Bombay High Court
Anil Kerba Kadam And Another vs Raosaheb Kerba Kadam And Others on 12 January, 2024
2024:BHC-AUG:637
1 wp 10012.22
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 10012 OF 2022
1. Anil Kerba Kadam,
Age : 35 years, Occu. : Agriculture,
R/o Jalkot, Tq. Tuljapur,
Dist. Osmanabad.
2. Prakash Kerba Kadam,
Age : 55 years, Occu. : Agriculture,
R/o Jalkot, Tq. Tuljapur,
Dist. Osmanabad. .. Petitioner
Versus
1. Raosaheb Kerba Kadam,
Age. 56 years, Occu. : Agriculture,
R/o Jalkot, Tq. Tuljapur,
Dist. Osmanabad.
2. The State of Maharashtra,
(Through the Collector, Osmanabad)
3. Special Land Acquisition Officer
(Krushna Khore Vikas Mahamandal)
Sinchan Bhawan, Samta Colony,
Osmanabad, Tq. & Dist. Osmanabad.
4. The Executive Engineer, Osmanabad
(Medium Project Division, Osmanabad) .. Respondents
Shri P. S. Chavan, Advocate for the Petitioner.
Mrs. M. S. Mhase, Advocate for the Respondent No. 1.
Shri S. M. Ganachari, A.G.P. for the Respondent No. 2.
Shri G. B. Rajale, Advocate for the Respondent No. 4.
The Respondent Nos. 3 and 4 are served.
CORAM : SHAILESH P. BRAHME, J.
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CLOSED FOR JUDGMENT ON : 21.12.2023
JUDGMENT PRONOUNCED ON : 12.01.2024.
JUDGMENT :
-
. Rule. Rule is made returnable forthwith with the consent
of parties. Heard the litigating sides finally at the admission
stage.
2. The petitioners are challenging the rejection of their
application Exhibit 37 preferred under Order I Rule 10 of the
Code of Civil Procedure (for short 'C.P.C.') by the learned 04 th Jt.
Civil Judge Senior Division, Osmanabad in L. A. R. No. 20 of
2018. The respondent No. 1 claims to be the exclusive legal
representative of the deceased Kerba and stepping in his shoes as
a claimant in L.A.R. No. 20 of 2018. The petitioners are real
brothers of the respondent No. 1 and by the impugned order they
are refused to be impleaded in the proceedings along with the
respondent No. 1.
3. Land gut No. 90 and 92 situated at village Hangera (Nal),
Tq. Tuljapur, Dist. Osmanabad were acquired by the respondent
Nos. 3 and 4 for minor irrigation tank. Notification U/Sec. 04 of
the Land Acquisition Act, 1984 (hereinafter referred as to the
"Act) was issued on 06.11.1996. An award was passed on
14.12.2004. The petitioners' father Kerba submitted application
before the Collector for enhancement of the compensation. It was
referred to the Reference Court and registered as L.A.R. No. 20 of
2018. On 17.01.2008, Kerba died. He is survived by the present
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petitioners, respondent No. 1 and other four siblings.
4. The petitioners submitted application Exhibit 37 under
Order I Rule 10 of the C. P. C. to implead them in the reference.
It was objected by the respondent No. 1 by filing say. By order
dated 07.07.2022 application Exhibit 37 was rejected. Being
aggrieved present petition is filed.
5. The learned counsel for the petitioner submits that the
lands which were acquired belong to joint Hindu family. After
the death of Kerba, the petitioners should have been brought on
record along with other siblings. However, the respondent No. 1
got recorded his name vide mutation entry No. 1091 excluding
the petitioners and other siblings. The petitioners are entitled to
the compensation being legal heirs of deceased Kerba. The
learned Judge committed error of jurisdiction in rejecting their
application.
6. The learned counsel submits that the learned Judge
committed perversity in relying upon the decree, Exhibit 52
passed in R.C.S. No. 72 of 2000, the consent deed and the power
of attorney executed by the deceased Kerba. Though there is a
decree passed in R.C.S. No. 72 of 2000 in favour of the respondent
No. 1 it was collusive and obtained by the respondent No. 1 by
entering into compromise with deceased Kerba. He would
further submit that the respondent No. 1 does not get any
exclusive right to claim the compensation or enhancement of the
compensation because the decree Exhibit 52 was not brought to
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the notice of the Special Land Acquisition Officer before passing
award on 14.12.2004.
