Bombay High Court
Kishan Hariba Salunke Died Through Lrs ... vs The State Of Maharashtra Through The ... on 5 August, 2024
Author: Ravindra V. Ghuge
Bench: Ravindra V. Ghuge
2024:BHC-AUG:17635-DB
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(1)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
1 WRIT PETITION NO. 6092 OF 2024
KISHAN HARIBA SALUNKE, DIED, THROUGH LRS
ANUSAYABAI KISHAN SALUNKE
VERSUS
THE STATE OF MAHARASHTRA THROUGH THE
COLLECTOR, LATUR AND OTHERS
....
Mrs P. G. Sontakke, Advocate h/f Mr G. K. Sontakke, Advocate
for Petitioner
Ms Neha Kamble, A.G.P. for Respondents/State
CORAM : RAVINDRA V. GHUGE
AND
Y. G. KHOBRAGADE, JJ.
DATE : 5th August, 2024
PER COURT:
1. By this Petition, the Petitioner has put forth prayer
clauses (B), (C) and (D), which read as under :-
"B) By issuing writ of mandamus or any other
appropriate writ, order or directions in the nature of
mandamus thereby directing the respondent Nos.1 and 2 to
release part payment as awarded to the petitioner vide
Award dated 28.08.2017 under the provisions of Section
28-A of Land Acquisition Act in proceeding
No.1995/LA/CR-38 and for that purpose issue necessary
orders.
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C) Hold and declare that, the communication dated
19.02.2024 issued by the respondent No.2 is illegal,
arbitrary and liable to be quashed and set aside and for
that purpose issue necessary orders.
D) Pending, hearing and final disposal of this Writ
Petition grant an injunction, thereby directing the
respondent Nos.1 and 2 to release part payment as awarded
to the petitioner vide Award dated 28.08.2017 under the
provisions of Section 28-A of Land Acquisition Act in
proceeding No. 1995/LA/CR-38 and for that purpose issue
necessary orders."
2. The undisputed facts are set out herein below :-
(a) The land belonging to the Petitioner in Survey No.39,
admeasuring 0H.22R was acquired by the
Respondents/Authority for the purpose of construction of
the Ring Road connecting Latur to Ausa and Latur to
Barshi.
(b) A Notification under Section 4 of the Land
Acquisition Act, 1894 (for short 'the 1894 Act'), was
published in the Maharashtra Government Gazette on
22/02/1996.
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(c) Thereafter, the Special Land Acquisition Officer
(S.L.A.O.) issued a Notification under Section 9(1) of the
1894 Act.
(d) The S.L.A.O. declared the Award, on 05/11/1999.
(e) Similarly situated claimants preferred Application
(Reference Petition) under Section 18 of the 1894 Act,
before the learned Civil Judge Senior Division, Latur for
seeking enhancement in compensation.
(f) The First L.A.R. judgment is dated 02/05/2009.
(g) By a judgment dated 17/12/2014, passed in L.A.R.
case No.213/2003, by the learned Civil Judge Senior
Division, Latur, the Claimants were granted enhancement in
compensation.
(h) First Appeal (St.) No.25683/2010 was filed by the
State Government, on 04/09/2010.
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(i) It is informed that the First Appellate Court has not
stayed the Award delivered by the L.A.R. Court.
(j) All the Respondents in the First Appeals, who were
Applicants under Section 18 L.A.R. Proceedings, have been
paid entire enhanced amount with the solitary condition of
tendering indemnity undertakings.
(k) Since the Petitioner did not availe of the proceedings
under Section 18 of the 1894 Act, she moved proceedings
under Section 28-A of the 1894 Act.
(l) By the judgment and Award, the proceedings under
Section 28-A were allowed and identical enhancement was
granted to this Petitioner. In short, this Petitioner and the
Applicants under Section 18 proceedings, were placed at
par.
(m) The Petitioner moved Respondent No.2/Authority for
grant of the enhancement amounts vide the Application
dated 02/02/2024. By the impugned order dated
19/02/2024, the concerned Authority/Sub Divisional Officer
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and S.L.A.O., Latur informed the Petitioners that, the First
appeal was pending before the High Court and, hence, the
Petitioner should tender a Bank Guarantee and receive the
enhancement amount.
3. The learned Advocate for the Petitioner submits that,
if identically placed Claimants under Section 18 of the 1894 Act
have been granted entire enhanced amounts on the condition of
tendering indemnity bonds, the Petitioner who has acquired the
same relief under Section 28-A of the 1894 Act, should not be put
to different conditions. By the impugned communication, the
Petitioner is directed to tender a Bank Guarantee if she desires to
receive the enhanced amounts.
