Shri Sanjay S/O Sudam Rathod And ... vs State Of Maharashtra, Through ...
2022 Latest Caselaw 11233 Bom

WP 6028-2019                                     1      Judgment

           IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                     NAGPUR BENCH, NAGPUR.

                  WRIT PETITION NO. 6028 OF 2019

1.    Shri Sanjay s/o Sudam Rathod,
      Aged about 40 years, Occ. Agriculturist.

2.    Babarao Dudharam Mandole,
      Aged about 62 years, Occ. Agriculturst.

3.    Panchfula Badri Rathod,
      Aged about 62 years, Occ. Agriculturist.

4.    Govind Kaniram Rathod,
      Aged about 55 years, Occ. Agriculturist.

5.    Vasram Thavra Aade,
      Aged about 62 years, Occ. Agriculturist.

6.    Suresh Bhagwan Khandare,
      Aged about 45 years, Occ. Agriculturist.

7.    Hari Narayan Sakharkar,
      Aged about 70 years, Occ. Agriculturist.

8.    Shila Charan Jadhav,
      Aged about 61 years, Occ. Agriculturist.

9.    Pralhad Ramchandra Shinde,
      Aged about 58 years, Occ. Agriculturist.

10.   Ashok Gopa Jadhav,
      Aged about 51 years, Occ. Agriculturist.

11.   Govind Ballu Rathod,
      Aged about 54 years, Occ. Agriculturist.

12.   Gopichand Ananda Kamble,
      Aged about 62 years, Occ. Agriculturist.

13.   Arun Ramdas Jadhav,
      Aged about 50 years, Occ. Agriculturist.

14.   Maroti Ballu Rathod,
      Aged about 50 years, Occ. Agriculturist.
 WP 6028-2019                                     2         Judgment

15.   Baban Chintaman Sanap,
      Aged about 58 years, Occ. Agriculturist.

16.   Harichand Ananda Kamble,
      Aged about 60 years, Occ. Agriculturist.

17.   Dharma Shriram Jadhav,
      Aged about 34 years, Occ. Agriculturist.

18.   Manoj Uttam Rathod,
      Aged about 46 years, Occ. Agriculturist.

19.   Sabubai Uttam Rathod,
      Aged about 58 years, Occ. Agriculturist.

20.   Tara Namdeo Rathod,
      Aged about 55 years, Occ. Agriculturist.

21.   Kausalbai Prakash Rathod,
      Aged about 50 years, Occ. Agriculturist.

22.   Namdeo Bablu Rathod,
      Aged about 61 years, Occ. Agriculturist.

23.   Laxman Manji Jadhav,
      Aged about 60 years, Occ. Agriculturist.

24.   Kantabai Kishan Jadhav,
      Aged about 60 years, Occ. Agriculturist.

25.   Yuvraj Kaniram Jadhav,
      Aged about 60 years, Occ. Agriculturist.

26.   Ramesh s/o Lalchand Runwal,
      Aged about 42 years, Occ. Agriculturist.

27.   Puranbai Kurumdas Jadhao,
      Aged about adult, Occ. Agriculturist.

28.   Suman Govind Rathod,
      Aged about 58 years, Occ. Agriculturist.

29.   Dilip Kaniram Jadhao,
      Aged about 40 years, Occ. Labour,

      All are R/o Waigaul, Tah. Manora, Dist. Washim.
                                                        PETITIONERS
 WP 6028-2019                                    3                     Judgment

                                  .....VERSUS.....
1.      State of Maharashtra,
        through Collector, Washim,
        Tah. & Dist. Washim.

2.      The Special Land Acquisition Officer, Washim,
        Tah. & Dist. Washim.

3.      The Executive Engineer,
        Minor Irrigation Department, Washim,
        Tah. & Dist. Washim.
                                                                RESPONDENTS

                  Shri A.S. Mehadia, Advocate for the petitioners.
     Ms. T.H. Khan, Assistant Government Pleader for respondent Nos. 1 and 2/
                                      State.
                  Shri M.A. Kadu, Advocate for respondent No.3.



CORAM : A. S. CHANDURKAR AND URMILA JOSHI - PHALKE, JJ.

DATE OF RESERVING THE JUDGMENT : SEPTEMBER 14, 2022 DATE OF PRONOUNCEMENT OF THE JUDGMENT : OCTOBER 21, 2022 JUDGMENT :(PER : A.S. CHANDURKAR, J.)

By this Writ Petition filed under Articles 226 and 227 of the

Constitution of India, the petitioners seek enhancement in the amount of

compensation as awarded in Land Acquisition Case No. 11/2005 which is

higher than what has been awarded to them in proceedings under Section

28A of the Land Acquisition Act, 1894 (for short "the Act of 1894").

2. The lands of the petitioners are located at Village - Waigaul,

Taluka - Manora, District - Washim. Notification under Section 4(1) of

the Act of 1894 was published in the Government Gazette on 30/4/1998.

