Quashed

Nimba Vitthal Patil v. the Spl. Land Acq. Officer (I) UTPH-3, Jalgaon and Anr.

Bombay HC8 Feb 2013CRA/218/2012

Case brief

AI extract

What is this about?

This judgment quashes an impugned order dismissing a Land Acquisition Reference solely because the claimant failed to adduce evidence. The High Court held that such dismissal does not constitute a valid adjudication or award, violating principles of natural justice. The matter was remitted to the Reference Court for a fresh hearing on merits.

What did the court decide?

Impugned judgment and order dated 05-04-2012 rejected on technical grounds were quashed and set aside. Matter remitted to the Reference Court to be decided afresh within one year.

Nimba Vitthal Patil Vs the Spl. Land Acq. Officer (I)… — Land Acquisition | Bombay HC (2013)

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CRA-218.12

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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BENCH AT AURANGABAD.

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CIVIL REVISION APPLICATION NO. 218 OF 2012

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Nimba S/o Vithal Patil, Age Major, Occu : Agril., R/o Kusumbe, Tq. Chopada, District Jalgaon ...Petitioner

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Versus

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The Special Land Acquisition Officer (I) U.T.P.H.-3, Jalgaon.

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The Executive Engineer, Hatnur Project, Division Chopada

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...Respondent

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Mr. S.A. Ambilwade Advocate holding for Mr. V.B. Patil, Advocate for petitioner.

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Mr. K.J. Ghute Patil, A.G.P. for respondent No. 1

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CORAM : S.S. SHINDE, J DATED : 8^th February, 2013.

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ORAL JUDGMENT:

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Heard counsel for the parties.

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Rule. Rule made returnable forthwith. By consent of the parties, heard finally.

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CRA-218.12

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The revision applicant-original claimant is owner and possessor of the land Gut No. 98/1, admeasuring 26 R situated at Village Kusumbe Tq. Chopada & Dist. Jalgaon. The said land was acquired by respondent No. 2 for the purpose of construction of Bhawale Distributory Hatnur Project, Dist. Jalgaon. Thereafter, land acquisition proceedings were initiated and final Award came to be passed.

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The revision applicant, being dissatisfied by the Award, made a application to the Special Land Acquisition Officer for making reference to the Civil Court. The Special Land Acquisition Officer after scrutiny, forwarded the said Reference to the Civil Court for its adjudication which was numbered as Land Acquisition Reference No.117 of 2001.

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The learned Joint Civil Judge Senior Division, Amalner, Dist. Jalgaon dismissed the said Land Acquisition Reference by judgment and order dated 5.4.2012, on the ground that the claimant had not taken steps for adjudication of the reference, and evidence had not been adduced by the applicant/claimant.

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The learned counsel appearing for the revision applicant vehemently argued that the Reference Court below should not have dismissed the reference, merely on technicalities. It is further submitted that the Land

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CRA-218.12

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Acquisition Reference ought to have been decided on merits. The learned Counsel appearing for the revision petitioner, invited my attention to the grounds in the Civil Revision Application, and submitted that the impugned Judgment and Order deserves to be quashed and set aside.

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In support of his contention, the learned counsel for the revision applicant placed reliance on the reported Judgment of this Court, in the case of Kawadu Madhav Bansod Vs. State of Maharashtra & another, reported in 2004(4) Bom.C.R. 495 . Relying on the said Judgment, the learned counsel would urge that the facts of the case in hand and the facts of the case cited supra are similar, and in the cited case this Court has taken a view that the reference cannot be rejected, only for the reason that the revision petitioners have failed to adduce evidence. The learned counsel appearing for the revision applicant invited my attention to para No.7 of the said judgment and submitted that in the interest of justice, the impugned judgment and order deserves to be set aside.

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On the other hand, learned A.G.P. submitted that the Reference Court, after giving sufficient opportunity of hearing to the applicant herein has rejected the Land Acquisition Reference, and the impugned Judgment and Order cannot be faulted with. He, therefore, submitted that the the Civil Revision Application is devoid of any merits and same deserves to be dismissed.

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CRA-218.12

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I have heard learned counsel appearing for the parties at length. In my view, the impugned judgment and order deserves to be interfered with and is required to be quashed and set aside.

