1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO.1908 OF 2011 Kusumbai S/o.Vishambar Yadav, Age-67 years, Occu-Agriculturist, R/o.Sastur, Tq.Omerga, Dist.Osmanabad APPELLANT VERSUS 1. State of Maharashtra Through Collector, Osmanabad, 2. The Special Land Acquisition Officer, Manjara Project, Osmanabad, Tq. And Dist.Osmanabad RESPONDENTS Mr.S.T.Ghute, learned counsel for the appellant. Mrs.V.A.Shinde, learned A.G.P. for respondent State (CORAM : A.V.POTDAR, J.) DATE : 18/11/2011 ORAL JUDGMENT : 1. This appeal is filed to challenge the judgment and award passed by the Civil Judge, S.D.Omerga, Tal.Omerga, Dist. Osmanabad in L.A.R.No.600/2005 (Old L.A.R.No.262/2000) dated 03/01/2009. 2. Heard respective counsels. 2 3. Admit. 4. Heard finally by consent of the parties. It is not under dispute that the land of the claimant, situated in Survey No.128 of village Sastur, Tal.Omerga, Dist.Osmanabad, admeasuring 1 hectre 66R was acquired in the year 1993 for which notification u/s. 4 was issued on 12/01/1994. After issuing notice u/s. 9(3)(4) of The Land Acquisition Act, alleged to be served on the claimant, the claimant had submitted written claim before the S.L.A.O. claiming compensation @ 80,000/- per acre, which was not considered by the S.L.A.O. As the compensation awarded by the S.L.A.O. is inadequate, claim was put before the authorities u/s. 18 of The Land Acquisition Act to the Reference Court. It appears that after the establishment of the Court at Omerga, the said land reference was transferred to the Court at Omerga and was numbered as L.A.R.No.600/2005. Notice of the said transfer appeared to be issued/served on the claimant /appellant on 10/03/2006. The appellant appeared through her advocate before the learned Reference Court i.e. the Civil Judge, S.D. Omerga, Tal.Omerga, Dist. Osmanabad. It appears that on the date of hearing, the advocate for appellant/claimant remained absent. It appears that the date of hearing was fixed before the Court below on 21/09/2006. As the parties and their advocate were absent, hence the reference was adjourned to 04/07/2007, 10/04/2008, and 02/07/2008. It appears that on the last date, when the reference was before the Court, appellant was absent, but 3 his advocate was present, but had left the Court without making any submissions or filing any application. It appears that thereafter the matter was adjourned to 03/01/2009, on which date the reference came to be dismissed. 5. In this backdrop, It is urged across the bar that as the claimant/appellant is an illiterate lady and not aware about the court proceeding, she had not taken proper steps before the reference court. Further it appears that in the proceeding before the Reference Court, no evidence was adduced by the appellant neither the documents on record were considered by the reference Court and straightway rejected the proceeding. 6. During the course of submissions across the bar, reliance is placed by the learned counsel appearing for the appellant on the judgment delivered by this Court in First Appeal No.110/2008 in the matter of Devidas S/o.Tawaji Pradhan and others versus The state of Maharashtra, dated 04/03/2008. At this juncture, it is useful to give the reference of the judgment in the matter of Kawadu Madhav Bansod versus State of Maharashtra and another, 2004(4) Bom.C.R. 495, wherein it is observed in para no.8,9 and 10 that, “8. On the point as to what should be the form of award and the duty of the Court when the claimant is absent or if present fails to adduce evidence, the learned 4 counsel for revision petitioner cited (M.S.Ramaiah and others v.Special Land Acquisition Officer, AIR 1974 Kar. 122. This case lays down that when a reference is made to the Court (Civil Court, it is its duty to determine the amount of compensation payable for the land or lands acquired; the Court has no jurisdiction to refuse to determine the amount of compensation even where the claimant remains absent or where he is present, fails to adduce evidence, the Court further has to apply its mind and make an award and cannot blindly confirm the award of the Land Acquisition Officer. The case further enunciates that the award which the court passes must be in the form of a judgment containing the statement of the grounds for the award. Where the claimant remains absent or does not produce evidence, it is not open to the Court to dispose of the reference stating that the claim of the claimant is dismissed or that the reference is rejected. This case is also on the point that the reference cannot be dismissed in default. 9.As already stated above an appeal against the order of the Civil Court lies to the High Court against the award as is laid down in Section 54 of the Land Acquisition Act. The observations made above would reveal that the judgment and order of the Civil Judge Senior Division, Yavatmal in the above mentioned case cannot be regarded to be an award. So no appeal would lie. Then the question would arise as to what remedy is available to the 5 claimant/applicant. In this connection the learned counsel for revision petitioner placed reliance on the provision of section 53 of the Land Acquisition Act which reads as below : “Save in so far as they may be inconsistent with anything contained in this Act, the provisions of the Code of Civil Procedure, 1908, shall apply to all proceedings before the Court under this Act.” By virtue of the above provision of Section 53 of The Land Acquisition Act the Court under the Land Acquisition Act can be taken be subject to the revisional jurisdiction of the High Court. Since there is no remedy of appeal and section 53 provides that provisions of the Code of Civil Procedure shall apply to all the proceedings under the Land Acquisition Act, the remedy of revision would be available to the applicant/claimant. In the above view of the matter the present revision is maintainable. 10. Since the Civil Judge, Senior Division, Yavatmal 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 this matter also, without considering the material on record, the learned Reference Court has rejected the application, and prepared 6 the award accordingly. 7. Considering this aspect, the matter required to be remanded back, to give an opportunity to the appellant/claimant to place on record the requisite material to pray for the compensation as claimed. Learned A.G.P. appearing for State, in the light of the undisputed facts, left the matter to the discretion of the Court. Considering these facts, following is the order : 1. Appeal is allowed. 2. The matter is remanded back to the Reference Court by quashing and setting aside the order dated 03/01/2009, for fresh determination of the reference, in accordance with Law. The Reference Court to given an opportunity to the appellant, to lead the evidence in the matter and after recording the evidence of the claimant and the State, the learned Reference Court shall proceed to determine the claim lodged by the appellants in accordance with Law. 3. The appellant to give a written undertaking before this Court to the effect that she shall not claim interest on the enhanced amount for the period between 03/01/2009 to this date, in case the Reference Court grant such enhanced compensation. 4. The parties to appear before the Lower Court on 12/12/2011. (A.V.POTDAR, J.) khs/NOV.2011/fa1908-11