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2019 DIGILAW 2127 (BOM)

Balwant v. State Of Maharashtra

2019-09-13

A.S.CHANDURKAR

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JUDGMENT : A.S.Chandurkar, J. Rule. Heard finally considering the short issue involved. 2. The petitioners in the present writ petition have sought to challenge the order passed by the Special Land Acquisition Officer dated 31.03.1999 that has been passed under Section 28A of the Land Acquisition Act, 1894 (for short, 'the said Act'). 3. One Balwant, the predecessor of the petitioners was the owner of Field Survey No.9/2 admeasuring 2 Hectare that was situated at village Kalsa, Taluka Digras, District Yavatmal. That land was acquired for the Arunavati project vide L.A.C. No.5/47/83-84. The Land Acquisition Officer passed his award on 31.03.1986. One Shamrao Jadhav who is the owner of Field Survey No.17/1-B of the same village whose lands were also acquired by virtue of the same notification had filed reference proceedings under Section 18 of the said Act seeking enhanced compensation. The said proceedings were registered as L.A.C. No.55 of 1990. On 02.11.1990, the reference Court enhanced the amount of compensation to Rs.22,500/- per Hectare. In view of this adjudication, the predecessor of the petitioners-Balwant filed an application under Section 28A of the said Act on 23.01.1991 claiming enhanced compensation for the acquired land in view of the enhancement as granted by the reference Court. The Special Land Acquisition Officer on 31.03.1999 passed an order under Section 28A of the said Act and granted compensation at the rate of Rs.22,500/- per Hectare. The petitioners subsequently got knowledge that Shamrao Jadhav who had filed reference proceedings had thereafter approached this Court seeking further enhancement in the amount of compensation by filing First Appeal No.832 of 1991. The said first appeal was partly allowed on 04.07.2008 and the amount of compensation was enhanced to Rs.32,500/- per Hectare. It is the further case of the petitioners that in First Appeal No.871 of 2017, the amount of compensation for lands acquired from village Kalsa was further enhanced by this Court by its judgment dated 26.07.2017 to Rs.65,000/- per Hectare. In the light of these enhancements, the petitioner seeks modification of the order passed by the Land Acquisition Officer on 31.03.1999 and seeks enhancement in the amount of compensation on those terms. 4. Shri G.R. Kothari, learned counsel for the petitioners submits that after the reference Court had enhanced the amount of compensation on 02.11.1990 that judgment was challenged by Shamrao Jadhav by filing First Appeal No.832 of 991. 4. Shri G.R. Kothari, learned counsel for the petitioners submits that after the reference Court had enhanced the amount of compensation on 02.11.1990 that judgment was challenged by Shamrao Jadhav by filing First Appeal No.832 of 991. Though the original land owner-Balwant had on 23.01.1991 moved an application for enhanced compensation under Section 28A of the said Act, the Special Land Acquisition Officer ought to have awaited the adjudication of the first appeal preferred by Shamrao Jadhav as filed in this Court. Without awaiting the adjudication of that appeal, the proceedings filed by the original land owner came to be adjudicated on 31.03.1999. Referring to the decision in Bharatsing & Others Versus The State of Maharashtra & Others, (2017) AIR SC 5741, it was submitted that when an appeal seeking further enhancement in the amount of compensation pertaining to acquisition of lands from the same notification is pending, the Special Land Acquisition Officer is required to await the adjudication of such appeal. In the present case, First Appeal No.832 of 1991 filed by Shamrao Jadhav was decided subsequently on 04.07.2008 and hence at least till that date, the Special Land Acquisition Officer ought to have stayed his hands by not deciding the application under Section 28A of the said Act. As a result of the impugned order, the petitioners who are similarly placed alongwith Shamrao Jadhav have been deprived of similar compensation at the rate of Rs.32,500/- per Hectare and hence the order passed by the Special Land Acquisition Officer deserves modification. Reference was also made to the adjudication in First Appeal No.871 of 2017 in which the amount of compensation was further enhanced to Rs.65,000/- per Hectare. It is thus submitted that in the light of such enhancement, the petitioners are entitled for further relief. As regards the period that has been spent in not approaching this Court immediately, it is submitted that the petitioners could be deprived of interest on the amount of enhanced compensation which course would not prejudice the respondents. 