[Cites 25, Cited by 0]
Bombay High Court
Ramkrishna Ambadas Madake Died Through ... vs The State Of Maharashtra Through ... on 3 December, 2025
2025:BHC-AUG:34356
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
1022 WRIT PETITION NO. 6270 OF 2022
RAMKRISHNA AMBADAS MADAKE DIED THROUGH L.RS. URMILABAI
RAMKRISHNA MADAKE AND OTHERS
VERSUS
THE STATE OF MAHARASHTRA THROUGH COLLECTOR AND
OTHERS
...
Mr. Vivekanand V. Ingale - Advocate for Petitioners
Mr. R.B. Dhaware - AGP for Respondent No.1, State
Mr. S.B. Choudhari - Advocate for Respondent Nos.2 and 3
...
CORAM : SIDDHESHWAR S. THOMBRE, J.
DATE : 03.12.2025
PER COURT :
1. Heard learned Counsel - Mr. Vivekanand V. Ingale for the
petitioners, learned A.G.P. for respondent No.1, State and learned
Counsel - Mr. S.B. Choudhari for respondent Nos.2 and 3.
2. The petitioners challenge the order dated 09.03.2022 passed by
the learned Civil Judge Senior Division, Osmanabad in Special Darkhast
No.640 of 2014 below Exhibit 11, whereby the application filed by
respondent Nos.2 and 3 under Order I Rule 10 of the Civil Procedure
Code came to be allowed.
3. Learned Counsel for the petitioners submits that since the
reference was aleardy allowed, the application Exhibit-11 has been
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filed at the execution stage. He further submits that in land acquisition
proceedings, such application for impleadment is not maintainable at
the stage of execution. In support of his contentions, he has relied upon
the following judgments :
(a) Hon'ble Apex Court in the case of Ambey Devi (Smt.) Vs. State of
Bihar and Another reported in (1996) 9 Supreme Court Cases 84
wherein it has been held that :
"3. The learned counsel for the appellant contended that under
Section 53 of the Act, the procedure prescribed under CPC is
applicable to the proceedings of the Civil Court unless they are
inconsistent with any of the provisions contained in the Act. Since
Order 1, Rule 10 CPC requires impleadment of all necessary and
proper parties, the appellant being a necessary party to the
proceedings, she is entitled to the same compensation as was
awarded to the other claimants. We find no force in the contention.
The scheme of the Act is inconsistent with CPC regarding the
entitlement to claim compensation under the Act. The CPC provides
only the procedural format to adjudicate the dispute. After the award
was made under Section 11, the Land Acquisition Officer was
required to issue notice under Section 12 to the parties. As
contemplated under Section 30 of the Acts the appellant is entitled to
receive the compensation either under protest or without protest.
When the compensation is received under protest under subsection
(1) of Section 18, the application in writing has to be made within
the limitation prescribed under Section 18(2) to the Land Acquisition
Officer objecting to either extent of the land, classification, value of
the land or apportionment of the compensation and upon receipt
thereof reference to Court would be made. Thereunder the applicant
shall be required to state the grounds on which he/she objects to the
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compensation etc. Valid reference is a pre-condition for the civil
Court to adjudicate the objections raised in the reference application.
In this case, it is found by the High Court that the appellant had not
made any application under Section 18(1). The jurisdiction of the
civil Court to determine higher compensation, as laid down under
Section 23 of the Act, would arise only when a valid reference has
been made under Section 18 within the prescribed limitation. The
jurisdiction of the Court is founded on a valid reference and then the
civil Court gets jurisdiction to determine the compensation on the
basis of the objections raised by the claimant.
4. We accept the finding of the High Court that the appellant had
not made any application under Section 18, though the appellant has
asserted that she did make an application but no evidence has been
placed before the High Court or in this Court. Thus, it is difficult to
accept that such an application was in fact made before the Land
Acquisition Officer within the limitation prescribed under Section
18(2) of the Act. Accordingly, we hold that the appellant had not
filed any application, as required under Section 18(1) read with
Section 18(2) of the Act. Section 53 does not apply to the facts of the
case. The procedure prescribed under Section 18 and 30 is
inconsistent with the procedure prescribed under Order 1, Rule 10
CPC. Order 1, Rule 10 CPC would apply to implead a necessary or
proper party to effectuate complete adjudication of all the disputes
having arisen between all the necessary or proper parties who may
be bound by the decision. That question does not arise since
inconsistent procedure has been prescribed under the Act. As held
earlier, making an application in writing under sub-section (l) and
within the limitation prescribed under sub-section (2) of Section 18
are conditions precedent for the Land Acquisition Officer to make a
reference under Section 18; only on its receipt, under Section, 20
civil Court gets jurisdiction to issue notice and thereafter to conduct
enquiry, as contemplated under the Act. At that stage, the procedure
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of trial etc., as contemplated under the CPC, would apply and
Section 53 of the Act would become applicable. It is an admitted
position that the co-owner filed an application and had sought
reference under Section 18 in respect of his share only. So, it is, as a
fact, claims for compensation in specie and was paid towards 1/4th
share to all the claimants. By no stretch of imagination, the
application under Section 18 (1) by one of the co-sharers would, be
treated as one made on behalf of all the co-sharers. Accordingly, we
hold that the appellant is not entitled to lay any higher compensation
pursuant to an award, made by the reference Court under Section 26
at the instance of one of the co-owners."
