BENCH AT AURANGABAD v. Osmanabad

Judgment

1 Heard learned Counsel for respective parties. Rule. Rule made returnable forthwith and heard finally by consent of learned Counsel for respective parties. Learned A.G.P., appearing for respondents, waives service of rule.

2. This Civil Revision Application is filed being aggrieved {2} by the judgment and order dated 08.07.2011, passed by learned Joint Civil Judge, Senior Division, Omerga in L.A.R. No. 284/2008 (Old L.A.R. No.195 of 2007), thereby dismissing Land Acquisition Reference filed by the revision applicant.

3. It is the case of the revision applicant that 60 ares out of Gat No. 79, situated at village Chincholi (J), Tq. Omerga, District Osmanabad belonging to the applicant has been acquired by the respondent for the purpose of construction of water storage. The Land Acquisition Officer has published notice U/sec. 4 of the Land Acquisition Act and passed Award in the year 2004.

4. Being aggrieved and dissatisfied with the award passed by the Land Acquisition Officer thereby granting inadequate compensation, the revision applicant had preferred L.A.R. No. 284/2008 (Old L.A.R. No.195 of 2007) before the learned Joint C.J.S.D., Omerga. However, on 08-07-2011, the learned C.J.S.D., Omerga, dismissed the Land Reference Application on the ground that the applicants have not led any evidence to show that the compensation granted by the S.L.A.O. is inadequate. Hence, this Revision.

Learned Counsel appearing for the applicant submitted that the order passed by learned Judge is without giving opportunity of {3} hearing to the applicant and therefore, the order impugned is against the principles of natural justice. Learned Counsel further submitted that, no Land Reference Application can be rejected merely on the ground that, the applicant and his Advocate are not present and no evidence is adduced on record. It is further submitted that, the Court below should not have dismissed the Reference, merely on technicalities. It is further submitted that the Land Acquisition Reference, ought to have been decided on merits. The learned Counsel appearing for the revision applicant, invited my attention to the grounds in the Civil Revision Application, and submitted that the impugned Judgment and Order deserves to be set aside. 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 appearing for the revision applicant, would urge that the facts of the case in hand and the facts of the case which is cited supra are similar. In the said case, this Court has taken a view that the Reference cannot be rejected, only for the reason that the revision applicant have failed to adduce any 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. {4} Therefore, learned Counsel appearing for the revision applicant further submits that, the point raised in this Civil Revision Application is no more res integra and same is covered by the authoritative pronouncement of this Court in the case of Kawadu Madhav Bansod Vs. State of Maharashtra & another, reported in 2004(4) Bom.C.R. 495 (supra). In that view of the matter, he would submit that, the Civil Revision Application may be allowed by remanding the matter back to the Reference Court for fresh adjudication. 6 On the other hand, learned A.G.P. has justified the impugned judgment and order on the ground that the same cannot be faulted with any error and prayed for dismissal of the Revision. Learned A.G.P. further submits that, in spite of giving number of opportunities to the revision applicant, he did not adduce evidence and also on the relevant date, neither revision applicant nor his Advocate were present and as a result, Reference came to be rejected. Therefore, this Court may not interfere in the impugned judgment and order. 7 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 required to be quashed and set aside. {5} 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 are similar to the facts of that case.

8. Coming to the first contention of the Counsel appearing for the revision applicant that Land Acquisition Reference should not have been rejected, on the ground of not filing documentary evidence is concerned, this Court in case of Kawadu Madhav Bansod (supra), has taken a view that the said order rejecting the Reference on the ground of failure of the revision applicant to adduce evidence cannot be taken to be adjudicated, and therefore, same cannot be treated to be an Award. Therefore, the ground i.e. no documentary evidence is filed by the revision applicant, cannot be a ground to reject the reference. This Court in the aforesaid case in para No. 7 has observed thus :- “ 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 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 {6} 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.” (Emphasis supplied). 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. 9 Yet in 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 in other two connected matters, this Court has 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. {7} 10 In my opinion, the claim of the revision applicant should not have been discarded/rejected, merely on technicalities of not adducing documentary 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. 11 Since the point raised in this Civil Revision Application is no more res integra and same is covered by the authoritative pronouncement of this Court in the case of Kawadu Madhav Bansod Vs. State of Maharashtra & another, reported in 2004(4) Bom.C.R. 495 (supra) and for the reasons hereinabove, I am inclined to allow the Civil Revision Application. 12 In the result, the impugned judgment and order dated

08.07.2011, passed by learned Joint Civil Judge, Senior Division, Omerga in L.A.R. No. 284/2008 (Old L.A.R. No.195 of 2007) is quashed and set aside. L.A.R. No. 284/2008 (Old L.A.R. No.195 of 2007) is restored to its original file and the matter is remitted back to the learned Joint Civil Judge, Senior Division, Omerga for deciding the matter afresh after recording evidence and hearing the parties. 13 Liberty to the applicant to add the Special Land Acquisition Officer as well as the Acquiring Body as party {8} respondents in the Land Acquisition Reference, before the Reference Court.

14. Learned Counsel appearing for the revision applicant makes a statement before this Court that on the first date of hearing fixed by the Reference court, the applicant herein will file necessary documents and complete the evidence within three months from the first date. Parties to appear before the Reference Court on 03-10-2011 at 11-00 a.m. The Reference Court to fix the next date of hearing on that day. The Reference Court, upon recording evidence and hearing arguments, shall dispose of the L.A.R. No. 284/2008 (Old L.A.R. No.195 of 2007) as expeditiously as possible, preferably within one year from first date of hearing. Parties to the Reference will co-operate the Reference Court and will not ask for unnecessary adjournments unless there is any extraordinary circumstance for seeking adjournment.

15. Rule made absolute in the above terms. The Civil Revision Application is allowed and stands disposed of. The Registry to send back the record and proceedings, if any, immediately to the concerned Court. adb/cra21211 S.S.SHINDE JUDGE