5. Shri M.A. Kadu, learned Assistant Government Pleader for the respondents opposed the aforesaid submissions. According to him, it was not permissible for the petitioners to seek re-determination of the amount of compensation that was awarded. The Special Land Acquisition Officer on 31.03.1999 had granted enhanced compensation to the petitioners and hence after lapse of long period it was not permissible to re-open those proceedings. According to him, it was not permissible for the petitioners to seek re-determination of the amount of compensation that was awarded. The Special Land Acquisition Officer on 31.03.1999 had granted enhanced compensation to the petitioners and hence after lapse of long period it was not permissible to re-open those proceedings. He referred to the decision in Ramsingbhai (Ramsangbhai) Jerambhai Versus State of Gujarat & Another, (2018) AIR SC 2629 and submitted that on the basis of adjudication by the Appellate Court, it was not permissible to re-determine the amount of compensation. He also referred to the judgment of the Division Bench in Writ Petition No.4751 of 2016 [Ramchandra Shyamraoji Dhole & Others Versus The State of Maharashtra & Others] in that regard. It was then submitted that this Court in other connected appeals has found that compensation at the rate of Rs.65,000/- per Hectare was on a higher side and the compensation that was granted by this Court in First Appeal No.832 of 1991 did not require further enhancement. He referred to the adjudication in various first appeals including the judgment in First Appeal No.89 of 2008 [Chintaman Raibhan Ingle Versus The State of Maharashtra & Others] dated 07.11.2017 wherein this aspect has been clarified. Thus, without prejudice to his aforesaid submissions, it was urged that the petitioners are not entitled for any further enhanced compensation than Rs.32,500/- per Hectare. 6. I have heard the learned counsel for the parties at length and I have perused the documents on record. The undisputed facts are that the lands of the petitioners and that of Shamrao Jadhav were located at village Kalsa, Taluka Digras, District Yavatmal. Those lands were acquired pursuant to L.A.C. No.5/47/83-84. The predecessor of the petitioners, Balwant accepted the amount of compensation whereas Shamrao Jadhav filed the reference proceedings. The reference proceedings were decided on 02.11.1990 and the compensation was enhanced to Rs.22,500/- per Hectare. On 23.01.1991, Balwant preferred an application under Section 28A of the said Act seeking similar compensation as granted in the reference proceedings. In the meanwhile, Shamrao Jadhav filed First Appeal No.832 of 1991. When the aforesaid first appeal was pending, the Special Land Acquisition Officer proceeded to allow the application filed by Balwant under Section 28A of the said Act. On 23.01.1991, Balwant preferred an application under Section 28A of the said Act seeking similar compensation as granted in the reference proceedings. In the meanwhile, Shamrao Jadhav filed First Appeal No.832 of 1991. When the aforesaid first appeal was pending, the Special Land Acquisition Officer proceeded to allow the application filed by Balwant under Section 28A of the said Act. In other words, when First Appeal No.832 of 1991 seeking enhancement in the amount of compensation for lands from the same notification was pending, the application under Section 28A of the said Act came to be decided. 7. In Bharatsing & Others (supra), the Hon'ble Supreme Court considered the following question:- "2. What is the course to be adopted by the Land Acquisition Collector under Section 28A of the Land Acquisition Act, 1894 (hereinafter referred to as "the Act"), when the award based on which enhancement is sought is pending in appeal, is the issue arising for consideration in this case." After referring to various earlier decisions, it was held that if the appeals arising from the same notification seeking enhancement in the amount of compensation are pending, the Collector should stay his hands while deciding the application under Section 28A of the said Act. It was clarified that a second application seeking enhancement under Section 28A of the said Act was not maintainable and therefore, the Collector was obliged to have kept the initial application filed under Section 28A of the said Act pending. 