-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION WRIT PETITION NO.973 OF 1995 Union Bank of India, a body corporate constituted under the Banking Companies’ (Acquisition & Transfer of Undertakings) Act 1970, having its Registered Office at 239, Backbay Reclamation, Nariman Point, Bombay, and a Branch at Panvel, Taluka Panvel, District Raigad. .. Petitioner V/s. 1. The Civil Judge, Senior.Divn., Raigad, Alibag. 2. State of Maharashtra through Special Land Acquisition Officer, M.C.No.3, Panvel, Taluka-Panvel, District - Raigad. 3. Shri Mahadu Appa Patil Since deceased through surviving and only legal hears and legal representatives (3-a) Kaluram Mahadu Patil and others (3-b) Ganpat Mahadu Patil (deleted) (3-c) Gajanan Mahadu Patil All R/at. At & Post Kharghar, Taluka-Panvel, District - Thane. .. Respondents. Mr A.P.Rege, for the petitioners. Mr D.A.Patil, AGP for the respondents. CORAM : D.B.BHOSALE,J. CORAM : D.B.BHOSALE,J. CORAM : D.B.BHOSALE,J. DATE : 28th & 29th Sept.2006 DATE : 28th & 29th Sept.2006 DATE : 28th & 29th Sept.2006 ORAL JUDGMENT ORAL JUDGMENT ORAL JUDGMENT: 1. This petition is directed against the order dated 16.11.1994, by which the learned Civil Judge, Senior Division., Raigad, Alibag, has allowed the petition -2- filed by the respondent-State. The said petition was filed by the respondent-State seeking refund of the excess amount paid to the respondent-claimant in pursuance of the Award passed in Land Acquisition Reference No.27 of 1987 dated 30.9.1989. The operative part of the impugned order reads thus : 1) The Petition filed by the Government-Petitioner against the Opponent-claimant for refund of excess amount is hereby allowed. 2) The terms of award shall be amended stating that he, opponent-claimant is entitled to claim compensation to the extent of area which measures 940 square meter situated at Village Kharghar, Taluka Panvel, and his is entitled to claim compensation at the rate of Rs.8/- per square metre. 3) The Opponent-claimant is hereby directed to refund the excess amount of Rs.2,90,823/- within 15 days from the date of this order. 4) In case, opponent fails to pay or deposit excess amount of Rs.2,90,832/- as directed above, then the Government shall be at liberty to recover the said amount from the Union Bank of India, Branch Panvel. 5) The Opponent-claimant is hereby directed to deposit an amount of Rs.2,90,832/- in the Court together with interest at the rate of 12% per annum from 3.7.1990 within 15 days from the date of this order. 6) The Government-petitioner shall be entitled to claim costs of this petition. -3- 2. By the Award, Reference Court had enhanced the compensation to the tune of Rs.3,16,036.76 for having acquired the land of the respondent-claimant. Admittedly, the land acquired was only 940 sq.meters, whereas the Reference Court, while awarding compensation, awarded it for 9400 sq.meters as if the land acquired was to that extent. The claimant was entitled for only Rs.24,387/- whereas the amount paid was 3,16,036.76. Neither the respondent-State nor the Court realised the error that had occurred while passing the Award. It appears that the Award passed by the Reference Court was challenged by way of the First Appeal by the State as also by the respondent-claimant by filing cross-objections. After admission of the appeal filed by the State bearing First Appeal No.58 of 1991, on Civil Application No.1195 of 1992, this Court on 23.1.1992 had passed the following order: "Heard Shri S.C.Page, Govt. Pleader for the appellant-State. Rule and Interim stay on the appellant’s depositing in the trial Court of Rs.3,01,636/- together with the interest upto the date of judgment and Award, within a period of eight weeks from date of receipt of this order in the trial Court. Liberty to withdraw on furnishing such -4- security as may be deemed fit by the trial Court." However, I am informed by the learned counsel for the petitioner that long before this order, the amount of Rs. 3,01,636/- was deposited by the State and the trial Court had allowed the respondent-claimant to withdraw the same by furnishing a bank guarantee and in fact the amount was withdrawn by furnishing the bank guarantee which is the subject matter of the instant writ petition. This Court has disposed of First Appeal No.58 of 1991 and the cross-objections (ST) No.11048 of 1991 by order dated 26.7.2001. The order passed on the First Appeal and the cross-objections read thus: For the reasons stated in the Judgment recorded in First Appeal No.965/91, the Court allows the Appeal, with no order as to costs. The Court allows the Cross Objection The Court allows the Cross Objection The Court allows the Cross Objection St.No.11048 of 1991 filed by the St.No.11048 of 1991 filed by the St.No.11048 of 