SARASWATIBAI KISANRAO KULKARNI v. THE STATE OF MAHARASHTRA AND ANOTHER

Mrs. P. G. Sontakke h/f Mr. G. K. Sontakke, Advocate for the Petitioner. (2) 946-wp-6551-2022 & ors. Mr. S. B. Pulkundwar, AGP for Respondents-State. Mr. S. C. Arora, Advocate for Respondent No.2. AND WRIT PETITION NO.6555 OF 2022 BANESHWAR S/O PANDURANG NAGARGOJE VERSUS THE STATE OF MAHARASHTRA AND OTHERS … Mrs. P. G. Sontakke h/f Mr. G. K. Sontakke, Advocate for the Petitioner. Mr. S. B. Pulkundwar, AGP for Respondents-State. Mr. S. C. Arora, Advocate for Respondent No.2. AND WRIT PETITION NO.6556 OF 2022 MADHUBALA W/O RAOSAHEB PATIL VERSUS THE STATE OF MAHARASHTRA AND ANOTHER … Mrs. P. G. Sontakke h/f Mr. G. K. Sontakke, Advocate for the Petitioner. Mr. S. B. Pulkundwar, AGP for Respondents-State. Mr. S. C. Arora, Advocate for Respondent No.2. AND WRIT PETITION NO.6557 OF 2022 MAROTI S/O RAMRAO SURNAR DIED THROUGH LEGAL HEIRS SAVITRIBAI MAROTI SURNAR AND OTHERS VERSUS THE STATE OF MAHARASHTRA AND ANOTHER … Mrs. P. G. Sontakke h/f Mr. G. K. Sontakke, Advocate for the Petitioner. Mr. S. B. Pulkundwar, AGP for Respondents-State. Mr. S. C. Arora, Advocate for Respondent No.2. AND WRIT PETITION NO.6558 OF 2022 SONAJI S/O MOHANRAO DURUGAKAR AND OTHERS VERSUS THE STATE OF MAHARASHTRA AND OTHERS … Mrs. P. G. Sontakke h/f Mr. G. K. Sontakke, Advocate for the Petitioner. (3) 946-wp-6551-2022 & ors. Mr. S. B. Pulkundwar, AGP for Respondents-State. Mr. M. N. Navandar, Advocate for Respondent No.3. CORAM : SANDEEP V. MARNE, J. DATED : 06th DECEMBER, 2022. PER COURT:-

By these petitions, petitioners assail the judgments and orders passed by the Reference Courts dismissing their References essentially on account of failure to lead evidence. The References have been dismissed long time ago. However, petitioners had adopted the remedy of filing First Appeals challenging the orders passed by the Reference Courts and those Appeals have been subsequently withdrawn with liberty to file writ petitions. Details of the date of passing of the judgments by the Reference Courts and the date withdrawal are as under: NAME OF PETITIONERS DATE OF JUDGMEN T IN L.A.R. SARASWATI KULKARNI 26/07/2010 20/09/2013 20/09/2013 GURUNATH MIRKALE DIED THR LRS AND OTH. VIRNATH MIRKALE DIED THR LRS AND OTH.

1. SOMAJI DURUGKAR AND OTHER WITH 2. DNYANOBA MADREWAR 30/01/2014 30/01/2014 MADHUBALA PATIL 11/09/2013

1. MAROTI SURNAR AND OTHERS 22/07/2010 CA IN FA NO DATE OF FILING FA DELAY IN FILING FA CA/4530/16 IN FA/3559/16 CA/8104/17 IN FA/ CA/8105/17 IN FA/ CA/2736/17 IN FA/33/17 WITH CA/2737/17 IN FA/34/17 CA/184/16 IN FA/ CA/ IN 16/03/2016 06/05/2017 06/05/2017 Delay of 1901 days condone on 29.08.2016 Delay of 1234 days condone on 02.12.2019 Delay of 1234 days condone on 02.12.2019 20/02/2016 20/02/2016 Delay of 659/665 days condone on 22.08.2016 04/12/2015 Delay of 639 20/03/2015 condone on 04/02/2019 Delay condone on 24/02/2017 DATE OF WITHDRAW AL OF FA DATE OF FILING WP 30/09/2021 WP/6551/22 22/03/2022 30/09/2021 WP/6552/22 22/03/2022 30/09/2021 WP/6553/22 22/03/2022 30/09/2021 WP/6558/22 22/03/2022 30/09/2021 WP/6556/22 22/03/2022 25/10/2021 WP/6557/22 22/03/2022 (4) 946-wp-6551-2022 & ors.

