AJN 17-AS-FA752.98 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.752 OF 1998 Maharashtra State Electricity Board ... Appellants Vs. Charudatta V. Chandurkar & Ors. ... Respondents Ms. A.R.S. Baxi for the appellants. Mr. P.R. Arjunwadkar for respondent 2A to 2C, 3 and 4. CORAM: MRS. RANJANA DESAI & R.G. KETKAR, JJ. DATED : 17TH MARCH, 2011. P.C.:- 1. In this first appeal, judgment and decree dated 7/10/1997 passed by 3rd Additional District Judge, Kolhapur in Land Reference No.10 of 1990 is challenged by the appellants - Maharashtra State Electricity Board. AJN 17-AS-FA752.98 2 2. The land belonging to the respondents was notified for acquisition for the purpose of 33/11 K.V. Sub-Station and Staff Quarters in Ichalkaranji. On 14/8/1989, the Special Land Acquisition Officer No.6, Kolhapur made an award granting compensation of Rs.73,920/- for 48 Acre land out of Gat No.426/2 of Ichalkaranji in Case No.LQN/SR/296, Ichalkaranji. On 29/11/1989, the respondents filed Land Acquisition Reference No.10 of 1990 in the Court of 3rd Additional District Judge, Kolhapur being dissatisfied with the award. On 7/10/1989, learned 3rd Additional District Judge, Kolhapur partly allowed the reference modifying the award by granting enhanced amount of compensation of Rs.2,95,680/- including solatium and component interest and awarded 60% of enhanced amount to respondent 1 and 40% to respondents 2 to 4 jointly. He allowed interest on Rs. 1,92,000/- at 9% per annum for the first year and at 15% per annum for subsequent years till realization. AJN 17-AS-FA752.98 3 3. The principal point urged by Ms. Baxi, learned counsel for the appellants is that since the land was acquired for the benefit of the appellants, the appellants were a necessary party. However, the appellants were not made a party and, therefore, the matter needs to be remanded to the trial court. In this connection, she relied on the judgment of the Supreme Court in U.P. Awas Evam Vikas Parishad v. Gyan Devi (dead) by LRs. & Ors. (1995) 2 SCC 326. 4. We find substance in this submission. In U.P. Awas Evam Vikas Parishad, while dealing with similar submission, the Supreme Court observed that the Land Acquisition Act envisages that the local authority for whose benefit, the land was acquired has a right to appear and adduce evidence before the court. This right is independent of the right that is available to the local authority to appear and adduce evidence before the Collector. Even though, the local authority had failed to AJN 17-AS-FA752.98 4 appear before the Collector in spite of notice or had appeared in response to notice and had adduced evidence, the local authority may consider it necessary to adduce evidence to rebut the evidence adduced by the person who has sought the reference and to defend the award made by the Collector. The Supreme Court further observed that failure to give notice at this stage would result in denial of the said right of the local authority. We may reproduce the relevant portion of the said judgment. “That raises the question whether the local authority can be regarded as a necessary or a proper party. The law is well settled that a necessary party is one without whom no order can be made effectively and a proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision of the question involved in the proceedings. (See Udit Narain Singh Malpaharia v. Additional Member, Board of Revenue, AIR 1963 SC 786). A local authority for whom land is being acquired has a right to participate in the acquisition proceedings in the matter of determination of the amount of compensation while they are pending before the Collector and to adduce evidence in the said proceedings. While AJN 17-AS-FA752.98 5 it is precluded from seeking a reference against the award of the Collector it can defend the award and oppose the enhancement of the amount of compensation sought before the reference court by the person interested in the land. Moreover, the local authority has a right to appear and adduce evidence before the reference court.” 5. Having regard to the above observations of the Supreme Court, in our opinion, the presence of the appellants is necessary for a complete and final decision on the questions involved in the proceedings before the reference court as they are a proper party. The appellants are, therefore, entitled to be impleaded as a party in the reference court. 6. In the circumstances, we set aside the impugned order dated 7/10/1997 passed by 3rd Additional District Judge, Kolhapur in Land Reference No.10 of 1990. We remand the matter to the same court. The appellants shall appear before the said court in the second week of July, 2011. Learned Judge seized of the matter shall issue AJN 17-AS-FA752.98 6 notice to all the parties and decide their land reference afresh. We have not expressed any opinion on the merits of the case. 7. We are informed that the appellants have deposited 50% of the decretal amount in the reference court and furnished bank guarantee for the remaining 50% of the decretal amount. We find from letter dated 2/8/2000 addressed by 2nd Additional District Judge, Kolhapur to the Assistant Registrar of this court that out of the 50% of the decretal amount i.e. Rs.1,47,840/- deposited in the reference court, 60% of the same i.e. Rs.88,704/- has been paid to respondent 1 on 21/9/1999 and remaining 40% of the same i.e. Rs.59,136/- has been paid to respondents 2 to 4 on 20/4/1999. 8. The District Judge shall call upon respondent 1 to 4 to furnish security for the amount which they have already withdrawn from the reference court. The appellants shall keep the bank guarantee for 50% of the decretal amount, AJN 17-AS-FA752.98 7 already furnished by them in the reference court, alive till the reference court disposes of the said reference finally. 9. The appeal is disposed of. [MRS. RANJANA DESAI, J.] [R.G. KETKAR, J.]