Bombay High Court
Executive Engineer, M.I.W. ... vs Subhadrabai Eshram Surwade ... on 1 February, 2021
Bench: V. V. Kankanwadi
14-ca-1584-2021.odt
(1)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
14 CIVIL APPLICATION NO.1584 OF 2021
IN FA/635/2019
EXECUTIVE ENGINEER, M.I.W. JALGAON
VERSUS
SUBHADRABAI ESHRAM SURWADE (DIED) DECEASED LRS
CHINDHU AND ORS
...
Advocate for Applicant : Ms. Kutti Choudhary Chaitali R.
AGP for Respondents/State : Mr. N.T. Bhagat
Advocate for Respondent Nos.1 to 3 : Mr. A.B. Kale
WITH
CIVIL APPLICATION NO.5702 OF 2020
IN FA/635/2019
SUBHADRABAI ESHRAM SURWADE (DIED) DECEASED LRS
CHINDHU AND ORS
VERSUS
EXECUTIVE ENGINEER, M.I.W. JALGAON
...
Advocate for Applicant : Mr. A.B. Kale
APP for Respondents/State : Mr. N.T. Bhagat
Advocate for Respondent No.1 : Ms. Kutti Choudhary Chaitali R.
...
CORAM : SMT. VIBHA KANKANWADI, J.
DATED : 01st February, 2021
PER COURT:-
. Civil Application No.5702 of 2020 has been fled by
the original respondent to withdraw rest of the amount with
interest and Civil Application No.1584 of 2021 has been fled
by the original appellant for recall of order passed by this Court
on 22.01.2021.
2. First Appeal No.635 of 2019 has been fled by the
acquiring body challenging the judgment and award passed on
14.07.2017 by the learned Civil Judge Senior Division, Jalgaon
14-ca-1584-2021.odt
in Land Acquisition Reference No.218 of 2012. In pursuance to
the order passed by this Court on the stay application, it
appears that the appellant-acquiring body deposited amount of
Rs.1,52,47,804/-. Thereafter, when it was pointed out that an
amount of Rs.12,94,403/- is outstanding, further amount has
been deposited and reference can be made to the order
passed by this Court on 04.10.2019, wherein it has been stated
that the amount deposited by the acquiring body is to the tune
of Rs.1,65,42,207/-. On that day while deciding Civil
Application No.6745 of 2019, this Court directed applicant nos.
1 to 3 to withdraw amount of Rs.25,00,000/- each and
accordingly, it appears that the amount has been withdrawn.
Thereafter, the appeal came to be admitted on 13.01.2021.
Thereafter, it can be seen that by Application No.5702 of 2020,
the applicants are praying that they be allowed to withdraw
rest of the amount. By order dated 02.11.2020, it was directed
that the matter be placed before this bench.
3. Thereafter, when the matter was before this Court
on 11.12.2020, Advocate Mr. Randhir, who was holding for
Advocate Mrs. Chaitali R. Kutti Choudhary requested for
accommodation and accordingly, the accommodation was
granted. Thereafter on 17.12.2020, again she was absent.
Learned Advocate for the applicant was directed to issue
written request informing her about the next date on which her
presence is solicited and then the matter was adjourned to
14-ca-1584-2021.odt
22.01.2021. On 22.01.2021, she was again absent. In Civil
Application No.1584 of 2021, it is stated that she was present
before Court No.1 on that day and after she got the knowledge
about the passing up of the order, she says that she had
rushed to the Court hall of this Court, but by that time i.e.
04.15 pm, the Court's work was over. There appears to be an
attempt to meet this Court in chamber but then that was not
allowed and therefore, she is praying that the order passed by
this Court on 22.01.2021 be recalled.
4. Heard learned Advocate Mrs. Chaitali R. Kutti
Choudhary appearing for the applicant and learned Advocate
Mr. Ajit Kale appearing for respondent nos.1 to 3 as well as
learned APP Mr. Bhagat appearing for respondent nos. 4 and 5.
5. Firstly, as regards Civil Application No.1584 of 2021
is concerned, it can be said that when already this Court had
allowed to withdraw substantial amount to the claimants, this
Court was of the view that the Advocate representing the
appellant-acquiring body should be heard and therefore, every
opportunity was given to Mrs. Kutti to appear before the Court
and place before the Court the case of the corporation. But it
can be seen from the above orders, that every opportunity
therefore was given and even the learned Advocate for the
applicant was directed to issue written request informing Mrs.
Kutti about the next date. She did not make any arrangement
to make a mention about her presence in another Court on
14-ca-1584-2021.odt
22.01.2021 and therefore, instead of directing the applicant to
issue one more written request to her, the ofce was directed
to issue notice to her, she should not feel it ofending. It was in
fact the communication of the Court to the concerned
Advocate and it was an opportunity to her to remain present.
Naturally, after so many opportunities were given, she had not
appeared and therefore, it was stated that her failure would be
viewed seriously and the absence would be then informed to
the higher authorities of respondent no.1. Now she has
appeared and represented the corporation efectively. Under
such circumstance, in fact there is no necessity to recall that
order, her presence was necessary and now she has made
herself available before this Court.
6. Now as regards the withdrawal application is
concerned, as aforesaid, the amount of Rs.1,65,42,207/- has
been deposited and out of that, amount of Rs.75,00,000/- have
been allowed to be withdrawn, which is defnitely a substantial
amount. Further, it can be seen that the award itself is
challenged that means the rate that has been given by the
reference Court, has been challenged and therefore, entire
amount cannot be defnitely allowed to be withdrawn. The
learned Advocate for the original claimants is relying upon the
settlement between the corporation and some other claimants,
whose land is stated to be acquired for the same project and it
is stated that some higher amount was granted and this fact
14-ca-1584-2021.odt
was not brought to the notice. According to the learned
Advocate for the original claimants, the said settlement deed is
binding on the appellant-corporation. These are the points
which are required to be considered at the time of fnal hearing
of the frst appeal. Firstly, the frst appeal assignment is not
with this bench as on today. Secondly, with whom the
acquiring body should enter into a compromise would be the
lookout of the acquiring body. It would be for this Court
specially the bench, who would be dealing with the frst appeal
to take into consideration whether the said settlement would
be binding on the corporation and then to have its efect on
the frst appeal. Therefore, now when substantial amount was
allowed to be withdrawn by the applicants, some amount
should be kept with this Court to protect the interest of the
acquiring body also and therefore, entire amount cannot be
allowed to be withdrawn. Therefore, there is no merit in Civil
Application No.5702 of 2020. It deserves to be rejected and is
accordingly rejected. Now as regards another application in
concerned, the purpose is served and therefore, the said order
is recalled. Civil Application No.1584 of 2021 stands allowed.
(SMT. VIBHA KANKANWADI, J.)
Mujaheed//
