1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.4411 OF 2005 1) Sugriv s/o Narayan Pawar, died through L.Rs. 1-A) Rukhminbai w/o Sugriv Pawar, Age-50 years, Occu:Household, R/o-Sawargaon (Kale), Tq-Kalam, Dist-Osmanabad, At present residing at: Kanadi Borgaon, Tq. & Dist-Latur. 1-B) Sachin s/o Sugriv Pawar, Age-25 years, Occu:Agri., R/o-Sawargaon (Kale), Tq-Kalam, Dist-Osmanabad, At present residing at: Kanadi Borgaon, Tq. & Dist-Latur. 2) Venkat s/o Narayan Pawar, Age-58 years, Occu:Agri., R/o-Sawargaon (Kale), Tq-Kalam, Dist-Osmanabad, At present residing at: Kanadi Borgaon, Tq. & Dist-Latur. 3) Gulab s/o Narayan Pawar, Age-58 years, Occu:Agri., R/o-Sawargaon, (Kale), Tq-Kalam, Dist-Osmanabad, At present residing at: Kanadi Borgaon, Tq. & Dist-Latur. 4) Suryakant Dnyanoba Kale (Died), Through L.Rs. 2 4A) Indubai w/o Suryakant Kale, Age-65 years, Occu:Household, R/o-Javala (Bu.), Tq. & Dist-Latur. 4B) Bhagwat s/o Suryakant Kale, Age-38 years, Occu:Agri., R/o-Javala (Bu.), Tq. & Dist-Latur. 4C) Kanwar w/o Bhagwat Kapare, Age-35 years, Occu:Household, R/o-Javala (Bu.), Tq. & Dist-Latur. 4D) Aruna w/o Tatyarao Patil, Age-31 years, Occu:Household, R/o-Yeli, Tq. & Dist-Latur. 4E) Shivaji s/o Suryakant Kale, Age-28 years, Occu:Agri., R/o-Javala (Bu.), Tq. & Dist-Latur. 4F) Bharat s/o Suryakant Kale, Age-25 years, Occu:Agri., R/o-Javala (Bu.), Tq. & Dist-Latur. ...PETITIONERS. VERSUS 1) The State of Maharashtra, Through the Collector, Osmanabad, 2) The Land Acquisition Officer No.2 (Medium Project), 3) The Divisional Commissioner (Revenue), Aurangabad. ...RESPONDENTS. 3 ... Shri. V.D. Salunke Advocate i/b. Shri. R.V. Naiknaware Advocate for Petitioners. Shri. K.B. Choudhari, A.G.P. for Respondents. ... CORAM: NARESH H. PATIL AND N.D. DESHPANDE, JJ. JUDGMENT RESERVED ON : 12TH APRIL, 2010. JUDGMENT PRONOUNCED ON : 16TH APRIL, 2010. JUDGMENT [PER NARESH H. PATIL, J.] : 1. Heard learned counsel for the parties. Rule. Rule made returnable forthwith. By consent of the learned counsel for the parties, the matter is taken up for final hearing. 2. The Petitioners contend that they are owners of the respective lands as mentioned in Para 3 of the Petition, which were subjected to the acquisition. The Notification under Section 4 of the Land Acquisition Act, 1894 was issued on 3rd July, 1975. One of the claimants, Dagdu Bhairu Tonge filed Reference under Section 18 of the Land 4 Acquisition Act before the Civil Judge, Senior Division, Osmanabad. The Reference Court passed an award in L.A.R. No.140 of 1992 (Exhibit A). The Petitioners could not file Reference due to their financial problems and according to the Petitioners, they preferred application under Section 28-A of the Land Acquisition Act before the Respondent No.2. The Petitioners contend that the Respondent No.2 decided the application on 7th January, 1999 (Exhibit B) and awarded total amount of Rs.29,60,250/- (Rs. Twenty Nine Lakh Sixty Thousand Two Hundred Fifty only). The Petitioners grievance is that they did not receive the whole amount under the award passed under Section 28-A of the Land Acquisition Act. The Petitioners therefore, approached this Court seeking direction to the Respondents to pay remaining amount of Rs. 7,60,047/- (Rs. Seven Lakh Sixty Thousand Forty Seven only). 3. Consequent to the notice, the State filed affidavit in reply through the Special Land 5 Acquisition Officer. In para 5 of the reply, it was contended that: "It is submitted that since award under Section 28-A was not passed by the respondent no.2 taking into consideration the standing orders of the Government Circular dated 16th April, 2001. The copy of the Government Circular dated 16th April, 2001 is annexed herewith and marked as EXHIBIT R-1. The Divisional Commissioner, Aurangabad Division, Aurangabad in pursuance of the Government Circular dated 16th April, 2001 passed order by deciding claim of the applicant of Rs. 22,18,917/-. Accordingly compensation amount of Rs. 22,00203/- was disbursed to the present applicant in the application filed under Section 28-A of the Land Acquisition Act by the present deponent." 6 4. The Respondents in Para 5 of the reply, further averred that: "The Divisional Commissioner, Aurangabad Division, Aurangabad reduced the compensation payable to the claimants from Rs.29,60,203/- to Rs. 22,18,917/-. The present applicant has misconceived his claim and he was under impression that he is not receiving remaining amount as directed by the Collector under Section 28-A of the Land Acquisition Act." 5. The Petitioners filed rejoinder. 6. The learned counsel Shri V.D. Salunke appearing for the Petitioners submitted that in view of the provisions of the Land Acquisition Act, the Government/ Commissioner has no powers to correct the award passed by the Collector under Section 28-A of the Land Acquisition Act. The 7 Commissioner cannot modify the award. The provisions of section 11-A are not application to the award passed under Section 28-A of the Land Acquisition Act. In the facts of the case, according to the learned counsel, the State ought to have preferred Reference under Section 18 of the Land Acquisition Act if the State was aggrieved by the award or the calculation made under the award in respect of payment to be made to the claimants therein. The learned counsel placed reliance on the decision in the case of Mangala Sharad Mutha vs. State of Maharashtra and others, reported in 2002 B.C.I. (O) 47. 