Civil Application No. 2717 of 2020 · The High Court
Case Details
1 901fa1049.20 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD901 FIRST APPEAL NO. 1049 OF 2020WITHFIRST APPEAL NO. 1052 OF 2020WITHFIRST APPEAL NO. 1053 OF 2020WITHFIRST APPEAL NO. 1050 OF 2020WITHFIRST APPEAL NO. 806 OF 2020WITHFIRST APPEAL NO. 808 OF 2020WITHFIRST APPEAL NO. 801 OF 2020WITHFIRST APPEAL NO. 812 OF 2020WITHFIRST APPEAL NO. 807 OF 2020WITHFIRST APPEAL NO. 1055 OF 2020WITHFIRST APPEAL NO. 1054 OF 2020WITHFIRST APPEAL NO. 1051 OF 2020WITHFIRST APPEAL NO. 811 OF 2020WITHCIVIL APPLICATION NO. 2717 OF 2020 IN FAST/3847/2020WITHFIRST APPEAL NO. 1056 OF 2020WITHFIRST APPEAL NO. 802 OF 2020WITHFIRST APPEAL NO. 1057 OF 2020WITHFIRST APPEAL NO. 1059 OF 2020WITHFIRST APPEAL NO. 1060 OF 2020
Legal Reasoning
2 901fa1049.20 WITHFIRST APPEAL NO. 1061 OF 2020WITHFIRST APPEAL NO. 810 OF 2020WITHFIRST APPEAL NO. 804 OF 2020WITHFIRST APPEAL NO. 809 OF 2020WITHFIRST APPEAL NO. 805 OF 2020WITHFIRST APPEAL NO. 803 OF 2020WITHFIRST APPEAL NO. 1058 OF 2020UTTAM SHIVAJI JOHAREVERSUSTHE DY. COLLECTOR, (LAND ACQUISITION - 1 ) U.T.P.(HATNOOR) JALGAON AND ANR...Advocate for Appellants : Mr. Patil Vijay Y.AGP for Respondents/State : Mrs.M.N.Ghanekar Advocate for Respondent No. 2 : Mr.Pawar A.D. ... CORAM : KISHORE C. SANT, J. DATE : 02nd AUGUST, 2024. PER COURT : 1.Issue notice to the respondents, returnableforthwith.2.Respective learned Advocates waives service of notice 3 901fa1049.20 for respondents.3.All these appeals arising out of the same award ofacquisition proceedings from which other appeals are already onboard today are arising out of the common judgment and awardpassed by the learned reference Court i.e. 6th Jt. Civil JudgeSenior Division, Jalgaon vide judgment and order dated04.08.2018. Therefore, all these appeals are taken together.4.First group of appeals is by the Claimants forenhancement in the amount of compensation. The secondgroup of the appeals is by the acquiring body on the limitedissue challenging Clause 6 and 7 of the operative order andClause No. 5 to the extent of awarding interest under Section 28and 34 of the Land Acquisition Act from the date of possessionof the land instead of from the date of award in view of the fullbench judgment in the case of State of Maharashtra Vs. KailashShiva Rangari, 2016 (4) ALL MR 513.5.The facts in short are that all the claimants are fromthe village Gondkhed, Tq. Jamner, District Jalgaon. Their 4 901fa1049.20 respective lands came to be acquired for percolation tank,Hizara Nala, of village Gondkhed. The Notification was issuedbearing SR/24/10. After determining the amount ofcompensation the SLAO awarded compensation @ Rs.1,56,000/- per Hector considering all the lands as jirayat landsand passed the award.6.Being aggrieved by the amount of compensation theclaimants approached the learned Collector under Section 18 Aof the Land Acquisition Act by filing reference under the Act.The references were referred to the Civil Judge, Senior Division,Jalgaon. The judgment and award passed in Land AcquisitionReference No. 532 of 2009 (for short ‘L.A.R.’) decided by thelearned 3rd Jt.Civil Judge Senior Division, Jalgaon by judgmentand order dated 23.08.2017, wherein, the rate is awarded is Rs.5,40,000/- to jirayat land is relied upon the claimants.. Thelearned trial judge, however, held that the LAR No. 532 of 2009was in respect of different project i.e. for percolation tankPaladhi and the said rate cannot be applied to the lands fromvillage Gondkhed. Village Paladhi is close to the State Highwayand did not accept the said value. It is further observed that 5 901fa1049.20 the village Gondkhed is at some distance from the Highway andalso at some distance from the village Paladhi.7.The Court thus granted rate of Rs. 4,80,000/- perhector considering all the relevant aspects. The Court thus,partly allowed the claims. The claimants are thus aggrieved tothe extent of not granting the rate as per the judgment in LARNo. 532 of 2009, have approached this Court.8.So far as the acquiring body is concerned, theacquiring body has fairly not challenged the enhancement in therate of the amount. The acquiring body is aggrieved by Clause-6, 7 and Clause- 5 to some extent. As per Clause- 6 the learnedCourt has directed to pay rental compensation @ 8% p.a. onthe entire amount of compensation including the enhancedamount, 30% isolation etc. from the date of possession whichwas taken even prior to the Section 4 (1) of the notification. ByClause-7 the Court further directed to pay the interest @ 6%even on the amount of rental compensation. These both Clausesare challenged in its entirety. So far as Clause-5 is concerned,challenge is only to the extent of direction for grant of statutory 6 901fa1049.20 interest and statutory benefits from the date of possession. Theground taken is that in view of the judgment in the case ofKailash Shiva Rangari (supra), the claimants are entitled toreceive the interest under Section 28 and Section 34 only fromthe date of award and not from any other date prior to passingof the award under Section 11.9.Heard the parties.10.Learned Advocate Mr. Patil vehemently argued thatthe claimants have relied upon the judgment in LAR No. 532 of2009 which was in respect of adjoining village Paladhi. There isno difference in the quality of the land as all the lands are jiriyatlands. He submits that the distance between the village Paladhiand Gondkhed is less than 5 k.m. The crop cultivation patternis the same. There is no difference in respect of lands of boththe villages and there was no reason for not accepting the rateas awarded in LAR No. 532 of 2009 to the extent of award ofrental compensation and awarding interest from the date ofpossession is justifies judgment and award to the extent ofClause 5 part 6 & 7. He thus, prays for allowing the appeals 7 901fa1049.20 and claimed rate of Rs. 5,88,000/- per hector as is given in LARNo. 