1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 1649 OF 2007 The Executive Engineer, Nandur Madhmeshwar Canal Division, Vaijapur, Tq. Vaijapur, Dist. Aurangabad. .. petitioners Versus 1] The State of Maharashtra through Collector, Aurangabad 2]The Special Land Acquisition Officer, Jaikwadi Project No.2, Collector Office, Aurangabad. 3] Snil S/o. Dnyaneshwar Shete, Age 30 years, Occ. Agril, R/o. Kumbhargalli, Vaijapur. Tq. Vaijapur, Dist. Aurangabad. .. Respondent. --- Mr. V.R. Sonwalkar,, Advocate for petitioner. Mr. , AGP for respondents. 2 CORAM : R.M. BORDE, J. DATE : 15th April, 2010. ORAL ORDER :- 1] Rule. Rule made returnable forthwith. By consent of parties, taken up for final hearing. 2] The petitioner is raising challenge to the award passed by the Special Land Acquisition Officer, Jaikwadi, Aurangabad on 15/2/2005, in exercise of provisions contained in Section 28A of the Land Acquisition Act. The only grievance made by the petitioner in the petition is that, the award has been passed by the Special Land Acquisition Officer, without issuing notice to the acquiring body, i.e. the present petitioner. 3] It is not controverted that the land belonging the respondents/claimants has been acquired for the purpose of the Narangi- Sarangi Medium Project, Vaijapur and the petitioner is the acquiring body, for whose benefit the lands have been acquired by the State. It is also not in dispute that notice was not issued to the petitioner before initiating the proceedings under Section 28A of the Land Acquisition At and passing of the award by the LAO. 4] In is also further contended by the petitioner that apart from failure to issue notice to the acquiring body, the application under section 28A also ought not to have been taken up for consideration by the Land Acquisition Officer, for the reason that the First Appeal raising exception to 3 the award passed by the LAO which is the basis for presentation of the application under Section 28A is admitted and pending before this court. It is thus contended that unless finality is attached to the proceedings, in respect of the award passed by the civil court, which is under challenge before this court, the proceedings under section 28A before the Special Land Acquisition Officer, are not entertainable. This aspect has not been taken into consideration by the Special Land Acquisition Officer, before passing the award. 5] Learned counsel for the petitioner has submitted that the very basis for enhancement in the amount of compensation and entertaining an application under Section 28-A of the Land Acquisition Act is itself a subject of challenge in the first appeal filed by the acquiring body and if the judgment and award passed by the reference court on which reliance reliance is placed by the claimant entertaining their application under Section 28-A of the Act undergoes any change in the first appeal preferred by the acquiring body, it necessarily will have impact on determination of the amount of compensation payable to the claimants. It would, therefore, be logical that the Collector shall wait until the decision is tendered in the appeals raising challenge to the judgment and award passed in the reference applications on which reliance is sought to be placed by the claimants. Counsel for the petitioner has placed reliance on the judgment reported in 1996(1) SCC 297 4 in the matter of “State of Maharashtra Vs.Manakchand Pyarmal”. In para.4 of the said judgment, the Apex Court has observed thus :- “4. In view of the fact that the award passed by the Reference court, referred to hereinabove, is already subject matter of the appeal pending decision in the High Court, appropriate course would be to keep the reference application made by the claimants under Section 28-A(1) pending till disposal of the appeal in the High Court. The Collector shall take action only the basis of the judgment that may be rendered by the High Court. Until then, the matter be kept pending. The writ petition stands dismissed subject to the above directions.” 6] In this view of the matter, the petition succeeds. The judgment and award passed by the Special Land Acquisition Officer, impugned in this petition, is quashed and set aside and the matter is remitted back to the S.L.O. for fresh determination of the application filed by the claimants under Section 28A of the Land Acquisition Officer, in accordance with the provision of law. The SLO shall determine the controversy, between the parties after affording an opportunity of hearing to all the parties concerned. The claimant is further directed to implead the petitioner herein, i.e. the acquiring body as respondent in the application. 5 7] The Collector shall proceed to determine the application and pass award on taking into account the observations made in this judgment and considering the pendency of the First Appeal which is directed against the judgment and award passed by the civil court, which is the basis of the proceeding initiated by the claimant under Section 28A of the Land Acquisition Act. Rule made absolute in above terms. In the circumstances, there shall be no orders as regards costs. [R.M. BORDE,J.] Grt/-