SHIVAJI PANDURANG BANSODE vs THE STATE OF MAHARASHTRA AND OTHERS

Heard.

Admit. With consent of learned counsel for both sides, the matter is taken for final hearing on merit at the stage of admission.

This first appeal is directed against the impugned judgment and award dated 25-02-2013, passed by the learned Civil Judge, Senior Division,

Omerga, District Osmanabad, dismissing the Land Acquisition Reference No. 67 of 2008 (Old LAR No. 267 of 2002). There was Reference Petition

under section 18 of the Land Acquisition Act, 1894 (for short “Act of 1894â€) filed by the appellant-claimant for enhancement of compensation

awarded by the Special Land Acquisition Officer (for short, “SLAOâ€) for his acquired land bearing Survey No. 41/3 admeasuring 00.44 R.

situated at village Kolsur, Taluka Omerga, District Osmanabad. The land was acquired by the respondents- State of Maharashtra for construction of

Kolsur Medium Project, Tahsil Omerga.

The facts relevant to the present matter are that, the land in question situated at Kolsur admeasuring 00-44 R was placed under acquisition pursuant

to the notification under Section 4 of the Act of 1894 published on 26-12-1996 for construction of Kolsur Medium Project. After compliance of

procedural formalities, the SLAO declared the Award under Section 11 of the Act of 1894 and awarded Rs.15, 400/- towards compensation to the

appellant-claimant for his acquired land. But, the applicant-claimant did not satisfy with the amount of compensation offered by the SLAO. He,

therefore, applied for enhancement of compensation and made Reference Petition under section 18 of the Act of 1894. Accordingly, matter was

referred to the Court of Civil Judge, Senior Division, Osmanabad for determination of correct market value of the land under acquisition.

After receipt of notice of the reference petition, appellant-original claimant caused his appearance through learned counsel Shri.D. A. Birajdar. But,

in view of establishment of new Court of Civil Judge, Senior Division at Omerga, the Reference Petition filed on behalf of appellant-claimant came to

be transmitted to the newly established Court of Civil Judge, Senior Division, Omerga for its disposal in accordance with law. Learned counsel Shri.

Birajdar for the appellant-claimant filed the pursis and seeks continuation of his authority as an Advocate for the appellant into the matter. But,

thereafter, no one else turned up into the matter nor any sort of evidence adduced on behalf of appellant to facilitate trial Court to determine the

market value of the acquired land.

Taking into consideration the continuous absence of appellantoriginal claimant, the learned Reference Court proceeded to adjudicate the petition in

absence of claimant and dismissed the same. The learned Reference Court while rebuffing the relief claimed on behalf of claimant in Land

Acquisition Reference No. 67 of 2008 observed in paragraph No. 13 of the Judgment, as under :-

“13. In order to adjudicate the real controversy in question the Court has to scrutinize the award while adjudicating upon the grievance put forth by

the claimant. The claimant though challenge the award, but failed to produce on record copy of Award and sale instances as well as E-statement to

compare the market value. The claimant except by filing reference petition and allegation therein, he failed to produce on record any iota of evidence

to weigh his grievance and in absence of the same, I hold that claimant has totally failed to prove his claim that the L.A.O. who has awarded the

compensation was unjust, unfair and inadequate, as the claimant failed to substantiate his claim and further hold that the market value, which was

awarded by the L.A.O. was proper and just at the time of notification under Section 4 of the Act. Therefore, claimant is not entitled to claim any

enhanced compensation as prayed by him, accordingly, I answered issue Nos. 1 and 2 in the negative and proceed to pass the following order.â€​

Being dis-satisfied with the impugned findings of rejection of claim for enhancement of the compensation, appellant-original claimant preferred the

present appeal to redress his grievance.

Mr. Kale, learned counsel for the appellant-claimant submits that the impugned judgment and order passed by the learned Reference Court is

erroneous, illegal and not within the purview of law. The learned Reference Court dismissed the reference petition for want of evidence on the part of

claimant. It has been alleged that the claimant failed to produce on record any iota of evidence to prove his claim for compensation. According to

learned counsel Mr. Kale, the finding of dismissal of reference petition expressed by the learned Reference Court would be treated as dismissal of

reference petition in default. The law does not permit to dismiss the reference petition filed under section 18 of the Act of 1894 on the technical

ground of failure to adduce evidence. The Reference Court should have considered the material on record to ascertain the prevailing market rate of

the acquired land during the period of notification published under section 4 of the Act of 1894. But, the learned Reference Court dismissed the

reference petition under pretext that the claimant remained absent and did not adduce any evidence to show that proper compensation was not paid to

him and appellant is entitled to get more compensation than the amount fixed by the SLAO.