4. The learned A.G.P. has vehemently opposed this Writ
Petition on the basis of the affidavit-in-reply filed by the
concerned Authority, which has passed the impugned order. It is
brought to our notice that 50% of the enhanced amount has
already been paid to the Petitioner, without any conditions. Since
the First Appeal is pending, the condition of Bank Guarantee has
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been imposed on the Petitioner. Such stand has been taken in
view of the Government Resolution dated 29/08/2015, which
provides that the Collector should direct for tendering of Bank
Guarantee, if the amount of enhancement compensation is to be
paid when the Appeal challenging the judgment under Section 18
of the 1894 Act, is pending before the High Court.
5. The learned A.G.P. has placed reliance upon the
following judgments :-
I) Babua Ram and others Vs. State of U.P. and Another,
[(1995) 2 SCC 689] : [1995 AIR SCW 65];
II) Kendriya Karamchari S.G.N. Samiti Ltd., Noida Vs.
State of U.P. and Anr, [AIR 2009 SC 1677];
III) Bharatsing s/o Gulabsingh Jakhad and others Vs. State
of Maharashtra and others, [(2018) 11 SCC 92];
IV) Ramsingbhai (Ramsangbhai) Jerambhai Vs. the State
of Gujarat and Anr. [AIR 2018 SC 2629] : [2018 (16) SCC
445];
V) Union of India (UOI) Vs. Munshi Ram (Dead) by Lr.
And others, [AIR 2006 SC 1716];
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VI) State of Maharashtra Vs. Manakchand Pyarmal and
others, [(1996) 1 SCC 297];
VII) Sanjay and others Vs. State of Maharashtra, through
Collector and others, [2022 SCC OnLine Bom. 11920]
6. In view of the above cited reports, the law is settled
that, if the Applicants, who did not avail of the remedy under
Section 18 of the 1894 Act, has preferred a remedy under Section
28-A of the 1894 Act, and if, in the interregnum, the State
challenges the enhancement granted under Section 18 of the 1894
Act, by filing First Appeal, the Authority dealing with the
proceedings under Section 28-A of the 1894 Act, should keep the
proceedings in abeyance and should not take a decision until the
First Appeal is decided.
7. However, in the instant case, not only have the
Claimants been granted the enhanced compensation amounts
under Section 18 of the 1894 Act, but the Competent Authority
has already adjudicated upon the proceedings under Section 28-A
of the 1894 Act, after the First Appeal was filed. So also, the
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learned Single Judge has not granted any relief to the State
Authorities in the First Appeal, and the Claimants, who were
successful in getting enhancement under Section 18 of the 1894
Act, have already been paid enhanced amounts on the condition of
tendering indemnity bond.
8. The learned A.G.P. submits that, though the facts of
this case are peculiar, and since the proceedings under Section
28-A have already been adjudicated upon, the clock cannot be
turned back. However, it is an onerous task for the State to
recover amounts, which are paid on the orders passed under
Section 18 and under Section 28-A of the 1894 Act, if the State
succeeds in the First Appeal before the High Court. Such onus
onerous burden would be increased if this Court would permit the
Petitioner to withdraw even the remaining of the 50% amounts
granted under Section 28-A. There is no dispute that, 50% of the
amount granted under Section 28-A has been withdrawn by the
Petitioner without any undertaking/without any conditions.
9. In view of the above, to ensure that the Petitioner is
placed at par with those identically placed Claimants, who have
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succeeded under Section 18, and who have withdrawn their
amounts on indemnity bonds, and to balance the equities, we
deem it appropriate to pass the following order :-
(a) This Writ Petition is partly allowed.
(b) Out of the remaining 50% amount, which is said
to be Rs.10,99,913/- as in 2017, plus the accrued interest till
July 2024, we would permit the Petitioner, who is an 88
years old widow, to withdraw 50% of this amount by
tendering an indemnity bond.
(c) The remaining amount be invested in any
Nationalized Bank in Fixed Deposit Receipt (F.D.R.) by the
District Collector, initially for a period of two years.
(d) Needless to state, subject to the result in the
First Appeal, further remedies are available to the Petitioner.
(e) Needless to state, we have passed the above
order in the peculiar facts and circumstances of this case.
(Y. G. KHOBRAGADE, J.) (RAVINDRA V. GHUGE, J.)
sjk