7. The learned counsel would further submits that the
petitioners being heirs are entitled to stake their claim under
Order XXII of the C. P. C. He seeks reliance on the judgment of
this Court in the matter of Shivaji and others Vs. Special Land
Acquisition Officer and another reported in 2003(1) All M.R. 633.
He further submits that the petitioners are not given opportunity
to challenge the documents of consent deed power of attorney and
decree passed in R.C.S. No. 72 of 2000, which are not admissible
to the petitioners. He therefore urged that the petitioners are
necessary parties and the learned Judge should not have
foreclosed their right in this manner.
8. The respondent No. 1 filed his say to application Exhibit 37
as well as affidavit in reply in the present matter. His stand is
that in view of the compromise decree passed in R.C.S. No. 72 of
2000 the land gut No. 90 and 92 are declared to be owned by the
respondent No. 1. It is further agreed by deceased Kerba to
disburse compensation to the respondent No. 1. In paragraph
No. 4 of the affidavit in reply of the respondent No. 1 it is stated
that the lands were ancestral properties and there was partition
in the year 1996. All members of the family were allotted share
and acquired lands were allotted to the respondent No. 1.
9. The learned counsel appearing for the respondent No. 1 has
contested the submissions of the petitioners. It is submitted that
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in the year 1996 there was oral partition and the lands under
acquisition and others properties were partitioned by metes and
bounds amongst the members of the family. The lands which are
acquired were allotted to deceased Kerba. He had exclusive right
to alienate the property. The decree passed in R.C.S. No. 72 of
2000 has not been challenged by the petitioners.
10. Learned counsel Ms. Mhase would further submit that the
Reference Court has no jurisdiction to decide the entitlement
amongst the parties. The reference is pending since 2004,
however, the present application is submitted belatedly on
30.03.2022 with an oblique motive. It is further submitted that
the petitioners have alternate remedy to file separate suit
claiming their right and entitlement for the compensation and
intervention in the present reference is not warranted. Lastly, it
is submitted that the respondent No. 1 is the exclusive owner
after the death of Kera to receive the compensation and prosecute
the reference.
11. The learned Assistant Government Pleader appearing for
the respondent No. 2 and the learned counsel for the respondent
No. 4 supported the respondent No. 1.
12. I have considered rival submissions of the learned counsel
for the litigating sides.
13. The parties are ad-idem that land gut Nos. 90 and 92 were
acquired by the respondent No. 2. An award was passed on
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14.12.2004. At the instance of father of the petitioners and the
respondent No. 1, the matter was referred to the Reference
Court. Kerba died on 17.01.2008. He is survived by the present
petitioners, respondent No.1 and other four siblings. After the
death of Kerba, the respondent No. 1 is exclusively prosecuting
the L.A.R. No. 20 of 2018. Deceased Kerba had filed R.C.S. No.
72 of 2000 against the respondent No. 1 for declaration and
injunction. The petitioners were not party to the suit. A
compromise decree was passed between deceased Kerba and the
respondent No. 1 on 10.06.2004.
14. The compromise decree Exhibit 52 is placed on record.
There are various landed properties which were subject matter of
the suit. It is averred in the plaint of R.C.S. No. 72 of 2000 that
there was partition and allotment of lands amongst sons and
deceased Kerba. The lands gut No. 90 and 92 were shown to
have been allotted to the deceased Kerba. The compromise deed
was placed on record at Exhibit 49 of R.C.S. No. 72 of 2000. The
respondent No. 1 claims exclusive title over the lands in question
in view of the terms of compromise.
