Bombay High Court
Madhukar Narayanrao Konde Wardha vs The State Of Mah & Another on 3 April, 2017
Bench: B.R. Gavai
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
Writ Petition No. 2206 of 2004
with
Writ Petition No. 2260 of 2004
A. Writ Petition No. 2206 of 2004 :
Smt. Annapurnabai wife of Anandrao Bokade,
since deceased through her
legal heir,
Shri Deepak son of Nilkanthrao
Bokade,
aged 52 years,
occupation cultivator,
resident of Mamdapur,
Tq. Ashti,
Distt. Wardha. ..... Petitioner.
Versus
1. The State of Maharashtra,
through the Collector,
Wardha,
Distt. Wardha.
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2. The Special Land Acquisition
Officer,
Upper Wardha Project,
Benefited Zone No.II,
Wardha, Distt. Wardha. .... Respondents.
*****
Mr. S. U. Nemade, Adv., for the petitioner.
Ms. Jaipurkar, Asstt. Govt. Pleader for respondents.
*****
B. Writ Petition No. 2260 of 2004 :
Madhukar son of Narayanrao Konde,
aged 69 years,
occupation cultivator,
resident of Nandora,
Tq. Ashti,
Distt. Wardha. ..... Petitioner.
Versus
1. The State of Maharashtra,
through the Collector,
Wardha,
Distt. Wardha.
2. The Special Land Acquisition
Officer,
Upper Wardha Project,
Benefited Zone No.II,
Wardha, Distt. Wardha. .... Respondents.
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*****
Mr. S. U. Nemade, Adv., for the petitioner.
Ms. Jaipurkar, Asstt. Govt. Pleader for respondents.
*****
CORAM : B. R. GAVAI AND
A. S. CHANDURKAR, JJ.
Date : 03rd April, 2017
ORAL JUDGMENT [Per A.S. Chandurkar, J.]:
01. In view of similarity of facts, both these Writ Petitions are
being decided by this common judgment.
02. The petitioners are aggrieved by the order passed by the
Additional Collector under provisions of Section 28-A of the Land
Acquisition Act, 1894 [for short "the said Act"], whereby said
proceedings have been dismissed.
03. The lands of the petitioners have been acquired in
proceedings under the said Act by passing an Award dated 27th
January, 1983. One Shri Anant Dattatraya Deshpande whose land was
also acquired under the same notification was not satisfied with the
amount of compensation and hence he had filed reference proceedings
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under Section 18 of the said Act. These proceedings came to be
decided by the Reference Court on 6th May, 1989. The State of
Maharashtra filed First Appeal No. 364 of 1990 challenging the
aforesaid judgment of the Reference Court. The petitioners not being
aware about this fact, initiated proceedings for re-determination of
compensation under Section 28-A of the said Act. By the impugned
order, these proceedings have been dismissed.
04. Shri S. U. Nemade, learned counsel for the petitioners,
submitted by relying upon the judgment of the Honourable Supreme
Court in Babua Ram & others Vs. State of U.P. & another [1995
AIR SCW 65] that as the appeal filed by the State Govt., was pending,
the adjudication in proceedings under Section 28-A of the said Act
ought to have been deferred till the said appeal was finally decided.
He submitted that First Appeal No. 364 of 1990 was decided on 6th
February, 2006, while the impugned order has been passed prior to
said date on 15th July, 2002. He submits that the petitioners are
entitled to seek enhancement in the amount of compensation on the
basis of the judgment in the First Appeal in view of provisions of
Section 28-A of the said Act. He, therefore, submitted that the
impugned order is liable to be set aside.
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05. Ms. Jaipurkar, learned Asstt. Govt. Pleader for the
respondents, supported the impugned order. According to her, the
Additional Collector was justified in rejecting the application under
Section 28-A of the said Act as the appeal filed by the State Govt., had
not been decided. She, however, submitted that the fact that such
First Appeal was pending when the impugned order was passed is not
in dispute. She submitted that this fact stands admitted in view of the
averments in para 2 of the affidavit filed on behalf of the respondents.
06. Considering the law laid down by the Honourable Supreme
Court in Babua Ram & others [supra], if an appeal filed either at the
instance of interested person or the State is pending, then the
application for re-determination of compensation under Section 28-A of
the said Act is required to be kept pending. It is a common ground
that First Appeal No. 364 of 1990 arises from the same Notification
under which the petitioners' lands were acquired. This First Appeal
was decided on 6th February, 2006 prior to which the impugned order
came to be passed. Hence, on this short ground, the petitioners are
entitled to succeed.
07. In the result, the orders passed by the Additional Collector
under provisions of Section 28-A of the said Act dated 15th July, 2002
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that are impugned in both the Writ Petitions are set aside. The
proceedings are remitted to the Additional Collector for fresh
adjudication in accordance with law after taking into consideration the
adjudication in First Appeal No. 364 of 1990. The Additional Collector
shall decide the proceedings under Section 28-A of the said Act within
a period of six months from today. The Writ Petitions are allowed in
aforesaid terms. No costs.
Judge Judge
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