SANTOSH HARSAY AGRAWAL vs. THE STATE OF MAHARASHTRA THROUGH THE COLLECTOR, JALGAON AND OTHERS

1 CRA No. 63/2017 & Ors.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
( CIVIL APPELLATE JURISDICTION )
CIVIL REVISION APPLICATION NO. 63 of 2017
Diwakar Prabhakar Chopade
age 44 years, occupation agriculture & service
R/o Sawaladbara Tal. Soygaon Dist. Aurangabad
...Applicant.
Versus
10
1. The Sub-Divisional Ofcer
(Land Acquisition Ofcere,
Sillod District Aurangabad.
15
2. The Executive Engineer (Civile,
Maharashtra State Electricity Board,
Aurangabad. ...Respondents
WITH
CIVIL REVISION APPLICATION NO. 187 of 2015
20
Pandurang @ Pandhari Tukaram Bhosale
(Diede through legal representatives:
25
1. Pralhad Pandurang @ Pandhari Bhosale
age 74 years, occupation agriculture
R/o Sangvi (Bhie Taluka Omerga Dist. Osmanabad.
at present r/o Padmanagar Society,
Near Usha Kiran Talkies, Latur Tal. & Dist. Latur.
30
2. Shivaji Pandurang @ Pandhari Bhosale
age 66 years occup. agriculture
R/o Sangvi (Bhie Tal. Omerga Dist. Osmanabad.
At present R/o Shriram Theater,
Omerga District Osmanabad.
35
3. Waman Pandurang @ Pandhari Bhosale
age 47 years, occupation service
R/o as above.
40
4. Sham Pandurang @ Pandhari Bhosale
age 58 years, occup. Agri & service
R/o Sangvi (Bhie, Tq. Omerga Dist. Osmanabad.
At present R/o Sane Guruji Nagar,
Omerga, District Osmanabad. Applicants
45
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2 CRA No. 63/2017 & Ors.
Versus
1. The State of Maharashtra
Through : The Collector, Osmanabad
5
2. The Special Land Acquisition Ofcer
Krishna Khore Vikas Mahamandal,
Ofce Osmanabad.
3. The Executive Engineer,
Osmanabad Medium Project,
Osmanabad. Respondents
10
WITH
CIVIL REVISION APPLICATION NO. 78 of 2017
15
Tarunbai Rajendra Patil
age 36 years, occupation agriculture
R/o Virwade, Taluka Chopda Dist. Jalgaon
20
...Applicant.
Versus
1. The State of Maharashtra
Through : The Collector, Jalgoan.
25
2. The Special Land Acquisition Ofcer,
Uppar Tapi Project (Hatnure / Minor Irrigation,
Jalgaon, District Jalgaon.
30
3. The Executive Engineer
Uppar Tapi Project (Hatnure / Minor Irrigation,
Chopda Taluka Chopda District Jalgaon. ...Respondents
35
WITH
CIVIL REVISION APPLICATION NO. 79 of 2017
Santosh Harsay Agrawal
age 56 years, occupation agriculture
R/o Virwade Tal. Chopda Dist. Jalgaon
40
...Applicant.
Versus
1. The State of Maharashtra
Through : The Collector, Jalgoan.
45
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3 CRA No. 63/2017 & Ors.
2. The Special Land Acquisition Ofcer,
Uppar Tapi Project (Hatnure / Minor Irrigation,
Jalgaon, District Jalgaon.
3. The Executive Engineer
Uppar Tapi Project (Hatnure / Minor Irrigation,
Chopda District Jalgaon. ...Respondents
5
WITH
CIVIL REVISION APPLICATION NO. 80 of 2017
10
Kailash Bhiva Thakur
age 45 years, occupation agriculture
R/o Virwade, Tal. Chopda Dist. Jalgaon ...Applicant.
15
Versus
1. The State of Maharashtra
Through : The Collector, Jalgoan.
20
2. The Special Land Acquisition Ofcer,
Uppar Tapi Project (Hatnure / Minor Irrigation,
Jalgaon, District Jalgaon.
25
3. The Executive Engineer
Uppar Tapi Project (Hatnure / Minor Irrigation,
Chopda District Jalgaon. ...Respondents
30
WITH
CIVIL REVISION APPLICATION NO. 81 of 2017
Sneha Pravin Agrawal
age 40 years occupation agriculture
R/o Virwade Taluka Chopda Dist. Jalgaon ...Applicant.
35
Versus
1. The State of Maharashtra
Through : The Collector, Jalgoan.
2. The Special Land Acquisition Ofcer,
Uppar Tapi Project (Hatnure / Minor Irrigation,
Jalgaon, District Jalgaon.
45
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4 CRA No. 63/2017 & Ors.
3. The Executive Engineer
Uppar Tapi Project (Hatnure / Minor Irrigation,
Chopda District Jalgaon. ...Respondents
WITH
CIVIL REVISION APPLICATION (Stamp) NO. 37892 of 2017
5
Madanlal Mohanlal Mantri (diede
through legal representatives:
1. Mukunddas S/o Madanlal Mantri,
age 59 years occup. business
R/o Mantri Galli, Beed Tal. & Dist. Beed
10
2. Premalata W/o Madanlal Somani,
age 65 years occup. household
R/o at post Ter (Dhokie Taluka & Dist. Osmanabad
15
3. Omprakash S/o Madanlal Mantri,
age 57 years occup. business
R/o Mantri Galli, Beed Tal. & Dist. Beed
20
4. Alaknanda W/o Hanumandas Rathi,
age 54 years occup. household
R/o Motinagar, Latur Tal. & Dist. Latur ...Applicants.
25
Versus
1. The State of Maharashtra
Through : The District Collector, Beed.
30
2. The Executive Engineer
Minor Irrigation Division,
Beed Tal. & Dist. Beed. ...Respondents
35
Mrs. Anita A. Gadekar, Adv. for applicant in C.RA. No. 63/2017,
Mr. M.S. Patil, Adv. for applicant in CRA. No. 187/2015,
Mr. V.B. Patil , Adv. for applicants in CRA. No. 78/2017, 79/2017,
80/2017, 81/2017 and
Mr. R.R. Chandak, Adv. for applicants in CRA. No. 37892/2017.
Mr. S.P. Sonpawale, Asstt. Govt. Pleader for respondent/State in
all applications.
Mr. S.G. Sangle, Adv. for respondent/acquiring body in CRA. No.
