1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. FIRST APPEAL NO.2633 OF 2009. WITH FIRST APPEAL NO.2640 OF 2009 AND FIRST APPEAL NO.2641 OF 2009 Sugriv s/o Dnyanoba Darekar, age 70 years, occu. Agril., r/o Arali, Tq. Tuljapur, Dist. Osmanabad.. ... APPELLANT. VERSUS The State of Maharashtra, through the Collector, Osmanabad, Dist. Osmanabad. ... RESPONDENT. ... Shri M.S. Patil, Advocate for appellant. Shri N.N. Jadhav, A.G.P.for Respondent. ... WITH FIRST APPEAL NO.2640 OF 2009 Santosh Ram Somase. age 29 years, occu. Agril., r/o Arali, Tq. Tuljapur, Dist. Osmanabad.. ... APPELLANT. VERSUS The State of Maharashtra, through the Collector, Osmanabad, Dist. Osmanabad. ... RESPONDENT. ... Shri M.S. Patil, Advocate for appellant. Shri N.N. Jadhav, A.G.P.for Respondent. ... 2 AND FIRST APPEAL NO.2641 OF 2009 Sidram Laxman Somase, age 35 years, occu. Agril., r/o Arali, Tq. Tuljapur, Dist. Osmanabad.. ... APPELLANT. VERSUS The State of Maharashtra, through the Collector, Osmanabad, Dist. Osmanabad. ... RESPONDENT. ... Shri M.S. Patil, Advocate for appellant. Shri N.N. Jadhav, A.G.P.for Respondent. ... CORAM : R.G. KETKAR,J. DATE : 23rd NOVEMBER, 2009. ORAL JUDGMENT: 1. Heard Shri Patil, learned Counsel for the appellants and Shri Jadhav, learned A.G.P. for the respondent. 2. Admit. By consent of the parties, appeals are heard finally. These appeals can conveniently be disposed of by this common judgment as they raise 3 common question of law and arise in identical facts and circumstances. They also challenge the common judgment and order dated 25th August, 2008 passed by the C.J.S.D., Osmanabad whereby the Land Acquisition References were rejected. 3. By the impugned judgment and order, the learned trial Judge rejected the references on the ground that the Irrigation Department had acquired the lands and consequently, it is the acquiring body. Since the acquiring body was not impleaded as party, in view of the provisions of Section 50(2) of the Land Acquisition Act, 1894 (for short, the Act), the references came to be rejected. 4. In view of this short controversy between the parties, I have dispensed with calling for record and proceedings from the trial Court as per Order 41, Rule 11 of the Code of Civil Procedure, 1908. 5. In the instant case, the Irrigation Department acquired the lands under the 4 provisions of the Act. The award was made on 18th July, 1990. The L.A.Rs. were filed on 14th October, 1991 and were disposed of by the impugned judgment and order dated 25th August, 2008. However, during the pendency of these L.A.Rs., acquiring body was established in the year, 1998. Admittedly, the acquiring body was not impleaded as party in the proceedings under Section 18 of the Act. Section of the Act. Section 50 of the Act reads as under: “50. (1) Where the provisions of this Act are put in force for the purpose of acquiring land at the cost of any fund controlled or managed by a local authority or of any Company, the charges of land incidental to such acquisition shall be defrayed from or by such fund or Company. (2) In any proceeding held before a Collector or Court in such cases the local authority or Company concerned may appear and adduce evidence for the purpose of determining the amount of compensation. Provided that no such local authority or Company shall be entitled to demand reference under section 18.“ 5 6. Section 50 of the Act has been considered by the Apex Court in (1) U.P. Awas Evam Vikas Parishad Vs. Gyan Devi, AIR 1995 SC 724, (2) Agra Development Authority v. Special Land Acquisition Officer and others, and (3) Abdul Rasak and others v. Kerala Water Authority and others, (2002) 3 SCC 228. 7. In the case of Abdul Rasak (supra), the High Court allowed appeals pending before it and remanded the case for decision afresh by the reference Court after affording the parties an opportunity of adducing evidence in support of their respective contentions. Against this order of the High Court remanding the case, the claimants preferred appeals by Special Leave before the Apex Court. The Apex Court observed in paragraphs 7, 9, 10 and 11, as under: “7. Shri T.L.V.Iyer, the learned Senior Counsel for the claimant-appellants has submitted that Kerala Water Authority is the successor of Public Health Engineering Department of the State Government, and bound by the proceedings conducted by or 6 against the State Government and, therefore, the Constitution Bench decision does not have any applicability to the facts of the present case and the High Court ought not to have set aside the awards and remanded the cases to the reference court. We find it difficult to subscribe to the view so forcefully canvassed by the learned Senior Counsel for the appellants. KWA came into existence as a statutory corporation on 1-4-1984. It may be said to have succeeded to the liability incurred by the State Government so far as the quantum of compensation awarded by the Collector is concerned but so far as the enhancement in the quantum of compensation is concerned, it will be a liability of KWA incurred by it after its coming into existence and, therefore, to the extent of enhancement, the authority was certainly entitled to notice and right to participate in the proceedings before the reference court leading to enhancement of compensation. 9. In our opinion, the High Court has not erred in taking the view which it has taken and directing the reference cases to be remitted to the civil court consistently with the law laid down by the Constitution Bench. As KWA shall have to be impleaded as a party to the proceedings before the civil court from very beginning, a retrial becomes 7 unavoidable. 