Bombay High Court
Mangala Arun Patil And Ors vs The Dy. Collector, (Land Acquisition - 1 ... on 2 August, 2024
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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
901 FIRST APPEAL NO. 1049 OF 2020
WITH
FIRST APPEAL NO. 1052 OF 2020
WITH
FIRST APPEAL NO. 1053 OF 2020
WITH
FIRST APPEAL NO. 1050 OF 2020
WITH
FIRST APPEAL NO. 806 OF 2020
WITH
FIRST APPEAL NO. 808 OF 2020
WITH
FIRST APPEAL NO. 801 OF 2020
WITH
FIRST APPEAL NO. 812 OF 2020
WITH
FIRST APPEAL NO. 807 OF 2020
WITH
FIRST APPEAL NO. 1055 OF 2020
WITH
FIRST APPEAL NO. 1054 OF 2020
WITH
FIRST APPEAL NO. 1051 OF 2020
WITH
FIRST APPEAL NO. 811 OF 2020
WITH
CIVIL APPLICATION NO. 2717 OF 2020
IN FAST/3847/2020
WITH
FIRST APPEAL NO. 1056 OF 2020
WITH
FIRST APPEAL NO. 802 OF 2020
WITH
FIRST APPEAL NO. 1057 OF 2020
WITH
FIRST APPEAL NO. 1059 OF 2020
WITH
FIRST APPEAL NO. 1060 OF 2020
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WITH
FIRST APPEAL NO. 1061 OF 2020
WITH
FIRST APPEAL NO. 810 OF 2020
WITH
FIRST APPEAL NO. 804 OF 2020
WITH
FIRST APPEAL NO. 809 OF 2020
WITH
FIRST APPEAL NO. 805 OF 2020
WITH
FIRST APPEAL NO. 803 OF 2020
WITH
FIRST APPEAL NO. 1058 OF 2020
UTTAM SHIVAJI JOHARE
VERSUS
THE DY. COLLECTOR, (LAND ACQUISITION - 1 ) U.T.P.
(HATNOOR) JALGAON AND ANR
...
Advocate for Appellants : Mr. Patil Vijay Y.
AGP for Respondents/State : Mrs.M.N.Ghanekar
Advocate for Respondent No. 2 : Mr.Pawar A.D.
...
CORAM : KISHORE C. SANT, J.
DATE : 02nd AUGUST, 2024.
PER COURT :
1. Issue notice to the respondents, returnable
forthwith.
2. Respective learned Advocates waives service of notice
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for respondents.
3. All these appeals arising out of the same award of
acquisition proceedings from which other appeals are already on
board today are arising out of the common judgment and award
passed by the learned reference Court i.e. 6 th Jt. Civil Judge
Senior Division, Jalgaon vide judgment and order dated
04.08.2018. Therefore, all these appeals are taken together.
4. First group of appeals is by the Claimants for
enhancement in the amount of compensation. The second
group of the appeals is by the acquiring body on the limited
issue challenging Clause 6 and 7 of the operative order and
Clause No. 5 to the extent of awarding interest under Section 28
and 34 of the Land Acquisition Act from the date of possession
of the land instead of from the date of award in view of the full
bench judgment in the case of State of Maharashtra Vs. Kailash
Shiva Rangari, 2016 (4) ALL MR 513.
5. The facts in short are that all the claimants are from
the village Gondkhed, Tq. Jamner, District Jalgaon. Their
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respective lands came to be acquired for percolation tank,
Hizara Nala, of village Gondkhed. The Notification was issued
bearing SR/24/10. After determining the amount of
compensation the SLAO awarded compensation @ Rs.
1,56,000/- per Hector considering all the lands as jirayat lands
and passed the award.
6. Being aggrieved by the amount of compensation the
claimants approached the learned Collector under Section 18 A
of the Land Acquisition Act by filing reference under the Act.
The references were referred to the Civil Judge, Senior Division,
Jalgaon. The judgment and award passed in Land Acquisition
Reference No. 532 of 2009 (for short 'L.A.R.') decided by the
learned 3rd Jt.Civil Judge Senior Division, Jalgaon by judgment
and order dated 23.08.2017, wherein, the rate is awarded is Rs.
5,40,000/- to jirayat land is relied upon the claimants.. The
learned trial judge, however, held that the LAR No. 532 of 2009
was in respect of different project i.e. for percolation tank
Paladhi and the said rate cannot be applied to the lands from
village Gondkhed. Village Paladhi is close to the State Highway
and did not accept the said value. It is further observed that
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the village Gondkhed is at some distance from the Highway and
also at some distance from the village Paladhi.
7. The Court thus granted rate of Rs. 4,80,000/- per
hector considering all the relevant aspects. The Court thus,
partly allowed the claims. The claimants are thus aggrieved to
the extent of not granting the rate as per the judgment in LAR
No. 532 of 2009, have approached this Court.
8. So far as the acquiring body is concerned, the
acquiring body has fairly not challenged the enhancement in the
rate of the amount. The acquiring body is aggrieved by Clause-
6, 7 and Clause- 5 to some extent. As per Clause- 6 the learned
Court has directed to pay rental compensation @ 8% p.a. on
the entire amount of compensation including the enhanced
amount, 30% isolation etc. from the date of possession which
was taken even prior to the Section 4 (1) of the notification. By
Clause-7 the Court further directed to pay the interest @ 6%
even on the amount of rental compensation. These both Clauses
are challenged in its entirety. So far as Clause-5 is concerned,
challenge is only to the extent of direction for grant of statutory
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interest and statutory benefits from the date of possession. The
ground taken is that in view of the judgment in the case of
Kailash Shiva Rangari (supra), the claimants are entitled to
receive the interest under Section 28 and Section 34 only from
the date of award and not from any other date prior to passing
of the award under Section 11.