187/2015 & CRA (St.e No. 37892/2017 and
Mrs. Vaishali D. Jadhav-Patil, Adv. for respondent/acquiring body
in CRA. No. 78/2017, 79/2017, 80/2017, 81/2017
Mr. A.N. Sabnis, Advocate, appeared suo motu.
40
45
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5 CRA No. 63/2017 & Ors.
C ORAM : PRASANNA B. VARALE &
AVINASH G. GHAROTE, JJ.
5
st
Reserved on : 1 October, 2019.
th
Pronounced on : 17 October, 2019
J U D G M E N T : [ PER : AVINASH G. GHAROTE, J.]
10
1. This Division Bench has been constituted by the
Hon’ble the Chief Justice, in pursuance to a request made by Mr.
th
M.S. Sonak, J., dated 16 January 2018, who having found that
there was a divergence of opinion between the learned Single
15
Judges of this Court, one view holding that where a reference u/s.
18 of the Land Acquisition Act was dismissed, otherwise than on
merits, a Civil Revision Application u/s. 115 of the Civil Procedure
Code was permissible, which is refected from Kawadu S/o
Madhav Bansod Vs. State of Maharashtra, 2004 (1) ALL
20
MR 651 , which has been followed in Irnappa alias Irappa S/o
Karbasappa Angire Vs. State of Maharashtra & Anr., in
C.R.A. No. 117/2012 decided on 13/06/2012 and
Appasaheb Mohanrao Chede Vs. State of Maharashtra &
Anr., 2011 (2) All MR 255 , which also make a reference to an
25
unreported decision in the case of Kamlakar S/o Laxman
Suryawanshi Vs. State of Maharashtra in C.R.A. No.
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6 CRA No. 63/2017 & Ors.
169/2005 , in which a similar view has been taken. As against
this view, a learned Single Judge of this Court, after considering
the judgment in Kawdu (suprae, has held in Venkat Baburao
Karle Vs. State of Mah. & Ors., 2012 (4) All MR 826 , that a
Civil Revision Application is not the correct remedy but an appeal
5
will have to be instituted u/s. 54 of the L.A. Act, 1894, to question
dismissal of reference. A mention is also made to the judgment
dated 13/07/2017 in C.R.A. No. 140/2016 and connected
matters, wherein another learned Single Judge of this Court has
taken a note of confict between Kawdu’s case (suprae and
10
Venkat’s case (suprae, but declined to go into the merits of the
controversy.
2. The question is that after the amendment of the Code
of Civil Procedure by the Amending Act of 1999 & 22 of 2002,
15
whereby a proviso has been inserted in Section 115 of C.P.C.,
which has been interpreted by the Hon’ble Supreme Court in
Shiv Shakti Coop. Housing Society, Nagpur Vs. Swaraj
Developers and others, AIR 2003 SC 2434 , a Civil Revision
Application U/S. 115 would lie, in light of the language of the
20
proviso thereto. It is in the above background that the learned
Single Judge noticing the confict as stated above, by his order
dated 16/01/2018, under Chapter I Rule 8 of the Bombay High
Court Appellate Side Rules 1960, has reported to the Hon’ble
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7 CRA No. 63/2017 & Ors.
Chief Justice, who on consideration of the confict, has referred
the same to the present Division Bench for consideration.
3. We have heard Advocates Mr. V.B. Patil, argued on
behalf of himself as well as Advocates Mr. M.S. Patil, Mrs. Anita
5
Gadekar and Mr. R.R. Chandak for the petitioners; Mr. S.P.
Sonpawale, Asstt. Govt. Pleader for respondent/State, Mrs.
Vaishali D. Jadhav-Patil, learned Counsel appearing for the
respondent/acquiring body in C.R.A. No. 78/2017, 79/2017,
80/2017 & 81/2017 and Mr. S.G. Sangle, learned Counsel for the
10
respondent/acquiring body in C.R.A. No. 187/2015 & C.R.A.
(Stampe No. 37892/2017. Learned Counsel Mr. A.N. Sabnis also
addressed the Court.
4. Mr. V.B. Patil, learned Counsel for the petitioner,
15
strenuously urged before us that the provisions of Section 115 of
C.P.C., permit a challenge to an order passed by the Courts
subordinate in the eventualities as mentioned in clauses (ae to
(ce of sub-section (1e of Section 115, in light of which the power of
revision would be available in respect of an order, not passed on
20
merits, in proceeding u/s. 18 of the L.A. Act, such as in cases
where the reference u/s. 18 of the L.A. Act was dismissed in
default for non-appearance of the applicants or for not leading
evidence, or for that matter for any other reason, which did not
touch the merits of the matter. He further contends that
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8 CRA No. 63/2017 & Ors.
dismissal on such a count, cannot be considered as a dismissal on
merits, and therefore, would not amount to a decree, permitting
raising of a challenge u/s. 54 of the L.A. Act. He invited our
attention to the language of sections 18, 26 and 54 of the L.A. Act
to buttress his arguments. He further contended that the proviso
5
of the amended section 115 of C.P.C., did not come in the way of
laying a challenge to orders, which were otherwise than on
merits, in proceedings u/s. 18 of the L.A. Act. He further
submitted that the judgment of the Hon’ble Apex Court in the
case of Shiv Shakti (suprae, did not take into consideration the
10
provisions of the L.A. Act and, therefore, would not be applicable.
He further submitted that holding that revision would not be
maintainable u/s. 115 of C.P.C. would lead to consequences,
which would not be conducive in the interest of the poor
applicants, whose lands are acquired, for if they are required to
15
file an appeal, the same would entail the payment of court fees,
which would be onerous for them. He, therefore, submitted that
for this reason also, the remedy of revision u/s. 115 of C.P.C.
ought to be held to be available in respect of orders, which were
otherwise than on merits, in references u/s. 18 of the L.A. Act.
20
Learned Counsel Mr. V.B. Patil relied upon the following
judgments in support of his submissions:
(ie Sundarlal Vs. Paramsukhdas , AIR 1968 SC 366 in the
context of section 18 of L.A. Act, holding that an order of
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9 CRA No. 63/2017 & Ors.
Court declining to implead a person as party to proceedings
as a person interested in the same, would be revisable u/s.
115 of CPC and no appeal would lie.
