Collector, Pune V. Kokate

[BOMBAY HIGH COURT]

State of Maharashtra, Sub-Divisional Officer, Bhor, Executive Officer, Gunjawani Project Bhor, Collector, Pune
v
(1) Ganesh Sakharam Kokate; (2) Punam Sakharam Kokate; (3) Sarika Mahipati Kokate; (4) Dipika Mahipati Kokate; (5) Ashok Shripati Kokate; (6) Mahesh Shripati Kokate; (7) Sunanda Suresh Gaikwad; (8) Kunda Daulata Garud; (9) Abhijeet Tukaram Kokate; (10) Yogesh Tukaram Kokate, Through Power of Attorney Holder Shripati Mauti Kokate

Swantater Kumar

26 Jun 2008
BENCH
Swantater Kumar & V. M. KANADE

CASES REFERRED TO
Abdul Rasak and Others v Kerala Water Authority and Others 2002 SC 68
Agra Development Authority v Special Land Acquisition Officer and Others 2001 SC 20300
U. P. Awas Evam Vikas Parishad v Gyan Devi (Dead) By Lrs. and Others 1994 SC 2157
Krishi Upaj Mandi Samiti v Ashok Singhal and Others 1991 SC 588
Neelagangabai and another v. State of Karnataka and others [1990 AIR(SC) 1321]

ACTS REFERRED
Land Acquisition Act, 1894[s. 4, s. 18, s. 23, s. 50(2)]
Code of Civil Procedure, 1908
Constitution Of India, 1950[art. 226]
CASE NO
First Appeal No.2973 of 2006 In L.A.R. No.469 of 2000 Alongwith First Appeal Nos.1342 of 2007, 1343 of 2007, 2974 of 2006 to 3005 of 2006. Alongwith Civil Application No.5051 of 2006 In First Appeal No.1342 of 2007, Civil Application No.5054 of 2006 and Civil Application No.3316 of 2008 In First Appeal No.1343 of 2007

The Judgment was delivered by : HON'BLE JUSTICE SWATANTER KUMAR (CJ)

1. The State of Maharashtra issued a notification under section 4 of the Land Acquisition Act, 1894, hereinafter referred to as the 'Act' on 18th February, 1998 intending to acquire large strip of land from the revenue estate of village Chapet, Taluka Welhe, District-Pune. This land was sought to be acquired for the public purpose viz. Gunjwani Project. Declaration in furtherance to which under section 6 was issued on 6th August, 1998. After following the prescribed procedure, the Special Land Acquisition Officer exercising the powers of the Collector under the provisions of the Act made his award dated 1st November, 1999 awarding compensation to the claimants at the rate of Rs.25, 000/- per hectare to the Jirayat lands while granted compensation at the rate of Rs.40, 000/- to Rs.60, 000/- per hectare in the case of Bagayat lands. The claimants preferred references under section 18 of the Act which in turn were referred to the court of competent jurisdiction. The parties produced the evidence, oral and documentary, including Exhibit 25 to Exhibit 39 for different sale deeds. The learned reference court considered the evidence produced by the parties and enhanced the compensation payable to the claimants to Rs.2 lacs per hectare for Jirayat land and Rs.4 lacs per hectare for Bagayat land. The reference court mainly relied upon Exhibit 28 and other exhibits which reflected the sale instances of adjacent areas while awarding the said compensation. The State felt aggrieved from the judgment and award of the learned reference court dated 9th December, 2004 and have preferred the above 36 appeals and out of these 36, in two appeals, State also has filed application for grant of stay. Notices in all these appeals were issued. Record of reference court was called for and the parties were heard. During the course of arguments, an application being Civil Application No.3316 of 2008 was filed on behalf of Maharashtra Krishna Valley Development Corporation, having its office at Sinchan Bhawan, Barne Road, Pune. It was prayed in this application that they should be impleaded as party and be given an opportunity to contest the original land reference petition under appeal and they also be permitted to produce oral as well as documentary evidence. According to them, though they were impleaded as a party but under the incorrect name. The Corporation was not impleaded as respondent but respondent No.2 in the proforma of the claim petition was described as "The Executive Engineer, Gunjawani Project, Bhor". It has also been averred that the learned reference court while passing its first order on 20th December, 2001, directed that notice be issued to the claimants and Special Land Acquisition Officer. As such, no notice was issued to the applicants and the entire proceedings were conducted in their absence and they were not even order to be proceeded against exparte still the award was made. The award dated 9th December, 2004 was made enhancing the compensation substantially in their absence. The applicants claimed that they acquired the knowledge regarding passing of the award when the concerned officer of the applicants was attending hearing in LAR Nos.183 of 2000 and 190 of 2000 and immediately, he applied for certified copy of the judgment and award. Thereafter, they have filed an application under section 9 Rule 13 of the Code Of Civil Procedure, 1908 alongwith the application for condonation of delay in filing the said application was also filed before the reference court. The application for condonation of delay has been allowed by the reference court vide its order dated 13th April, 2006. In para 15 of that order, the court noticed as under:

"15. One ting is clear that initially the notice was not issued to applicant or the Executive Engineer of Gunjawani Project. The applicant did not put its appearance in the matter- the reference under Section 18 of the Act. Without hearing the applicant, the reference was decided. Prima facie, it appears that the applicant is proper party and it can lead the evidence in connection with the quantum of compensation to be awarded. I need not inflate the discussion on this point since the arena of decision of the application under consideration is entirely different." *

2. The application for setting aside the exparte judgment and award is still pending before the court and has not been finally decided. On these facts, the applicants have filed the present application with the prayers as afore-indicated.

