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HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
FIRST APPEAL NO. 91 OF 2010
APPELLANT :- Vidarbha Irrigation Development Corporation,
Through its Executive Engineer, Minor Irrigation
Division No.2, Taq. Chikhali, Dist. Buldhana.
-Versus-
RESPONDENTS :- 1) Sadanand S/o Damodhar Mawale, Aged-Major, Occ.:
Agriculturist, R/o - Sawangi (Gawli), Tq. Chikhli,
Distt. Buldana.
2) The State of Maharashtra, Through the Collector,
Buldhana.
3) The Special Land Acquisition Officer, Buldhana.
FIRST APPEAL NO. 92 OF 2010
APPELLANT :- Vidarbha Irrigation Development Corporation,
Through its Executive Engineer, Minor Irrigation
Division No.2, Taq. Chikhali, Dist. Buldhana.
-Versus-
RESPONDENTS :- 1) Kamlabai Dagadu Ghadyale, Aged-Major, Occ.: Agri.
R/o - Sawangi (g), Tq. Chikhli, Distt. Buldana.
2) The State of Maharashtra, Through the Collector,
Buldhana.
3) The Special Land Acquisition Officer, Buldhana.
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Shri A. B. Patil, learned counsel for appellant.
Shri N.B. Kalwaghe, learned counsel for respondent No.1.
Shri T.N. Kankale, A. G. P. for respondents No.2 & 3.
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CORAM : F. M. REIS, J.
DATED : FEBRUARY, 10, 2010.
ORAL JUDGMENT
1) ADMIT. Heard forthwith with the consent of the parties. Respondents
waive service of final hearing.
2) The appellant in First Appeal No.91/2010 is challenging the judgment
and order passed by the Reference Court on 13th April, 2006 in Land Acquisition Case
No.370/2000, whereby the reference preferred by the respondent No.1 was partly
allowed and the compensation was enhanced and fixed at Rs.60,173/- (Rs.Sixty
Thousand One Hundred Seventy Three Only) together with other statutory benefits.
3) The appellant in First Appeal No.92/2010 is challenging the judgment
and order passed by the Reference Court on 20th April, 2006 in Land Acquisition Case
No.344/2000, whereby the reference preferred by the respondent No.1 was partly
allowed and the compensation was enhanced and fixed at Rs.73,181/- (Rs.Seventy
Three Thousand One Hundred Eighty One Only) together with other statutory
benefits.
4) Since the points for consideration are identical in both the first
appeals, the appeals are taken up for final hearing and the same are being
disposed of by a common judgment.
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5) There is no dispute that the appellant was the acquiring body and
was not a party to the proceeding under Sec.18 of the Land Acquisition Act
filed by the respondent No.1 before the Reference Court. The learned counsel
for the appellant submits that being the acquiring body the appellant is
interested party in such proceedings, as the amount has to be paid by the
appellant.
6) It is further the contention of the learned counsel that as such the
appellant did not get an opportunity to defend the claim of the respondent
No.1 for enhancement of compensation. It is further submitted that in similar
matters, the Division Bench of this Court has remanded the matter for fresh
consideration subject to some terms.
7) On the other hand, learned counsel for the respondent No.1
submitted that great prejudice would occasion to the respondent No.1 in case
the matter is remanded as he has already withdrawn the amount and in any
event the respondent No.1 was not at fault as the appellant could have very
well filed an application to be a party to the reference proceedings as
admittedly the Land Acquisition Officer was a party to such proceedings.
8) Having heard the learned counsel and on perusal of the records, the
following point for consideration arise in the present appeals.
“Whether the judgment passed by the Reference Court stands
vitiated as the appellant was not a party to the reference
proceedings ?”
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9) The Apex Court in the judgment reported in (1995) 2 S.C.C. 326,
in the case of U.P. Awas Evam Vikas Parishad -vs- Gyan Devi (Dead) by Lrs.
And others, has held at para 24 –
“24. To sum up, our conclusions are :
1. Section 50 (2) of the L.A. Act confers on a local authority for
whom land is being acquired a right to appear in the acquisition
proceedings before the Collector and the reference court and adduce
evidence for the purpose of determining the amount of compensation.
2. The said right carries with it the right to be given adequate
notice by the Collector as well as the reference court before whom
acquisition proceedings are pending on the date on which the matterof determination of compensation will be taken up.
3. The proviso to Section 50 (2) only precludes a local authority
from seeking a reference but it does not deprive the local authoritywhich feels aggrieved by the determination of the amount of
compensation by the Collector or by the reference court to invoke the
remedy under Article 226 of the Constitution as well as the remedies
available under the L.A. Act.
4. In the event of denial of the right conferred by Section 50 (2)
on account of failure of the Collector to serve notice of the acquisition
proceedings, the local authority can invoke the jurisdiction of theHigh Court under Article 226 of the Constitution.
