The Executive Engineer, Hetavane ... vs G. K. Patil (Since Deceased) Thr. ...
2023 Latest Caselaw 331 Bom

          Digitally
          signed by
          SHAMBHAVI
SHAMBHAVI NILESH
                                                                     12-FAST-26294-22.odt
NILESH    SHIVGAN
SHIVGAN   Date:
          2023.01.10
          11:19:16
          +0530
                                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                         CIVIL APPELLATE JURISDICTION

                                     FIRST APPEAL (ST) NO.26294 OF 2022
                                                       WITH
                                    INTERIM APPLICATION (ST) NO.26297 OF 2022
                                                       WITH
                                    INTERIM APPLICATION (ST) NO.26296 OF 2022

                       The Executive Engineer, Hetavane Medium
                       Project Division, Raigad                               ...Appellant
                              Vs
                       G.K.Patil (Since deceased)
                       THR. L.R.S.
                       1A) Sadanand Ganpat
                       Patil (Since Deceased) and Anr.                        ...Respondents

Ms. Chaitrali Deshmukh for the Appellant/Applicant. Mr. Sachin S. Punde with Mr. Manjit Thakur for Respondent No.1(A)(i) to 1(A)(iii) and 1(B).

CORAM : SANDEEP K. SHINDE J.

DATE : JANUARY 9, 2023.

P.C. :

Heard learned counsel for the Parties.

2 Issue notice to the Respondent No.2 returnable on

10th February, 2023. Mr. Punde, learned counsel, waives service

of the notice on behalf of the Respondent No.1B.

                       Shivgan                                                               1/4
                                                 12-FAST-26294-22.odt




3           Appellant is acquiring body. Respondents; 1A(i) to

1A(iii) and 1B, predecessor of the Respondent Nos.1A were the

'persons interested' in land acquired in the year 1993.

Claimants, filed Land Acquisition Reference No.86 of 1994.

Reference Court vide judgment and order dated 5 th January,

2018 rejected the reference for want of evidence. Acquiring

body was not party to the reference. Whereafter, the Claimants

moved the Reference Court on 21 st February, 2022 purportedly

under Order 9 Rule 9 of the Code of Civil Procedure, 1980

('CPC' for short) and sought to set aside the judgment and

order dated 5th January, 2018, passed in Land Acquisition

Reference No.86 of 1994. Acquiring Body was not impleaded as

party in the said application. Reference Court vide order dated

3rd March, 2022 condoned the delay caused in making the

application under Order 9 Rule 9 of the CPC and further

decided reference, afresh vide judgment dated 3 rd June, 2022,

to which Acquiring Body was not the party. The Reference

Court decided the reference, afresh vide judgment and order

Shivgan 2/4 12-FAST-26294-22.odt

dated 3rd June, 2022. Whereby acquiring body has been directed

to pay compensation in the sum of Rs.23,54,359/- with interest

@ 9% p.a. for the first year from the date of possession and

thereafter @ 15% p.a. till realisation.

4 Feeling aggrieved by the judgment and award dated

3rd June, 2022, acquiring body has filed this Writ Petition.

5 Prima-facie, the trial Court has committed an error

in the exercise of the jurisdiction under Order 9 Rule 9 of the

CPC in-as-much as the award dated 5th January, 2018 was

neither decided in terms of Rule 8 of Order 9 of the CPC nor it

was ex-parte judgment. Aboveall, the acquiring body was not

party to the application under Order 9 Rule 9 of the CPC

moved by the claimants nor to the reference decided afresh by

the judgment dated 3rd June, 2022.

6 Mr. Punde, learned counsel for the Respondents,

relied on the judgment of this Court in the case of Arvind

Vyankat Tarwar v. State of Maharashtra & Anr. 2015(5) All MR

690 and the judgment of the Hon'ble Supreme Court in the case

of Rajmani v. Collector, Raipur (1996) 5 SCC 701.

Shivgan                                                            3/4
                                                  12-FAST-26294-22.odt

7            In the cited cases, facts were altogether different

than the case at hand. Here, as stated above, neither reference

was decided ex-parte nor it was dismissed under Rule 8 Order 9

of the CPC. Therefore, cited decision has no application to the

case in hand. Mr. Punde, learned counsel for the Respondents,

seeks time to place, yet another decision of the Hon'ble Apex

Court on record, to justify the impugned order. Time granted.

Stand over to 10th February, 2023. In the meanwhile,

implementation of the award dated 3 rd June, 2022 in Land

Acquisition Reference No.86 of 1994 passed by the learned Joint

Civil Judge, Senior Division, Alibag, Raigad is stayed.

                                         (SANDEEP K. SHINDE, J.)




Shivgan                                                                  4/4