15. The decree in terms of compromise was passed on
10.06.2004. At that time the matter was pending before the
Special Land Officer and award was yet to be passed. It was
passed on 14.12.2004. If the lands under acquisition were
declared to be owned by the respondent No. 1 and he was to
receive compensation, deceased Kerba or the respondent No. 1
ought to have brought compromise decree to the notice of the
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Special Land Acquisition Officer. In view of compromise decree
deceased Kerba was not entitled to claim enhancement of the
compensation. In that view of the matter, the reference made to
the civil Court by the deceased Kerba was defective.
16. The compromise decree reveals that R.C.S. No. 72 of 2000
was filed by Kerba against the respondent No. 1. The petitioners
were not party. The suit was compromised. The compromise
decree has not been disclosed to the competent authority. This
type of conduct of the respondent No. 1 does not inspire
confidence. Similarly, the learned Judge relied upon the consent
deed and other documents. It is unsafe to rely upon these
documents. The petitioners are entitled to have opportunity to
deal with the documents. Their claim cannot be discarded
relying upon the documents.
17. At this juncture of the proceedings it is relevant notice that
the application of the petitioners Exhibit 37 is under Order I
Rule 10 of the C. P. C. To decide whether the petitioners are the
necessary parties or not, a prima facie case for their entitlement
has to be seen. The petitioners are the heirs along with the
respondent No. 1 of the deceased Kerba. I am of the considered
view that they have arguable points to claim entitlement. Just
because application Exhibit 37 is made at belated stage cannot be
a ground to deprive them from their substantial proprietary
rights.
18. The learned Judge has relied upon the compromise decree,
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consent deed and power of attorney in rejected the application
Exhibit 37. Simultaneously the entitlement of the petitioners
has also been rejected. I have already recorded that the conduct
of the respondent No. 1 is suspicious. Under these circumstances
the recourse could have been taken to Section 30 of the Act after
impleading the petitioners as parties to the reference
proceedings. The entitlement and the rights of the parties could
have been adjudicated U/Sec. 30 of the Act giving opportunity to
the parties. It's an error committed by the Reference Court by
foreclosing the rights of the petitioners by the impugned order.
19. The learned counsel for the petitioners has sought reliance
on the judgment rendered in the case of Shivaji and others Vs.
Special Land Acquisition Officer and another (supra). In that
matter the original claimant died when the matter was before the
Special Land Acquisition Officer. An application to bring on
record his heirs was filed before referring the matter to the
Court. Without deciding that application, the matter was
referred to the Reference Court. Before the reference Court the
heirs again agitated their right under order XXII of the C. P. C.
In that context the ratio is laid down in para Nos. 10 and 11 of
the judgment. In the present matter deceased Kerba was alive
and at his instance the reference was made to the Court. The
facts of the matter in hand are different. The ratio laid down in
the judgment cannot be made applicable.
20. I find that in the present matter the reference made by the
deceased Kerba was voidable one. There is irregularity in
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making the reference. The said irregularity is rectifiable. If the
heirs of deceased Kerba have made application to bring them on
record along with the respondent No. 1, such application should
have been allowed to rectify the defect. In that view of the
matter also application Exhibit 37 deserves to be allowed.
21. For the reasons stated above, I pass following order.
ORDER
i) The writ petition is allowed.
ii) The order dated 07.07.2022 passed by the learned 04 th Jt.
Civil Judge Senior Division, Osmanabad in L.A.R. 20 of 2018 is
quashed and set aside. The application below Exhibit 37 is
allowed.
iii) The parties are at liberty to agitate their claim by resorting
to Section 30 of the Act.
iv) The rule is made absolute in above terms. There shall be
no order as to costs.
[ SHAILESH P. BRAHME, J. ]
22. After pronouncement of the judgment and order today, Ms.
Ashwini Mate, learned counsel holding for Mrs. M. S. Mhase,
learned counsel for the respondent No. 1 prays for staying the
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effect and operation of the judgment and order. The learned
counsel for the petitioner would oppose the request/prayer as
L.A.R. No. 20 of 2018 is posted for pronouncement of the
judgment.
23. As the L. A. R. No. 20 of 2018 has reached an advance
stage, staying the operation of the present judgment and order
would create complication. Considering overall circumstances of
the matter the prayer for stay is rejected.
[ SHAILESH P. BRAHME, J. ]
bsb/Jan. 24
