IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 164 OF 2009 Laxman M. Gawari & Ors. ... Petitioners. Vs. The State of Maharashtra & Ors. ... Respondents. Mr. G.K.Maurya i/b Ms. Pallavi H. Potnis for the petitioners. Mr. R.P.Behere AGP for respondent Nos. 1 to 3. CORAM : V.C.Daga & A.A.Sayed, JJ. DATE : September 15, 2009. JUDGMENT (PER A.A.SAYED, J.): 1. The above petition has been filed by ten petitioners, essentially to direct the Respondents 1 & 2 to decide their Applications under Section 28-A of the Land Acquisition Act, 1894, as expeditiously as possible, preferably in a time bound schedule. 2. The petitioners are agriculturists whose lands have been acquired by Respondent Nos. 1 and 2. Respondent No. 1 is the Special Land Acquisition Officer No.6, Pune (SLAO for short). Respondent No.2 is the Collector, Pune. Respondent No.3 is the Commissioner, Pune. 2 3. The petitioners' lands have been acquired for "Submergence of Chaskaman Project". According to the petitioners, they have received meagre amount of compensation from the respondents, in pursuance of an Award passed by the Respondent No. 1 under Section 11 of the Land Acquisition Act, 1894 (hereinafter referred to as "the said Act"). The Award was a common Award dated 31.3.1989 whereby the petitioners and other claimants have been granted compensation ranging from Rs. 6,000/- to Rs.10,000/- per hector depending on the assessment and group to which such lands belong. Solatium @ 30% and Additional component @ 12% on the market value of the lands was also awarded. 4. Some of the claimants who were granted compensation under the same Notification and Award, filed Land References under Section 18 of the said Act for enhancement of compensation. The petitioners did not file such Land References. The References filed by the other claimants were heard and decided by the 4th Joint Civil Judge, S.D. Pune by Judgment and Order dated 20.12.2000. By the said judgment and order, the Learned Civil Judge enhanced the amount of compensation and awarded compensation @ 75,000/- per hector to the said claimants who had filed References. Interest was also granted @ 9% p.a. from the date of possession for a period of one year and 15% p.a. from the date of expiry of one year till the amount is paid by SLAO. 3 5. The Petitioners thereafter, under the provisions of Section 28-A of the said Act, filed Applications before the respondent Nos. 1 & 2 for re- determination of the amount of compensation paid to them on the basis of the Judgment and Order dated 20.12.2000 passed by the Civil Judge in the aforesaid References. According to the petitioners their Applications under Section 28-A though filed way back on 26.9.2001 have not been decided. The petitioners have relied upon the two Circulars, dated 20.10.1995 and 25.03.1998 of the State Government in connection with Applications filed u/s.28-A which permit disbursement of the excess amount of compensation based on the order of the Reference Court, on furnishing Bank Guarantee, pending the decision by a superior court if the order of the Reference Court is challenged by the Government. It is averred by the petitioners in the petition that they are ready to give Bank Guarantee. Hence, the petitioners have filed the present petition seeking directions to the respondent Nos. 1 & 2 to decide their Applications under Section 28-A of the said Act, as expeditiously as possible, preferably in a time bound schedule and to disburse the excess amount of compensation as stated hereinabove on their furnishing Bank Guarantees. 6. Affidavit-in-reply has been filed on behalf of respondent Nos. 1 to 3 by the SLAO, Pune. In the said reply it is stated that looking to the 4 number of the Applications filed under Section 28-A, a minimum period of one year may be granted to the office of the SLAO to decide the Applications of the petitioners in accordance with law. It is stated that the petitioners have not made the Acquiring Body i.e. the office of the Executive Engineer, Chaskaman Project, Pune as party-respondent though they are necessary party. Pertinently, in the petition as well as reply it has not been categorically stated whether any appeal has been filed by the State Government or acquiring body against the judgment and order dated 20-12-2000 of the Civil Judge, S.D., Pune in the Land References. 7 We have heard the Ld. Counsel for the parties and perused the material on record. 8. It would, at the outset, be advantageous to reproduce Section 28-A of the Land Acquisition Act, 1894. The said Section reads as under :- “28-A. Redetermination of the amount of compensation on the basis of the award of the court.