(iie Rajmani Vs. Collector, Raipur, 1996(5) SCC 701 ,
5
holding that in case of a dismissal of a reference u/s. 18 of
L.A. Act, in default, an application u/o IX Rule 9 r/w. Sec. 151
CPC would be maintainable – which does not support his
proposition that a revision u/s. 115 CPC would be
maintainable.
10
(iiie C.R.A. No. 67/2015, Shobha Nanasaheb Game Vs.
State of Maharashtra and others and connected
matters, decided on 07/09/2015.
15
(ive C.R.A. No. 140/2016, Vijaykumar Baburao Gulave Vs.
of Mah. , with connected matters, decided on 13/07/2017
(ve Khazan Singh Vs. Union of India, 2002(2) SCC 242 ,
which is also relied upon by learned Counsel Mr. A.N. Sabnis
20
(vie Vijaykumar Goenka Vs. State of Mah., 2004(3)
Mh.L.J. 1069 in support of his contention that only a
revision u/s. 115 CPC is tenable against an order passed,
otherwise on merits, in a reference u/s. 18 of the L.A. Act.
25
5. The above contention was opposed by Mrs. Vaishali D.
Jadhav, learned Counsel appearing for the respondent/acquiring
body. She vehemently submitted that the view canvassed by the
petitioners, is contrary to the specific language and intent of the
30
legislative mandate as is spelt out from the proviso to section 115
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10 CRA No. 63/2017 & Ors.
of C.P.C., consequent to its Amendment in 1999 & 2002. She
further submitted that taking a contrary view would result in
defeating the intent and purpose for enacting the proviso to
Section 115 of C.P.C., which is not permissible in law. She further
contended that the rigor of law is applicable to one and all
5
without any distinction whatsoever, and the contra contention
as advanced by the learned Counsel for the petitioners about
poor litigants sufering in case they are required to file an appeal,
on account of payment of court fees, can at the most be said to
be an emotional argument, without any legal content. She
10
further submitted that the Hon’ble Apex Court has already
enunciated the law in respect of the ambit and scope of section
115 CPC as curtailed by the proviso, as inserted by the 2002
Amendment in the case of Shiv Shakti (suprae, which was of a
general applicability, and the contention of the learned Counsel
15
for the petitioners that the provisions of the L.A. Act were not
considered therein, do not hold any water. She, therefore,
submitted that in any case, post 2002 Amendment, a revision u/s.
115 of C.P.C. even in respect of orders otherwise than on merits,
would not be maintainable in light of the language of the proviso
20
to section 115 of C.P.C..
6. Mr. Sangale, learned Counsel for the
respondent/acquiring body in C.R.A. No. 187/2015 & C.R.A.
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11 CRA No. 63/2017 & Ors.
(Stampe No. 37892/2017, supported the arguments of learned
Counsel Mrs. Vaishali D. Jadhav and contends that the legislature
intent, when clear and specific has to be enforced as it is,
whatever be the consequences, and a plain reading of the proviso
to section 115(1e of C.P.C. did not support the maintainability of a
5
revision in respect of orders passed otherwise than on merits in
proceedings u/s. 18 of the L.A. Act of 1894. He has further placed
reliance on State of Jharkhand Vs. Hindusthan Construction
Co. Ltd., 2018 (2) SCC 602 , and contends that the view taken
in Shiv Shakti (suprae, has been afrmed by the Hon’ble Apex
10
Court.
7. Learned Counsel Mr. A.N. Sabnis, who appeared suo
motu, has also supported the arguments of learned Counsel Mrs.
V.D. Jadhav for the respondents. He pointed out that a person,
15
who approaches the Court u/s. 18 of the L.A. Act for enhancement
of the quantum of compensation, is required by law to be diligent
in prosecution of his case and cannot be heard to contend
otherwise. He further invited our attention to the provisions of
section 26 (2e of the L.A. Act and contended that an award has
20
been given the status of a decree and, therefore, only an appeal
lies u/s. 53 of the L.A. Act, even if the order resulting in the
termination of the proceedings u/s. 18 of the L.A. Act was not on
merits. He further placed reliance on the judgment of the Hon’ble
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12 CRA No. 63/2017 & Ors.
Apex Court in the case of Khazan Singh (dead) by L.Rs. Vs.
U.O.I., (2002) 2 SCC 242 to contend that the Civil Court
hearing a reference has no jurisdiction to dismiss reference for
default. He further placed reliance upon Mahadeo Bajirao Patil
Vs. State of Maharashtra and others, (2005) 7 SCC 440,
5
specifically para 13 thereof, to contend that even if no amount
was awarded by the L.A.O., still it could not be said that the order
passed by the L.A.O. was not an award, in support of his
contention that an order even otherwise than on merit, of the
Reference Court bringing an end to the proceedings u/s. 18 of the
10
L.A. Act, would amount to an award and, thus, would be a decree
u/s. 26 of the L.A. Act. He further relied upon Surya Dev Rai Vs.
Ram Chander Rai, (2003) 6 SCC 675, specifically para 4, to
contend that the exercise of jurisdiction is taken away by the
proviso inserted under subsection (1e of Section 115 of C.P.C. if
15
the order being challenged would not have the efect of finally
disposing of the suit or other proceedings. He has also placed
reliance upon M.S. Ramiah and others Vs. the Special Land
Acquisition Ofcer, ILR 1974 Karnataka 319 , which has been
relied upon in Kawadu (suprae.
20
8. Learned Counsel Mr. Sabnis has further relied on
Sheodan Singh Vs. Daryao Kunwar, AIR 1966 SC 1332 ,
which holds that a decision on delay application is a decision on
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13 CRA No. 63/2017 & Ors.
merits and urges that therefore, an appeal would lie. He further
placed a reliance upon the judgment of the Full Bench in State of
Maharashtra Vs. Sitaram Narayan Patil, 2010 (2) Mh.L.J.
387 to contend that in a reference u/s. 18 of LA. Act, a claimant
is in the position of a plaintif and provisions of Order VI Rule 17
5
CPC were attracted by virtue of section 53 of the L.A. Act. He,
therefore, submitted that in case of an order otherwise than on
merits, in proceedings u/s. 18 of the L.A. Act, revision was no
longer tenable in light of the proviso to section 115 CPC
consequent to its Amendment in 2002.
10
9. The entire crux of the issue revolves around the
language of section 115(1e of C.P.C. It is, therefore, material to
consider the diference therein before and after the 2002
Amendment, which is refected from the following tabular chart.
