1 fa2569.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD FIRST APPEAL NO. 2569 OF 2010 Chandarrao Anandrao Patil Shinde L.Rs. Nandkumar Chandarao Patil and anr. ...Appellants (Orig. claimants) VERSUS The State of Maharashtra and anr. ...Respondents (Orig. respondents) ..... Shri N.G. Kale, advocate for the appellants Shri S.N. Kendre, A.G.P. for respondent no.1 None for respondent no.2, although served ..... CORAM : SHRIHARI P. DAVARE, J. DATED : 8 th February, 2011 ORAL JUDGMENT : - 1 Heard Shri N.G. Kale, advocate for the appellants and Shri S.N. Kendre, A.G.P. for respondent no.1. Respondent no.2 absent, though served. 2 This is a First Appeal directed against the judgment and 2 fa2569.10 award, rendered by the learned Civil Judge, Senior Division, Nilanga on 7.9.2010 in L.A.R. No. 549 of 1998 impugning the said judgment and order in the present appeal. 3 It appears that notices were issued to the respondents for final disposal of the present appeal by order dated 1.12.2010. Accordingly, the present appeal is taken up for final hearing and the learned A.G.P. appears for respondent no.1; whereas respondent no.2 remained absent, although served. 4 The appellants herein are the heirs of original claimant – Chandar in the petition for compensation filed before the learned Civil Judge, Senior Division, Nilanga in respect of acquisition of their lands by the acquiring body. It also appears that the Government of Maharashtra issued notification under Section 4 of the Land Acquisition Act and same was published in the Government Gazette on 1.2.1990 and proposed to acquire the land of the claimant, admeasuring 1 Hectare 44 Ares from and out of Survey No. 41/1 of village Thergaon, Taluka Nilanga (old) now Shirur Anantpal and finally the above said area was acquired for the project of Percolation Tank at Thergaon. It further appears that the Government of Maharashtra had also issued notification under Section 6 of the Land 3 fa2569.10 Acquisition Act on 13.2.1992 and the possession of the acquired area was taken up by the acquiring body by private negotiations immediately after 15 days of the date of the notification under Section 4 of the Land Acquisition Act. 5 It further appears that the deceased Chander was the owner of acquired land Survey No. 41/1, admeasuring 1 Hectare 44 Ares, situated at Thergaon, Taluka Nilanga (old), now Shirur Anantpal. It further appears that notices of said petition were issued to the respondents and respondent no.1 appeared and filed the written statement. It also further appears that the claimant was directed to implead the acquiring body as party respondent, and therefore, the claimant amended the petition, but failed to take steps in respect of notice to the acquiring body, and consequently, the claim of the claimant was dismissed under Order IX Rule 5 of the Code of Civil Procedure. In the said context, it is the contention of the learned counsel for the appellant that although notice was served upon the acquiring body on 7.4.2010, same was not considered by the Trial Court and the petition was dismissed against the said acquiring body on 14.6.2010 under Order IX Rule 5 of the Code of Civil Procedure incorrectly. 4 fa2569.10 6 It also appears that respondent no.1 i.e. the State of Maharashtra filed the written statement and opposed the claim of the original petitioner. 7 Basing upon the pleadings, the Trial Court framed issues on 1.7.2010 at Exh. 12. 8 Learned counsel for the appellants invited my attention to para no.6 of the impugned judgment dated 7.9.2010 and pointed out that it is observed by the Trial Court that special summons was issued to deceased claimant directing him that if the claimant failed to appear, the matter shall proceed further. Accordingly, after issuance of notice, legal heirs of deceased claimant Chandar were brought on record. It is further observed that on perusal of the record, it appears that though legal heirs appeared, they failed to lead evidence in support of their claim. Hence, it is further observed that the Trial Court was constrained to pass the judgment on the basis of material placed before it on record. 9 Learned counsel for the appellants also invited my attention to the fact that the issues were framed by the Trial Court on 1.7.2010 at Exh.12 and hardly within the span of 2 months and 7 5 fa2569.10 days i.e. on 7.9.2010, the Trial Court decided the said petition, and learned counsel for the appellants submitted that the Trial Court appears to have decided the matter in haste without giving due and proper opportunity to the petitioners to adduce and produce the evidence. 10 Learned A.G.P. appearing for respondent no.1 submitted to the orders of the court, and nobody remained present for respondent no.2, although served. 11 On perusal of the documents and papers on record and after considering the submissions advanced by the learned respective counsel for the parties, and more particularly, on perusal of the impugned judgment dated 7.9.2010, the fact remains that the Land Acquisition Reference No. 549 of 1998 came to be decided and dismissed by the Trial Court without recording the evidence of the appellants i.e. heirs of the original deceased claimant. 12 Moreover, it is also evident from the record that after framing the issues by the Trial Court on 1.7.2010 at Exh. 12 basing upon the pleadings, within a short span of 2 months and 7 months the said petition came to be decided and dismissed by the Trial Court 6 fa2569.10 and the said aspect also cannot be ignored. The principles of natural justice require that due and proper opportunity should be given to the heirs of deceased original claimant to adduce and produce the oral and documentary evidence before the court, and therefore, the matter is required to be remanded back to the Trial Court for the said purpose without entering into merits and keeping all the points open for agitation, by setting aside the impugned judgment and award dated 7.9.2010 rendered by the Trial Court, with a specific direction to the heirs of deceased claimant to remain present before the Trial Court to adduce and produce the evidence without seeking unnecessary adjournments and also with a specific direction to the Trial Court to decide the said matter within the prescribed time frame, in accordance with law afresh. 13 In the circumstances, the present appeal is allowed partly and the impugned judgment and award dated 7.9.2010 rendered by learned Civil Judge, Senior Division, Nilanga in Land Acquisition Reference No. 549 of 1998 [Old L.A.R. No. 746 of 1995] stands quashed and set aside and the matter is remitted back to the said Trial Court, without entering into merits and keeping all the points open for agitation, with the direction to give opportunity to the appellants herein to adduce/produce the oral/documentary evidence 7 fa2569.10 before the said Trial Court and with further direction to the Trial Court to decide the said matter afresh in accordance with law. The parties are directed to remain present before the Trial Court on 1.3.2011 at 11.00 a.m. and the appellants shall adduce/produce their oral/documentary evidence, if any, before the Trial Court without seeking any unnecessary adjournments and the Trial Court to complete the said exercise and decide the petition within the period of six months from 1.3.2011. In the facts and circumstances, there shall be no order as to costs. (SHRIHARI P. DAVARE, J.) dbm/fa2569.10