Venkat Rangrao Kohale Died Thr Lrs ... vs The State Of Maharashtra
2018 Latest Caselaw 617 Bom

                                         (1)                   944-FA 315 of 2003



       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                  BENCH AT AURANGABAD


                     944 FIRST APPEAL NO. 315 OF 2003
                     WITH CA/1888/2016 IN FA/315/2003

.     Venkat s/o Rangrao Kohale
      died through his L.R.,

1.    Suresh s/o Venkat Kohale
      Age: 45 years, Occu.: Service

2.    Ramesh s/o.Venkat Kohale
      Age: 42 years, Occu.: Agril.

3.    Prakash s/o Venkat Kohale
      Age: 36 years, Occu.: Agril.

4.    Vilas s/o Venkat Kohale
      Age: 32 years, Occu.: Agril.

5.    Dinkar s/o Venkat Kohale
      Age: 28 years, Occu.: Agril.

6.    Simintabai w/o Venkat Kohale
      Age: 60 years, Occu.: Agril,

      All above R/o.Haregaon,
      Tq.Ausa, Dist.Latur.                              ..Appellants

                                VERSUS

.     The State of Maharashtra
      Through The Collector, Latur.                     ..Respondent




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                                     (2)                     944-FA 315 of 2003



                                ...
           Advocate for Appellants : Mr.K.S.Patil h/f.
                                      Mr.B.N.Patil
               AGP for Respondent : Mr.K.N.Lokhande
                                ...
                                  
                                CORAM :  M.S.SONAK, J.

DATE : 18th January, 2018

ORAL JUDGMENT:-

1) Heard Mr.K.S.Patil learned counsel, who holds for

Mr.B.N.Patil learned counsel for the appellants and

Mr.K.N.Lokhande learned AGP for the respondent.

2) Mr.Patil learned counsel for the appellants at the

outset, requested this Court to take up Civil Application

No.1888 of 2016 for consideration, since, in the said

application, the appellants have prayed for remand to the

Reference Court for reasons set-out in the civil

application.

3) Mr.Patil learned counsel submits that the appellants

have placed on record awards of the Reference Court and

also Judgment of this Court confirming those awards in

(3) 944-FA 315 of 2003

respect of acquisition of lands in the vicinity of the

appellants' land. He points out that in terms of such

awards, which have been confirmed by this Court, the rate

of compensation is substantially more.

4) Mr.Patil learned counsel points out that the

Reference Court in the impugned Judgment and Award has

determined compensation only @ Rs.500/- per Are. In

particular, Mr.Patil invites my attention to the Judgment

and award dated 25.9.2014 in First Appeal No.233 of 1998,

which relates to acquisition from the village Makni,

Tq.Omerga. It is stated to be in the vicinity of the

appellants' land. Mr.Patil points out that the land

involved in the appeals are for one and the same Project

and therefore, the appellants should be granted an

opportunity to place on record all such material for the

purpose of enhancement.

5)    Mr.Patil learned counsel for the appellants submits





                                             (4)                     944-FA 315 of 2003

that the appellants will satisfy the Reference Court that

they are entitled to amount of their claim and seek for

compensation, which is higher than that claimed by them

at the time of seeking the Reference.

6) Mr.Lokhande, learned AGP submits that the

appellants are bound by the claim made by them at the

stage of seeking Reference. He submits that there is no

question of the appellants seeking any compensation

higher than that claimed by them at the stage of seeking

the Reference. In any case, Mr.Lokhande learned AGP

submits that the sale instances relied upon by Mr.Patil

are not comparable and therefore, the same cannot be

considered at this stage. He submits that there is no

case made out for remand of the matter as well.

7) Upon due consideration of the rival contentions and

after perusal of the material on record, prima-facie, it

appears that the sale instances referred to by the

(5) 944-FA 315 of 2003

appellants pertain to land in or around the vicinity of

the acquired land. No doubt, the lands may pertain to

adjoining village, however, at this stage, it cannot be

said that the instances are totally irrelevant. At the

same time, as contended by Mr.Lokhande, learned AGP, it

cannot be said that the instances are totally comparable

and on such basis, it is not possible to award the same

compensation that has been awarded in said matter.

8) The safe course to adopt in such a situation would

therefore be to set aside the impugned Judgment and award

and to remand the matter to the Reference Court for fresh

adjudication.

9) The issue as to whether the appellants can claim

compensation at the rates higher than what they have

originally claimed is kept open.

10) If the appellants apply for amendment, then such

(6) 944-FA 315 of 2003

issue to be considered by the Reference Court in

accordance of law on merits. It is made clear that this

Court has not decided said issue and therefore, all

contentions of all parties are kept open.

11) Normally, when the impugned award is set aside, the

appellants, who have already withdrawn the amount in

pursuance of such award are required to re-deposit such

amount before the Reference Court. However, taking into

consideration peculiar circumstances of the present case

and also accepting the suggestion made by Mr.Patil,

learned counsel for the appellants that such withdrawal

can be made subject to the determination by the Reference

Court on remand, this course is not adopted. Another

reason for non-adoption of this course is that in this

matter, the State or acquiring body had neither preferred

an appeal nor filed any cross-objection. This means that

this rate is acceptable to the State or acquiring body.

In these circumstances, it will not be appropriate to

(7) 944-FA 315 of 2003

require the appellants to refund the amount of

compensation already withdrawn rather it will be

appropriate to go by suggestion made by Mr.Patil that

such withdrawal shall abide the appellants by the final

orders of the Reference Court in pursuance of remand.

12) Accordingly, the impugned Judgment and award is set

aside.

13) The matter is remanded to the Reference Court for

fresh adjudication in accordance with law and on its own

merits. Both the parties are permitted to adduce fresh

evidence and all contentions of all parties are kept open

to be determined by the Reference Courts.

14) Parties to appear before the Reference Court on

12.2.2018 at 10:30 a.m. and produce authenticated copy

of this order.

(8) 944-FA 315 of 2003

15) The Reference Court is directed to dispose of the

Reference as expeditiously as possible and in any case

within a period of one year from the date of production

of authenticated copy of this order.

16) The Civil Application No.1888 of 2016 is disposed

of.

17) Consequently, the First Appeal is also disposed of

in the aforesaid terms.

18) There shall be no order as to costs.

19) All concerned to act on the authenticated copy of

this order.

[M.S.SONAK, J.] SPT/944-FA 315 of 2003