8. If the facts of the present case are examined, it becomes clear that the ratio of the aforesaid decision is clearly applicable to the case in hand. Shamrao Jadhav had sought enhancement in the amount of compensation by filing an appeal under Section 54 of the said Act before this Court. The Special Land Acquisition Officer ought to have awaited the adjudication of that appeal instead of proceeding to adjudicate the application under Section 28A of the said Act. First Appeal No.832 of 1991 filed by Shamrao Jadhav was decided on 04.07.2008 but prior thereto the Special Land Acquisition Officer disposed of the application filed by Balwant under Section 28A of the said Act. As a result, the petitioners have been deprived of the benefits under Section 28A of the said Act. 9. In Ramsingbhai (Ramsangbhai) Jerambhai (supra), the question that arose for adjudication was as under: "2. As a result, the petitioners have been deprived of the benefits under Section 28A of the said Act. 9. In Ramsingbhai (Ramsangbhai) Jerambhai (supra), the question that arose for adjudication was as under: "2. Whether an application under Section 28A of the Land Acquisition Act, 1894 (for short, "the Act") for redetermination of the compensation can be filed within a period of 3 months from the date of judgment of the High Court or Supreme Court passed in appeal under Section 54 of the Act is the question that arises for consideration in this case." It was held that the judgment of the Appellate court is not within the purview of Section 28A of the said Act and hence after adjudication of the proceedings in appeal such re-determination under Section 28A of the said Act cannot be sought by filing an application at that stage. As noted above, in the present case, the application under Section 28A of the said Act was filed immediately after the judgment of the reference Court and hence it was tenable. This decision therefore does not support the stand of the respondents. Similarly, the facts in Ramchandra Shamraoji Dhole & Others (supra) indicate that a second application under Section 28A of the said Act was moved by the claimants. That second application was held to be not maintainable. The facts of that case are therefore different. 10. Having found that the petitioners are entitled to the benefit under Section 28A of the said Act, the question that arises is with regard to the quantum of such compensation. In First Appeal No.832 of 1991, an amount of Rs.32,500/- per Hectare has been granted for dry crop land acquired from village Kalsa. According to the petitioners, their land is also dry crop land. The petitioners however seek to rely upon the adjudication in First Appeal No.871 of 2017 wherein an amount of Rs.65,000/- per Hectare was granted for dry crop land. In this regard however is is necessary to note the observations as made in First Appeal No.89 of 2008. It was found therein that on the basis of incorrect facts being placed before the Court the amount of compensation came to be enhanced to Rs.65,000/- per Hectare in First Appeal No.127 of 1996. In this regard however is is necessary to note the observations as made in First Appeal No.89 of 2008. It was found therein that on the basis of incorrect facts being placed before the Court the amount of compensation came to be enhanced to Rs.65,000/- per Hectare in First Appeal No.127 of 1996. The adjudication of First Appeal No.871 of 2017 that was decided on 26.07.2017 is also based on the earlier adjudication in First Appeal No.269 of 1998 and 523 of 1998. In view of the clear observations as made in First Appeal No.89 of 2008 and especially paragraph 5 therein that the earlier appeals that were relied upon for seeking enhanced compensation were erroneously relied upon, I am inclined to rely upon the adjudication in First Appeal No.832 of 1991 while granting relief to the petitioners. 11. In the light of the aforesaid discussion, the order dated 31.03.1999 in L.A.C. No.4/28A/99 is partly modified. It is held that the petitioners are entitled to receive compensation at the rate of Rs.32,500/- per Hectare instead of amount of Rs.22,500/- per Hectare as awarded. The petitioners shall however not be entitled to claim interest on the enhanced amount of compensation in view of the time taken for approaching this Court. The amount of enhanced compensation be paid within a period of six weeks failing which the said amount shall carry interest at the rate of 6% per annum. 12. The Writ Petition is partly allowed. Rule is disposed of in aforesaid terms. No costs.