to say, the petitioner would be
at liberty to avail all the remedies available under the
aforesaid Act, including the remedy of filing an
appeal to challenge the Judgment and Order/Award
dated 13/07/2017, passed by the Reference Court, in
accordance with law.
JUDGE
Digitally signed byRAVIKANT
CHANDRAKANT KOLHE
Signing Date:16.03.2022
12:29
KOLHE
