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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD.
CIVIL REVISION APPLICATION No. 75 OF 2010
1. Arjun S/o Shankar Waghmare
Age 60 yrs, Occu. Agri,
r/o Bhabalgaon, Tq. Kallam,
Dist. Osmanabad.
2. Babruwan S/o Shankar Waghmare
Age 64 yrs, Occu. Agri.,
R/o as above. .. APPLICANTS
(Ori.Claimant)
ig VERSUS
1) The State of Maharashtra
Through the Collector, Osmanabad.
(Copy to be served on Govt. Pleader
High Court of Judicature of Bombay
Bench at Aurangabad) ...RESPONDENT.
...
Mr. M.B. Kolpe h/f Mr. S.A.
Wakure, Advocate for
applicant.
Mr. D.R. Korde,A.G.P. For respondent
CORAM :- S.S. SHINDE, J
DATE : 27th AUGUST, 2010.
JUDGMENT:
1. Heard counsel for the parties.
2. Rule. Rule made returnable forthwith. By
consent of the parties, heard finally.
3. The revision petitioners/applicants are the
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owner of land Gut No. 316, admeasuring 1 Hector 31 R,
situated at Village Bhabulgaon, Tq.Kallam, Dist.
Osmanabad. The above mentioned land was acquired by
the respondent for the purpose of percolation tank at
Village Bhabulgaon, Tq. Kallm. Thereafter, land
acquisition proceedings were initiated, and finally
Award was passed.
4. The revision petitioners being dissatisfied
by the Award, filed Land Acquisition Reference No. 248
of 2000 before the Special Land Acquisition Officer.
The Special Land Acquisition Officer after scrutiny,
forwarded the Land Acquisition Reference in the Civil
Court for its adjudication.
5. The learned IInd Joint Civil Judge Senior
Division, Osmanabad, dismissed the Land Acquisition
Reference, on two fold grounds. Firstly, the revision
petitioners who are the owners/claimants have not
adduced any evidence to prove that their lands were
irrigated one, and they were taking the crops like
sugarcane, sunflower, groundnut etc. in the acquired
land. Further the claimants have not adduced any
documentary evidence in support of their pleading.
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Secondly, claimants have not added acquiring body i.e.
The Executive Engineer,Irrigation Division, Osmanabad,
as party to the claim. Therefore, the claim is bad, on
the ground of non-joinder of necessary parties.
6. The learned counsel appearing for the
revision petitioners, vehemently argued 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 petitioners, 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
petitioners, placed reliance on the reported Judgment
of this Court, in 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
petitioners, would urge that the facts of the case in
hand and the facts of the case which is cited supra
are similar, and in that case this Court has taken a
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view that the reference cannot be rejected, only for
the reason that the revision petitioners have failed
to adduce any evidence. The learned counsel appearing
for the revision petitioners, invited my attention to
para No. 7 in the case of ” Kawadu Madhav Bansod V/s.
State of Maharashtra & another” cited supra and
submitted that in the interest of justice, the
impugned Judgment and Order deserves to be set aside.
7.
On the other hand, learned A.G.P. submitted
that theReference Court, after giving sufficient time
to the revision petitioners, and after revision
petitioners heard at length had rejected Land
Acquisition Reference and the impugned Judgment and
Order cannot be faulted. Therefore, the Civil Revision
Application is devoid of any merits and same deserves
to be dismissed.
8. I have heard, the learned counsels appearing
for the parties at length, and I am of the considered
opinion that the impugned Judgment and Order deserves
to be interfered with and required to be quashed and
set aside.
At the outset it has to be clarified that the
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present Civil Revision Application is maintainable, in
view of the observations made in para No. 9 in case of
“Kawadu Madhav Bansod V/s. State of Maharashtra &
another” cited supra. This Court in the above said
case in para No. 9 has observed thus :-
” Since the Civil Judge, Senior
Division, Yevatmal dismissed the reference of
the present revision petitioner without
considering the material on record, the
matter needs to be remanded to that Court for
passing the order in the light of the
discussion made above. As the matter is being
remanded, the Civil Judge shall also be
directed to give an opportunity to the
revision petitioner and also to State to lead
evidence”.
In view of the above observations of this Court,
I hold that Civil Revision Application is
maintainable.
9. Coming to the first contention of the Counsel
appearing for the revision petitioners, 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
V/s. State of Maharashtra & another” cited supra, has
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taken a view that the said order rejecting the
reference on the ground of failure of the revision
petitioners to adduce evidence cannot be taken to be
adjudication, and therefore, same cannot be treated to
be an Award. Therefore, one of the ground i.e. no
documentary evidence is filed by the revision
petitioners, cannot be ground to reject the reference.
This Court in the case of “Kawadu Madhav Bansod V/s.
State of Maharashtra & another” cited supra 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 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
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(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
submitted
Counsel
that
for
the
revision
case could
petitioner
not be
dismissed in default also.”
Therefore, in my opinion, the Court below
should not have rejected the reference, on the ground
of failure of the revision petitioners to adduce
evidence. 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 petitioners, should not
have been dismissed, merely on the ground of failure of
the revision petitioners to adduce evidence.
10. Another reason to reject the reference is
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non-joinder of party i.e. acquiring body. The
acquiring body was not party respondent, in the
proceedings pending in the Land Acquisition Reference.
In this respect, the Counsel appearing for the
revision petitioners is justified in submitting that
the Land Acquisition Reference was filed in the year
2000 and the Judgment of the Hon’ble Supreme Court,
making it incumbent upon the claimants to add
acquiring body ig as party to the reference has been
delivered, subsequently after filing this reference,
and therefore, the learned Judge should not have
rejected reference on that ground.
I have given due consideration to the
submissions, advanced by the Counsel for the revision
petitioners, and I find considerable force in his
arguments. The Court below should have given fair
opportunity to the revision petitioners to file
application for impleading, acquiring body as a party
to the reference. It was possible for the reference
Court to ask the revision petitioners to add the
acquiring body as a party to the reference. Therefore,
in my opinion, the claim of the revision petitioners
should not have been discarded/rejected, merely on
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technicalities of not adducing documentary evidence,
or not adding acquiring body as a party to the
reference. The Court below, should have given
sufficient and full opportunity to the revision
petitioners to put-forth their case, and after
appreciating their contentions at length, the
reference should have been decided. Therefore, the
impugned Judgment and Order dated 25th August, 2009 in
Land Acquisition Reference No. 248 of 2000 passed by
the Learned IInd, Joint Civil Judge Senior Division,
Osmanabad is quashed the matter is remanded back to
the learned IInd Joint Civil Judge civil Judge Senior
Division, Osmanabad. The liberty to the revision
petitioners to file application before the Court below
for adding the acquiring body as a party respondent to
the Land Acquisition Reference. The Concerned Court to
hear the Land Acquisition Reference afresh. The
Registry to send back the record and proceeding
immediately to the concerned Court. Rule made absolute
in above terms. The Civil Revision Application is
disposed of.
[S.S. SHINDE, J]
SDM*75.10CRA.
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