15

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14 CRA No. 63/2017 & Ors.

We are not here concerned the sub-sections (2e and
(3e of Section 115 of C.P.C.
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15 CRA No. 63/2017 & Ors.
10. A perusal of the comparative chart above would
demonstrate the nature and efect of the change enacted by
Section 12 of Act 46 of 1999 and the consequent Act 22 of 2002.
Though the prohibition to entertain a revision in respect of an
order if it had been made in favour of the party applying for
5
revision, would have finally disposed of the suit or the
proceedings, was extant, as demonstrated by Exception (ae to the
proviso to clause (ce of sub-section (1e of Section 115 of CPC, its
efcacy was diluted by Exception (be to the proviso to clause (ce
of sub-section (1e of Sec. 115 CPC. By virtue of the Amendment,
10
Exception (be to the proviso to sub-section (1e of Sec. 115 CPC
stood deleted and the Exception (ae merged with the proviso,
whereby the jurisdiction of the High Court to exercise power u/s.
115(1e CPC to entertain revision have been curtailed to a
substantial extent and such powers are not exercisable any more,
15
unless the order, if it had been made in favour of the party
applying for revision, would have finally disposed of the suit or
other proceedings. The issue in our opinion, is no longer res-
integra but is squarely covered by the judgment of the Hon’ble
Apex Court in the case of Shiv Shakti (suprae, wherein in para 32
20
it has been held , thus:
“ 32. A plain reading of Section 115 as it
stands makes it clear that the stress is on the
question whether the order in favour of the
party applying for revision would have given
25
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16 CRA No. 63/2017 & Ors.
finality to suit or other proceeding. If the
answer is 'yes' then the revision is
maintainable. But on the contrary, if the
answer is 'no' then the revision is not
maintainable. Therefore, if the impugned order
5
is of interim in nature or does not finally
decide the lis, the revision will not be
maintainable. The legislative intent is crystal
clear. Those orders, which are interim in
nature, cannot be the subject matter of
10
revision under Section 115. There is marked
distinction in language of Section 97(3e of the
Old Amendment Act and Section 32(2e(ie of the
Amendment Act. While in the former, there
was clear legislative intent to save applications
15
admitted or pending before the amendment
came into force. Such an intent is significantly
absent in Section 32(2e(ie. The amendment
relates to procedures. No person has a vested
right in a course of procedure. He has only the
20
right of proceeding in the manner prescribed.
If by a statutory change the mode of
procedure is altered the parties are to proceed
according to the altered mode, without
exception, unless there is a diferent
25
stipulation. ”
11. Similar view has been taken by the Hon’ble Apex
Court in Surya Dev Rai (suprae, in para 4, which reads, thus:
“ 4. Section 115 of the Code of Civil
30
Procedure as amended does not now permit a
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17 CRA No. 63/2017 & Ors.
revision petition being filed against an order
disposing of an appeal against the order of the
trial court whether confirming, reversing or
modifying the order of injunction granted by
the trial court. The reason is that the order of
5
the High Court passed either way would not
have the efect of finally disposing of the suit
or other proceedings. The exercise of
revisional jurisdiction in such a case is taken
away by the proviso inserted under sub-
10
section (1e of Section 115 of the CPC. The
amendment is based on the Malimath
Committee's recommendations. The
Committee was of the opinion that the
expression employed in Section 115 CPC,
15
which enables interference in revision on the
ground that the order if allowed to stand would
occasion a failure of justice or cause
irreparable injury to the party against whom it
was made, left open wide scope for the
20
exercise of the revisional power with all types
of interlocutory orders and this was
substantially contributing towards delay in the
disposal of cases. The Committee did not
favour denuding the High Court of the power
25
of revision but strongly felt that the power
should be suitably curtailed. The efect of the
erstwhile clause (be of the proviso, being
deleted and a new proviso having been
inserted, is that the revisional jurisdiction, in
30
respect of an interlocutory order passed in a
trial or other proceedings, is substantially
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18 CRA No. 63/2017 & Ors.
curtailed. A revisional jurisdiction cannot be
exercised unless the requirement of the
proviso is satisfied. ”
5
12. Thus, the powers of the High Court exercising
revisional jurisdiction u/s. 115 of CPC, having been curtailed and
made applicable only in respect of an order, which, had it been
made in favour of the party applying for revision, would have
finally disposed of the suit or other proceedings, would not be
10
available in respect of an order, passed otherwise than on merits,
in proceedings u/s. 18 of the L.A. Act, as reversing the order
would not result in disposal of the proceedings u/s. 18 of the L.A.
Act, but would have an opposite efect, of restoring or reviving
the proceedings, which is not a position as of now, permissible
15
under the provisions of section 115 of the CPC.
13. This being the law on the matter, the contrary
submissions of Mr. Patil, learned Counsel for the petitioners,
cannot be considered. The submission that dismissal of the
20
proceedings u/s. 18 of the L.A. Act on account of default due to
non appearance of the parties or non leading of the evidence, not
amounting to a dismissal on merits, would attract section 115 of
CPC is without any merits for the reason that reversal of such an
order would not result in the final disposal of the proceedings,
25
rather on the contrary, would have the efect of revival of the
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19 CRA No. 63/2017 & Ors.
proceedings, which in light of the language of the proviso to sub-
section (1e of section 115 of CPC is impermissible. The argument
by Mr. Patil, learned Counsel for the petitioners, that the mandate
in Shiv Shakti (suprae, would not be attracted as it was not
considering the provisions of the L.A. Act, is clearly an
5
unacceptable as firstly that cannot be a ground of distinction and
secondly, Shiv Shakti has considered the provisions of section
115 of CPC, which in fact, is an omnibus power to entertain a
revision, irrespective of the nature of the proceedings, provided
the requirements as laid down therein are satisfied. The
10
contention that in case the litigants are required to file an
appeal, they would be burdened with court fees, is no ground in
law to hold that a revision would be maintainable u/s. 115 of CPC.
14. The judgments in Sundarlal and Rajmani (suprae,
15
both are earlier to the amendments to section 115 CPC and, thus,
cannot be of any assistance to the learned Counsel for the
petitioners. In fact, Rajmani (suprae, holds that by virtue of
section 53 of the L.A. Act, the remedy u/o. IX Rule 9 read with
Sec. 151 CPC would be available to the party, whose reference
20
was dismissed in default. This, however, does not support the
contention of the learned Counsel for the petitioners of a revision
u/s. 115 CPC being the only remedy.
