Parvati Shankar Pkhare vs. The Special Land Acquisition Officer

Order - Status 5: srk FARAD CONTINUATION SHEET APPELLATE SIDE First Appeal No.573 of 2009 ------------------------------------------------------------ Office Notes, Office Memoranda Court's or Judge's orders of Coram, appearance, Court's orders or directions and Registrar's orders ------------------------------------------------------------ 1 Mr.Sudhir Prabhu for appellants. Mrs.A.A.Mane, AGP for resp.nos.1 and 2. CORAM: B.H.MARLAPALLE &. S.J.VAZIFDAR,JJ. April 28, 2009. P.C. learned u, the Heard Mr.Prabhu, the learned Heard the were who appellants the for counsel of No.193 ence Reference Land in claimants Judge, Civil ned learned the before 1997 The Oros. at Sindhudurg Sindl Division, Senior application : an submitted had Å‚ appellants Acquisition Land the of 18 Section under the referred to refe it was and 1894 Act, to pleased was which W Court Reference of the enhancement enhai for claim the dismiss that ground the on solely n compensation the 18 of Section er Sect under application the of the 42 days Act was filed beyond 42 days of the et was f prescribed limit. .We are, therefore, prima facie, of the view that this appeal could be decided at the admission stage itself after perusing the R. & P. .Hence Call for R. & P. in Land Reference No.193 of 1997 so as to reach the Registry before 31st May 2009. .Stand over to 9th June 2009. (S.J.VAZIFDAR,J.) (B.H.MARLAPALLE,J.)

Order - Status 8: IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.573 OF 2009 Parvati Shankar Pokhare ..Appellant. Versus The Special Land Acquisition Officer, Konkan Railway Project & Ors. ..Respondents. Mr.Sudhir Prabhu for the Appellant. Mrs.A.A. Mane, AGP for Respondent nos.1 and 2. Mrs.Kiran Bhagalia for Respondent no.3. CORAM : B.H. MARLAPALLE AND S.J. VAZIFDAR, JJ. DATED : 11TH JUNE, 2009 P.C. :- Heard Mr.Prabhu, the learned counsel for the Appellant. Admit. Respondents waive service. By consent of the parties, the Appeal is finally heard. This Appeal filed under section 54 of the Land Acquisition Act (in short the "Act") arises from the award dated 29.1.2009 passed by the learned Civil Judge, Senior Division, Sindhudurg at Oros, thereby dismissing Land Reference No.193 of 1997. The Applicants owned agricultural land as per the following details and the same came to be acquired for the Konkan Railway Project :- Survey No. Area 238 1.47 241 44 hares 236 27.7 27.7 hares The Land Acquisition Officer passed his award on 14.11.1994 and awarded compensation at Rs.14,37,851/. As per the Claimants, they ought to have been granted the compensation of Rs.14,37,851/ at the rate of Rs.5000/- per guntha and, in addition, compensation for 35 alphonso mango trees, 391 naram trees, 60 kinjal trees, 76 cashew trees and four savar trees. Hence, they submitted an application for enhancement of compensation under section 18 of the Act, which application came to be referred to the Court and it was registered as Land Reference No.193 of 1997. The land was acquired for the Indian Railways and, therefore, in the reference application, Konkan Railway Corporation Ltd. Was impleaded as Respondent no.3. Respondent nos.1 and 2 filed written statement at Exhibit 11 and opposed the reference. Respondent no.3 filed written statement at Exhibit 42 and resisted the claim for higher compensation. It was specifically contended in the reply at Exhibit 11 that the application filed under section 18 of the Act was hit by limitation and based on this preliminary ground itself, the reference ought to be dismissed. The reference court framed the following two issues :- (1) Does the claimant/applicant prove that, compensation awarded by Special Land Acquisition Officer is inadequate, improver and unreasonable ? (2) It the claimant/applicant entitled to any additional compensation ? If so, what amount ? and answered the same in the negative and to the effect that none of the issues survived. It is pertinent to note that the reference court did not frame the issue of limitation but, surprisingly, the reference stands dismissed on the ground that the application filed under section 18 was beyond limitation. As per the reference court, the notice under section 12(2) was served on the claimants as per the report submitted by the Village Talathi on 25.3.1995, and the application under section 18 was filed on 3.7.1996. As per the scheme of section 18(2) of the Act, the application for enhancement was required to be filed within 42 days from the receipt of notice issued under section 12(2) of the Act i.e. from 25.3.1995 in the instant case and on these grounds, the reference court held that the application was hit by limitation. We have verified the record and, admittedly, the original copy of the report of the Talathi, alongwith the service proof of the notice under section 12(2) of the Act, is not traceable. The Talathi was not examined before the reference court. The claim application filed by the Claimants stated that the notice under section 12(2) was not received on 25.3.1995 but, it did not specify whether the notice was received and, if so, on what date. Even either of the Claimants do not indicate as to whether the Applicants were aware or they had implied knowledge about the award passed by the Land Acquisition Officer on 14/15.11.1994. We are therefore satisfied that none of the parties had placed on record any reliable evidence in support of the plea of limitation, within the meaning of section 18(2) of the Act and the finding recorded by the reference curt in dismissing the application is solely on the ground of the Talathi's report. It would be therefore necessary that the issue of limitation is decided de-novo and all the parties could be provided an opportunity to adduce evidence on the point of limitation. In any case, dismissal of the enhancement application on the ground of limitation is unsustainable as the reasoning set out therein is not supported from the record. The reference court was required to frame a specific issue regarding limitation so that the parties were put on notice and they would have opportunity to adduce evidence on the very specific issue of limitation. This has not been done and this is more apparent on the face of the record, inasmuch as a finding has been recorded without framing an issue. Hence, this Appeal succeeds and the same is hereby allowed partly. The impugned award passed in Land Reference No.193 of 1997 is hereby quashed and set aside and the said reference is hereby restored to the file of the learned Civil Judge, Senior Division, Sindhudurg at Oros for a de-novo trial, including the issue of limitation. All the parties are at liberty to adduce additional evidence both oral as well as documentary. The parties to appear before the reference court on 6.7.2009 and, we direct, that on remand, the enhancement application is decided as expeditiously as possible and, in any case, before 31.10.2009. R & P be returned to the reference court forthwith. Parties to bear their own costs. (S.J. VAZIFDAR, J.) (B.H. MARLAPALLE, J.)

Order - Status 11: IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.573 OF 2009 Parvati Shankar Pokhare .. Appellant versus The Special Land Acquisition Officer, Konkan Railway Project & Ors. ..Respondents Mr.Sudhir Prabhu for the Appellant. CORAM : S.A. BOBDE & S.J. KATHAWALLA,JJ. DATED : NOVEMBER 23, 2009. P.C. : Perused the letter dated 31st October, 2009 received from the Civil Judge (Senior Division) Sindhudurg-Oros. In view of the reasons stated in the letter, time for disposal of the matter is extended by a period of two months from today. (S. A. BOBDE, J.) ( S. J. KATHAWALLA, J.)