3. We may also notice that alongwith this application, the applicants have placed on record photo copies of the sale instances relating to the lands from the same village as well as the surrounding villages. Exhibits 'E' to 'H' are the copies of these documents. According to the applicants, they are interested parties and ought to have been heard and award should have been passed in their presence. According to them, they are necessary parties even in the appeal and they wish to lead evidence which has been annexed to this application in addition to the oral evidence to demonstrate that the compensation awarded is not the fair market value of the land at the time of acquisition in terms of section 23 of the Land Acquisition Act, 1894.

4. The learned counsel appearing for the State submitted that they have no objection and, in fact, would support the applicants for their impleadment and remand of the case to the provide an opportunity to them to lead documentary and oral evidence. However, the counsel appearing for the non-applicants claimants while relying upon the judgment of the Supreme Court in U.P. Awas Evam Vikas Parishad v. Gyan Devi (dead) by Lrs. and others, 1994 SC 2157, stated that the present application should be dismissed and the remedy for these applicants is to file writ petition under Article 226 of the Constitution Of India, 1950. It is the contention of the claimants that the compensation awarded to them is just and fair. It is duly supported by documentary evidence and, therefore, the appeal filed by the State as well as the application filed on behalf of the acquiring authority or beneficiary should be dismissed.

5. At the outset, we may notice that in the case of Gyan Devi (supra), the Supreme Court itself held that the local authority which feels aggrieved by the determination of the amount of compensation by the Collector or by reference court could invoke the remedy under Article 226 of the Constitution Of India, 1950 as well as the remedies available under the Land Acquisition Act, 1894. Section 50(2) of the Land Acquisition Act, 1894 confers on a local authority for whom the land is acquired a right to appear in the acquisition proceedings before the Collector and the reference court and adduce evidence for the purpose of determining the amount of compensation. In para 54 of this very judgment, the court also stated that in the event of enhancement of the amount of compensation by the reference court if the Government does not file an appeal the local authority can file an appeal against the award in the High Court after obtaining leave of the court. It is a settled principle of law that the local authority or the beneficiary of acquisition of the land has a right to participate in the proceedings before the Collector, reference court and even in the appeal proceedings. It could be said that remedy under Article 226 of the Constitution Of India, 1950 would also be available to them where they wish to challenge the award in their own right and for violation of principles of natural justice # . In the case of Krishi Upaj Mandi Samiti v. Ashok Singhal and others, 1991 SC 588, it was clearly held by the Supreme Court, that where the land is acquired for the benefit of a statutory authority or other body, it is incumbent upon the court of reference to issue notice to that applicants. The court even recorded an undisputed principle that the provision of notice to the body under the Act for whose benefit the land is acquired are attracted and if no notice is served, the consequences in law shall follow. In the case of Neelagangabai and another v. State of Karnataka and others, 1990 AIR(SC) 1321, the court held as under:- "3. Admittedly the land was acquired for the purpose of the respondent-Corporation and the burden of payment of the compensation is on the Corporation. In this background the High Court has held that it was mandatory for the court of reference to have caused a notice served on the respondent-Corporation before proceeding to determine the compensation claim. Since no notice was given to the respondent-Corporation and it was thus deprived of an opportunity to place its case before the court, the judgment rendered in the reference case was illegal and not binding on the Corporation. We are in agreement with this view." *

6. Thus, the consistent view of the Supreme Court is that beneficiary body is an interested person and may in law even be termed as a necessary party keeping in view the scheme of the provisions of the Land Acquisition Act, 1894 # .

7. Impleadment of a necessary party could be allowed at any stage of a proceedings even in an appeal as appeal is continuation of the original proceedings # . Where a necessary and interested party has been impleaded and no notice was issued to that party, in that event, it would not be permissible to draw an inference that that party had the knowledge of the proceedings or that party would be deemed to have been served because State of Maharashtra is a party to the proceedings. Ultimately, the amount of compensation is payable by the Corporation and, therefore, it is imperative that they should have an opportunity to raise various contentions and lead evidence for determination of a fair market value in consonance with the provisions of the Land Acquisition Act, 1894. Where no default is attributable to such a party, the Court would not be in a position to deny right of proper defence to such party even in an appeal. But for the evidence proposed to be led by such parties, even the appellate court determining the issues in controversy should determine the fair market value. As is demonstrated before us that they desire to lead documentary, oral and expert evidence, the opportunity which was denied to them for no default on their part, it is necessary for this Court to remand the case. In the case of Agra Development Authority v. Special Land Acquisition Officer, 2001 SC 20300, the Supreme Court noticed that Agra development Authority, the beneficiary of acquisition of land, was not given any opportunity to adduce evidence for the purposes of fixation of rate of compensation and the case was remitted back to the Special Land Acquisition Officer for re-fixation of the amount after giving notice to the parties. It was admitted that the said authority was aware of the proceedings. However, no notice had been issued to them and they had not been given an opportunity to adduce evidence. The Court while referring to the proceedings under Section 50 of the Land Acquisition Act, 1894, held that the party was entitled to lead evidence and the matter was remitted to the concerned authority. This principle was followed with approval by the Supreme Court in the case of Abdul Rasak v. Kerala Water Authority and others 2002 SC 68, where the Court held as under:

"8. Learned counsel for the claimant appellants also submitted that Superintending Engineer of KWA had appeared as a witness in the proceedings before the civil court and, therefore, it can be inferred that the authority was aware of the proceedings and if it did not promptly take steps for impleadment, it should not have been heard to complain before the High Court that it did not have notice of the proceedings and, that it was denied participation in the proceedings before the civil court. It has been held by this Court in Agra Development Authority v. Special Land Acquisition Officer that where land was acquired at the cost of local development authority, a notice to it was mandatory and simply because the local authority was aware of the proceedings and had participated in the meetings where matters as to compensation wee discussed, was not a sufficient compliance with Section 50 of the Land Acquisition Act, 1894.

9. In our opinion, the High Court has not erred in taking the view which it has taken and directing the reference cases to be remitted to the civil court consistently with the law laid down by the Constitution Bench. As KWA shall have to be impleaded as party to the proceedings before the civil court from very beginning, a retrial becomes unavoidable." *

8. In view of the above settled principles, the only logical conclusion that the Court can arrive at, in the facts and circumstances of the present case, is that the applicant had not been given appropriate opportunity as contemplated under law to adduce evidence and in fact cannot be even said to be aware of the proceedings before the Court in law.

9. Normally, as a court of first appeal, the court could examine and even reappraise the evidence led by the parties on record. It may not have been necessary for the court to set aside the judgment and remand the case to the reference court for passing a judgment afresh in accordance with law after giving the opportunity to the parties to lead evidence, but for the compelling circumstances which appear from the record of the appeal filed and the application viz. Civil Application No.3316 of 2008, firstly despite the fact that the beneficiary Corporation was not impleaded by a correct name but still was stated to be respondent No.2 in the petition under section 18 of the Act and secondly, no notice was given to the respondent No.2 vide order dated 20th December, 2001 passed by the reference court. Resultantly, the Corporation had not been served a notice # despite the settled position of law that they are party interested and were neither issued nor served with the notice of the court by the reference court. The entire proceedings have been taken in their absence which are obviously not in accordance with law. The contention on behalf of the non-applicants that they should file petition under Article 226 of the Constitution Of India, 1950 is the contention which cannot be given much weightage. In addition to the above reason, as a matter of fact, the Corporation can also avail of the legal remedies available to the parties under the provisions of Land Acquisition Act, 1894. The reference court has enhanced the compensation from Rs.25, 000/- - Rs.60, 000/-per hectare to Rs.2, 00, 000/- - Rs.4, 00, 000/- per hectare and according to the acquiring authority which is the beneficiary, the sale deeds Exhibit 'E' to Exhibit 'G" reflect a much lesser value. In addition thereto, they would also like to lead oral evidence, expert evidence to substantiate their contention that the compensation awarded by the reference court is unreasonable, exorbitant and is not justified even on the basis of the evidence on record. However, according to the non-applicants, except Exhibit 'E', no sale deed relates to the land of the village from where the lands have been acquired viz. Chapet and are from other villages. They have no relevancy and even the value indicated therein is not true market value of the lands as they are sale instances executed out of compulsion. Be that as it may, we would not like to deal and comment upon the merits or otherwise of the contention raised before us. It also needs to be noticed that application for condonation of delay in filing an application under Order 9 Rule 13 of the Code Of Civil Procedure, 1908 for setting aside the award dated 9.12.2004 has already been allowed by the reference court vide its order dated 13th April, 2006. Interestingly, despite the fact that this order has been passed nearly two years back. The claimants have not taken any steps to challenge the legality or propriety of the said order. The application for setting aside the exparte proceedings are still before the reference court for a considerable time. Be that as it may, in the peculiar facts and circumstances of the case and particularly that the applicants are desirous of leading documentary, oral and expert evidence before the reference court and that the award was passed in their absence and interestingly, even the State has impleaded them as appellant No.2 in the incorrect name, so far as the appeal even was heard in their absence and they being an interested party, had a right to lead evidence before the reference court and participate in the proceedings which they have been denied without any justifiable cause. For these reasons, without, in any way, commenting upon the merit or otherwise of the award/judgment of the reference court dated 9.12.2004 but in view of the limited circumstances aforenoticed, we set aside the judgment and remand all the cases for adjudication afresh in accordance with law and after giving opportunity to the parties to lead evidence. However, in the facts and circumstances of the case, we do not wish to impose any costs.