15. In Shobha Game (suprae, and connected matters, in
25
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20 CRA No. 63/2017 & Ors.
a reference u/s. 18 L.A. Act, the petitioners had filed their afdavit
in lieu of examination in chief, when the matters were referred to
the Lok Adalat. No settlement being reached, they were sent
back to the Court. The Counsels claimed to have lost track of the
dates, resultantly, a ‘no cross-examination’ order was passed and
5
the judgment was pronounced on the next date. On a plea that
there was procedural irregularity, revision applications u/s. 115
CPC were filed. A plea was raised that revisions were not
maintainable and an appeal lay by placing reliance upon the
judgments quoted in para 3 thereof. The learned Single Judge in
10
para 11 observed that normally he would have relegated the
petitioners therein to file appeals, as provided u/s. 54 of the L.A.
Act, but considering the fact that there was procedural irregularity
committed by the reference Court while deciding the references,
the revisions were entertained. A perusal of the judgment clearly
15
indicates that arguments on the basis of the language of the
proviso of section 115(1e CPC were not advanced, nor the
decision in Shiv Shakti (suprae was brought to the notice of the
Court. The argument about non-maintainability of the revision
appears to be centered around the plea that since the Reference
20
Court had passed the judgment, an appeal as provided u/s. 54 of
the L.A. Act, was the only remedy. This judgment, therefore, does
not lay down that in cases of orders otherwise than on merits,
revision u/s. 115 CPC would be the only remedy and does not
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21 CRA No. 63/2017 & Ors.
assist learned Counsel Mr. Patil.
16. In Vijaykumar Gulave (suprae and connected
matters, the references came to be dismissed as the applicants
had failed to adduce any evidence in support of their claim,
5
against which revisions were filed. The revision petitioners relied
upon Kawadu ‘s case (suprae, against which the State relied on
Venkat ‘s case (suprae. The learned Single Judge taking notice of
the confict, did not go into the merits, however, in view of the
undertaking given by the revision petitioners, as indicated in para
10
3, thought it fit to give an opportunity to the petitioners to adduce
evidence in support of their respective claims and, thus,
remanded the matters back to the Reference Court. This would
indicate that Vijaykumar Gulave (suprae, cannot be cited as a
binding precedent for the reason that the learned Court himself
15
noticing the confict declined to go into merits of the matter.
Vijaykumar Gulave (suprae, thus, does not support the
arguments canvassed by learned Counsel Mr. Patil.
17. In Vijaykumar H. Goenka (suprae, a reference u/s.
20
34 of the Maharashtra Industrial Development Act, 1961 came to
be dismissed when the case was fixed for evidence as no
application for adjournment was filed and M.J.C. u/o IX Rule 9
R/W. Sec. 151 CPC was filed for restoration, dismissal of which
was challenged in the High Court by way of revision u/s. 115 CPC.
25
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22 CRA No. 63/2017 & Ors.
Relying upon M.S. Ramiah (suprae, the learned Single Judge in
para 7, held that though the words “dismissed for want of
prosecution” or “dismissed in default” were not used, the
dismissal was on account of absence of the applicants without
considering the material on record and even if it is taken that the
5
reference was not liable to be restored u/o IX Rule 9 CPC, the
order was liable to be recalled for the aforesaid reasons. The
issue regarding the language of the proviso of section 115(1e CPC
was not considered nor Shiv Shakti (suprae was brought to his
notice, and as such, is of no assistance to the case being
10
canvassed by learned Counsel Mr. Patil for the petitioners.
18. A perusal of the judgment in Kawdu (supra) , would
indicate that in a reference u/s. 18 of the L.A. Act, as on the date
fixed for evidence, neither the applicant nor his Counsel was
15
present, resultantly no evidence having been adduced, the
reference proceedings came to be dismissed, against which
revision u/s. 115 of CPC came to be filed before the High Court.
A perusal of the judgment would reveal that considering the
nature of the order passed and holding that it would not amount
20
to a decree so as to make it appealable and in light of the
applicability of C.P.C. by virtue of section 53 of the L.A. Act, the
learned Court held that a revision was maintainable. What would
be material to consider is that no argument whatsoever was
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23 CRA No. 63/2017 & Ors.
addressed to the Court on the amended section 115 of CPC and
specifically the proviso, nor was the judgment in Shiv Shakti
th
(suprae, which was rendered on 17 April 2003, was brought to
the notice of the Court, deciding Kadwu’s case (suprae, which
was decided on 02/07/2003.
5
19. The judgment in Appasaheb Chede (suprae, also
without considering the rigor and language of the proviso to
section 115 of CPC merely follows Kawadu’s case (suprae, and
Kamlakar Vs. State of Maharashtra . In Kamlakar Vs. State
10
of Maharashtra , decided on 15/01/2007, in-spite of an argument
being raised in para 4 thereof that the matter was not covered
under the proviso to Section 115 of C.P.C. as it then stood
amended, the learned Single Judge without considering this
argument choose to rely on Kawdu’ s case (suprae, to hold that
15
the revision was maintainable, as there was no remedy of appeal
available against an order dismissing the reference for want of
evidence. Shiv Shakti‘s case (suprae, was not brought to the
notice of the learned Court. In the case of Irappa Angire
(suprae, the learned Single Judge has also merely relied upon the
20
cases of Kawadu and Kamlakar (suprae, without considering
the efect of the proviso to section 115 of C.P.C. nor was the
judgment in in the case of Shiv Shakti brought to its notice.
20. It is a settled position of law that a judgment rendered
25
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24 CRA No. 63/2017 & Ors.
without considering a statutory provision, or its efect, scope and
ambit, cannot be held to be a binding precedent. So also, a
judgment rendered in ignorance of a binding decision of the
Hon’ble Apex Court can be said to be per-incuriam. The Latin
expression ‘per-incuriam’ means through inadvertence. A
5
decision can be said generally to be given per-incuriam when the
Court has acted in ignorance of a previous decision of its own or
of a superior Court. The expression per-incuriam fell for
consideration of the Constitution Bench of the Hon’ble Apex Court
in the case of Punjab Land Development and Reclamation
10
Corpn. Ltd. Vs. Presiding Ofcer, (1990) 3 SCC 682 , in which
it is held as under:
“ 40. -- The Latin expression per incuriam
means through inadvertence. A decision can
be said generally to be given per incuriam
15
when this Court has acted in ignorance of a
previous decision of its own or when a High
Court has acted in ignorance of a decision of
this Court.
