Bombay High Court
Vishwanath Kishanrao More And Ors vs The State Of Maharashtra And Ors on 10 August, 2016
Bench: S.V. Gangapurwala
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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 8525 OF 2009
1] Mr. Vishwanath Kishanrao More
Age 62 years, Occ. Agril.,
2] Bhaskar Vishwanath More,
Age 42 years, Occ. Agril.,
3] Ajit Dagdusaheb Deshmukh
Age 31 years, Occ. Agril.
4] Sunil Dagdusaheb Deshmukh
Age 33 years, Occ. Agril.
5] Atul Dagdusaheb Deshmukh
Age 29 years, Occ. Agril.
6] Mangesh Sadhuram Wakale
Age 33 years, Occ. Agril.
7] Janardhan Dagdusaheb Deshmukh,
Since deceased through L.R.
Sanjivaji Janardhan Deshmukh
Age years, Occ. Agril.
8] Dinkar Vishwanath More,
Age 39 years, Occ. Agril.
9] Gajanan Chandrakant Gabale
Age 35 years, Occ. Agril.
10] Laxmikant Vithalrao Gabale
Age 33 years, Occ. Agril.
11] Vishwanath Rajaram Kondawar
Age 52 years, Occ. Agril.
12] Uddahv Vithalrao Dapakekar
Age 33 years, Occ. Agril.
13] Shakutalabai Maroti Pawar
Age 22 years, Occ. Household.
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14] Sunil Maroti Pawar
Age 24 years, Occ. Agril.
15] Anil Maroti Pawar
Age 27 years, Occ. Agril.
16] Kusumbai Vishwanathrao More,
Age 57 years, Occ. Household
17] Gitanjali Bhaskarrao More
Age 37 years, Occ. Agril.
All r/o. Chera Tq. Jalkot,
Dist. Latur.
ig ......Petitioners
Versus
1] The State of Maharashtra
through its Secretary,
Irrigation Department,
Mantralaya, Mumbai-32
2] The Divisional Commissioner,
Aurangabad Division,
Aurangabad.
3] The Collector,
Latur.
4] The Chief Engineer,
Irrigation Department,
Sinchan Bhavan,
Jalna Road, Aurangabad.
5] The Executive Engineer,
Minor Irrigation Division,
Latur.
6] The Special Land Acquisition
Officer (Purna Project)
Latur.
......Respondents
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Shri. P. G. Gunale Advocate h/f Satish Deshmukh
Advocate for Petitioners.
Shri. S. S. Thombre Advocate for Acquiring body.
with
WRIT PETITION NO. 8117 OF 2013
1] Mr. Nagorao Ganapati Mane
Age 54 years,
2] Balaji Nagorao Mane,
Age 29 years,
3] Ganesh Nagorao Mane
Age 29 years,
Occupation of all Agril.
All r/o. Chera, Tq. Jalkot, Dist. Latur.
4] Bayanabai w/o. Maruti Devpuje,
Age 63 years, Occ. Household and Agril.,
r/o. Chera, Tq. Jalkot, Dist. Latur.
5] Kishan Santrao Gadme,
Age 73 years, Occ. Household and Agril.,
r/o. Chera, Tq. Jalkot, Dist. Latur.
6] Narayan Rajaram More,
Age 68 years, Occ. Household and Agril.,
r/o. Chera, Tq. Jalkot, Dist. Latur.
7] Vithal Rama Marewad,
Age 58 years, Occ. Household and Agril.,
r/o. Chera, Tq. Jalkot, Dist. Latur.
8] Govind Madhav Jarikote,
Age 48 years,
9] Venkat Madhav Jarikote,
Age 43 years
10] Sambha Madhav Jarikote,
Age 38 years,
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11] Nagnath Pandurang Saudagar,
Age 38 years,
12] Madhav Kishan Janapure,
Age 33 years,
13] Manohar Ramkrishna Bhure,
Age 63 years,
14] Sangam Manohar Bhure,
Age 34 years,
Occup. of petitioner Nos. 8 to 14
Agril., Petitioner Nos. 8 to 14
All r/o. Wanjarwada, Tq. Jalkot,
Dist. Latur.
......Petitioners
Versus
1] The State of Maharashtra
through its Secretary,
Irrigation Department,
Mantralaya, Mumbai-32
2] The Divisional Commissioner,
Aurangabad Division,
Aurangabad.
3] The Collector,
Latur.
4] The Chief Engineer,
Irrigation Department,
Sinchan Bhavan,
Jalna Road, Aurangabad.
5] The Executive Engineer,
Minor Irrigation Division,
Latur.
6] The Special Land Acquisition
Officer (Purna Project),
Latur.
......Respondents
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Shri. P. G. Gunale Advocate Advocate for Petitioners.