WP 6028-2019 4 Judgment

The Special Land Acquistion Officer, Washim passed an award under

Section 11 of the Act of 1894 on 16/12/2000. The lands acquired were

categorized in Group - A and Group - B. For the lands from Group - A,

Rs.23,000/- per hectare was granted as compensation while an amount of

Rs.26,000/- per hectare was granted for the lands from Group - B. It is

the case of the petitioners that in LAC No. 26/2006 which pertains to

acquisition of lands under the same notification, the Reference Court had

awarded compensation @ Rs.1,50,000/- per hectare. The said award was

passed on 2/11/2011. On that basis, the present petitioners filed an

application under Section 28A(1) of the Act of 1894 seeking

re-determination of the amount of compensation in the light of

adjudication of LAC No. 26/2006. The said proceedings were filed on

23/1/2012. The Special Land Acquisition Officer considered the

application and on 13/2/2013 passed an award under Section 28A(2) of

the Act of 1894. He proceeded to enhance the amount of compensation to

Rs.60,000/- per acre based on the adjudication in LAC No. 26/2006. In

effect, the compensation granted was @ Rs.1,50,000/- per hectare.

According to the petitioners, the compensation ought to have been

awarded @ Rs.89,500/- per acre as granted in LAC No. 140/2004.

Similarly, no compensation was granted for trees standing on the

acquired lands. Interest as payable under the Act of 1894 was also not

paid. The petitioners therefore contend that on making various WP 6028-2019 5 Judgment

representations, some amount of interest was released in their favour vide

communication dated 13/8/2015. The petitioners on 14/8/2016 claim to

have made a representation to the Additional Collector seeking enhanced

compensation @ Rs.89,500/- per acre. Since there was no response to the

said representation, the present Writ Petition has been filed.

3. Shri A.S. Mehadia, learned Counsel for the petitioners

submitted that the Special Land Acquisition Officer while passing the

award on 13/2/2013 failed to take into consideration the fact that in LAC

No. 140/2004, compensation @ Rs. 89,500/- per acre had been granted.

Ignoring that adjudication, compensation @ Rs.60,000/- per acre came to

be awarded. It was his submission that the order passed in LAC No.

26/2006 was challenged by the acquiring body by preferring First Appeal

No. 675/2014. One of the land owners filed Cross-Objection No. 7/2022

wherein prayer for enhancing the amount of compensation was made.

The said proceedings were decided on 14/1/2022. While the Appeal

preferred by the acquiring body was dismissed, the cross-objection was

partly allowed and compensation @ Rs.89,500/- per acre came to be

granted. In view of the provisions of Section 28A(1) of the Act of 1894,

the petitioners were entitled to similar amount of enhanced

compensation. Despite making representation to that effect, no

cognizance of the same was taken. It was urged by relying upon the WP 6028-2019 6 Judgment

decision in Babua Ram And Others Vs. State of U.P. And Another [(1995)

2 SCC 689] that there could not be any disparity in the amount of

compensation payable for the lands acquired under the same notification.

It was then submitted that though the Special Land Acquisition Officer

noted that no Appeal was preferred against the award passed in LAC No.

26/2006, it was a fact that such appeal being First Appeal No. 675/2014

came to be filed and the same was decided by enhancing the amount of

compensation. The petitioners were therefore entitled to enhanced

compensation. The learned Counsel also referred to the decisions in State

of Maharashtra Vs. Manakchand Pyarmal And Others [(1996) 1 SCC

297] and in Bharatsing s/o Gulabsingh Jakhad And Others Vs. State of

Maharashtra And Others [(2018) 11 SCC 92] to urge that as challenge to

the award passed in LAC No. 26/2006 was pending, the proceedings

under Section 28A(1) of the Act of 1894 ought not to have been finally

decided. It was thus prayed that the petitioners be granted enhanced

compensation. In the alternate, the representation made on 14/8/2016 be

directed to be decided.

4. Shri M.A. Kadu, learned Counsel appearing for respondent

No.3 - acquiring body opposed the Writ Petition. At the outset, he

submitted that if the petitioners were aggrieved by the order passed

under Section 28A(2) of the Act of 1894, recourse could be had to the WP 6028-2019 7 Judgment

remedy provided under Section 28A(3) of the Act of 1894. The same was

not done by the petitioners. He invited attention to the prayers made in

the application filed under Section 28A of the Act of 1894 and submitted

that as compensation was awarded in terms of LAC No. 26/2006 as

prayed for, no interference was called for with the impugned order. The

petitioners were seeking relief that was not prayed for in the application

under Section 28A of the Act of 1894. To substantiate his submissions,

the learned Counsel placed reliance on the decisions in Balwant s/o

Narayan Kannav (Dead) thr. LRs Vs. The State of Maharashtra and

another [2020(3) Mh.L.J. 427] and in Shantabai Sudam Rathod Vs. State

of Maharashtra and others [Writ Petition No. 2853/2020 decided on

23/6/2021]. He also invited attention to the affidavit filed on behalf of

respondent No.2 wherein it was stated that the Special Land Acquisition

Officer did not receive the application dated 14/8/2016 that was alleged

to be submitted by the petitioners by way of representation. It was thus

submitted that the Writ Petition was liable to be dismissed.

