Bombay High Court
Shakuntala Suresh Porwal vs The State Of Maharashtra And Ors on 28 September, 2021
Bench: Ravindra V. Ghuge, S. G. Mehare
226.21ca etc
(1)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
904 CIVIL APPLICATION NO.226 OF 2020
IN FA/3536/2019
BHUSHAN DATTATRAYA CHINCHORE
VERSUS
THE STATE OF MAHARASHTRA AND ORS.
WITH
CA/223/2020 IN FA/3533/2019
SHAKUNTALA SURESH PORWAL
VERSUS
THE STATE OF MAHARASHTRA AND ORS.
WITH
CA/224/2020 IN FA/3534/2019
RAMRAO NATU PATIL
VERSUS
THE STATE OF MAHARASHTRA AND ORS.
WITH
CA/225/2020 IN FA/3535/2019
SURESH PUNDLIK PATIL & ORS.
VERSUS
THE STATE OF MAHARASHTRA AND ORS.
...
Mr A. B. Kale, Advocate for applicants;
Mr Y. P. Deshmukh, Special Counsel a/w Mr S. B. Yawalkar,
A.G.P. for respondents/State
CORAM : RAVINDRA V. GHUGE
AND
S. G. MEHARE, JJ.
DATE : 28th September, 2021
226.21ca etc
PER COURT:
1. All these applicants are the claimants, who are praying for
disbursement of the amounts, deposited under the orders passed
by this Court. They are the original claimants who have lost their
lands, either agricultural parcels or NA-44 parcels, in the
acquisition process.
2. The original appellants have filed affidavit-in-reply to the
civil applications opposing the withdrawal of amounts.
3. We have extensively heard the learned Counsel for the
claimants and the Special Counsel appointed on behalf of the
Public Works Department - the acquiring body. With their
assistance, we have gone through the applications and the
affidavit-in-reply.
4. The learned Advocate for the claimants has put forth
synoptical points for consideration so as to avoid any
misrepresentation. For the sake of brevity, we are reproducing
verbatim the sequence of events as are narrated in the synoptical
points by the claimants, here under :
226.21ca etc
"Date and Events of Acquisition for Mhasavad Railway Flyover
Sr. Date Events
No.
1. 19.04.2010 Proposal is moved by the Executive Engineer,
Jalgaon for acquisition for Railway Over
Bridge-144 of village Mhasavad of total
6792.50 sq. meter land.
2. 23.04.2010 Authorization u/s 52 (A) was given to
S.L.A.O.-1, Jalgaon for acquisition of lands
by the Collector.
3. 24.05.2010 For the said acquisition land from
Gat No. 252 :- 250 sq. meter
Gat No. 251 :- 1030 sq. meter
Gat No. 68 :- 2070 sq. meter
Gat No. 269 :- 1462.50 sq. meter
Gat No. 69 :- 1140 sq. meter
Gat No. 167 :- 840 sq. meter
Sent for joint measurement.
4. 09.12.2010 Joint measurement conducted by Taluka
Inspector of Land Record, Jalgaon in
presence of acquiring agency.
5. 16.10.2011 Joint measurement report submitted to Land
Acquisition Officer.
6. 16.12.2011 Executive Engineer by his letter confirm the
joint measurement report.
7. 18.07.2012 Section 4 notice was published.
8. 19.06.2012 Inquiry u/s 5 (A) is conducted.
9. 07.08.2012 Notice of personal hearing and conclusion of
S.L.A.O. that land is having N.A. potential.
10. 08.08.2012 Section 6 declaration is made.
11. 31.12.2012 Award was drawn by granting N.A. rates for
the properties N.A. rate of rupees 600/- per
sq. meter is awarded.
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12. 07.01.2013 Notice u/s 12(2) payment is issued.
13. 23.05.2013 Reference u/s 18 was filed by the claimants.
14. 16.02.2017 Written Statement is filed.
No ground of fraud nor any other ground
regarding non acquisition of property is
taken. No dispute regarding acquisition.
Only denial of the claim of claimants for
enhancement of compensation is made.
15. 12.03.2014 W.P. 2112/2014 was filed for remaining land
which was not shown by acquisition but it is
not in use because it falls within the Peri
Phery of 50 meter from the State Highway.