Shri. P. R. Tandale Advocate for Acquiring body.
Mrs. A. V. Gondhalekar AGP For State
CORAM : S.V. GANGAPURWALA
& K.K. SONAWANE, JJ.
DATE OF RESERVING THE JUDGMENT : 05TH AUGUST , 2016.
DATE OF PRONOUNCING THE JUDGMENT :10TH AUGUST, 2016.
JUDGMENT [ PER S.V. GANGAPURWALA, J} :-
1]
Mr. Gunale, learned counsel submits that trees were standing in
the land of the petitioner. Land was acquired by the respondents for
construction of Irrigation Tank at Chera Jalkot, District Latur. Learned
counsel submits that in order to complete the said construction
expeditiously, respondent Nos. 4 and 5 have taken over possession of the
acquired land of the petitioners alongwith standing fruit trees and forest
trees, temporary and permanent structures by private negotiations.
Panchanama in respect of the standing trees was conducted by the office of
Horticulture Department. Respondent No.6 also carried out spot inspection
of the land of the petitioner on 18.4.2000 in the presence of the Agricultural
Officer. Thereafter, valuation report of the fruit trees and forest trees,
respectively, were submitted by the Taluka Agricultural Officer. Learned
counsel for petitioner submits that Notification under Section 4 of the Land
Acquisition Act came to be issued on 18.5.2001 and trees were removed
prior to section 4 notification. Said trees were not found in the Joint
Measurement report though said trees were mentioned in the draft award.
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Valuation of the trees was deleted in the final award. Reference filed under
Section 18 of the Land Acquisition Act was against the compensation
determined for land. No award was passed in respect of trees. The
respondents subsequently paid the amount of compensation towards trees.
However, did not pay any interest on the said amount, the petitioners are
entitled for interest on the said amount of compensation for the trees.
2] Learned counsel to substantiate his submissions, relies on the
judgments of the Division Bench of this Court in case of Madhav Gopalrao
Sanap Vs. State reported in 1985 Mh.L.J. 636, so also, judgment of the
Division Bench of this Court in the case of Basant Balkrishna Wale Vs.
Vitthal Mahadeo Deshmukh, reported in 2006(1) Bom.C.R. 669. Learned
counsel for petitioner also relies on the judgment of this Court in the case of
Anand Vs. State reported in 2014(3) Bom.C.R. 397, and Surinder Singh
vs. Umrao Singh reported in 1961 AIR (SC) 908, Nadirsha Shapurji Patel
by LRs and others Vs. Deputy Collector & LA and another, reported in
2010 (7) Supreme 825.
3] Learned counsel for petitioners, relying on the ratio in all
these cases, submits that interest under Section 34 of the Land Acquisition
Act has to be paid on the amount of compensation , so also, solatium and
component under Section 23(1)(a). It is the duty of the SLAO and the
Acquiring Body to pay interest under Section 34 of the Land Acquisition Act
and the amount of interest under Section 34 is payable till the amount of
compensation is paid. In the present case, though compensation for trees is
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paid, interest under Section 34 has not been paid to the petitioners. The
respondents are duty bound to pay the same.
4] Learned AGP submits that those trees which were destroyed
prior to section 4 notification are not included in the award declared on
17.3.2003. The Collector, Latur has directed respondent No.5 to pay
compensation of those trees which are destroyed at the time of project
work, prior to publication of Section 4 notification. Learned AGP further
submits that petitioners and others had filed W.P. Nos. 2540 of 2003 and 2542
of 2003. However, those were dismissed and the petitioners had availed the
remedy under Section 18 of the Land Acquisition Act. The Acquiring Body
had granted compensation to the petitioners in respect of trees. As such,
the State is not responsible to pay the interest.
5] Mr. Thombre and Mr. Tandale, learned counsel for the Acquiring
Body submit that no award has been passed in respect of the trees, however,
ex-gratia payment has been made as on the date of section 4 notification
trees were not in existence. Acquisition of said trees was not pursuant to
the Land Acquisition award and hence, petitioner is not entitled for interest.
It is further submitted that the said trees, of which subsequently
compensation has been paid, were not existing as on the date of notification
under Section 4 of the Land Acquisition Act. Same were already destroyed.
The possession was taken by the respondents by private negotiations prior to
the notification under Section 4 of the Land Acquisition Act . No award has
been passed in respect of the said trees for which ex-gratia payment has
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been made to the petitioners. As no award is passed, and the payment is an
ex-gratia payment, the question of payment of interest under Section 34
does not arise. It is further submitted that petitioners have executed bond in
favour of the respondents, stating that they have received the entire amount
of compensation for the trees, which were not part of the award and had
also agreed to withdraw the references under Section 18 of the Land
Acquisition Act. After executing the said bond, now the petitioners cannot
turn around and claim further amount. Bonds were executed in the year
2009 and W.P. No. 8117 of 2013 has been filed after 4 years. On the ground
of delay and laches also, the petitioners are not entitled for the benefit.