5. We have heard the learned Counsel for the parties and we

have perused the documents on record. It is seen that pursuant to the

award passed by the Special Land Acquisition Officer on 16/12/2000,

LAC No. 26/2006 came to be filed seeking enhancement in the amount of

compensation. The said proceedings came to be decided on 2/11/2011 WP 6028-2019 8 Judgment

wherein compensation @ Rs.60,000/- per acre/ Rs.1,50,000/- per hectare

came to be granted. Though it has been stated by the Additional Collector

in the impugned order dated 13/2/2013 that permission had been

refused to file any appeal against the adjudication in LAC No. 26/2006, it

can be seen that the said proceedings were challenged by the acquiring

body by filing First Appeal No. 675/2014. On perusal of the record of the

said First Appeal, it is seen that the same was filed on 25/7/2013. The

land owner therein had preferred cross-objection seeking enhancement in

the amount of compensation from what was awarded in LAC No.

26/2006. The proceedings were decided on 14/1/2022. The learned

Single Judge noted that with regard to Gat No. 121 from the same

notification, this Court in First Appeal No. 1178/2013 had enhanced the

amount of compensation to Rs.89,500/- per acre. On that premise, the

amount of compensation was enhanced to Rs.89,500/- per acre. It can

also be seen that in LAC No. 11/2005 decided on 1/4/2011, similar

compensation has been awarded. It is thus evident from the record that

though an Appeal challenging the amount of compensation in LAC No.

26/2006 was filed and was thereafter decided on 14/1/2022, the

Additional Collector proceeded on the premise that there was no such

Appeal preferred against LAC No. 26/2006. It however cannot be lost

sight of that the award passed by the Additional Collector under Section

28A(2) of the Act of 1894 is dated 13/2/2013 while First Appeal No. WP 6028-2019 9 Judgment

675/2014 came to be filed thereafter on 25/7/2013. The situation thus

arising is that while some of the land owners whose lands were acquired

under the same notification were granted compensation @ Rs.89,500/-

per acre, the present petitioners who are similarly situated have been

awarded compensation @ Rs.60,000/- per acre. This aspect would be

contrary to the spirit of Section 28A of the Act of 1894.

6. The Hon'ble Supreme Court in Manakchand Pyarmal & Ors.

(supra) as well as in Bharatsing s/o Gulabsingh Jakhad & Ors. (supra) has

held that when an application seeking enhancement of compensation is

under consideration, if any appeal against such award is pending, the

consideration of the application filed under Section 28A(1) of the Act of

1894 has to be deferred till such appeal is decided. As noted above, the

Appeal preferred against LAC No. 26/2006 came to be filed after passing

of the award under Section 28A(2) of the Act of 1894 on 13/2/2013. The

Additional Collector, when he decided the said proceedings, was guided

by the communication dated 13/1/2012 issued to the State Government

by its Law and Judicial Department that it was decided not to file an

Appeal against the adjudication in LAC No. 26/2006. Despite that, such

Appeal was preferred subsequently vide First Appeal No. 675/2014.

7. In this factual backdrop, we find that the interests of justice

would be served by directing the Additional Collector to re-consider the WP 6028-2019 10 Judgment

petitioners' application filed under Section 28A(1) of the Act of 1894 and

take into consideration the compensation awarded in the subsequent

adjudication arising from LAC No. 26/2006. We note that such course

was also followed in Bharatsing s/o Gulabsingh Jakhad & Ors. (supra).

8. Hence for the aforesaid reasons, the following order is

passed :

i. The award dated 13/2/2013 passed in LAC No.

3/28-A/2010-11 (7/47/95-96) is set aside to enable re-consideration of

the application under Section 28A(1) of the Act of 1894.

ii. While re-determining the amount of compensation under

Section 28A(2) of the Act of 1894, the amounts already received by the

petitioners shall be taken into consideration. Similarly, the amount of

interest received by the petitioners from time to time shall also be taken

into consideration.

iii. To enable re-consideration of the application under Section

28A(1) of the Act of 1894, the petitioners shall appear before the

Additional Collector on 15/11/2022. The Additional Collector after

granting due opportunity to all the parties shall decide the said WP 6028-2019 11 Judgment

proceedings within a period of four months from that date. Necessary

decision be taken in accordance with law.

iv. Rule is made absolute in the aforesaid terms with no order as

to costs.

                                     (URMILA JOSHI - PHALKE, J.)          (A.S. CHANDURKAR, J.)
                         Sumit




Digitally signed bySUMIT CHETAN
AGRAWAL
Signing Date:21.10.2022 16:35