20
43. As regards the judgments of the Supreme
Court allegedly rendered in ignorance of a
relevant constitutional provision or other
statutory provisions on the subjects covered
by them, it is true that the Supreme Court may
25
not be said to “declare the law” on those
subjects if the relevant provisions were not
really present to its mind. ”
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25 CRA No. 63/2017 & Ors.
21. In State of M.P. Vs. Narmada Bachao Andolan,
(2011) 7 SCC 639 , the expression per-incuriam has been held to
mean as under:
5
“65. “Incuria” literally means “carelessness”.
In practice per incuriam is taken to mean per
ignoratium. The courts have developed this
principle in relaxation of the rule of stare
decisis. Thus, the “quotable in law” is avoided
10
and ignored if it is rendered in ignorance of a
statute or other binding authority.
67. Thus, “per incuriam” are those decisions
given in ignorance or forgetfulness of some
15
statutory provision or authority binding on the
court concerned, or a statement of law caused
by inadvertence or conclusion that has been
arrived at without application of mind or
proceeded without any reason so that in such
20
a case some part of the decision or some step
in the reasoning on which it is based, is found,
on that account to be demonstrably wrong. ”
22. In light of the above dictum, it is clearly apparent that
25
the judgments in the case of Kawadu, Appasaheb Chede,
Kamlakar Suryawanshi and Irnappa @ Irappa Angire
(suprae, are rendered per-incuriam, for not considering the
amended proviso to sub-section (1e of section 115 of C.P.C. and so
also, the binding precedent in the case of Shiv Shakti (suprae,
30
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26 CRA No. 63/2017 & Ors.
and, thus, cannot be held to be laying down the correct law.
23. Learned Counsel Mr. Sabnis placed reliance upon
Khazan Singh (suprae, [which is also relied upon by learned
Counsel Mr. Patil for the petitioners], wherein it is held by the
5
Hon’ble Apex Court that:
“ 7. The provisions above subsumed would
thus make it clear that the Civil Court has to
pass an award in answer to reference made by
the Collector U/S. 18 of the L.A. Act. If any
10
party to whom notice has been served by the
Civil Court did not participate in the inquiry it
would only be at his risk because an award
would be passed perhaps to be determined of
the party concerned. But, non participation of
15
any party would not confer jurisdiction on the
Civil Court to dismiss the reference for
default. ” ;
and has contended that the Civil Court acting u/s. 18 of the L.A.
20
Act, has to pass an award only, and has no power to dismiss the
proceedings in default, which would indicate that any order other
than on merits, passed by the Civil Court would take form of a
decree, in light of section 26 of the L.A. Act and, thus, an appeal
would lie u/s. 54 of the L.A. Act, is also without any merit, for the
25
reason that the language of section 26 clearly contemplates the
passing of an “award” by the Civil Court, whether it be enhancing
the amount, reducing or maintaining it, which has being so held
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27 CRA No. 63/2017 & Ors.
in para 7 of the judgment, as quoted above. The word ‘Award’,
thus, occurring in Sec. 26 cannot be equated with an order
dismissing the reference in default or for want of evidence. The
deeming fiction given to an ‘Award’ as passed u/s. 26(1e by virtue
of section 26(2e to be a decree within the meaning of section 2(2e
5
and 2(9e of C.P.C. would necessarily mandate that the award
fulfills the criteria, as laid down in section 2(2e of C.P.C. In that
light of the matter, considering the language of section 2(be of
C.P.C. excluding any order of dismissal for default, from the
definition of a decree, would naturally mean that proceedings u/s.
10
18 of the L.A. Act, which stand dismissed for default, cannot be
held to be a decree within the meaning of the expression so as to
invite the invocation of section 54 of the L.A. Act. It is perhaps for
this reason that the mandate u/s. 18 of the L.A. Act upon the Civil
Court is to make a determination of the matters referred to it
15
under sub-section (1e of section 18 of the L.A. Act and not
otherwise. In fact, in Khazan Singh (suprae, the reference came
to be dismissed on the premise that “neither the applicant nor his
Counsel appeared in the Court on the said date”. An application
u/o IX Rule 9 r/w. Sec. 151 CPC filed by L.Rs. of Khazan Singh,
20
who in the meantime had expired, was rejected by the Reference
Court, for lack of sufcient cause. The High Court also dismissed
the appeal on the ground that no satisfactory explanation for the
absence of the claimant and the Counsel was given, against
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28 CRA No. 63/2017 & Ors.
which an appeal went to the Hon’ble Apex Court, which upon a
consideration of fact position, as narrated above, allowed the
appeal by setting aside the order of the Reference Court
dismissing it for absence of Counsel and party and directing the
Reference Court to answer the reference in accordance with law
5
and pass an award, as envisaged in Sec. 26 of the L.A. Act. Thus,
in Khazan Singh (suprae itself the Hon’ble Apex Court, indicated
that though there is no power in a Reference Court to dismiss a
reference in default and a duty is cast upon it to decide the
reference on merit in light of the language of section 26,
10
however, it was permissible to restore the reference dismissed in
default though not u/o. IX Rule 13 but u/o. IX Rule 9 read with Sec.
151 CPC., as indicated in para 10 thereof. It is also to be borne in
mind that the Hon’ble Apex Court in Khazan Singh (suprae, was
not called upon to decide the scope and ambit of section 53 of
15
the L.A. Act.
24. The reliance placed by learned Counsel Mr. Sabnis on
Mahadeo Bajirao Patil (suprae, in fact, supports the above
propositions that the Reference Court has to pass an award on
20
merits and in a given case, even a nil award.
25. There cannot be any quarrel with the proposition as
enunciated in the judgment of the Full bench in the case of State
of Mah. Vs. Sitaram (suprae, that by virtue of section 53 of the
25
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29 CRA No. 63/2017 & Ors.