This Hon'ble Court opined that petitioner
can claim compensation in respect of the
area which is rendered unfit for development.
16. 22.04.2019 R.D. is filed by the claimant for Execution of
Jud. delivered by Learned Reference Court
which are numbered as 570/2019 etc.
17. 03.06.2019 Notice was issued to the respondent/judgment
debtor
18. 04.07.2019, The dates were given for appearance & for
30.07.2019, argument.
18.09.2019,
20.09.2019,
30.09.2019,
4.10.2018
19. 11.10.2019 Application was filed for calling Affidavit of
assets of judgment debtor. Judgment Debtor
No. 3 was asked to file particulars of assets.
20. 19.10.2019 No response from the judgment debtor
therefore application was filed for civil
prison order.
21. 08.11.2019 Case is adjourned
22. 11.11.2019 Order passed below Exh. 16 thereby warrant
is issued against Judgment Debtor No. 3 for
his arrest & detention as per order 21, Rule
226.21ca etc
41 (3) of C.P.C.
23. 12.11.2019 Civil prison warrant is dispatched.
24. 13.11.2019 J.D. No. 3 was produced in civil prison
warrant by bailiff.
Exh. 24 & 25 was filed for cancellation of
warrant and application below Exh.26 was
filed for review. The same is rejected.
Application below Exh.30 was filed and at
about 9.00 p.m. the order detention of the
J.D. was stayed.
25. 15.11.2019 This Hon'ble Court issued notice and granted
stay on condition of depositing 50% of the
award amount.
26. 10.12.2019 Letter issued by Executive Engineer to
Tahsildar Jalgaon calling upon information
regarding the lands of petitioner.
Executive Engineer wrote a letter to the
District Collector for cancelling the award.
Execution Engineer wrote a letter to the
Deputy Collector, Revenue to cancel the N.A.
Order.
27. 20.12.2019 Another letter for cancellation of N.A. order
to the Deputy Collector, Jalgaon.
Letter to the Tahsildar by Executive
Engineer for providing the maps of Gat No.
Another letter to the District Collector for
cancellation of award pointing out that the
Railway Over bridge can be constructed on
the government land and therefore the
amount of government will be saved and
requested for cancellation of award.
28. February Collector Ask the Secretary of Revenue
2020 Department about cancellation of acquisition
of lands of Gat No. 168, 251, 167, 68, 69, 70
and 252.
29. 19.08.2020 Government rejected the said proposal since
226.21ca etc
the award is already passed and possession is
already taken. Therefore Section 48 cannot
be exercised.
30. 15.03.2021 N.A. order granted to Gat No. 251 is
cancelled by Assistant Collector (Sub
Divisional Officer), Jalgaon.
31. 28.04.2021 The said order was challenged by filing
appeal before Additional Collector and in
Appeal the authority has granted status quo
order and matter is pending.
32. 27.08.2021 The effect of the order granting permission to
exercise revisional jurisdiction after 34 years
and order passed was challenged by filing
Writ Petition No. 9500/2021.
This Hon'ble Court has directed to
respondents not to take further steps pursuant
to the said order and the matter is pending
before this Hon'ble Court.
5. The learned Special Counsel submits as under :
(a) The original compensation amounts, by treating the
acquired lands as being agricultural fields, were computed
at Rs.70,00,000/- and they have been withdrawn by the
claimants;
(b) The applications, for enhancement in compensation,
were filed, which led to an increase in the compensation
from Rs.70,00,000/- to about Rs.25,00,00,000/-;
(c) This Court, while admitting the appeals and having
extensively heard the parties, passed an order on
226.21ca etc
15/11/2019, thereby directing the appellants to deposit an
amount of Rs.11,00,00,000/- in this Court, which is
equivalent to approximately 40% of the awarded amount;
(d) About 34 years ago, the Tahsildar has illegally
granted NA-44 permission on 17/08/1987 with regard to
Gut No.251 (partly) in village Mhasavad, Tq. and Dist.
