1 mp t IN THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL APPELLATE JURISDICTION FIRST FIRST FIRST APPEAL NO. 213 of 1997 APPEAL NO. 213 of 1997 APPEAL NO. 213 of 1997 The State of Maharashtra .. Appellant versus Nivrutti Gangaram Kathe & ors. .. Respondents WITH FIRST FIRST FIRST APPEAL NO. 214 of 1997 APPEAL NO. 214 of 1997 APPEAL NO. 214 of 1997 The State of Maharashtra .. Appellant versus Smt.Tarabai Deoram Kathe & Anr. .. Respondents ... Ms.S.P. Manchekar, AGP for the appellant in FA No.213/97 and Mrs.G.P. Mulekar, AGP for the appellant in FA No.214/97. Mr.R.M. Hardas i/b Mr.P.N.Joshi for respondent nos.1(a) to 1(e), 2(a) to 2(c), 3(a) to 3(d), 4(1), 4-2(a), 4-2)b, 4(3), 5 and 6(A) to 6(F), 7, 8(A) to 8(F) in FA No.213/97 and for respondent no.1 in FA No.214/97. Mr.P.P. Chavan i/b M/s.Little & Co. for respondent no.9 in FA No.213/97 and for respondent no.2 in FA No.214/97. 2 CORAM : B.H.MARLAPALLE AND D.G. KARNIK, JJ DATED : 23rd March 2009 ORAL ORAL ORAL JUDGEMENT :- (Per B.H.MARLAPALLE, J) JUDGEMENT :- (Per B.H.MARLAPALLE, J) JUDGEMENT :- (Per B.H.MARLAPALLE, J) . These appeals filed under section 4 of the Land Acquisition Act 1894 (for short "the Act") arises from the common award passed by the learned Joint District Judge at Nashik on 20th September 1995 in LAR Nos.91 and 92 of 1988. The said references were partly allowed by directing that the claimants in LAR No.91/88 would receive the amount of Rs.3,36,800/- and the claimants in LAR No.92/99 would receive an amount of Rs.25,77,151/- as additional compensation. . The suit land was acquired as per the notification issued u/s.4 of the Act in the year 1983 and subsequently published on 20th April 1987. The Land Acquisition Officer passed his award on 8th December 1987. The land was acquired for the construction of 33/11 KKV sub-station of the east under Maharashtra State Electricity Board, Nashik at 3 Agartakali. However, the said Maharashtra State Electricity Board was not impleaded as an additional respondent before the reference court and consequently, when the impugned award was passed the said Board was not before the reference court. As per our orders passed in Civil Application Nos. 5646/08 and 5607/08 filed in these appeals, we have allowed the Maharashtra State Electricity Distribution Co.Ltd to be substituted in place of the Maharashtra State Electricity Board. . The added respondent body for whom the land has been acquired has raised a preliminary issue by relying upon the constitution bench decision in the case of U.P Awas Evem Vikas Parishad V/s. Gyan Devi, 1995(2) SCC 326. Mr.Chavan learned counsel appearing for the newly added respondent submitted before us that its predecessor Board was not issued any notice by the reference court before the impugned award was passed and moreso because it was impleaded as an additional respondent and therefore, by relying upon the decision in the case of Gyan Devi (Supra) he prayed for quashing and setting aside the impugned award and to remand both the references to the reference court for determining the market value afresh. After hearing the said newly added distribution Co., Mr.Chavan has also 4 relied upon a subsequent decision of the Apex Court in the case of NTPC Ltd. Vs. State of Bihar 2004 (12) SCC 96. He submitted that the newly added respondent had a right to oppose the reference for enhancement of the compensation and if it was impleaded as additional respondent, it would have an opportunity not only to bring additional evidence but in fact also to cross-examine the claimants witnesses as well as the witness of the State Government. The right which the acquiring body as is not just a right to lead evidence before the reference court but in addition it has a right to support the award which has been made by Land Acquisition Officer and this can be done also by cross-examining witnesses examined by the claimants. . From the record, it is evident that the added respondent was neither impleaded as a party nor any notice was issued to the same body by the reference court before the impugned award was passed and therefore, by relying upon the decision in the case of Gyan Devi (Supra) and NTPC Ltd. (Supra) we will have to allow these appeals and remand the references to the reference court by setting aside the impugned award so that the added respondent - Maharashtra State Electricity Distribution Co.Ltd is provided with an opportunity to adduce evidence and 5 to cross-examine the witnesses who have already been examined on behalf of the claimants as well as the State Government. . We have also noted that as per the orders passed on 21st March 1997 in both these appeals the amount of award as deposited by the acquiring body was allowed to be withdrawn by the claimants. In First Appeal no.213/97, the deposited amount was Rs.5,00,000/- and Rs.4,00,000/- were allowed to be withdrawn without furnishing any security whereas amount of Rs.1,00,000/- was allowed to be withdrawn on furnishing security to the satisfaction of the reference court. In First Appeal No.214/97, the claimants were allowed to withdraw Rs.2,00,000/- without furnishing security and Rs.4,00,000/- on furnishing security to the satisfaction of the reference court. Thus, immediate interests of the claimants were duly protected. The withdrawal of the amount shall be subject to the fresh award to be passed by the reference court. . In the premises, we allow these appeals partly and quash and set aside the impugned common award. We restore LAR No.91/88 and 92/88 to the file of the Joint District Judge - 1, Nashik. On 6 restoration, the references will be decided afresh by providing opportunity to the acquiring body to adduce evidence and/or to cross-examine the witnesses already examined by the claimants as well as the State Government. Needless to mention the claimants also will have the right to adduce additional evidence if so required. . Parties to appear before the reference court on 6th April 2009 at 11.00 a.m. and the references on restoration shall be decided as expeditiously as possible and in any case before 31st July 2009. . We record the undertaking of the parties that they would not seek unwarranted adjournments before the reference court and go on with the matter as per the date fixed by the reference court. . Parties to bear their own costs. . Writ along with R & P to go to the reference court forthwith. (D.G. KARNIK, J) (B.H.MARLAPALLE, J)