Learned counsel for the respondents rely upon the judgment of the Apex
Court, in the case of Dhirendra Nath Gorai Vs. Sudhir Chandra Ghosh,
reported in 1964 AIR (SC) 1300, so also, the judgment of the Apex Court, in
the case of Union Vs. Shrikrishna Reddi reported in (2003) 12 SCC 627.
Learned counsel, relying upon the said judgment submit that unless there is
legal duty and the aggrieved party has a legal right, under the statute, to
enforce its performance, Mandamus cannot be issued, so also, writ of
mandamus cannot be issued when it is a case of purely ex-gratia payment.
6] Upon hearing the learned counsel for respective parties,
following facts are undisputed.
[I] The possession has been taken by the Acquiring Body of
the petitioners' land by private negotiations prior to the notification
under Section 4 of the Land Acquisition Act
[ii] As on the date of notification under Section 4 of the Land
Acquisition Act, trees in question, of which ex-gratia payment of
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compensation is made, were not existing;
[iii] The trees which were standing at the time of taking
possession and were subsequently cut, were not in existence on the
date of section 4 notification and as such, no compensation was paid
at the time the award was passed. The said trees were not made
subject matter of the award, passed in the year 2003.
[iv] Representations were made. Thereafter, in the year
2009, respondent Acquiring Body made payment of compensation of
these trees, which were not in existence as on the date of
notification, as an ex-gratia payment. However, though the payment
was termed as ex-gratia payment, the respondent Acquiring Body,
made said payment, keeping in mind the valuation of the said trees,
solatium and component of 12% interest.
[v] The interest under Section 34 of the Land Acquisition Act
was not paid.
7] The petitioners in the present petition have claimed interest
under section 34 of the Land Acquisition Act on the amount of compensation
of the trees, for which no award is passed and which were not in existence
as on the date of section 4 notification.
8] The Land Acquisition Act, no doubt, is a beneficial piece of
legislation. When the award is passed under the said Act, the claimant is
entitled for solatium, 12% component and interest under Section 34.
However, in the present case, no award has been passed. An ex-gratia
payment has been made to the petitioners in respect of the said trees.
Petitioners had not insisted, at the relevant time, for the authorities to pass
award in respect of the trees, which were cut prior to notification under
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section 4 and for which, no award was passed. Although award for the land
and the trees in existence at the time of section 4 notification was passed in
the year 2003.
9] The only question would be, whether the petitioners would be
entitled for interest under Section 34 of the Land Acquisition Act though no
award has been passed. The Full Bench of this Court, in First Appeal No.251
of 2003, vide judgment dated 18.4.2016, has held that if the possession is
taken before the notification under section 4 of the Land Acquisition Act is
published, and/or before the award is passed, the land owners would be
entitled for the interest as per Section 34 of the Land Acquisition Act
necessarily from the date of passing of the award under Section 11 of the
said Act. Except in case, where possession is taken in accordance with
Section 17 of the said Act and in that situation only, provision of Section 34
of the said Act shall start operating from the date of possession.
10] It would be seen that Full Bench of this Court, has categorically
laid down the law that if the possession is taken prior to notification under
Section 4 of the Land Acquisition Act interest under Section 34 would be
awarded only from the date of the award and not from any date prior to the
award. In the present case, the possession has been taken by private
negotiations and not under Section 17 of the Land Acquisition Act, nor it is
the case of the petitioners that possession of the land and the trees was
taken resorting to Section 17 of the Land Acquisition Act. It is also a matter
of fact that no award has been passed in respect of the trees for which ex-
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gratia payment has been made by the Acquiring Body to the petitioners.
When no award has been passed in respect of the said trees and ex-gratia
payment is made, then in such circumstance, payment of interest under
Section 34 would not arise, because interest under Section 34, as per the
judgment of the Full Bench (referred to supra) would be payable in respect
of the land taken in possession prior to notification under section 4 of the
Land Acquisition Act from the date of passing the award.
11]
Considering the aforesaid, as no award is passed and the
petitioners have accepted the ex-gratia payment, and possession has been
taken prior to Section 4 notification, it will not be possible to award interest
under Section 34 of the Land Acquisition Act, on the amount, for which ex-
gratia payment was made.
12] In the light of above, both the writ petitions are dismissed. Rule
is discharged in W.P. No. 8525 of 2009. However, with no orders as to costs.
[K.K. SONAWANE] [S.V. GANGAPURWALA]
JUDGE JUDGE.
grt/-
