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2019 Supreme(Bom) 1543
IN THE HIGH COURT OF BOMBAY
Prasanna B. Varale, Avinash G. Gharote, JJ.
Diwakar Prabhakar Chopade – Appellant
Versus
Sub-Divisional Officer (Land Acquisition Officer), Aurangabad – Respondent
Civil Revision Application Nos. 63, 78, 79, 80, 81 of 2017, 187 of 2015, Civil Revision Application (Stamp) No. 37892 of 2017
Decided On : 17-10-2019
Advocate Appeared:
Anita A. Gadekar, M.S. Patil, V.B. Patil, R.R. Chanda, S.P. Sonpawale, S.G. Sangle, Vaishali D. Jadhav Patil, A.N. Sabnis.
Headnote:
Land Acquisition Act, 1894 - Sections 18, 53, 26 and 54 - Amending Act - Civil Procedure Code,1908 – Section 2(2) and 15 – Eventualities - Interest Of The Poor - Lands Are Acquired - Provisions of Section 115 of C. P. C. permit a challenge to an order passed by Courts subordinate in eventualities as mentioned in clauses (a) to (c) of sub-section (1) of Section 115 in light of which power of revision would be available in respect of an order not passed on merits in proceeding u/s. 18 of L.A. Act such as in cases where reference u/s. 18 of L.A. Act Act was dismissed in default for non-appearance of applicants or for not leading evidence or for that matter for any other reason which did not touch merits of matter - He further contends that 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 L.A. Act - He invited our attention to language of sections 18 26 and 54 L.A. Act Act to buttress his arguments - He further contended that proviso of amended section 115 of C. P. C. did not come in way of laying a challenge to orders which were otherwise than on merits in proceedings u/s. 18 of L.A. Act Act - He further submitted that judgment of Honble Apex Court in case did not take into consideration provisions of 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 interest of poor applicants whose lands are acquired for if they are required to file an appeal same would entail payment of court fees which would be onerous for them – Held, Language of proviso added below sub-section (1) of section 115 of Code has to be read as it is and it is not permissible to delete any words therein - It governs scope to maintain revision applications u/s. 115 and tests for same are set out therein - For entertaining a revision application it is necessary to examine at first instance whether order if it had been made in favour of party making revision would have finally disposed of suit or other proceeding - When an application for condonation of delay filed in a proposed appeal is rejected said order is a final order for applicant/appellant but that is not test for maintaining a revision application u/s. 115 - Order must be such that if it had been made in favour of party applying for revision it would have finally disposed of suit or other proceeding - This condition would indicate that revision applicant before High Court must demonstrate order of trial Court if it had been made in his favour would have finally disposed of suit or other proceeding - In instant case if order was passed by trial Court in favour of applicant restoration application could have been decided on merits and therefore it would not result in finally disposing of suit - On other hand if delay condonation application is allowed by lower Court – Order Accordingly.
JUDGMENT :
Avinash G. Gharote, J.
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 All MR 651, which has been followed in Irnappa alias Irappa S/o Karbasappa Anjgre vs. State of Maharashtra and Another in C.R.A. No. 117/2012 decided on 13.06.2012 and Appasaheb Mohanrao Chede vs. State of Maharashtra and Another, (2011) 2 All MR 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 Maharashtra and Others, (2012) 4 All MR 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 and 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 and 81/2017 and Mr. S.G. Sangle, learned Counsel for the respondent/ acquiring body in C.R.A. No. 187/2015 and C.R.A. (Stamp) No. 37892/2017. Learned Counsel Mr. A.N. Sabnis also addressed the Court.
4. Mr. V.B. Patil, learned Counsel for the petitioner, 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 (a) to (c) of sub-section (1) of Section 115, in light of which the power of revision would be available in respect of an order, not passed on 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 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
