cra177.11 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD CIVIL REVISION APPLICATION NO. 177 OF 2011 1. Kamalbai w/o Annasaheb Gutte, age 60 years, Occu. agri. & H.H. 2. Annasaheb s/o Abaji Gutte, (Died) through L.Rs. 2A. Pandit s/o Annasaheb Gutte, age 40 years, occu. agri., 2B. Kamalbai w/o Annasaheb Gutte, age 60 years, Occu. agri. & H.H. 2C. Sharad s/o Annasaheb Gutte, age 30 years, occu. agri, through Power of Attorney Holder, Pandit s/o Annasaheb Gutte, age 40 years, occu. agri., All r/o Yeldarwadi, Tq. Ahmedpur, Dist. Latur. ... APPLICANTS. (Ori. claimants) Versus 1 The State of Maharashtra Through the Collector, Latur. 2 The Special Land Acquisition Officer, Percolation Tank & Irrigation Tank, Latur. 3 The Executive Engineer, Local Sector, Latur. ...RESPONDENTS. ... Mr. S.A. Gutte, Advocate for the petitioners Mr. D.R. Kale, A.G.P. for respondents ... cra177.11 2 CORAM: S. S. SHINDE, J. DATE: 5th August, 2011 ORAL JUDGMENT: 1. Heard counsel for the parties. 2. Rule. Rule made returnable forthwith. By consent of the parties, taken up for hearing. 3 This Revision application is filed being aggrieved by the order dated 8th December, 2010, passed by learned Civil Judge, Senior Division, Ahmedpur, Dist. Latur in L.A.R. No.20 of 2009, thereby dismissing Land Acquisition Reference filed by the petitioner. 4 It is the case of the petitioners that they belong the land bearing Gut No.373 admeasuring 0H. 32R, Gut No.372 admeasuring 1H. 32R situated at village Yeldarwadi, Tq. Ahmedpur, Dist, Latur, which came to be acquired by the respondent authorities for the purpose of percolation / storage tank at village Andhori, Tq. Ahmedpur. The land acquisition proceedings were started and finally award was passed. 5 The S.L.A.O. awarded the compensation for the acquired land cra177.11 3 at the rate of ` 22800/- per acre. The petitioners have withdrawn the amount of compensation under protest. 6 The petitioners being dissatisfied with the amount of compensation, offered by the Land Acquisition Officer, tendered application seeking reference of the matter to the Civil Court for the purpose of determination of proper market value of the acquired land. The petitioners claimed compensation at the rate of `1,00,000/- per acre. The claim of the petitioners came to be registered as L.A.R. No.20 of 2009 before the learned C.J.S.D. Ahmedpur, Dist. Latur. 7 The learned C.J.S.D., Ahmedpur took up the Reference for hearing. The learned Judge, at the time of hearing, was of the view that the petitioners and their advocate were not present before the Court, so also it is observed that steps for adjudication of the reference were not taken, evidence had not been adduced and the acquiring body was not impleaded as party respondent. Therefore, the learned C.J.S.D., Ahmedpur dismissed the L.A.R. No. 12 of 2009. Hence, this Revision. 8 The learned counsel appearing for the petitioners submitted that the order passed by learned Judge is per se illegal as it has been passed without giving opportunity of hearing to the petitioner cra177.11 4 and therefore, the same is against the principles of natural justice. It is further submitted that the Court below should not have dismissed the reference, merely on technicalities and 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 quashed and set aside. The learned counsel, in support of his submissions, relied upon a 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 in the instant case 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 on the ground of technicalities i.e. petitioners and their advocate were not present before the Court, the steps for adjudication of the reference were not taken, evidence has not been adduced and the acquiring body is not impleaded as party respondent. The learned counsel appearing for the revision petitioners, 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. cra177.11 5 9. On the other hand, learned A.G.P. has tried to justify the impugned judgment and order on the ground that the same cannot be faulted with any error and has prayed for dismissal of the Revision. 10. 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. 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. 11 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 (supra), has 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 adjudicated, and therefore, same cannot be treated to be an Award. Therefore, the ground for dismissal i.e. no documentary evidence is filed by the revision cra177.11 6 petitioner, 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 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 cra177.11 7 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 petitioner, should not have been dismissed, merely on the ground of failure of the revision petitioner to adduce evidence. 12 I have given due consideration to the submissions, advanced by the Counsel for the revision petitioner and I find considerable force in his arguments. Therefore, in my opinion, the claim of the revision petitioner should not have been discarded/rejected, merely on technicalities of not taking steps for adjudication of the reference, not adducing documentary evidence and not impleading the acquiring body as party respondent. The Court below, should have given sufficient and full opportunity to the revision petitioner to put-forth his case, and after appreciating his contentions at length, the reference should have been decided. 13 In the result, the impugned Judgment and Order dated 8th cra177.11 8 December, 2010, passed by learned Civil Judge, Senior Division, Ahmedpur, Dist. Latur in L.A.R. No.20 of 2009 is quashed and set aside, L.A.R. No.20/2009 is restored to its original file and the matter is remitted back to the learned Civil Judge, Senior Division, Ahmedpur. The learned counsel appearing for the petitioners makes a statement before this Court that necessary documents will be filed and evidence will be led before the Reference court within three months from the first date of hearing to be fixed by the Reference Court. The Reference Court, upon recording evidence and hearing arguments, shall dispose of the L.A.R. No.20 of 2009 within one year from the date of first date of hearing. It is needless to mention that the parties to reference will cooperate for early disposal of the reference. 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. ( S.S. SHINDE, J.) Kadam/*