bsb IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT WRIT WRIT PETITION NO. 9450 OF 2007 PETITION NO. 9450 OF 2007 PETITION NO. 9450 OF 2007 Balasaheb A. Kalbhor & ors. ... Petitioners V/s Spl. Land Acquisition Officer & ors. ... Respondents Mr.P.H.Potnis for the petitioners. Mr.V.S.Gokhale, A.G.P. for respondent Nos.1 and 2. CORAM: CORAM: CORAM: J.N.PATEL AND J.N.PATEL AND J.N.PATEL AND SMT.NISHITA SMT.NISHITA SMT.NISHITA MHATRE, JJ. MHATRE, JJ. MHATRE, JJ. DATED: DATED: DATED: 22ND JANUARY, 2008. 22ND JANUARY, 2008. 22ND JANUARY, 2008. P.C. P.C. P.C.: 1. Heard. 2. Leave to amend. Amendment be carried out forthwith. 3. Rule. Rule made returnable forthwith by consent of the learned counsel for the parties. 4. The petition can be disposed of at the stage of admission itself. The petitioners have approached this Court aggrieved by the order dated 10.4.2007 passed by the respondent No.1 Special land Acquisition Officer rejecting their applications under Section 28A of the 2 Land Acquisition Act, 1894. 5. It is the case of the petitioner that the lands have been acquired by the respondents for the purpose of Petroleum Storage Depot of Indian Oil Corporation and that common award came to be passed on 10.6.1992 by the respondent No.1 granting meagre amount of compensation. Aggrieved by the award, some of the agriculturists’ whose land was acquired under the said notification, sought land references under Section 18 of the said Act for enhancement of compensation and by its judgment and order dated 27.6.2005, the Reference Court i.e. the Joint Additional District Judge, Pune, enhanced the amount of compensation. On the basis of the decision of the Reference Court, the petitioners filed application under Section 28-A before the respondents for re-determination of the amount of compensation. It is the case of the petitioners that their applications have been filed within the stipulated period of limitation but without considering their case for re-determination of compensation in accordance with the award, their application has been summarily dismissed. 5. In support of the reliefs sought, the petitioners have also annexed the decision in Land Reference No.161 of 1992 where the judgment and order came to be passed 3 on 27.6.2005 by the Ad-hoc Additional District Judge, Pune. 6. The petitioners have annexed the communication dated 10.4.2007 by which they were informed by the respondent No.1 that their applications stand rejected. 7. It is the contention of the learned counsel appearing for the petitioners that the decision taken in the matter by the respondents is contrary to law and deserves to be quashed and set aside. The learned counsel for the petitioners has placed reliance on the decisions of the Supreme Court rendered in the cases of (1) Babua Ram & ors. v/s State of U.P. & anr., Babua Ram & ors. v/s State of U.P. & anr., Babua Ram & ors. v/s State of U.P. & anr., reported reported reported in (1995) 2 SCC 689; (2) D.Venkamma & ors. in (1995) 2 SCC 689; (2) D.Venkamma & ors. in (1995) 2 SCC 689; (2) D.Venkamma & ors. v/s v/s v/s Spl. Tehsildar (L.A.) Unit-IV, Janagareddigudem, Spl. Tehsildar (L.A.) Unit-IV, Janagareddigudem, Spl. Tehsildar (L.A.) Unit-IV, Janagareddigudem, reported reported reported in (1996) 1 SCC 85; (3) State of Maharashtra in (1996) 1 SCC 85; (3) State of Maharashtra in (1996) 1 SCC 85; (3) State of Maharashtra v/s v/s v/s Manakchand Pyarmal & ors., reported in (1996) 1 SCC Manakchand Pyarmal & ors., reported in (1996) 1 SCC Manakchand Pyarmal & ors., reported in (1996) 1 SCC 297 297 297 and (4) A. Peda Veerender & ors. v/s The Land and (4) A. Peda Veerender & ors. v/s The Land and (4) A. Peda Veerender & ors. v/s The Land Acquisition Acquisition Acquisition Officer/RDO Nizamabad & anr., reported in Officer/RDO Nizamabad & anr., reported in Officer/RDO Nizamabad & anr., reported in A.I.R. A.I.R. A.I.R. 1995 A.P. 36. 1995 A.P. 36. 1995 A.P. 36. 8. Therefore, it is submitted that the petition be allowed and the impugned order be quashed and set aside and the authorities be directed to re-determine the compensation in accordance with law. 4 9. Learned Asstt. Government Pleader submitted that the applications have been rejected in view of the fact that the award under reference is the subject matter in challenge in appeal and the petitioners may reagitate the matter by filing fresh applications if the appeal is decided. The learned counsel for the petitioners has pointed out this Court that the decision on which the petitioners have relied upon, clearly indicates that the application has to be filed within three months from the date the Reference Court awards enhanced compensation in the matter and, therefore, the respondents have no choice but to decide their applications in accordance with law i.e. the petitioners should also be paid compensation at the same rate which has been awarded by the Court while deciding the reference. 10. Learned Asstt. Government Pleader submitted that, in case the appeal filed by the State is allowed and the order of the Reference Court is quashed and set aside, then it would be difficult for the State to recover the amount from the petitioners, to which the learned counsel for the petitioners submitted that they can always furnish surety in the matter. 11. In our view, the impugned order passed by the 5 respondent No.1 is contrary to law and deserves to be quashed and set aside. So far as hearing of the applications under Section 28-A is concerned, which have been filed by the petitioners, those can be kept pending at the discretion of the respondents till the appeal preferred by them is finally decided but it cannot dismiss the applications merely on the ground that the appeal is pending. 12. Therefore, we quash and set aside the impugned order, restore the application filed by the petitioners on the file of respondent No.1 and direct the respondents to proceed in the matter in accordance with law. 13. Rule made absolute in the aforesaid terms with costs. (J.N. (J.N. (J.N. PATEL, J.) PATEL, J.) PATEL, J.) (SMT.NISHITA (SMT.NISHITA (SMT.NISHITA MHATRE, J.) MHATRE, J.) MHATRE, J.)