Bombay High Court
Babruwan Yedba Mali vs The Ex. Engineer, Lift Irrigation ... on 18 January, 2021
Bench: V.L. Achliya
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CIVIL APPLICATION NO. 466 OF 2021
IN FIRST APPEAL (STAMP) NO.26257 OF 2019
BABRUWAN YEDBA MALI
VERSUS
THE EXECUTIVE ENGINEER, LIFT IRRIGATION
DIVISION, OSMANABAD AND ORS.
WITH
CIVIL APPLICATION NO. 1 OF 2021
IN FIRST APPEAL (STAMP) NO.26238 OF 2019
GAJARABI MARUTI KSHIRSAGAR (DIED) THROUGH
LRS. PANDURANG MARUTI KSHIRSAGAR AND OTHERS
VERSUS
THE EXECUTIVE ENGINEER, LIFT IRRIGATION
DIVISION, OSMANABAD AND ORS.
WITH
CIVIL APPLICATION NO. 3 OF 2021
IN FIRST APPEAL (STAMP) NO.26252 OF 2019
RAOSAHEB SAMBHAJI KEDAR
VERSUS
THE EXECUTIVE ENGINEER, LIFT IRRIGATION
DIVISION, OSMANABAD AND ORS.
WITH
CIVIL APPLICATION NO. 464 OF 2021
IN FIRST APPEAL (STAMP) NO.26241 OF 2019
PADMAKAR AMBRUSHI SATHE AND ANR.
VERSUS
THE EXECUTIVE ENGINEER, LIFT IRRIGATION
DIVISION, OSMANABAD AND ORS.
WITH
CIVIL APPLICATION NO. 02 OF 2021
IN FIRST APPEAL (STAMP) NO.26261 OF 2019
GENA DAJI GAIKWAD (DIED) THROUGH L.RS.
LAXMIBAI GENA GAIKWAD AND ORS.
VERSUS
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2
THE EXECUTIVE ENGINEER, LIFT IRRIGATION
DIVISION, OSMANABAD AND ORS.
WITH
CIVIL APPLICATION NO. 04 OF 2021
IN FIRST APPEAL (STAMP) NO.26247 OF 2019
DINKAR SADASHIV BHADRE
VERSUS
THE EXECUTIVE ENGINEER, LIFT IRRIGATION
DIVISION, OSMANABAD AND ORS.
...
Mr.V.V. Ingale, Advocate for the
applicant/applicants
Mr.S.C. Arora, Advocate for the respondent
no.1.
Mr.A.A. Jagatkar, AGP for the
respondent/State
...
CORAM : V.L.ACHLIYA,J.
DATE : 18.01.2021
ORAL ORDER :
The applicants - claimants preferred
these applications seeking withdrawal of
amount deposited by the appellant-acquiring
body in the respective appeals.
2. Heard learned counsel for the
applicants-claimants and respondent-acquiring
body.
3. In brief, it is the contention of
learned counsel for the appellant that the
award passed by the Reference Court is not
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legally sustainable in law. The enhancement
has been made without any evidence adduced in
the case. The reference has been decided on
the basis of decision in L.A.R. No.757/2011,
which is under challenge before this Court.
No independent evidence adduced to justify
enhancement on the part of claimants. The
compensation assessed by the S.L.A.O. @
Rs.210/- per R has been enhanced to Rs.688/-
per R without any legally sustainable
evidence adduced on the part of claimants. It
is submitted that it is settled position in
law that to seek enhancement, it is incumbent
upon the claimants to lead evidence and prove
that compensation assessed requires re-
determination based upon evidence to support
enhancement. Without such exercise being
made, the Reference Court enhanced
compensation by solely relying upon the award
passed in another proceedings that too
without any evidence adduced to show that
similarity in between the land subject matter
of the Reference proceeding and the award
passed by reference Court in another
proceedings arising out of acquisition of
land for same purposes and same village. So
also the interest has been awarded from the
date of notification, which is contrary to
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the Full Bench decision of this Court in the
case of State of Maharashtra Vs. Kailash
Shiva Rangari reported in 2016(3) Mh.L.J.
457. In this background, learned counsel
submits that the applicants have good case to
succeed in appeals and urged to reject the
applications seeking withdrawal of amount.
4. On the other hand, learned counsel
for the applicants-claimants support the
judgment and award passed by the Reference
Court. It is submitted that the applicants
have good case to succeed in appeals. The
lands are acquired in the year 1995. The
Special Land Acquisition Officer has awarded
meager amount of compensation. There is
perversity in the judgment and order passed
by the Tribunal. The appeals preferred are
devoid of merit.
5. On due consideration of submissions
advanced in the light of overall facts of the
case, I am of view, there is arguable case in
appeals. The enhancement is based upon the
award passed in L.A.R. No.757/2011, which is
under challenge in First Appeal (Stamp)
No.26241/2019 before this Court. The
enhancement is about 5 to 6 times of
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compensation assessed and awarded by the
Special Land Acquisition Officer. So also the
issue of award of interest U/Sec. 34 is also
involved in the case. Considering the
challenges raised in appeals, I am of the
view, the applicants are allowed to withdraw
the amount to the extent of 50% deposited by
the appellant-acquiring body on furnishing
the undertaking. Hence the following order :-
ORDER
(i) The applications are partly allowed.
(ii) The applicants-claimants in respective
applications are permitted to withdraw the
amount to the extent of 50% of the amount
deposited by the appellant - acquiring body
in their respective appeals on furnishing
written undertaking to the effect that in the
event the award is set aside or modified, the
they shall re-deposit the amount with this
Court within eight weeks from the date of
passing of such orders.
(iii) After making payment to the extent of
50% of amount deposited to applicants in
respective appeals, the balance amount be
invested in fixed deposit with any
Nationalized Bank initially for a period of
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two years with standing instructions to renew
the same till further orders from this Court
or disposal of appeals, whichever earlier.
(iv) The payment be made to the respective
applicants by transferring the amount in
their respective Savings Bank Account. No
amount to be payable to the persons other
than claimants.
(v) The payment of amount shall be subject to
outcome of appeals.
vi) Civil Applications are disposed of
in above terms.
[V.L.ACHLIYA]
JUDGE
SGA
