Bombay High Court
Dhondabai Gokul Bansode And Ors vs Tanhabai Gavaji Kulkarni (Died) Vijaya ... on 7 December, 2023
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
2023:BHC-AUG:25545-DB
ca-3958-2019 and ca-14384-2019.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CIVIL APPLICATION NO.3958 OF 2019
IN FA/998/2019
1. Tanhabai w/o Gavaji Kulkarni
Died during the pendency of L.A.R.
2. Vijaya w/o Chandrakant Wakde
3. Manohar s/o Gavaji Kulkarni
4. Vinod s/o Gavaji Kulkarni
5. Surekha Raju Khandekar
6. Avinash s/o Gavaji Kulkarni .. Applicants
Versus
1. Dhondabai w/o Gokul Bansode
2. Sitabai Kashinath Magare
3. Sushilabai Nana Kulkarni (died)
Through LRs.
3A. Ashabai Raosaheb Magare
3B. Vilas Nana Kulkarni
3C. Sainath Nana Kulkarni
3D. Usha Milind Borde
4. Bebibai Kantilal Salve
5. Dadarao Kachru Jagdhane
6. Shobha Babasaheb Magare .. Respondents
...
WITH
CIVIL APPLICATION NO.14384 OF 2019
IN FA/998/2019
1. Dhondabai w/o Gokul Bansode
2. Sitabai Kashinath Magare
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ca-3958-2019 and ca-14384-2019.odt
3. Sushilabai Nana Kulkarni (died)
Through LRs.
3A. Ashabai Raosaheb Magare
3B. Vilas Nana Kulkarni
3C. Sainath Nana Kulkarni
3D. Usha Milind Borde
4. Bebibai Kantilal Salve
5. Dadarao Kachru Jagdhane
6. Shobha Babasaheb Magare .. Applicants
Versus
1. Tanhabai w/o Gavaji Kulkarni
Died during the pendency of L.A.R.
2. Vijaya w/o Chandrakant Wakde
3. Manohar s/o Gavaji Kulkarni
4. Vinod s/o Gavaji Kulkarni
5. Surekha Raju Khandekar
6. Avinash s/o Gavaji Kulkarni .. Respondents
...
Mr. Aakash D. Gade h/f Mr. S. J. Salunke for the applicants in
CA/3958/2019 and for respondents in CA/14384/2019.
Mr. R. O. Awasarmol, Advocate for applicants in CA/14384/2019 and for
respondents in CA/3958/2019.
...
CORAM : SMT. VIBHA KANKANWADI AND
ABHAY S. WAGHWASE, JJ.
RESERVED ON : 7th November, 2023
PRONOUNCED ON : 7th December, 2023
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ORDER [Per Smt. Vibha Kankanwadi, J.] :-
. Civil Application No.3958 of 2019 has been filed for stay to the
impugned judgment and award dated 03.12.2018 passed by the learned 3 rd
Joint Civil Judge Senior Division, Aurangabad in Land Acquisition
Reference No.242 of 2013, whereas Civil Application No.14384 of 2019 has
been filed for direction that the respondents therein should be directed to
deposit the amount, which they have withdrawn and that they should not
withdraw further amount.
2. Heard learned Advocate Mr. S. J. Salunke for the applicants in Civil
Application No.3958 of 2019 and for respondents in Civil Application
No.14384 of 2019 and learned Advocate Mr. R. O. Awasarmol for
applicants in Civil Application No.14384 of 2019 and for respondents in
Civil Application No.3958 of 2019.
3. It can be seen that the case has a chequered history. The land of the
original respondents admeasuring 3 H 75 R from Gat No.58 came to be
acquired for Shendra M.I.D.C. Project at Karmad, District Aurangabad. The
land was standing in the name of one Manohar Kulkarni and others and
accordingly the award was declared in their names. The amount of
compensation was fixed by passing an award, however, claimant
Dhondabai and Tanhabai raised objection at the time of disbursement of
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amount contending that they have share in the acquired land. Under the
said circumstance, Special Land Acquisition Officer forwarded the petition
to the Reference Court under Section 30 of the Land Acquisition Act along
with four cheques dated 20.09.2013 total amounting to Rs.2,13,03,750/-.
The parties have led evidence before the Trial Court and then by judgment
and award dated 03.12.2018, learned 3rd Joint Civil Judge Senior Division,
Aurangabad held that original claimant No.1 is entitled for 1/3rd amount
of compensation and original claimant Nos.2 to 6 are entitled to in all
1/3rd amount of compensation. All the respondents then are entitled to
remaining 1/3rd amount of compensation. The appellants/applicants are
the original respondents.
4. In the application for stay, it has been contended that in fact the
original claimants had no locus standi to claim share in the acquired
property. The applicants are the only persons entitled to the said amount of
compensation. Learned Trial Judge erred in considering the objections. The
cross-examination of original claimant No.1 has not been considered by the
learned Trial Judge properly. In fact, Land Acquisition Reference No.242 of
2013 was already tried and adjudicated by the predecessor of the Reference
Court on merits on 02.05.2015. In the said judgment, it was observed that
the claimants in the impugned judgment and award i.e. present
respondents had failed to adduce any evidence and assert their relationship
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with the family of the appellants whose land has been acquired. The
revenue records were not considered properly. Learned Advocate for the
appellant relied on the decision in Ram Prakash Agarwal and Another Vs.
