Surekha Hemant Mahajan (Wagh) vs Yashwant Pandurang Gaikwad And ...
2021 Latest Caselaw 15928 Bom

ppn                                   1                3.ia-8840.21 in wp-1065.16.doc


       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
               CIVIL APPELLATE JURISDICTION

             INTERIM APPLICATION (ST.) NO.8840 OF 2021
                               IN
                  WRIT PETITION NO.1065 OF 2016

Surekha Hemant Mahajan (Wagh)                  ..    Applicant/Petitioner
     Versus
Yashwant Pandurang Gaikwad & Ors.              ..    Respondents

            ---
Mr.S.N. Biradar for the applicant/petitioner.
Ms.Rukmini Khairnar h/f Mr.P.N. Joshi for the respondent nos.1 & 3.
Mr.C.D. Malik, AGP for the respondent no.10.
Mr.Murlidhar L. Patil for the respondent no.11-Corporation.
            ---
                         CORAM : R.D. DHANUKA, J.

DATE : 18th November 2021 P.C.:-

. By this interim application, the applicant seeks modification

of the directions issued in paragraph 12 of the order dated 3 rd September

2018 passed by this Court in Writ Petition No. 1065 of 2016 and to

permit the petitioner to withdraw the amount to the extent of 50% of

the amount share of the applicant invested in the fixed deposit of a

Nationalised bank by Executing Court on furnishing personal undertaking

to the satisfaction of Registrar (Judicial) to the effect that if the judgment

and award passed by the Reference Court is set aside or modified, the

applicant shall redeposit the amount as directed in this Court within

eight weeks from the date of passing of such order.

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2. Learned counsel for the applicant invited my attention to the

order passed by this Court on 3rd September 2018 and also the interim

order passed by the Division Bench of this Court on 30 th July 2012 in

Civil Application No.1715 of 2012 in First Appeal No.776 of 2012

and other companion appeals including the first appeal filed by the

Commissioner, Nashik Municipal Corporation, Nashik.

3. Learned counsel submits that though applicant was permitted

to withdraw the entire amount in so far as the share of the applicant is

concerned on furnishing bank guarantee, the applicant is not in a

position to submit any such bank guarantee in view of the bank

demanding deposit of 100 % margin money for furnishing such bank

guarantee.

4. Learned counsel invited my attention to the observations

made by the Division Bench of this Court in paragraph 6 of the order

dated 30th July 2012 passed in Civil Application No.1715 of 2012 in

First Appeal No.776 of 2012 and would submit that the applicant has

good chances of succeeding in the said appeal filed by the Commissioner,

Nashik Municipal Corporation, Nashik and thus the applicant be

permitted to withdraw at least 50% amount of deposit by the

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Commissioner, Nashik Municipal Corporation, Nashik before the

Executing Court on furnishing an undertaking.

5. A perusal of the said order passed by the Division Bench

while granting stay in favour of the applicant indicates that this Court

considered the impugned judgment of the Reference Court as well as the

judgment in another matter in respect of the land bearing Survey

No.463 part at Nashik. It is stated to be close to the acquired lands. In

the said case, the relevant date was 26 th May 1999 and market value

was awarded at the rate of Rs.830/- per square metre. An appeal

preferred by the Nashik Municipal Corporation being First Appeal

No.2225 of 2007 in this Court came to be disposed of. It is observed

that there was no serious challenge to the market value of Rs.830/- per

square metre fixed by the Reference Court.

6. Considering this material, Division Bench of this Court

prima facie observed that the said judgment of the Reference Court in

respect of the agricultural land which is stated to be close to the

acquired lands, if the market value of the acquired lands in the cases in

hand is to be fixed on the basis of the said decision, there will not be any

major deduction on account of development charges inasmuch as the

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determination of market value is made on the basis of an instance of an

agricultural land itself.

7. Mr.Patil, learned counsel for the acquiring body opposed

the relief sought by the applicant on the ground that the First Appeal filed

by the acquiring body is admitted and is still pending before this Court

and if the acquiring body succeeds in the said First Appeal, the

acquiring body will not be able to recover the said amount from the

applicant. Learned counsel for the respondent nos.1 and 3 also opposes

the relief sought by the applicant.

8. With the assistance of the learned counsel for the applicant,

I have perused the prima facie observations made by the Division Bench

in the said order dated 30th July 2012 which prima facie indicates that

there is no serious challenge to the award of enhancement of

compensation made by the Reference Court. The Special Leave Petition

filed against this order is dismissed by the Hon'ble Supreme Court on

18th October 2013.

9. In my view, the applicant has thus made out a case for

modification of the order dated 3rd September 2018 passed by this Court

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by permitting the applicant to withdraw the amount to the extent of 50%

of the amount share of the petitioner invested in the fixed deposit of a

Nationalised bank by Executing Court on furnishing personal

undertaking to the satisfaction of the Executing Court to the effect that

in the event of the judgment and award passed by the Reference Court

is set aside or modified, the applicant shall redeposit the said amount as

may be directed by this Court in the said First Appeal within such time

and with interest at such rate as may be directed by this Court while

disposing of the said First Appeal.

10. The applicant to furnish such an undertaking before the

Reference Court within four weeks from today with a copy to be served

upon the acquiring body simultaneously. It is made clear that the

Executing Court shall permit withdrawal only after furnishing such

undertaking by the applicant and not prior thereto.

11. In so far as the balance 50% amount is concerned, the said

amount is already invested by the Executing Court in the Fixed deposit.

The applicant would be at liberty to apply for withdrawal of the said

amount of 50% on furnishing the sufficient security to the satisfaction

of the Executing Court. If any such application is made, a copy thereof

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shall be served upon the acquiring body. The Executing Court shall

consider the aspect of sufficient security while permitting the withdrawal

of 50% after hearing the applicant as well as the acquiring body.

12. It is made clear that observations made by this Court in the

aforesaid order are tentative. The First Appeal filed by the acquiring

body shall be decided on its own merits.

13. Interim application is disposed of in aforesaid terms. No

order as to costs. Parties as well as the Executing Court to act on the

authenticated copy of this order.

R.D. DHANUKA, J.