1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.107 OF 1999 Malegaon Municipal Council ....Appellant V/s. Smt.Amina A.Hafiz & Ors. ....Respondents Mr.S.M. Sabrad for the Appellant. Mr.P.N. Joshi for Respondent Nos.1 and 2. Mr.S.N. Gawade, A.G.P. for Respondent Nos.3 and 4. WITH FIRST APPEAL NO.263 OF 1999 The State of Maharashtra ....Appellant V/s. Smt.Amina A. Hafiz & Ors. ....Respondents Mr.S.N. Gawade, A.G.P. for the Appellant. Mr.P.N. Joshi for Respondent Nos.1 and 2. Mr.S.M. Sabrad for Respondent No.3. CORAM : B.H. MARLAPALLE & S.J. VAZIFDAR, JJ. DATE : 15TH JUNE, 2009. P.C. : 2 1. Both these appeals arise from an award passed by the Reference Court in Land Reference No.445 of 1990. As per the notification under Section 4 of the Land Acquisition Act, 1894 issued on 23.4.1987, the land admeasuring 4037.50 sq.mtrs. from block No.29 of survey No.41/1/2-A/1 was acquired for resettlement of the displaced families and at the instance of Malagaon Municipal Corporation/Council. The Land Acquisition Officer passed his award on 5.1.1990 and awarded the compensation at the rate of Rs.115/- per sq.mtr. and the possession of the land was taken over thereafter. 2. The claimants had approached the Reference Court praying for enhancement and to fix the market value at Rs.700/- per sq.mtr. The State Government did not file any written statement before the Reference Court and the Municipal Corporation for whom the land was acquired was not impleaded as the necessary party to the said reference. The Reference Court relied upon the award passed in R.A. No.165 of 1986 (Exhibit-45) and fixed the market rate at Rs.382/- per sq.mtr. by its impugned award dated 22.4.1998. 3. The State Government as well as the Municipal Corporation are aggrieved by the said award and hence have filed these two separate appeals. As noted earlier, Malegaon Municipal Corporation/Council was not impleaded as the necessary party before the Reference Court though the land was acquired at its instance. Mr.Sabrad relies upon the Constitution Bench decision in 3 the case of U.P. Awas Evem Vikas Parishad V/s. Gyan Devi, 1995(2) SCC 326 and prays for remand of the reference application by quashing and setting aside the impugned award so that the Municipal Corporation has an opportunity of leading evidence or at least cross-examining the witnesses of the claimants. He has also pointed out that the State Government did not file any written statement and thus allowed the claim to go uncontested. 4. For the reasons set out in our judgment in First Appeal Nos.213 of 1997 and 214 of 1997 and by following the law laid down in the case of Gyan Devi (supra), these appeals are required to be allowed and the reference application has to be remanded for a fresh decision by quashing and setting aside the impugned award. 5. In the premises, we allow these appeals partly and quash and set-aside the impugned common award. We restore Reference Application No.445 of 1990 to the file of the Reference Court and direct that the same shall be heard and decided by the Court of competent jurisdiction at Malegaon as expeditiously as possible and in any case before 31.12.2009, by impleading Malegaon Municipal Corporation through its Commissioner as a necessary party. Needless to mention that the added Respondent shall have a right to adduce evidence and the State Government as well as the Claimants have the right to adduce additional evidence if so required. The parties to appear before the Reference Court on 29.6.2009 and the Municipal Corporation shall file its written 4 statement on that day. We record the undertaking of the parties that they would not seek unwarranted adjournments and go on with the matter as per the dates fixed by the Reference Court so that the reference on remand is decided before 31.12.2009. 6. Parties to bear their own costs. 7. The writ with R. & P. to go to the Reference Court forthwith. 8. Interim order passed earlier shall be subject to the fresh award to be passed. 9. Hamdast allowed. (S.J.VAZIFDAR, J.) (B.H.MARLAPALLE, J.)