Perusal of the communication dated 5th February 2002 shows that the purported rejection of the application for reference is not on merits but the application for reference was shown as disposed of on account of failure to comply with the office objections. The first objection was regarding the failure to file a copy of the award under Section 11 of the said Act and the award statement. On plain reading of Section 18 of the said Act, there is no such requirement prescribed by the law of filing a copy of the award and the award statement alongwith the reference application. As far as the payment of Court fee is concerned, the learned counsel appearing for the Petitioners has relied upon a decision of the Division Bench of this Court in the case of Sambhaji Manaji Chate and another v. State of Maharashtra and another [(MANU/MH/0868/2002 : 2002 LAC 755 (Bom)]. This Court in the said decision held that the amount of Court fee could be remitted and/or deposited even before the reference Court and, therefore, while making a reference to the Court, the Land Acquisition Officer can always pass a conditional order on the application for reference and forward it to the Civil Court.
The learned counsel appearing for the Petitioners has placed for perusal of the Court a copy of the reference application bearing endorsement of the Land Acquisition Officer that the application was tendered along with the caste certificate of the Petitioners.
Thus, the objections raised on the reference application were totally contrary to the law and are unsustainable. Moreover, the objections were never communicated to the Petitioners and they were never called upon to make compliance with the procedural formalities. Moreover, the communication dated 5th February 2002 was never served to the Petitioners and it was produced for the first time before this Court on 3rd December 2012.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.5564 OF 2010
Shri Sham Dharma Dagle,
Vs
The State of Maharashtra,
CORAM : A.S. OKA & A.P
.BHANGALE, JJ
DATE : 15TH JANUARY 2013
Respondents. Considering the narrow controversy involved, this Writ
Petition is taken up for final disposal.
According to the case of the Petitioners, the land bearing
2.
Gat No.528/2, admeasuring 3 Hectares and 21 Ares together with 30
Ares of Pot Kharaba situated at Pimpalad, Taluka and District – Nashik
was notified for acquisition under the Land Acquisition Act, 1894
( hereinafter referred to as “the said Act”). According to the case of the
Petitioners, the notice under Section 12(2) of the said Act was received
on 31st January 2000 and an application under Section 18 of the said
Act was made on 1st March 2000. As the Petitioner was not informed
about the fate of the Application, on 21 st July 2004, the third Petitioner
wrote a letter dated 21 st July 2004 to the fourth Respondent for sending
the reference to the Court. Similar letters were written by the Petitioner
No.5. By communication dated 7 th April 2008, the fourth Respondent
informed the fifth Petitioner that the reference application was filed on
1st March 2000 appear to have been disposed of on 5 th February 2002.
The said Petitioner was called upon to seek further information from
the office of the fourth Respondent. The challenge in this Petition is to
what is set out in the communication dated 13 th November 2009
( ExhibitE to the Petition ) issued by the office of the District Collector,
Nashik, stating that the copies of the documents sought by the
Petitioners including a copy of the order dated 5 th February 2002
disposing of the reference application cannot be made available as the
same were not available. The Special Land Acquisition Officer has
filed a reply dated 3rd December 2012 to this Petition to which a copy of
the communication dated 5th February 2002 has been annexed. The
said communication records that the reference application has been
disposed of for want of two procedural compliances. The first one was
of nonfiling of a copy of the award under Section 11 of the said Act
and the award statement and the second ground was that neither the
Court fee was paid nor the caste certificate of the Petitioners was
produced. It is recorded in the said communication that on account
of failure to make aforesaid compliances, the reference application has
been treated as disposed of.
3.
The learned counsel appearing for the Petitioners submitted
that at no stage, any communication was made to the Petitioners as
regards any defect in the application for reference and for the first time,
when the affidavit in reply was filed to the Petition, the petitioners
became aware of the contents of the letter dated 5 th February 2002
which was annexed to the affidavitinreply. He pointed out that in the
impugned communication, the stand taken is that the record of the
application for reference is not available. He, therefore, submitted
that time may be granted to the Petitioners to comply with the
procedural formalities and the application for reference be revived.
The learned AGP opposed the Petition. He submitted that the
communication dated 5th February 2002 amounts to rejection of the
application for reference and, therefore, the remedy under Subsection
(3) of Section 18 of the said Act (as amended by the State of
4.
Maharashtra) is available.