7. The learned A.G.P. Shri K.B. Choudhari referred to the expression "Collector" under Section 3(c), the expression "Land Acquisition Officer" under Section 3 (eee) and the provision under Section 3-1A of the Land Acquisition Act. In the submissions of learned A.G.P. the "Collector" and "Land Acquisition Officer" are not "State Government". For the said purpose the Commissioner 8 is the "State Government". The matter was referred to the Divisional Commissioner and it was found that interest upon interest was calculated against the settled principles and therefore the Divisional Commissioner, under his power, intimated by a communication dated 29th February, 2000 to the Godavari Marathwada Irrigation Development Corporation - acquiring body to pay an amount of Rs.22,18,917/- to the Petitioners in accordance with the "E" statement. 8. The original record was produced before us. There are certain disputed questions raised in respect of whether the award was final or draft one. The learned A.G.P. Shri Choudhari pointed out from the original record at page No.234, that somebody has scratched the word "draft" (PRARUP). From the original record, "E" statement as recommended by the Divisional Commissioner and prepared by the Special Land Acquisition Officer was also pointed out. 9 9. The learned A.G.P. submitted that it is not that the Divisional Commissioner had modified or corrected the award but had corrected the calculation made on the basis of the award, which was necessary in the light of the Judgment of the Apex Court in the case of Prem Nath Kapur and another vs. National Fertilizers Corporation of India Ltd. and others, reported in (1196) 2 Supreme Court Cases, Page 71. 10. The learned counsel Shri Salunke by pointing out certain communications from the original record at page Nos. 261, 263 submitted that amount of Rs.29,60,250/- was claimed earlier and the same was also recommended by the higher officials. 11. We have perused the Judgments cited before us. In the case of Mangala Sharad Mutha vs. State of Maharashtra, cited supra, the Division Bench, in the facts of the case, observed in Para 10 11 that award passed under Section 28A(2) of the Land Acquisition Act does not fall within the purview of the powers of correction or revision as contemplated under Section 13A of the Act. In Para 12 the Division Bench further observed that: "It is true that in the scheme of the Act there is no such specific power for review/recall of the Award passed under section 28 A of the Act but that does not itself mean that the Land Acquisition Officer or the Commissioner has no such powers or this Court under its inherent powers is precluded from stepping into set aside such award if it is noticed that it has been obtained by playing a fraud on the State Government." 12. From the arguments advanced and the material placed before us, it transpires that the case of the State is that the Divisional 11 Commissioner has power to correct the calculation in respect of payment of amount to a claimant under the award passed under Section 28A of the Land Acquisition Act. If the amount, which is required to be paid under the award is against the settled principles as reflected from the Judgment of the Apex Court cited supra, then the Divisional Commissioner being appropriate Government, is duty bound to correct such mistakes and issue appropriate directions. 13. The Petitioners have prayed for directions to the Respondents to pay remaining amount of Rs.7,60,047/-. From the record we find that the Divisional Commissioner issued the communication dated 29th February, 2000 in respect of payment of Rs.22,18,917/- without hearing the Petitioners and the Acquiring Body and other necessary parties. The said communication is said to be causing prejudice to the interest of the Petitioners. In such circumstances, it was reasonable and proper for the Divisional 12 Commissioner to have issued notice to the Petitioners and other concerned parties and after considering their case and on perusal of the record, pass appropriate orders. 14. In exercise of extra ordinary writ jurisdiction and in the peculiar facts of the case, it will not be proper for this Court to calculate the amount under the award and issue necessary directions. The same exercise ought to have been done by the appropriate authorities. We therefore, remand the matter back to the Divisional Commissioner. 15. We direct the Divisional Commissioner to hear the Petitioners, the Acquiring Body and the concerned officer, peruse the record and thereafter pass a reasoned order in respect of the issue raised by the Petitioners herein. The Divisional Commissioner shall complete this exercise within a period of EIGHT WEEKS from the date of receipt of this Order. The Petitioners 13 shall co-operate with the Divisional Commissioner in this regard. 16. Rule made absolute in the above terms. [N.D. DESHPANDE, J.] [NARESH H. PATIL, J.] asb/APR10/wp4411.05