Jalgaon;
(e) The Special Counsel fairly states that this Court, by
the order dated 15/11/2019, had directed the appellant to
deposit 50% of the awarded amount and if the records are
checked, there may be a deficit in depositing the amount
upto 50%;
(f) The conditions on which the NA-44 permission was
granted, utilizing the lands for non-agricultural purpose
within one year, was violated;
(g) The spot inspection panchanama of the NA-44 lands,
bearing mutation entry No.2787, was carried out in
Revision Appeal No.1/2021 and it was found that the said
erstwhile agricultural land was never put to use for
non-agricultural purpose;
(h) After the revision proceedings were initiated by notice
226.21ca etc
dated 11/12/2020, the NA-44 permission was cancelled by
the competent authority (Assistant Collector), on
15/03/2021;
(i) The basis of the enhancement in compensation was a
sale deed which was a frivolous sale instance.
(j) The new purchaser has still not got his name entered
in the revenue records;
(k) The new purchaser is not before the Court to
withdraw the amount;
(l) The erstwhile owners/claimants, who are the actual
sellers, are the persons who are before the Court for
withdrawing the amount;
6. There is no dispute that barring these applicants seeking
withdrawal of the amounts, the rest of the claimants who are the
beneficiaries of similar enhancement in compensation and are
respondents in first appeals filed by the acquiring authority before
this Court, have been permitted to withdraw the compensation
amounts that were deposited in this Court.
7. We are also informed by way of a recent development that
after the concerned authority filed Revision Appeal No.1/2020
226.21ca etc
before the Assistant District Collector, Jalgaon, for seeking
cancellation of the NA-44 permission granted to land in Gut
No.251 (partly), which has then led to the cancellation order dated
15/03/2021, the applicants approached this Court in Writ Petition
No.9500/2021 and by order dated 27/08/2021, this Court directed
the revenue authorities not to proceed with the Revision Appeal
proceedings. However, since by this time, the cancellation of
NA-44 was ordered on 15/03/2021, the applicants approached the
Appellate Authority under Section 247 of the Maharashtra Land
Revenue Code, 1966 and the Appellate Authority has directed
status-quo to be maintained by order dated 28/04/2021. As such,
all further developments that have occurred would naturally be
subject to the result of the said petition.
8. The applicants have strenuously contended that the then
Executive Engineer, P.W.D. Shri. Vilas Brijlal Patil, was
practically sent to civil jail, as is evident from the dates and
sequence of events at Sr. Nos.22 to 24 reproduced above. A
serious allegation is made by the applicants that this gentleman
was aggrieved by the steps taken by these applicants for the
recovery of their amounts in Regular Darkhast proceedings, which
226.21ca etc
almost reached him to the doorsteps of the civil prison, has
antagonized him and upon developing antipathy towards the
applicants, he has been instrumental in approaching the
Government so as to acquire the permission to cancel the NA-44
permission granted more than 34 years ago.
9. Considering the above and as other co-claimants have also
been permitted to withdraw the amounts deposited in this Court
and keeping in view that, prima facie, there appears a stink of
mala fides behind the initiation of reopening of the grant of NA-
44 permission, which is now subject matter of adjudication before
this Court as well as the Revenue Authorities and as these
applicants are protected under the order passed by this Court and
the authorities, we do not find that the rigours faced by these
applicants should be further perpetuated by refusing permission to
withdraw the amounts as they have prayed for. Of course, to
balance the equities, considering the various orders passed by the
Hon'ble Apex Court in the matters of withdrawal of amounts, we
would follow the same guidelines while granting permission for
withdrawal of amounts.
226.21ca etc
10. In view of the above, these applications are partly allowed
with the following directions :
(a) The identity of the applicants, while seeking
withdrawal, shall be verified by the learned Registrar
(Judicial) of this Court as per the routine practice;
(b) Out of Rs.11,00,00,000/-, 50% can be withdrawn by
tendering surety to the satisfaction of the learned Registrar
(Judicial) and 50% of the said amount shall be withdrawn
by tendering a simple affidavit undertaking by the
applicants, declaring that, if eventually they are held to be
dis-entitled for any portion of the said amount, they would
re-deposit the said amount in the Court within ten weeks
from the date of the adverse order, if any.
11. The request for staying this order for four weeks is refused,
keeping in mind that these applicants have been litigating before
this Court for their amounts ever since the appeal was filed and
though the enhancement has been granted four years ago.
(S. G. MEHARE, J.) (RAVINDRA V. GHUGE, J.)
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