—(1) Where in an award under this Part, the court allows to the applicant any amount of compensation in excess of the amount awarded by the Collector under Section 5 11, the persons interested in all the other land covered by the same notification under Section 4 sub-section (1) and who are also aggrieved by the award of the Collector may, notwithstanding that they had not made an application to the Collector under Section 18, by written application to the Collector within three months from the date of the award of the court require that the amount of compensation payable to them may be redetermined on the basis of the amount of compensation awarded by the court: Provided that in computing the period of three months within which an application to the Collector shall be made under this sub-section, the day on which the award was pronounced and the time requisite for obtaining a copy of the award shall be excluded. (2) The Collector shall, on receipt of an application under sub-section (1), conduct an inquiry after giving notice to all the persons interested and giving them a reasonable opportunity of being heard and make an award determining the amount of compensation payable to the applicants. (3) Any person who has not accepted the award under sub-section (2) may, by written application to the Collector, require that the matter be 6 referred by the Collector for the determination of the court and the provisions of Sections 18 to 28 shall, so far as may be, apply to such reference as they apply to a reference under Section 18.” Section 28-A thus enables such claimants who had not filed Reference u/s. 18 of the said Act, to seek re-determination of the amount of compensation if covered by the same Notification on the basis of the order passed in the Land References filed by other claimants. 9. In the case of Babua Ram vs. State of UP, (1995 ) 2 SCC 689, the Apex Court while considering the procedure to be followed in cases of Applications filed under Section 28-A of the Land Acquisition Act, 1894, has held as under: “It is a settled law that the decree of the trial court gets merged in the decree of the appellate court which alone is executable. The finality of the determination of the compensation is attained with the decree of the appellate forum, be it the High Court or the Supreme Court. During the pendency of appeal against the award and decree of the civil court the Collector/LAO should stay his hands in the matter of redetermination of compensation till the appeal is finally disposed of and he should redetermine the compensation only on the basis of the final judgment and decree of the appellate forum. As soon as the award of the civil court is carried in appeal, it becomes obligatory for the Collector to keep the application/applications for redetermination of compensation filed within limitation 7 pending, awaiting decision by the appellate forum and to redetermine the compensation on the basis of the final judgment and decree. Normally the LAO would file the appeal against the enhanced compensation in a decree of either the civil court or the High Court and will know their pendency. In the case of appeal filed by the interested persons, the latter should inform the Collector/LAO of the pendency of appeal or otherwise comes to know of it, should keep the applications for redetermination, received under sub-section (1) of Section 28-A within limitation pending, awaiting the decision by the appellate court. Before proceeding with the determination, he should obtain an affidavit from the party making the application under Section 28-A that no appeal against the award made under Section 26 relied upon by him was filed or if had been filed was disposed of by the appellate court and to produce the certified copy of decree and judgment, if already disposed of.” 10. In a recent decision of the Apex Court in the case of Kendriya Karamchari Sehkari Grah Nirman Samiti Ltd. v. State of U.P., (2009) 1 SCC 754 the procedure to be adopted in dealing with the Applications u/s.28-A of the L.A.Act, 1994 as laid down in Babua Ram's case (Supra) is reiterated. 11. So far as the Govt. Resolutions of the State Govt. are concerned, prima facie we feel that the said Government Resolutions are not in consonance with the procedure laid down by the Apex Court in Babua Ram's case. However, since the Government Resolutions are not under 8 challenge in this petition, we do not want to express any final opinion on the validity of the Government Resolutions. 