In support of his contention, the learned counsel has relied upon the exposition of law laid down in the cases of -

(1) Shivaji Rajaram Telang Vs. The State of Maharashtra and connected matters (First Appeal No. 1736 of 2015) decided on 1st April, 2016,

(2) Appasaheb Mohanrao Chede Vs. State of Maharashtra and another reported in 2012(1) Bom. C.R. 458, and

(3) Arjun Shankar Waghmare and another Vs. State of Maharashtra reported in 2011(2) Bom C.R. 860.

The learned AGP for respondents â€" State of Maharashtra raised objection and submits that the impugned judgment and award passed by the

learned Reference Court would be an award within the ambit of law. The reference Court considered the attending circumstances on record and

proceeded to dismiss the reference petition for want of sufficient evidence on the part of claimant. There was no material available on record before

the Reference Court for appreciation in this case. The claimant was negligent to pursue the reference petition filed on his behalf. Therefore, no

interference is warranted in the impugned judgment and award at the instance of claimant.

Undisputedly, Section 18 of the Act of 1894 empowers a person interested in the land to file a written application to the Collector requiring that the

matter be referred for determination of the Court, whether his objection be to the measurement of the land, the amount of compensation, the persons

to whom it is payable, or the apportionment of the compensation among the persons interested. If the application under Section 18 of the Act of 1894

for reference is in order the Collector is bound to make a reference of it to the Court. Section 20 of the Act enjoins on the court to “proceed to

determine the objectionâ€. The court shall after holding such inquiry as may be necessary pass an award as contemplated under section 26 of the Act

of 1894. The provisions of section 26 of the Act of 1894 would be read as under:

“26, Form of Awards- (1) Every award under this Part shall be in writing signed by the Judge and shall specify the amount awarded under clause

first of sub-section (1) of Section 23, and also the amounts (if any) respectively awarded under each of the other clauses of the same sub-section,

together with the grounds of awarding each of the said amounts.

(2) Every such award shall be deemed to be a decree and the statement of the grounds of every such award a judgment within the meaning of Section

2 clause (2) and Section (2) clause (9), respectively, of the Code of Civil Procedure Code, 1908.â€​

It is evident from the aforesaid provisions of law that the Civil Court has to pass an award in answer to the reference made by the Collector under

Section 18 of the Act of 1894. In case, party to whom notice of reference petition has been served by the Civil Court did not participate in the enquiry,

it would be at the risk of concerned party because an award passed by the concerned Civil Court may be detriment to the party concerned. But, non-

participation of any party would not confer jurisdiction on the Civil Court to dismiss the reference petition for want of prosecution. Their Lordship of

Honourable Supreme Court in the case of - Khazan Singh(dead) through L.Rs. Vs. Union of India reported in 2002(2) Mh.L.J. 259 delineated the

legal guidelines that the reference under section 18 of the Act of 1894 cannot be dismissed for default.

In the matter in hand, the appellant-claimant has preferred the reference petition under section 18 of the Act of 1894, which came to be referred

to the Civil Court for determination of market value of the acquired land. But, the appellant -claimant remained absent and did not adduce any

evidence on record. Therefore, the leaned Reference Court observed that the appellant-claimant failed to substantiate the claim for enhancement of

compensation amount awarded by the SLAO, and consequently, the learned Reference Court dismissed the claim. It would be reiterated that, as

referred supra, the adjudication of reference petition by the Civil Court has to be regarded as an award within the meaning of section 26 of the Act of

1894 irrespective of the fact that enhancement of compensation came to be awarded or not. It is incumbent on the part of Civil Court to consider the

material on record, even if the party is absent and has failed to adduce evidence. It is to be noted that unless the material on record is considered and

appreciated the amount determined being market value would not be specified in the award of Reference Court as envisaged under clause First of

section (1) of Section 23 of the Act of 1894. It must includes the amount awarded under respective clauses of subsection of Section 23 of the Act of

1894 together with grounds of award. The order passed by the Civil Judge comprising specific market value determined after due exercise as

prescribed under Section 23 of the Act of 1894, only would be regarded as an award under section 26 of the Act of 1894.