532 of 2009. So far as the other aspects are concerned, hesubmits that same needs to be maintained.11.Coming to the arguments of Mr. Pawar for theacquiring body, as already observed he fairly states that theAcquiring Body has not challenged the rate granted by thereference Court. He however, submits that in view of the fullBench judgment in the case of Kailash Shiva Rangari (supra) itis clearly & categorically held that the claimants are entitled tothe interest under Section 34 and 28 only from the date ofaward till realization of the amount. He further submits thatthe award of rental compensation has to be considered by thelearned Collector and the reference Court has no powers toaward rental compensation. As per Government Resolutions ofthe year 1972 and 1988, it is entirely for the learned Collectorto decide the rate/value of the rental compensation. There is noprovision in the law for vesting powers in the Civil Court toaward the rental compensation and to that extent the Clauses 6& 7 needs to be set aside from the impugned judgment andaward. 8 901fa1049.20 12.In support of his submission he submits that theaward was passed on 08.04.2013 in respect of the presentproceedings. While passing the award the sale instances fromthe village Gondkhed were considered. Considering those ratesthe award was passed. The same rate was lower than the ratewhich is awarded by the reference Court. He submits thatthough the sale instances from village Gondkhed were verymuch available, the Claimants did not produce the same andhave relied upon the award in 532 of 2009 and the Court isthus justified in not accepting the said rate when the project isdifferent, the acquisition proceeding is different and even thelocation of the land are also different.13.So far as the observations of the learned Court inparagraph No. 26 about the rental compensation, the learnedtrial Court failed to consider the order in Writ Petition No.10916 of 2014 dated 29.06.2015. This Court had only kept itopen for the Claimants to raise the issue in respect benefitavailable to them under Section 34 of the land Acquisition Act.It was only expected of the reference Court to consider suchclaims and to pass appropriate orders. The reference Court
Decision
9 901fa1049.20 however, has taken said order as if the reference Court isdirecting to award the interest under Section 34 from the date ofpossession.14.This Court has gone through the order passed inWrit Petition No. 10916 of 2014 which reads as under :“1. The petitioners, it is stated, have presentedReference Applications seeking enhancement inthe amount of compensation and thoseapplications are stated to be pending.2. It would be open for the petitioners to raisethe issue in respect of benefits accruable to themunder Section 34 of the Land Acquisition Act. Ifthe petitioner raises such claim, it would beobligatory on the part of the Reference Court todeal with such claims and pass appropriateorders.3. With the observations as above, the WritPetition stands disposed off.”15.It is no where in the said order to interpret thereference Court is directed to award the interest under Section34 from the date of possession. The direction given was only toconsider the said claim. Naturally the Court will consider the 10 901fa1049.20 matter of awarding interest under Section 34 and the same isgoverned by the legal position which is well settled in the caselaw of Kailas Shiva Rangari (supra).16.Thus, from all these discussions, this Court findsthat the learned trial judge has certainly erred in passing theorder in terms of Clause Nos. 6 and 7 of the impugnedjudgment. This Court is thus inclined to decide clause Nos. 6and 7 of the impugned judgment.17.So far as Clause No. 5 is concerned, the Court findsthat the same needs to be modified holding thatapplicants/Claimants to be entitled to receive interest as perSection 28 and 34 only from the date of award i.e. date08.04.2013 till its realization. With this, this Court holds that itis open for the Claimants to approach learned Collector andclaim rental compensation as per law. If such an application ispending the learned Collector to decide the same within sixmonths from today.18.It is informed that the Acquiring Body had deposited 11 901fa1049.20 the entire amount of compensation as per impugned judgmentand award in the executing Court/Reference Court. 80% of thesaid amount is already withdrawn by the Claimants. In view ofthis, the reference Court to make fresh calculations in the lightof discussion and above cited judgments and if an accessamount is deposited the same shall be refunded to theAcquiring Body and in case there is more amount lying towardsthe compensation, the same shall be given to the Claimants intheir proportionate shares. The said exercise be done withintwo months from today. No order as to costs.19.In view of the above discussion, the First Appealsstand disposed off.20.Consequently the Civil Applications, if any, standdisposed off. ( KISHORE C. SANT ) JUDGE mahajansb/