(b) This Court in the case of Raghunath Dhondu Navde Vs. Pandit
Ramchandra Navde and Ors. reported in 2000 (2) Mh.L.J.81 held
as under :
"7. In view of the aforesaid decisions, as the petitioner was
not a party to the Land Acquisition Reference, he was not entitled
to appear before the Civil Court. In the present matter, the
petitioner appeared in the proceeding after the reference under
section 18 has been adjudicated and when the execution petition
was pending. Inthe said execution petition also he was not a
party and therefore he is not entitled to appear because section
47 of the Code of Civil Procedure, after amendment, does not
permit such parties to appear in the proceedings. In fact those
persons who are parties to the original proceedings before the
Civil Court which passed the decree, their legal representatives
and the purchasers of the said property as defined in section 47
are only entitled to appear while the question of discharge,
satisfaction etc. of the decree is to be considered under section
26(2) the award passed by the Civil Court in a reference under
section 18 is adecree and therefore, the provsiions of section 47
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of the Civil Procedure Code will cover up the said decree. In the
result the present petitioner is not entitled to apear before the
Executing Court for the purposes of apportionment of the
enhanced compensation. The ultimate analysis shows that the
application which was filed by the present petitioner before the
Executing Court by Exhibit 20 was without jurisdiction and the
Executing Court should not have entertained such an application.
Therefore appropriate remedy which was available to the present
petitioner was to file a suit in view of the provisions of section 31
second proviso and and to seek stay orders in that proceedings."
(c) This Court in the case of Hafix Ismail Shaikh and Ors. Vs. Special
Land Acquisition Officer, Panvel and Ors. reported in 2005 (3)
Mh.L.J. 232 , wherein it has been held as under :
"7. Considering the above, we may consider the judgment cited on behalf of
the respondents to find out whether the issue is open for consideration by this
Court or stands concluded in view of the judgments of the Apex Court as also
of this Court. Before we proceed further it may be mentioned that apart from
Section 18 there is another provision, Section 30, by virtue of which if there
be a dispute as to apportionment of the compensation or as to the persons to
whom the same or any part thereof, is payable, the Collector may refer such
dispute to the decision of the Court. This section is independent of Section 18
and is a power in the Collector to make a reference if he is not in a position to
decide as to apportionment. It is also a power in the Collector if interested
persons approach him within reasonable time to make a reference which will
be limited to the apportionment awarded. In Smt. Ambey Devi V. State of
Bihar and Anr. the issue before the Apex Court was whether when reference is
sought by one of the co-sharers another co-sharer can claim enhancement of
compensation without seeking reference under Section 18 of the Land
Acquisition Act. In that case one of the co-owners sought for reference to the
Civil Court under Section 18 which reference was made. The Court enhanced
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compensation. Thereafter the other co-owner who had not preferred
reference filed an Appeal claiming enhancement of compensation in respect
of her land on par with other co-owners. That claim was rejected by the High
Court by holding that the appellant had not made any application under
Section 18 after the Award was made by the Collector and as such she was
not entitled to enhanced compensation. An Appeal was preferred against that
order. An argument was advanced before the Apex Court that considering
Section 53 of the Civil Procedure Code the provisions of Civil Procedure Code
are applicable and as such Order 1, Rule 10 of Civil Procedure Code providing
for impleadment of all necessary and proper parties, the appellant being a
necessary party to the proceedings, she is entitled to the same compensation
as was awarded to the other claimants. The Court rejected the contention by
firstly observing as under :--
"We find no force in the contention. The scheme of the Act is
inconsistent with Civil Procedure Code regarding the entitlement
to claim compensation under the Act. The Civil Procedure Code
provides only the procedural format to adjudicate the dispute.