L.A. Act the provisions of C.P.C., save to the extent they are
inconsistent with the provisions of the L.A. Act, are applicable to
proceedings u/s. 18 before the Civil Court and, therefore, by the
aid and assistance of Order VI Rule 17 CPC a reference u/s. 18 of
the L.A. Act can always be amended, subject to the requirements
5
of Order VI Rule 17 being satisfied. That being so, it would run
counter to the submissions of the learned Counsel Mr. A.N.Sabnis,
that in respect of orders passed otherwise than on merits, in
proceedings u/s. 18 L.A. Act, only an appeal lies. When Sec. 53 of
L.A. Act applies the provisions of CPC to proceedings u/s. 18 of
10
the L.A. Act, the provisions of section 115 CPC or for that matter
those as contained in Order IX CPC in relation to dismissal of a
suit in default and of its restoration by setting aside the order of
dismissal in default, would equally be attracted. Nay all the
provisions of the C.P.C., except those inconsistent with the
15
provisions of the L.A. Act, would be applicable to proceedings
before the Court u/s. 18 of the L.A. Act. This being so, there is no
reason whatsoever to deny that in case of orders which so permit,
why the provisions of Order IX Rules 9 & 13 of C.P.C. ought not to
apply.
20
26. In the case of M.S. Ramiah (suprae, relied upon by
learned Counsel Mr. Sabnis, the learned Single Judge after taking
note of the fact that the claimant had sought an adjournment, in
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30 CRA No. 63/2017 & Ors.
a reference u/s. 18, which was rejected, in-spite of which the
claimant had not taken necessary steps, resulting in no evidence
being adduced on behalf of the claimant to show that the amount
awarded by the L.A.O. was inadequate, the claims were dismissed
and the awards were confirmed. On an application filed U/O IX
5
Rule 9 CPC for setting aside the order, the Civil Court rejected the
same that the order was made under Rule 2 of Order XVII and not
under Rule 3 of CPC. He also held that there was no sufcient
cause shown for non appearance. The High Court in an appeal
against the same held that the Civil Court had no jurisdiction to
10
refuse to determine the amount of compensation even where the
claimant remained absent or where he is present, feels to adduce
evidence and it was not open to the Court to dispose of
references stating that the claim is dismissed or reference is
rejected but it has to pass an award in the manner as provided u/
15
s. 26 on material before it. The High Court thereafter in para 5
though held that the order impugned did not conform to the
requirement of section 26 of L.A. Act, the remedy was an appeal
and application u/o IX Rule 9 of CPC was misconceived. A reading
of the judgment indicates that neither the provisions of section 53
20
of the L.A. Act, making the provisions of CPC as applicable to
proceedings under it, nor section 115 CPC was ever under
consideration before the Court. M.S. Ramiah (suprae, therefore,
does not help learned Counsel Mr. A.N. Sabnis in his contention
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31 CRA No. 63/2017 & Ors.
that only an appeal lies. In fact, in M.S. Ramiah (suprae, the
Court was itself of the opinion that the impugned order did not
conform to the requirements of section 26 of the L.A. Act, in-spite
of which, it for reasons not evident, went on to hold that an
appeal lay. In our considered opinion, M.S. Ramiah (suprae
5
cannot be considered to be laying down a good law.
27. In Sheodan Singh (suprae, relied upon by learned
Counsel Mr. Sabnis, the Hon’ble Apex Court while considering the
principle of res judicata, as contained in Sec. 11 CPC, in light of
10
factual background therein, of decision of four suits by the trial
Court on merits, by the same judgment and the consequent
dismissal of two appeals against the same, one on account of
having been filed beyond the period of limitation and the other on
account of appellant having failed to take steps to bring the
15
record, both of which dismissals were earlier in point of time, held
that such a dismissal would result in confirming the judgment of
the trial Court as the same was passed on merits and would apply
as res judicata, in the two subsequent appeals filed against the
same common judgment, as taking a contrary position would
20
result in negating the principle of res judicata altogether. A
perusal of para 14 of Sheo dan Singh (suprae, would indicate
that the Hon’ble Apex Court was alive to the propositions in light
of section 11 of CPC that the dismissal of the former suit on
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32 CRA No. 63/2017 & Ors.
technical grounds, such as, dismissal for want of jurisdiction; or
for default of plaintif’s appearance; or on ground of non-joinder
or mis-joinder of parties; or multifariousness; or on ground that
the suit was badly framed; or on ground of a technical mistake;
on account of under valuation, deficit court fees, etc., would not
5
attract section 11 CPC., as the dismissal on these grounds would
not amount to a dismissal on merits.
In the above context, a reference may be made to
the factors enunciated by the Hon’ble Apex Court to determine
what is the nature of reference u/s. 18 of the L.A. Act, as laid
10
down in Chimanlal Vs. Spl.L.A.O., Poona, AIR 1988 SC 1652 ,
which are as under:
“ 4. The following factors must be etched on
the mental screen:
1. A reference u/s. 18 of L.A. Act is not an
15
appeal against the award and the Court cannot
take into account the material relied upon by
the Land Acquisition Ofcer in his award,
unless the same material is produced and
proved before the Court.
20
2. So also the award of the Land Acquisition
Ofcer is not to be treated as a judgment of
the trial Court open or exposed to challenge
before the Court hearing the Reference. It is
merely an ofer made by the Land Acquisition
25
Ofcer and the material utilized by the Court
unless produced and proved before it. It is not
the function of the Court to sit in appeal
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33 CRA No. 63/2017 & Ors.
against the Award, approve or disapproved its
reasoning or correct its error or afrm, modify
or reverse the conclusion reached by the Land
Acquisition Ofcer, as if it were an Appellate
Court.
5
3. The Court has to treat the Reference as
an an original proceedings before it and
determine the market value afresh on the
basis of the material produced before it.
4. The claimant is in the position of a
10
plaintif who has to show that the price ofered
for his land in the Award is inadequate on the
basis of materials produced in the Court. Of
course, the materials placed and proved by the
other side can also be taken into account for
15
this purpose. ”
28. The above being the enunciation of law, we do not
think that Sheodan Singh (suprae, can be of any assistance to
learned Counsel Mr. Sabnis in support of his submission that only
20
an appeal lies.
29. In Venkat Baburao Karle (suprae, in a reference
u/s. 18 of the L.A. Act, evidence was led and upon consideration
of the material placed before the Court, it was found that the
25
claimants were not entitled to receive enhancement in amount of
compensation. It was also found that the reference applications
were presented beyond the prescribed period of limitation. The
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34 CRA No. 63/2017 & Ors.
