DIWAKAR PRABHAKAR CHOPADE Vs. SUB-DIVISIONAL OFFICER (LAND ACQUISITION OFFICER), SILLOD DISTRICT AURANGABAD

JUDGEMENT

(1.) This Division Bench has been constituted by the Hon'ble the Chief justice, in pursuance to a request made by Mr. M.S. Sonak, j., dated 16th january 2018, who having found that there was a divergence of opinion between the learned Single 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 reflected from Kawadu S/o Madhav Bansod Vs. State of Maharashtra, 2004 1 AllMR 651, which has been followed in lrnappa alias lrappa S/o Karbasappa Anjgre 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 AllMR 255, which also make a reference to an unreported decision in the case of Kamlakar S/o Laxman Suryawanshi Vs. State of Maharashtra in C.R.A. No. 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 (supra), has held in Venkat Baburao Karle Vs. State of Mah. & Ors., 2012 4 AllMR 826, that a Civil Revision Application is not the correct remedy but an appeal 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 conflict between Kawdu's case (supra) and Venkat's case (supra), 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, 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, 2003 AIR(SC) 2434, a Civil Revision Application U/S. 115 would lie, in light of the language of the proviso thereto. It is in the above background that the learned Single judge noticing the conflict 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 Chief justice, who on consideration of the conflict, 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 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 respondent/acquiring body in C.R.A. No. 187/2015 & C.R.A. (Stamp) No. 37892/2017. Learned Counsel Mr. A.N. Sabnis also addressed the Court.