DIGAMBAR SURNAR AND OTHERS

DHONDIBA HEMNAR PANDURANG NAGARGOJE 08/12/2015 BANESHWAR NAGARGOJE 08/12/2015 FA/ WITH CA/ IN FA/ WITH CA/ IN FA/ CA/ IN FA/ CA/ IN FA/ 15/05/2015 15/05/2015 16/10/2019 == 30/09/2021 WP/6554/22 22/03/2022 16/10/2019 == 30/09/2021 WP/6555/22 22/03/2022

2. Ms. Sontakke, the learned counsel appearing for petitioners would submit that Land Reference is not in the nature of an Appeal against the award and therefore, the claimant is required to be given opportunity to lead evidence. She would rely upon orders of this Court in Walmik Trimbak Tupe Vs. State of Maharashtra and Another, Writ Petition No.12795/2019 with connected writ petitions decided on 17.01.2020 and Vinayak Trimbak Tribhuvan Vs. The State of Maharashtra and Anr., Writ Petition No.3992/2021 decided on 03.03.2021.

3. Per contra Mr. Arora and Mr. Navandar, learned counsel would oppose the petitions and support the orders passed by the Reference Courts and submit that petitioners did produce documentary evidence in support of their claims for enhanced compensation and mere failure to lead oral evidence cannot be a ground to remand the References for fresh trial. (5) 946-wp-6551-2022 & ors.

After having heard learned counsel for parties, I am of the view that by now it is trite that the Land Acquisition Reference is not an Appeal against the award and the Court cannot take into consideration the material relied upon by Land Acquisition Officer in award unless the said material is produced and proved before the Court. This Court has taken consistent view that the Land Acquisition References should ideally not be decided in absence of evidence being led by the claimants in support of their claims for enhanced compensation. In this regard reliance is placed by Ms. Sontakke on the judgment of this Court in Walmik Trimbak Tupe and Vinayak Trimbak Tribhuvan (supra) is apposite.

At the same time petitioners cannot be permitted to take benefit of their own wrong. Even though the remedy of filing Appeals against the decisions of Reference Courts were erroneously adopted by petitioners which are subsequently withdrawn with liberty to file present petitions, there was delay in filing those First Appeals. While condoning the delay by order dated 29.08.2016 in one of the First Appeal this Court passed following order: “1. Heard. Delay of 1901 days has occurred in filing the present appeal by the original claimant in exception to the Award passed in LAR No. 02/2000. Learned appearing Counsel 2. applicant/appellant has tendered across the Bar an undertaking sworn in by the applicant to the effect that, she will not claim or ask for any interest for the period of delay. The said undertaking is taken on record. The learned Counsel submitted that though in the undertaking submitted, the delay is mentioned of the period of 1895 days, the same is in fact of (6) 946-wp-6551-2022 & ors. 1901 days, but inadvertent mistake has occurred in mentioning the period of delay in the undertaking. Learned AGP has opposed for condoning the

3. delay. Having considered

4. occurrence of the delay and more particularly in view of the undertaking submitted by the appellant, referred to above, I am inclined to allow the present application. reasons

5. The delay occurred in filing the appeal is condoned. The appeal be registered in accordance with law. It

clarified appellant/applicant will not be entitled for any interest of the period of delay, i.e. For the period of 1901 days, in the event of success of the appeal and consequently her matter is remitted back to the Reference Court and the amount of compensation is enhanced by the Reference Court.

The Civil Application stand disposed of. Copy of this order be kept in the papers of

Appeal.”

6. Thus it was specifically clarified while condoning the delay that petitioners would not be entitled to any interest for the period of delay.