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At the outset, it has to be clarified that the present Civil Revision Application is maintainable, in view of the law laid down by this Court in the case of Kawadu Madhav Bansod (supra), as the facts involved in the instant case and those in cited case are similar.

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Coming to the first contention advanced by the counsel for the revision applicant that the Land Acquisition Reference should not have been rejected, on the ground of not adducing the evidence, this Court in case of Kawadu Madhav Bansod (supra) , has taken a view that the order rejecting the reference on the ground of failure of the revision petitioner to adduce evidence cannot be taken to be adjudication, and the same cannot be treated to be an Award. Therefore, the reason assigned by the learned Judge that the evidence is not adduced by the petitioner, cannot be a ground to reject the reference. This Court in in para No. 7 of the aforesaid case has observed thus :-

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“ It is true that the adjudication made by the Civil Court on the reference has to be regarded as an award, whether an enhanced compensation is given or not. But in that event the

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CRA-218.12

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Court should consider the material on record, even if the party is absent and has failed to adduce evidence. Unless the material on record is considered the order cannot be said to be an adjudication. In the instant case the ground given for the dismissal of reference by the Civil Court is that the applicant (present revision petitioner) remained absent and did not adduce any evidence to show that a proper compensation was not paid to him and that he is entitled to more compensation than paid. The above order clearly shows that the reference was dismissed only for the reason of failure of the applicant (present revision petitioner) to adduce evidence. Thus the material on record is not considered by the Civil Court. It is not considered as to how the compensation awarded by the Land Acquisition Officer was correct. So the order cannot be taken to be an adjudication and therefore the the same cannot be treated to be an award. The order passed by the Civil Judge, Senior Division, Yevatmal also cannot be treated to be a dismissal of the reference in default. The learned Counsel for revision petitioner submitted that the case could not be dismissed in default also.”

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Therefore, in my opinion, the Court below should not have rejected the reference, on the ground of failure of the revision applicant to adduce evidence.

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In yet another unreported Judgment in the case of Shri Kamalkar S/o Laxman Suryawanshi V/s. State of Maharashtra, in Civil Revision Application No. 1965 of 2005 and two connected matters, this Court has

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CRA-218.12

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taken a similar view. Therefore, I have no hesitation to hold that the reference filed by the revision applicant should not have been dismissed, merely on the ground of failure of the revision applicant to adduce evidence.

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I have given due consideration to the submissions advanced by the counsel for the revision applicant and I find a considerable force in his arguments. The Court below should have given fair opportunity to the revision applicant to adduce the evidence. It was possible for the Reference Court to ask the revision applicant to adduce the evidence. Therefore, in my opinion, the claim of the revision applicant should not have been discarded/rejected, merely on technicalities of not adducing evidence. The Court below, should have given sufficient and full opportunity to the revision applicant to put-forth his case, and after appreciating his contentions at length, the Reference should have been decided.

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In the result, the impugned Judgment and Order dated 05-04-2012, passed by the learned Joint Civil Judge, Senior Division, Amalner, Dist. Jalgaon, in Land Acquisition Reference No. 117 of 2001, is quashed and set aside and the matter is remitted back to the learned Joint Civil Judge, Senior Division, Amalner, Dist. Jalgaon, for deciding afresh. The parties are directed to appear before the concerned Court on 28-02-2013. The

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CRA-218.12

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learned Counsel for the revision applicant makes a statement that the claimant will file necessary documents / evidence on record within two months from 28-02-2013, and he will not ask for further time for filing any documents or evidence. The concerned Court is directed to hear and decide the said reference, as expeditiously as possible and in any case, within a period of one year from the date of first appearance of the parties i.e. 28-02-2013.

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The Concerned Court to hear the Land Acquisition Reference afresh. The Registry to send back the record and proceeding, if any, immediately to the concerned Court. Rule made absolute in the above terms. The Civil Revision Application is disposed of.

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pnd

Nimba Vitthal Patil v. the Spl. Land Acq. Officer (I) UTPH-3, Jalgaon and Anr.

Case brief

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Nimba Vitthal Patil v. the Spl. Land Acq. Officer (I) UTPH-3, Jalgaon and Anr.

Case brief

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