In the instant case, the learned Reference Court failed to consider the material whatever available on record to determine the fair, correct and

genuine market value of the acquired land. The Civil Court should have undertaken exercise to arrive at the conclusion that the amount determined by

the SLAO would be just, proper and reasonable value for the land under acquisition. The Reference Court did not painstake to elucidate as to how the

compensation awarded by SLAO was just, proper and reasonable. In such circumstances, the impugned judgment and award would not be construed

as adjudication of dispute within ambit of law. It cannot be treated as an award under section 26 of the Act of 1894. It is settled principle of law that,

when Reference is made to the Civil Court, it is bounden duty of the Civil Court to determine the amount of compensation payable for the land under

acquisition. Albeit, the Court has no jurisdiction to refuse for determination of the amount of compensation even where the claimant remains absent or

where he is present, but fails to adduce evidence. It is mandatory for the Civil Court to apply its judicious mind and make an award under Section 26

of the Act of 1894. It is improper and erroneous to adopt superficial approach to make confirm the award declared by the Land Acquisition Officer

under Section 11 of the Act of 1894 blindly only on the ground that the claimant failed to adduce evidence to substantiate his claim.

It is worth to mention that as per exposition laid down in the case of Chimanlal Hargoinddas Vs. Special Land Acquisition Officer, Poona and

another reported in AIR 1988 Supreme Court, 1652 a reference petition under section 18 of the Act of 1894 is not an appeal against the award and it

cannot be treated as judgment of the trial Court open or exposed to challenge before the court hearing the Reference. It is merely an offer made by

the Land Acquisition Officer and the material utilized by him for making his valuation cannot be considered by the Court unless produced and proved

before it. It is not the function of the Court to sit in appeal against the Award, approve or disapprove its reasoning or correct its error or affirm, modify

or reverse the conclusion reached by the Land Acquisition Officer. The Court has to treat a reference as an original proceeding before it and

determine the market value afresh on the basis of material produced on record. Therefore, it is not reasonable expectation from the Civil Court to

refuse determination of compensation amount on the ground that the claimant failed to produce the copy of award, E-statement etc. for appreciation.

But, it was for the SLAO, who has prepared the documents for giving offer to the claimant about market value of the land to supply relevant

documents to the Court for assessment. Nodoubt, the claimant has right to controvert the document of the SLAO produced on record by adducing

evidence relevant to determine the market value. But, the Court cannot compel the claimant to produce the documents which are prepared by the

SLAO for determination of market value. Therefore, the observations of the learned Reference Court in paragraph No. 13 of the Judgment â€" cum

â€" award as referred above in regard to non-production of copy of award, E-statement etc. appears to be fallacious and not appropriate one.

In the above premises, it is imperative to relegate back the present proceeding of LAR No. 67 of 2008 (old No. 267 of 2008) for enquiry afresh to

facilitate the concerned Reference Court to pass an award within frame work of section 26 of the Act of 1894. The appellant-claimant has already

approached to this court by filing the present appeal. It would just and proper in the interest of justice to afford the claimant and respondent - State a

reasonable opportunity to lead evidence, if any, in the reference petition to enable the Reference Court to determine the correct and reasonable

market value of the acquired land in this case.

Accordingly, the appeal stands allowed. The impugned judgment and award dated 25-02-2013, passed by the learned Civil Judge, Senior Division,

Omerga, District Osmanabad, in Land Acquisition Reference No. 67 of 2008 (Old LAR No. 267 of 2002) is hereby quashed and set aside. The

proceeding of Land Acquisition Reference No. 67 of 2008 (Old LAR No. 267 of 2002) be relegated back to the concerned Reference Court for its

adjudication on merit, after due enquiry afresh within ambit of law. The parties to the proceeding i.e. claimant and respondents are at liberty to adduce

evidence in support of their claim and shall co-operate the Reference Curt for expeditious hearing into the matter. It is stipulated that the Reference

Court shall adjudicate the present Reference Petition at the earliest within a period of six months from the date of receipt of writ of this Court.

It is worth to mention that the proceeding of LAR No. 67 of 2008 (Old LAR No. 267 of 2002) was pending since the year 2002, and due to

continuous absence on the part of claimant, the learned Reference Court was constrained to adjudicate the reference petition by passing the impugned

judgment and order dated 25-02-2013. In view of lackadaisical attitude on the part of claimant, it would just and proper not to allow the claimant to

avail the statutory benefit of interest, solatium, etc. as prescribed under the Act of 1894, for further period onwards February, 2013. Hence, in case,

the Reference Court arrived at the conclusion to grant enhancement of compensation, if any, in favour of claimant, the benefit of statutory amount of

solatium, third component, interest, etc. as provided under the Act of 1894, shall not be made payable to the claimant for further period i.e. after the

decision of the impugned judgment and award dated 25-02-2013 i.e period onwards February, 2013.

In view of aforesaid discussion, appeal stands disposed of in above terms. No order as to costs.