12. Considering the facts and circumstances of the case and the procedure required to be followed while dealing with Applications u/s. 28- A of the said Act as laid down by the Apex Court in the above rulings, in our opinion the following order would meet the ends of justice: (i) The Respondent No. 1 shall ascertain if there is any appeal filed by the Govt. or acquiring body against the judgment and order dated 20-12-2000 of the Civil Judge, SD, Pune, in the Land Reference; (ii) If there is no appeal filed/pending, the Respondent No. 1 shall proceed to decide the Applications filed by the petitioners under Section 28-A in accordance with the procedure laid down by the Apex Court in the above quoted judgments by taking necessary affidavits from the petitioners. This exercise will be carried out by the Respondent No. 1 within a period of 3 months from the date of receipt of this order, after issuing notice to the acquiring body even if they are not party to the Applications u/s. 28-A of the Act. Needless to say that the Respondent No.1 shall decide the Applications by reasoned order following principles of natural justice; (iii) In the event there is an appeal pending, the Respondent No. 1 shall accordingly inform the petitioners that in view of the pendency of the appeal the Applications of the petitioners are kept pending and will be decided within 3 months from the decision of the appeal; 9 (iv) It will however be open to the Respondent No.1 to reject any Application u/s.28-A on the ground of it being time barred, notwithstanding pendency of the appeal; 13.. The petition to stand disposed of in the aforestated terms. No order as to costs. [V.C.Daga, J.] [A.A.Sayed, J.] 10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 164 OF 2009 Date of Decision : September 15, 2009 For Approval and Signature : The Honourable Mr. Justice V.C.Daga, J : The Honourable Mr. Justice A.A.Sayed, J. 1. Whether Reporters of Local Papers may be allowed to see the Judgment? 2. To be referred to the Reporters or not? 3. Whether Their Lordships wish to see the fair copy of the Judgment? 4. Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950, or any Order made thereunder? 5. Whether it is to be circulated to the Civil Judges ? 6. Whether the case involves an important question of law and whether a copy of the Judgment should be sent to Nagpur, Goa and Aurangabad office? ***** 11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 164 OF 2009 Laxman M. Gawari & Ors. ... Petitioners. Vs. The State of Maharashtra & Ors. ... Respondents. Mr. G.K.Maurya i/b Ms. Pallavi H. Potnis for the petitioners. Mr. R.P.Behere AGP for respondent Nos. 1 to 3. CORAM : V.C.Daga & A.A.Sayed, JJ. DATE : September 15, 2009. JUDGMENT (PER A.A.SAYED, J.): 1. For the reasons separately recorded in the Judgment, the Honourable Court pleased to pass the following order :- ORDER " Considering the facts and circumstances of the case and the procedure required to be followed while dealing with Applications u/s. 28-A of the said Act as laid down by the Apex Court in the above rulings, in our opinion the following order would meet the ends of justice: 12 (i) The Respondent No. 1 shall ascertain if there is any appeal filed by the Govt. or acquiring body against the judgment and order dated 20-12-2000 of the Civil Judge, SD, Pune, in the Land Reference; (ii) If there is no appeal filed/pending, the Respondent No. 1 shall proceed to decide the Applications filed by the petitioners under Section 28-A in accordance with the procedure laid down by the Apex Court in the above quoted judgments by taking necessary affidavits from the petitioners. This exercise will be carried out by the Respondent No. 1 within a period of 3 months from the date of receipt of this order, after issuing notice to the acquiring body even if they are not party to the Applications u/s. 28-A of the Act. Needless to say that the Respondent No.1 shall decide the Applications by reasoned order following principles of natural justice; (iii) In the event there is an appeal pending, the Respondent No. 1 shall accordingly inform the petitioners that in view of the pendency of the appeal the Applications of the petitioners are kept pending and will be decided within 3 months from the decision of the appeal; (iv) It will however be open to the Respondent No.1 to reject any Application u/s.28-A on the ground of it being time barred, notwithstanding pendency of the appeal; . The petition to stand disposed of in the aforestated terms. No order as to costs. sd/- [V.C.Daga, J.] [A.A.Sayed, J.] 13