9. Heard the parties.
10. Learned Advocate Mr. Patil vehemently argued that
the claimants have relied upon the judgment in LAR No. 532 of
2009 which was in respect of adjoining village Paladhi. There is
no difference in the quality of the land as all the lands are jiriyat
lands. He submits that the distance between the village Paladhi
and Gondkhed is less than 5 k.m. The crop cultivation pattern
is the same. There is no difference in respect of lands of both
the villages and there was no reason for not accepting the rate
as awarded in LAR No. 532 of 2009 to the extent of award of
rental compensation and awarding interest from the date of
possession is justifies judgment and award to the extent of
Clause 5 part 6 & 7. He thus, prays for allowing the appeals
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and claimed rate of Rs. 5,88,000/- per hector as is given in LAR
No. 532 of 2009. So far as the other aspects are concerned, he
submits that same needs to be maintained.
11. Coming to the arguments of Mr. Pawar for the
acquiring body, as already observed he fairly states that the
Acquiring Body has not challenged the rate granted by the
reference Court. He however, submits that in view of the full
Bench judgment in the case of Kailash Shiva Rangari (supra) it
is clearly & categorically held that the claimants are entitled to
the interest under Section 34 and 28 only from the date of
award till realization of the amount. He further submits that
the award of rental compensation has to be considered by the
learned Collector and the reference Court has no powers to
award rental compensation. As per Government Resolutions of
the year 1972 and 1988, it is entirely for the learned Collector
to decide the rate/value of the rental compensation. There is no
provision in the law for vesting powers in the Civil Court to
award the rental compensation and to that extent the Clauses 6
& 7 needs to be set aside from the impugned judgment and
award.
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12. In support of his submission he submits that the
award was passed on 08.04.2013 in respect of the present
proceedings. While passing the award the sale instances from
the village Gondkhed were considered. Considering those rates
the award was passed. The same rate was lower than the rate
which is awarded by the reference Court. He submits that
though the sale instances from village Gondkhed were very
much available, the Claimants did not produce the same and
have relied upon the award in 532 of 2009 and the Court is
thus justified in not accepting the said rate when the project is
different, the acquisition proceeding is different and even the
location of the land are also different.
13. So far as the observations of the learned Court in
paragraph No. 26 about the rental compensation, the learned
trial Court failed to consider the order in Writ Petition No.
10916 of 2014 dated 29.06.2015. This Court had only kept it
open for the Claimants to raise the issue in respect benefit
available to them under Section 34 of the land Acquisition Act.
It was only expected of the reference Court to consider such
claims and to pass appropriate orders. The reference Court
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however, has taken said order as if the reference Court is
directing to award the interest under Section 34 from the date of
possession.
14. This Court has gone through the order passed in
Writ Petition No. 10916 of 2014 which reads as under :
"1. The petitioners, it is stated, have presented
Reference Applications seeking enhancement in
the amount of compensation and those
applications are stated to be pending.
2. It would be open for the petitioners to raise
the issue in respect of benefits accruable to them
under Section 34 of the Land Acquisition Act. If
the petitioner raises such claim, it would be
obligatory on the part of the Reference Court to
deal with such claims and pass appropriate
orders.
3. With the observations as above, the Writ
Petition stands disposed off."
15. It is no where in the said order to interpret the
reference Court is directed to award the interest under Section
34 from the date of possession. The direction given was only to
consider the said claim. Naturally the Court will consider the
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matter of awarding interest under Section 34 and the same is
governed by the legal position which is well settled in the case
law of Kailas Shiva Rangari (supra).
16. Thus, from all these discussions, this Court finds
that the learned trial judge has certainly erred in passing the
order in terms of Clause Nos. 6 and 7 of the impugned
judgment. This Court is thus inclined to decide clause Nos. 6
and 7 of the impugned judgment.
17. So far as Clause No. 5 is concerned, the Court finds
that the same needs to be modified holding that
applicants/Claimants to be entitled to receive interest as per
Section 28 and 34 only from the date of award i.e. date
08.04.2013 till its realization. With this, this Court holds that it
is open for the Claimants to approach learned Collector and
claim rental compensation as per law. If such an application is
pending the learned Collector to decide the same within six
months from today.
18. It is informed that the Acquiring Body had deposited
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the entire amount of compensation as per impugned judgment
and award in the executing Court/Reference Court. 80% of the
said amount is already withdrawn by the Claimants. In view of
this, the reference Court to make fresh calculations in the light
of discussion and above cited judgments and if an access
amount is deposited the same shall be refunded to the
Acquiring Body and in case there is more amount lying towards
the compensation, the same shall be given to the Claimants in
their proportionate shares. The said exercise be done within
two months from today. No order as to costs.
19. In view of the above discussion, the First Appeals
stand disposed off.
20. Consequently the Civil Applications, if any, stand
disposed off.
( KISHORE C. SANT )
JUDGE
mahajansb/