We have carefully considered the submissions. Perusal of
the Petition shows that on 21st July 2004, a communication was
addressed to the Special Land Acquisition Officer by one of the
Petitioners stating therein that the reference application filed on 1 st
March 2000 was pending and the same has not been forwarded to the
Reference Court. As the said application was not accepted, the third
Petitioner who tried to tender the application made an endorsement
thereon that the said application was not accepted by the Special Land
Acquisition Officer and, therefore, the same was being forwarded to the
District Collector, Nashik by post. Another communication annexed to
the Petition at Exhibit –C is dated 7 th April 2008. In the said
communication which was issued on the basis of the Application made
under the Rights to Information Act 2005, the Public Information
Officer informed the fifth Petitioner that the reference application was
filed on 1st March 2000 and was disposed of on 5th February 2002. It is
further recorded that the other necessary details can be obtained by
contacting the Public Information Officer. Therefore, on 17 th October
2008, the Advocate for the Petitioners made an application to the
District Collector, Nashi as well as to the Special Land Acquisition
Officer, Nashik, seeking copies of the various documents including a
copy of the order dated 5th February 2002. The impugned
communication dated 13th November 2009 has been issued in response
to the said application in which the office of the District Collector,
Nashik stated that the reference application was disposed of on 5 th
February 2002. However, a copy of the said order and other
documents cannot be supplied as the same are not available in the file.
5.
Perusal of the affidavitinreply dated 3 rd December 2012
shows that it is not even the case made out by the Special Land
Acquisition Officer, National Highway Project, Nashik, that the
communication dated 5th February 2002 was served to the Petitioners or
any one of them. It is not even the case made out that the Petitioners
were called upon to remove office objections in the application for
reference. Thus, going by the annexures to the Petition and the reply
filed by the Special Land Acquisition Officer, it is obvious that the
communication dated 5th February 2002 was never served to the
Petitioners.
6.
Perusal of the communication dated 5 th February 2002
shows that the purported rejection of the application for reference is not
on merits but the application for reference was shown as disposed of on
account of failure to comply with the office objections. The first
objection was regarding the failure to file a copy of the award under
Section 11 of the said Act and the award statement. On plain reading
of Section 18 of the said Act, there is no such requirement prescribed by
the law of filing a copy of the award and the award statement
alongwith the reference application. As far as the payment of Court fee
is concerned, the learned counsel appearing for the Petitioners has
relied upon a decision of the Division Bench of this Court in the case of
Sambhaji Manaji Chate and another v. State of Maharashtra and
another [(2002 LAC 755 (Bombay)]. This Court in the said decision
held that the amount of Court fee could be remitted and/or deposited
even before the reference Court and, therefore, while making a
reference to the Court, the Land Acquisition Officer can always pass a
conditional order on the application for reference and forward it to the
Civil Court.
7.
The learned counsel appearing for the Petitioners has
placed for perusal of the Court a copy of the reference application
bearing endorsement of the Land Acquisition Officer that the
application was tendered along with the caste certificate of the
Petitioners.
Thus, the objections raised on the reference application
8.
were totally contrary to the law and are unsustainable. Moreover, the
objections were never communicated to the Petitioners and they were
never called upon to make compliance with the procedural formalities.
Moreover, the communication dated 5th February 2002 was never served
Therefore, at this stage, it will be unjust to relegate the
9.
Court on 3rd December 2012.
to the Petitioners and it was produced for the first time before this
Petitioners to the remedy of Revision under Subsection (3) of Section
18 of the said Act ( as amended by the State of Maharashtra).
10.
In the reference application, there is a specific assertion
that the Petitioners belong to a Scheduled Tribe and therefore, they are
entitled to exemption from payment of Court fees. Though the
endorsement on the office copy of the application shows that the caste
certificate was produced, the Petitioners will produce one more copy of
the caste certificate before the Special Land Acquisition Officer. If a
copy of the caste certificate is not produced, the Special Land
Acquisition Officer can always take recourse to the procedure suggested
in the decision of this Court in the case of Sambhaji Manaji Chate
(supra).
Hence, we dispose of the Petition by passing the following
order:
ORDER :
11.
The communication dated 5th February 2002 is
(a)
quashed and set aside and the reference application
under Section 18 of the Land Acquisition Act, 1894
We direct that the first objection noted in the letter
(b)
made by the Petitioners is restored to the file;
dated 5th February 2002 cannot be raised as it is
(c )
unsustainable;
It will be open for the Petitioners to file a true copy
of the cast certificate within a period of six weeks
from today. If the caste certificate is not filed
within the stipulated period of six weeks from today
or if it is found that the caste certificate is not in
order, the Special Land Acquisition Officer, National
Highway Project, Nashik shall take recourse to the
decision of this Court in the case of Sambhaji Manaji
Chate (supra) and pass a conditional order on the
reference application as suggested therein;
We make it clear that the application for reference
(d)
shall be referred to the District Court as
expeditiously as possible and in any event within a
period of three months from today;
The Rule is made absolute on above terms;
(f) All concerned to act upon an authenticated copy of
(e)
this order.
( A.S. OKA, J )
( A.P
. BHANGALE, J)
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