10. However, the learned Counsel for the appellants submitted that certain directions are called for inasmuch as some of the witnesses examined by the claimants may not now be available and the claimants should not be made to suffer if KWA were to contend before the civil court for the evidence of such witnesses being excluded from consideration because their statements were not recorded in the presence of the authority. He further submitted that in the peculiar facts and circumstances of these cases, when the authority has succeeded to the State Government (Public Health Engineering Department), and the cases are being remitted to the civil court for no fault of the claimants, some protection deserves to be given to the claimants for protecting them from any likely injustice. We find merit in the submission so made. 11. Keeping in view the fact that the Constitution Bench judgment of this Court was delivered during the pendency of appeals before the High Court and the manner in which KWA also came to be constituted after commencement of land acquisition proceedings and the delay which has already taken place in the conclusion of the proceedings for finalising compensation which delay is not 8 attributable to the claimants though, we maintain the order of remand made by the High Court but make the following directions: 1. Kerala Water Authority shall be deemed to have been brought on record in the reference cases as the defendant. The cause-title of the reference cases shall be amended accordingly. KWA may file its written statement to the claim petition filed by the claimants; 2. the civil court shall expeditiously proceed to try the reference cases in compliance with the order of remand made by the High Court; 3. the statement of the witnesses already recorded on behalf of the claimants need not be recorded afresh; 4. Kerala Water Authority shall be allowed an opportunity of cross- examining the witnesses which have already been examined. However, such of the witnesses as are not available, and, therefore, cannot be called before the Court, their statements shall not be excluded from consideration and shall be read in evidence; 9 5. the claimants may adduce such other evidence as they may propose to do and both the State of Kerala and Kerala Water Authority shall have the liberty of cross-examining such witnesses who are now examined by the claimants; 6. Kerala Water Authority shall have the liberty of adducing such evidence as it may propose to do.” In view of the above, the impugned judgment and order dated 25th August, 2008 rejecting the references cannot be faulted with. 8. The learned Counsel for the appellants submits that the appellants are ready and willing to implead the Irrigation Department as party -respondent and the witnesses who are examined on behalf of the appellants namely, Vitthal at Exh. 19 and Prabhakar at Exh.30 will be made available for cross-examination by the newly added respondent – Irrigation Department. 9. In view of this, the impugned order is set aside and the references are revived. The 10 appellants shall implead the Irrigation Department as party – respondent to the references. Upon Irrigation Department being made party – respondent, the reference Court shall issue notice to the Irrigation Department which will get an opportunity to file written statement. The learned trial Judge will hear and decide the reference, as expeditiously as possible. The Irrigation Department will have an opportunity to cross-examine the witnesses who have been examined. However, if such witnesses are not available and, therefore, cannot be called before the Court, their statements shall not be excluded from reading in evidence. The appellants – claimants will be at liberty to lead other evidence, if they deem it appropriate so also, the respondents including the Irrigation Department will be at liberty to cross-examine such witnesses whom the appellants propose to examine, in case they so desire. The Irrigation Department will have also liberty of adducing evidence, if it proposes to do so. It will also be open for the Irrigation Department to agitate the issue about entitlement of the claimants to 11 get statutory benefits available under the Act for causing the delay on account of the acts or omissions of the appellants in impleading the acquiring body at the threshold itself. The appeals are allowed in the aforesaid terms. The parties shall bear their respective costs. [ R.G. KETKAR, J ] ... Kadam. 12 FIRST APPEAL NO.2633 OF 2009 WITH FIRST APPEAL NO.2640 OF 2009 AND FIRST APPEAL NO.2641 OF 2009 Date of decision :23.11.2009 For approval and signature. THE HONOURABLE SHRI JUSTICE R.G. KETKAR. 1. Whether Reporters of Local Papers } may be allowed to see the judgment? } Yes. 2. To be referred to the Reporter or not? } No 3. Whether Their Lordships wish to see the fair copy of the judgment? } No. 4. Whether this case involves a substantial } question of law as to the interpretation } of the Constitution of India, 1950 or } any Order made thereunder? } No. 5. Whether it is to be circulated to the } Civil Judges? } No. 6. Whether the case involves an important } question of law and whether a copy of } the judgment should be sent to Mumbai, } Nagpur and Panaji offices? } No. [Prakash Kadam] Private Secretary to the Honourable Judge.