Reference Court, therefore, rejected the applications. Rejecting
the reliance placed on the case of Kawadu (suprae as well as
M.S. Ramiah (suprae, the learned Court held that Civil Revision
Application questioning the legality and validity of the decision
rendered by the Reference Court was not maintainable, as
5
evidence was adduced and the Court had also appreciated the
material placed on record and has recorded reasons in support of
the final order, in light of which, it would fall within the meaning
of the word ‘Award’, as contemplated by section 26 of the L.A. Act
and, therefore, remedy would not be by way of the Civil Revision
10
Application but would be by way of an appeal u/s. 54 of the L.A.
Act. The application for condonation of delay was also rejected,
which perhaps was the ground to file the revision. The judgment,
however, does not make this position clear. The facts in
Venkat’s case were totally diferent in as much as, the decision
15
therein was on merits and not otherwise. It is material to note
that in Venkat’s case (suprae, also no arguments appear to have
been advanced in respect of the restrictive scope of the proviso
to section 115(1e of C.P.C. nor the judgment in Shiv Shakti
(suprae, was brought to its notice. However, the fact remains that
20
the decision in Venkat’s case (suprae, was on merits and, thus,
an appeal u/s. 54 of the L.A. Act was the only remedy available.
The contra argument, as raised therein of section 115 CPC being
attracted, was itself misconceived altogether.
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35 CRA No. 63/2017 & Ors.
30. The Division Bench of this Court in the case of
Chandu S/o Jagannath Ambekar and another Vs. Digambar
S/o Kisanrao Kulkarni, 2004 (4) Mh.L.J. 69 , while considering
the scope of section 115 as it stood amended, in respect of an
5
issue as to the maintainability of a revision u/s. 115 of C.P.C.
challenging the order rejecting an application for condonation of
delay filed in appeal held that an appeal presented out of time is
an appeal and an order dismissing it as time barred is one passed
in the appeal, and the judgment in Shiv Shakti (suprae, was
10
duly considered and relied upon while holding that civil revision
application was not maintainable. Para 14 and 15 being material
are quoted as under:
“ 14. The language of the proviso added below
sub-section (1e of section 115 of the Code has
15
to be read as it is and it is not permissible to
delete any words therein. It governs the scope
to maintain the revision applications u/s. 115
and the tests for the same are set out therein.
For entertaining a revision application it is
20
necessary to examine at the first instance
whether the order, if it had been made in
favour of the party making revision would have
finally disposed of the suit or other proceeding.
When an application for condonation of delay,
25
filed in a proposed appeal, is rejected, the said
order is a final order for the
applicant/appellant but that is not the test for
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36 CRA No. 63/2017 & Ors.
maintaining a revision application u/s. 115.
The order must be such that if it had been
made in favour of the party applying for
revision it would have finally disposed of the
suit or other proceeding. This condition would
5
indicate that the revision applicant before the
High Court must demonstrate the order of the
trial Court, if it had been made in his favour
would have finally disposed of the suit or other
proceeding. In the instant case if the order
10
was passed by the trial Court in favour of the
applicant the restoration application could
have been decided on merits and, therefore, it
would not result in finally disposing of the suit.
On the other hand, if the delay condonation
15
application is allowed by the lower Court, a
revision against such an order can be
maintained by the respondent opponent in
such a case because if the Court below had
made an order on such an application in favour
20
of the respondent/defendant the proceeding
could have been finally disposed of. The
interpretation carved out by the learned Single
Judge in Chandrakant’s case (suprae of the
language employed in the proviso below sub-
25
section (1e of section 115 is in keeping with
the legislative intent and it is not permissible
to hold that a revision can be maintained
against any order which has finally disposed of
a proceeding or it could not be termed as an
30
interlocutory order. ”
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37 CRA No. 63/2017 & Ors.
The position as to the invocation and application of section 115
CPC is well settled.
31. In the result, we hold as under :
5
(Ae that a civil revision application u/s. 115 of C.P.C.
against, any order passed, otherwise than on merits, in an
application u/s. 18 of the L.A. Act by the Civil Court, is not
maintainable.
10
(Be We also hold that the judgments in the case of
Kawadu Madhav Bansod, Appasaheb Mohanrao
Chede, Kamlakar Laxman Suryawanshi and Irnappa
@ Irappa Angire (suprae, holding that a civil revision
15
application is maintainable, are rendered per-incuriam to
the statutory provisions as contained in the proviso to sub-
section (1e of section 115 of the Code of Civil Procedure and
are also rendered per- incuriam in view of the the judgment
of the Hon’ble Apex Court in the case of Shiv Shakti
20
(suprae.
(Ce We also hold that an ‘order otherwise than on merits’,
passed in proceedings u/s. 18 of the L.A. Act, by the Civil
Court, cannot be considered as an award and, therefore,
25
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38 CRA No. 63/2017 & Ors.
does not amount to a decree, as defined in Section 2(2e of
C.P.C. by virtue of the deeming provision u/s. 26(2e of the
L.A. Act and, therefore, an appeal against it also would not
be maintainable.
5
(De We hold that the judgment in Venkat’s case (suprae,
holding that an appeal is maintainable, is on a diferent
footing altogether considering that the judgment passed
therein was on merits after considering the evidence and,
therefore, was an award and consequently a decree u/s.
10
2(2e of C.P.C. by application of Section 26(2e of the L.A. Act.
(Ee We further hold that a reference u/s. 18 of the L.A.
Act, in the light of the mandate as laid down by the
Hon’ble Apex Court in the case of Khazan Singh
15
(suprae, has to be decided by the Civil Court on the basis
of the material before it, on merits.
(Fe We further hold that an ‘order passed otherwise than
on merits’ in proceedings u/s. 18 of the L.A. Act by the Civil
20
Court, in case it has been so passed, would be susceptible
to a challenge under Article 227 of the Constitution of India
before the High Court in its supervisory jurisdiction, or u/o
IX Rule 9 r/w. Sec. 151 CPC. by virtue of section 53 of the
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39 CRA No. 63/2017 & Ors.
L.A. Act.
32. The reference is, thus, answered accordingly.
33. The matter be now placed before the respective
5
Courts to be decided in light of the answers above.
34. Before we part, we record our appreciation for the
excellent assistance rendered to us by all the Counsels, who had
addressed the Court while hearing the reference.
10
( AVINASH G. GHAROTE ) ( PRASANNA B. VARALE )
JUDGE. JUDGE.
15
20
Madkar
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