Gopi Krishnan (Dead through LRs.) and others, (2013) 11 SCC 296, in
which the Hon'ble Apex Court has summarized the
implementation/apportionment under Section 18 and 30 of the Land
Acquisition Act. Further, reliance is placed on the decision in Sunil
Radhesham Shukla Vs. State of Maharashtra and others, 2022 (4) ABR 678,
wherein it was observed by this Court that the provisions of Section 30 of
the Land Acquisition Act must be invoked within reasonable time. Further,
in Anjanabai w/o Anna Thorat Vs. Dilip Baliram Khandare and others, 2023
DGLS (Bom.) 188, this Court observed that the job of the Land Acquisition
officer is not that of a postman, but requires application of mind as to
whether a dispute exists. The learned Reference Court has not considered
all these aspects and, therefore, if the stay is not granted and further
withdrawal is not stopped, then the applicants would suffer irreparable
loss. Further, whatever has been allowed to be withdrawn by the original
claimants should be asked to be re-deposited, otherwise it would become
impossible to recover the said amount for the applicants.
5. Per contra, learned Advocate for respondent Nos.1 to 6/original
claimants, before the Reference Court, strongly opposed the applications
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and submitted that the withdrawal is under the orders of the Court after it
is shown that the applicants/claimants are entitled to withdrawal, in view
of proof of their share. It is absolutely not necessary to stay the proceedings
before the Trial Court or stay to the impugned judgment and award, as still
the amount is remaining to be withdrawn as per the shares.
6. At the outset, it is to be noted that though the formal order in respect
of admitting the first appeal is not passed, yet the record and proceedings
has been called. It is the first appeal which deserves to be admitted as of
right. In view of the appeal to be admitted, we are required to see whether
the impugned judgment and award deserves to be stayed during the
pendency of the appeal. The ratio laid down in the cases relied by the
learned Advocate for the appellants/original respondents can be considered
at the time of final hearing, but the fact remains is that earlier reference i.e.
Land Acquisition Reference No.242 of 2013 was initially decided by 8 th
Joint Civil Judge Senior Division, Aurangabad under Section 30 of the Land
Acquisition Act on 02.05.2015. Apportionment was done in respect of
applicant No.1 Manohar Kulkarni, applicant No.2 Vinod Kulkarni and
applicant No.3 Avinash Kulkarni. They were held to be entitled to get
amount of Rs.56,81,000/-, whereas applicant No.4 Tanhabai Kulkarni was
held to be entitled to get amount of Rs.42,67,750/-. It appears that the
matter was remanded and once again the Reference Court decided the said
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application under Section 30 of the Land Acquisition Act i.e. Land
Acquisition Reference No.242 of 2013 on 03.12.2018, in which original
claimant No.1 is entitlted for 1/3rd amount of compensation and original
claimant Nos.2 to 6 together are held to be entitled to get 1/3rd amount of
compensation, whereas all the respondents were entitled to get in all 1/3rd
of amount of compensation. The appeal would take long time to come up
for final hearing and disposal, but the thing remains is that if the stay is
granted, then everybody would withdraw the amount as per the award
which may then lead to the appeal becoming infructuous. No doubt, up till
now both the parties have sought withdrawal of the amount by filing
various applications, which have been already decided by this Court as well
as the Reference Court, still certain amount is remaining and, therefore,
that amount deserves to be protected from distribution, till the matter is
finally heard and disposed of. Therefore, stay deserves to be granted,
however, as regards directions to re-deposit the amount is concerned, it
cannot be ordered right now. If at all it is held at the end of the appeal that
any one party is not entitled to receive the amount, which has been already
allowed to be withdrawn or fraction of the same, then that party can be
allowed to ask to deposit the amount in this Court again, but it will be at
the time of final hearing only. Certainly, now every party is required to be
restrained from withdrawing any amount which is now pending before the
learned Reference Court, so that it can be made subject to distribution at
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the end of the appeal. Hence, the following order is passed :-
ORDER
I) Civil Application No.3958 of 2019 stands allowed.
II) There shall be stay to the impugned judgment and award
dated 03.12.2018 passed by the learned 3 rd Joint Civil Judge Senior
Division, Aurangabad in Land Acquisition Reference No.242 of 2013,
till the hearing and final disposal of the appeal.
III) Civil Application No.14384 of 2019 stands partly allowed.
IV) The prayer in respect of direction to the respondents in the
application i.e. original claimants to re-deposit the amount
withdrawn by them stands rejected, however, all the parties to the
appeal are hereby restrained from withdrawing any amount, which is
now pending before the Trial Court in respect of the present matter,
till the final hearing and disposal of the appeal.
[ ABHAY S. WAGHWASE ] [ SMT. VIBHA KANKANWADI ]
JUDGE JUDGE
scm
Signed by: Shubham C. Magar
Designation: PA To Honourable Judge [8]
Date: 07/12/2023 13:42:14