5. Even when notice has been served on the local authority the
remedy under Article 226 of the Constitution would be available to
the local authority on grounds on which judicial review is permissible
under Article 226.
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6. The local authority is a proper party in the proceedings before
the reference court and is entitled to be impleaded as a party in those
proceedings wherein it can defend the determination of the amount ofcompensation by the Collector and oppose enhancement of the said
amount and also adduce evidence in that regard.
7. In the event of enhancement of the amount of compensation
by the reference court if the Government does not file an appeal, the
local authority can file an appeal against the award in the HighCourt after obtaining leave of the court.
8. In an appeal by the person having an interest in land seeking
enhancement of the amount of compensation awarded by the
reference court, the local authority should be impleaded as a partyand is entitled to be served notice of the said appeal. This would apply
to an appeal in the High Court as well as in this Court.
9. Since a company for whom land is being acquired has the
same right as a local authority under Section 50 (2), whatever has
been said with regard to a local authority would apply to a company
too.
10. The matters which stand finally concluded will, however, not
be reopened.”
10) In the case of Agra Development Authority -vs- Special Land
Acquisition Officer and others, reported in (2001) 2 S.C.C. 646 considered
the same question and held at para-7.
“7. …………………………. What is required by Section 50 of
the Land Acquisition Act is that the body for whom the property is
being acquired is given an opportunity to appear and adduce evidence::: Downloaded on – 09/06/2013 15:35:49 :::
( 6 )for the purposes of determining the amount of compensation. Nothing
could be shown to us that this had been done. On this point the
matter requires to be sent back to the Special Land Acquisition Officerfor refixing compensation payable.”
11) In the judgment reported in (2004) 12 S.C.C. 96 in the case of
NTPC Ltd. -vs- State of Bihar and others, the Apex Court has held at para-12
& 13.
“12. In our view, as the appellants were entitled to be
impleaded in the reference proceedings, the High Court was in errorin not setting aside the awards and referring the cases back to the
Reference Court with a direction that they be impleaded. The fact thatamounts have been enhanced, shows that prejudice has been caused
to the appellants. We, therefore, set aside the impugned judgmentexcept to the extent that it directs that in all pending references the
appellants will be impleaded as parties. The awards made by theReference Court in 492 cases, where the amounts have been
enhanced, are set aside. These cases are remitted back to theReference Court. The appellants shall be deemed to have been brought
on record in all these cases as well as all other pending cases. The
reference Court shall try to dispose of the references as expeditiously
as possible. The statement of witnesses already recorded on behalf ofthe claimants need not be recorded afresh. However, the appellants
shall have a right to cross-examine the witnesses, if they so desire. For
that purpose those witnesses shall be recalled. If, however, those
witnesses cannot be recalled for a valid reason e.g. because they have
died or cannot be found then their statements shall not be excluded::: Downloaded on – 09/06/2013 15:35:49 :::
( 7 )from consideration and shall be read in evidence. All claimants shall
also be entitled to adduce further evidence, if they so desire. The
appellants will be entitled to adduce evidence if they so desire.
13. We further direct that if the enhanced compensation has
been paid to the claimants then the same shall not be recalled but
shall finally be adjusted in the amount which may be fixed by theReference Court. It goes without saying that if the enhanced
compensation has not been paid, then the same shall not be paid.”
12) Thus there can be no dispute that the appellants were entitled to be
parties to the reference proceedings filed by the respondent No.1. It was the
duty of the respondent No.3 to disclose the name of the Acquiring Body to the
Reference Court whilst making the reference.
13) In identical matters in First Appeal No.1260/2006 and First Appeal
No.877/2009 this Court has remanded the matters back for adjudicating the
reference afresh after making the Acquiring Body as a party to the proceedings.
14) Shri Kalwaghe, learned counsel for the respondent No.1 in both the
First Appeals bearing Nos.91/2010 and 92/2010 states that the respondent
No.1/land owner has already withdrawn the amount of compensation as per
the judgment of the Reference Court, upon furnishing solvent surety. The said
withdrawal is made subject to final adjudication by the Reference Court in
Land Acquisition Case No.370/2000 and Land Acquisition Case No.344/2000.
15) Subject to this, the judgment dated 13th April, 2006 in L.A.C.
No.370/2000 and the judgment dated 20th April, 2006 in L.A.C. No.344/2000
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are quashed and set aside. The proceedings under Sec.18 of the Land
Acquisition Act are restored to the respective file of the Civil Judge, Senior
Division, Buldhana to decide the reference afresh after making the appellant as
party to such proceedings and allowing them to file fresh written statement and
proceed with the trial in accordance with law. The appeals are accordingly
allowed. However, there shall be no order as to costs.
16) As the matters are old and are being sent back, the Courts below
shall endeavour to decide the reference proceedings as early as possible and in
any case within the period of six months.
17) The appeals are disposed of accordingly.
JUDGE
KHUNTE
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