Bombay High Court
Madan Gangadhar Kasle vs The State Of Maharashtra Thr The ... on 21 January, 2021
Bench: V.L. Achliya
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
911 CIVIL APPLICATION NO.6298 OF 2020
IN FIRST APPEAL NO.3425 OF 2019
[VITHAL NIVRUTI KALE
VERSUS
THE STATE OF MAHARASHTRA & OTHERS]
WITH
CIVIL APPLICATION NO.6301 OF 2020
IN FIRST APPEAL NO.3426 OF 2019
WITH
CIVIL APPLICATION NO.6303 OF 2020
IN FIRST APPEAL NO.3427 OF 2019
WITH
CIVIL APPLICATION NO.6304 OF 2020
IN FIRST APPEAL NO.3429 OF 2019
WITH
CIVIL APPLICATION NO.6297 OF 2020
IN FIRST APPEAL NO.3430 OF 2019
WITH
CIVIL APPLICATION NO.6302 OF 2020
IN FIRST APPEAL NO.3432 OF 2019
WITH
CIVIL APPLICATION NO.6300 OF 2020
IN FIRST APPEAL NO.3433 OF 2019
WITH
CIVIL APPLICATION NO.6299 OF 2020
IN FIRST APPEAL NO.3431 OF 2019
...
Mr.G.K.Sontakke, Advocate for the applicants
Mr.A.M.Gaikwad, Advocate for the respondents
- acquiring body.
Mr.P.M.Kulkarni, AGP for the respondent -
State.
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CORAM : V.L.ACHLIYA,J.
DATE : 21.01.2021
P.C.
1] The applicants have moved these
applications seeking permission to withdraw
the amount deposited by the acquiring body.
2] Heard learned counsel for the
applicants and counsel representing for the
acquiring body in respective appeals.
3] In brief, it is the contention of
the learned counsel for the appellants that
the appellants have good case to succeed in
appeal. It is submitted that this is second
round of litigation. In the earlier round of
litigation the appeal preferred allowed and
cases were remanded for fresh decision. The
amount in terms of earlier award has been
paid and withdrawn by the applicants /
claimants. By referring overall facts of the
case and award passed in the matter, the
learned counsel submits that award passed by
the reference court in respective appeals are
not sustainable in law.
4] It is pointed out that for the
purpose of determining the compensation the
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reference court has placed reliance upon sale
instance in respect of 22-R of land. It is
submitted that it is quite settled position
in law while determining the compensation the
court has to consider the comparable sale
instance of land of same nature and
potential. It is submitted that huge land has
been acquired for irrigation project i.e.
storage tank. The land is dry crop land. It
is located far away from the land in respect
of which sale instance has been referred and
relied. It is further submitted that as per
the provision of Maharashtra Prevention of
Fragmentation and Consolidation of Holdings
Act there is prohibition to sale the land
below the area prescribed under the Act. It
is further submitted that as per law
prevailing the sale deed of land below 2-
Acres of land is not permissible. In that
view the sale deed as referred relied itself
contrary to the provision of law. Moreover,
land being 22-R of land having no similarity
with the lands acquired. The Tribunal has
erred in enhancing the compensation from
Rs.21,000/- to 23,000/- awarded by the
Special Land Acquisition Officer to
Rs.2,50,000/- per Acre for Jirayat land and
Rs.5,00,000/- for irrigated land.
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5] Learned counsel further submits that
the interest awarded from the date of
possession by reference court is not also
sustainable in law. In the law laid down by
this court in the case of State of
Maharashtra Vs. Kailash Shiva Rangari
reported in 2016 [3] Mh.L.J. 457. In the
background, overall facts of the case and
challenge raised in the appeals the
applicants are permitted to withdraw the
amount, it will be difficult to recover the
same in the event the appeals are allowed and
award passed by the reference court is
modified.
6] On the other hand learned counsel
for the applicants-claimants support the
judgment and order passed by the reference
court.
7] It is submitted that assessment of
compensation is based upon the evidence
adduced in the case. The appeals preferred by
the appellants are devoid of merits.
8] On due consideration of the
submissions advanced, I am of the view that
there is arguable case to be considered in
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appeals. Prima-facie interest awarded u/s 34
of the Land Acquisition Act is contrary to
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.
Moreover, enhancement of compensation is
about 9 to 10 times the compensation awarded
by the Special Land Acquisition Officer.
Assessment of compensation appears to be made
on the basis of sale instance in respect of
small piece of land i.e. 22-R of land. It is
pertinent to note that in terms of provision
of Maharashtra Prevention of Fragmentation
and Consolidation of Holdings Act, 1947 there
is a prohibition under law to transfer or
partition any land so as to create a
fragment.
9] In the instant case the reference
court has enhanced the compensation by
relying upon the sale instance in respect of
small piece of land admeasuring 22-R. It is
observed that the reference courts are
invariably relying upon the sale instance of
small piece of land in determination of
compensation though such transactions are
prohibited and hit by the provisions of the
Maharashtra Prevention of Fragmentation and
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Consolidation and Holdings Act, 1947
(hereinafter referred to as the 'said Act').
In terms of section 7 there is absolute
prohibition for transfer of fragment of land
except to the owner of contiguous survey
number. Section 8 of the said Act further
provide that no land in any local area shall
be transferred or partitioned so as to create
a fragment. Section 8 AA places restrictions
on partition of land even in execution of
decree so as to create fragment. Sub-section
2 of Section 8 AA provides for procedure to
be followed where the land cannot be
partitioned without creating fragment.
Section 9 of the said Act provides that any
transfer or partition of any land contrary to
the provision of said Act shall be void and
provides power of imposition of penalty as
well as empower the Collector to summarily
evict such person who has unauthorizedly or
wrongly put in possession of such land by way
of transfer of partition. In spite of such
provisions the reference courts are
invariably relying upon sale instances of
fragment of land made in contravention of
provisions of said Act. The case in hand is a
classic case, wherein the court has acted
upon the sale instance of land admeasuring
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22-R Jirayat land for purpose of assessment
of compensation by treating the same as
comparable sale instance to determine the
compensation. By relying upon such sale
instance of fragment of land the compensation
has been enhanced 8 to 9 times the
compensation assessed by the Special Land
Acquisition Officer.
10] Reference court have overlooked the
settled principles of law in determining of
compensation while assessing the
compensation. The courts are expected to
follow the comparable sale instance of
similarly situated land. When there is bulk
acquisition of land the assessment of
compensation by relying upon the small piece
of land not desirable on the part of
reference court. The sale instance to be
relied must be of similarly situated land and
comparable sale instance. So also, the
reference court should not act upon sale
deeds which are executed in breach of
provisions of the Maharashtra Prevention of
Fragmentation and Consolidation of Holdings
Act and void in law.
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11] In that view, I am inclined to pass
following order :-
ORDER
i] The applicants are permitted to
withdraw the amount to the extent of 40% of
amount deposited in respective appeals by the
acquiring body on furnishing undertaking to
the satisfaction of the Registrar [Judicial]
that in the event the award is set aside or
modified, the applicants shall re-deposit the
amount within eight weeks from the date of
passing of such order by this court.
ii] After paying the amount to the
extent of 40% amount deposited, the balance
amount be invested in fixed deposit with any
Nationalized Bank, till disposal of appeal.
iii] The payment of amount to applicants
shall be subject to final outcome of the
appeal.
[V.L.ACHLIYA]
JUDGE
DDC