After the award was made under Section 11 the Land Acquisition
Officer was required to issue notice under Section 12 to the
parties. As contemplated under Section 30 of the Act, the appellant
is entitled to receive the compensation either under protest or
without protest. When the compensation is received under protest
under Sub-section (1) of Section 18 the application in writing has
to be made within the limitation prescribed under Section 18(2) to
the Land Acquisition Officer objecting to either extent of the land,
classification, value of the land or apportionment of the
compensation and upon receipt thereof reference to Court would
be made. Thereunder the applicant shall be required to state the
grounds on which he/she objects to the compensation etc. Valid
reference is a precondition for the Civil Court to adjudicate the
objections raised in the reference application."
Thereafter proceeding further the Apex Court observed as under :--
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"The procedure prescribed under Section 18 and 30 is inconsistent
with the procedure prescribed under Order 1, Rule 10, Civil
Procedure Code. Order 1, Rule 10, Civil Procedure Code would
apply to implead a necessary or proper party to effectuate
complete adjudication of all the disputes having arisen between all
the necessary or proper parties who may be bound by the decision.
That question does not arise since inconsistent procedure has been
prescribed under the Act. As held earlier, making an application
under Sub-section (1) and within the limitation prescribed under
Sub-section (2) of Section 18 are conditions precedent for the
Land Acquisition Officer to make a reference under Section 18;
only on its receipt, under Section 20 Civil Court gets jurisdiction to
issue notice and thereafter to conduct enquiry as contemplated
under the Act. At that stage, the procedure of trial etc., as
contemplated under the Civil Procedure Code would apply and
Section 53 of the Act would become applicable."
The Apex Court was then pleased to hold that :--
"By no stretch of imagination, the application under Section 18(1)
by one of the co-sharers would be treated as one made on behalf of
all the co-sharers."
From this judgment it will, therefore, be clear that parties, even
may be co-sharers, who had not applied for enhancement, cannot
in the absence of they applying for enhancement against their
share be entitled to enhancement.
11. A perusal, therefore, of the authorities and of the provisions would
indicate that when a reference is made under Section 18 the Collector under
Section 19 has to make a reference. In the reference made the names of the
persons whom he has reason to think interested in such land have to be set
out. It is in this context that a notice has to be served on such persons under
Section 20. Section 20 then provides for a notice to such named parties
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interested in the objection. This therefore, be referable to Section 19(b) and
not to persons whose names had not been referred to pursuant to reference
under Section 18 by virtue of Section 19.
12. Section 53 only provides that the provisions of Civil Procedure Code to
the extent they are not inconsistent with anything contained in this Act shall
apply to the proceedings before a Court. The reference would disclose who
are parties before the Court. Therefore, the procedure applicable would be
from that stage, as the Apex Court has noted that the provisions of Order 1,
Rule 10 are inconsistent with Section 18 and 30 of the Act. Though in the
present case the reference was rejected on the ground that there was delay in
my opinion for the reasons as now disclosed the ultimate order need not be
interfered with."
He further submits that the application itself was not
maintainable.
4. Per contra, learned Counsel for respondent Nos. 2 and 3 submits
that they filed the application claiming themselves to be the legal heirs
of deceased Ramkrishna Ambadas Madake and therefore after his
death, they preferred an application under order I Rule 10 of C.P.C. He
submits that, earlier the said application was not decided and the
present petitioners assailed the same before this Court. This Court then
directed the learned Executing Court to decide the application below
Exhibit 11. He further submits that the Executing Court, while deciding
the application, has considered the documentary evidence produced by
respondent Nos.2 and 3. The learned Executing Court observed as
under :
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"4. In support of present application applicant have filed
on record Adhar Card, Pan Card and Election Card of Meena
Ramkrishna Madake. Applicants further filed on record Birth
Certificate of applicant No.1. On all the documentary
evidence filed by applicants name of Ramkrishna Ambadas
Madake appeared as a husband and father of applicant Nos.1
and 2 respectively. Document filed on record prima - facie
shows that, applicant No.1 is daughter whereas applicant
No.2 is wife of deceased Ramkrishna Ambadas Madake. Who
is the first wife of Ramkrishna Ambadas Madake is the part
of evidence ut at this stage prima - facie it appears that,
Meena i.e. present applicant No.2 is the wife of applicant
No.1 is the daughter of deceased Ramkrishna Ambadas
Madake."
5. I have also considered the order passed by this Court in Writ
Petition No.164 of 2016, wherein this Court, in paragraph 11, observed
that, the Executing Court shall decide the application Exhibit 11.
6. Considering the findings recorded by the learned Trial Court and
in view of the order passed by this Court in Writ Petition No. 164 of
2016, I am not inclined to entertain the present petition under Article
227 of the Constitution of India. Hence, the petition stands dismissed.
7. Pending civil applications, if any, also stand disposed of.
[ SIDDHESHWAR S. THOMBRE ]
JUDGE
Pooja Kale/
