Gajanan S/O Shriram Keshaowar v. State Of Maharashtra Thr. Collector, Yavatmal And Others

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH : NAGPUR WRIT PETITION (WP) NO.4818 Of 2022 Gajanan s/o Shriram Keshaowar, Aged about 56 years, Occu. Agriculture, R/o Ward No.8, Near Vitthal Mandir, At Post Tal. Arni, Dist. Yavatmal.

.... Petitioner (Org. Applicant On R.A.) // VERSUS // 1.

State of Maharashtra, through the Collector Yavatmal, Civil Lines Yavatmal.

2.

Executive Engineer, Minor Division, Yavatmal, Tal & Dist. Yavatmal.

3.

Deputy Collector and Special Land Acquisition Officer, Lower Pus Project, Pusad, Tal. Pusad, Dist. Yavatmal.

... Respondent(s) (Org. Non-applicants On R.A.) Shri P.P. Deshmukh, Advocate for the Petitioner Mrs. Jaipurkar, AGP for the Respondent Nos.1 to 3- State CORAM :

ANIL S. KILOR, J.

DATED : 01.02.2023 ORAL JUDGMENT :

1.

Heard.

2.

Rule. Rule made returnable forthwith. Heard finally by consent of the parties.

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This writ petition is maintained against the rejection of a reference under Section 18 of the Land Acquisition Act (in short "the LAC Act"), by Reference Court Darwha, District Yavatmal, as held by the Division Bench of this Court in a reference made, holding that the order otherwise than merit passed in a proceeding under Section 18 of the LAC Act by the Civil Court, cannot be considered as an award and therefore, does not amount to a decree as defined in Section 2(2) of the Code of Civil Procedure by virtue of deeming provision under Section 26(2) of the LAC Act and therefore, an appeal against it, is not maintainable.

4.

The learned counsel for the petitioner points out that on 10.10.2018, the petitioner and his lawyer was absent and therefore, the learned Reference Court passed an order, closing the evidence of the petitioner and further passed an order, dismissing the reference of the petitioner.

5.

It is submitted that the finding recorded by the learned reference Court that the reference is pending since 15 years though correct, however, dates of events show that the reference was filed in the year 2003 and written statement to the same was filed on 16.06.2016 and on

3/4 13.07.2017 issues were framed and first time, the matter was listed for evidence on 12.09.2018 and only is a month period for default of his lawyer, the evidence was closed and the impugned order was passed. He therefore, submits that for a mistake of the lawyer, the clients should not be suffered. He therefore, prays for setting aside the impugned order and remanding the matter back for decision afresh. 6.

On the other hand, the learned AGP supports the impugned order and prays for dismissal of the present writ petition. 7.

After going through the writ petition along with the documents filed along with the petition and the impugned order, it is evident that though the reference was filed in the year 2003, the reference was first time listed for evidence in the month of September 2018 and immediately, within one month for the default of the lawyer and the petitioner was not present, the evidence of the petitioner was closed. This shows that the sufficient opportunity was not given to the petitioner to lead the evidence for establishing his claim for enhancement of the compensation.

8.

In that view of the matter, I am of the opinion that the matter needs to be remanded back to the learned Reference Court to decide the

4/4 reference afresh, after permitting the parties to lead evidence in the matter and after hearing. Accordingly, I pass the following order: (i) The writ petition is allowed.

(ii) The judgment and order dated 10.12.2018 passed by Civil Judge Senior Division, Darwha in Land Acquisition Case No.1748 of 2004, is hereby quashed and set aside. (iii) The matter is remanded back to the learned Reference Court Darwha, District : Yavatmal, and it be restored to its original file.

(iv) The learned Reference Court, Darwha, District : Yavatmal, is directed to decide the reference afresh, after giving opportunity to the petitioner to lead evidence. Rule accordingly. No costs.

[ANIL S. KILOR, J.] DOMAJI THAWRE 15:47