1991 filed by the Claimants and held the Claimants to Claimants and held the Claimants to Claimants and held the Claimants to enhanced compensation at the rate of enhanced compensation at the rate of enhanced compensation at the rate of Rs.18/- per sq.mtr. Rs.18/- per sq.mtr. Rs.18/- per sq.mtr. The Court observes that the claimants under Section 28 of the Land Acquisition Act, shall be entitled to recover from the State interest at the rate of 9% per annum from the date on which the possession of the lands was taken on the excess amount of market value of the land (i..e excluding the solatium under section 23(2) and in addition of the amount of 12% payable under section 23(1-A) of the said Act awarded by the -5- Court). If the excess amount or part thereof is not paid till expiry of the period of one year from the date of taking possession, interest at the rate of 15% per annum shall be payable from the date of expiry of the said period of one year on the said excess amount of market value which has not been paid into court before the date of such expiry till the date of payment. The Court further observes that the claimants shall also be entitled to solatium at the rate of 30% on the market value as provided under section 23(2) of the Land Acquisition Act. The Court has directed that calculations The Court has directed that calculations The Court has directed that calculations to be made in view of the observations to be made in view of the observations to be made in view of the observations made above. made above. made above. The Court grants liberty to the claimants to apply in case Larger Bench of the Apex Court upsets the view taken in the case of Premnath Kapur and Anr Vs. National Fertilizers Corporation of India and ors, (1996) 2 SCC 71." 3. None of the learned counsel for the parties is in a position to state as to what happened after this order before the trial Court. Mr.Rege, learned counsel for the petitioners, submits that the order impugned in the present writ petition was passed behind the back of the petitioners. According to him, no notice was issued to the petitioner-Bank while passing the order on the petition filed by the State seeking refund of the excess amount paid to the respondent-claimant. According to Mr.Rege, the petitioner-bank is not liable to pay the amount, as directed in paragraph 4 of the operative part -6- of the impugned order. Since the Bank guarantee was executed in pursuance of the order of the court the petition-bank cannot be penalised for the errors committed by the court and the state. He further submitted that the petitioner-bank had filed the application (Exhibit-D to the petition) before the trial Court seeking recall of the order dated 16.11.1994. However, no order on the said application was passed by the court. Keeping that in view and considering the orders passed by this Court in the First Appeal and the cross-objection, the learned counsel for the parties have fairly stated that paragraph 4 of the operative part of the impugned order dated 16.11.1994 may be set aside and the matter be remanded to the trial Court to decide the liability, if any, of the petitioner-Bank afresh after giving them an opportunity of being heard. Similarly, the figure arrived at in the impugned order, to be paid by the claimant-respondent, to some extent, may change in view of the judgment disposing of the aforesaid appeal and cross objections. In the circumstances, rule is disposed of in the following terms: (a) Paragraph 4 of the operative part of the impugned order dated 16.11.1994 passed below Exhibit-1 in Misc Application No.3 of 1991 is set aside. The matter is -7- remanded to the Reference Court for hearing of the said application afresh, insofar as the liability of the Bank is concerned. (b) Insofar as the amount of compensation as reflected in paragraph 3 of the operative part of the impugned order is concerned, it may change in view of the enhancement of the compensation from Rs.8/- to Rs.18/- per sq.meter and the directions given by this court in the judgment, rendered in the appeal and the cross-objections. The Court may take that into account while working out the final figure of the excess amount to be recovered from the claimant. (c) The Reference Court shall pass appropriate orders in the light of this order and decide the matter as expeditiously as possible and preferably within a period of four months from the date of receipt of this order. (d) While passing this order, I shall not be understood to have examined the merits of the case and the trial Court shall decide Misc. Application No.3 of 1991 afresh, insofar as the liability of the petitioner-Bank is concerned, on merits in accordance with law. -8- (e) The writ petition is disposed of. No costs. (D.B.Bhosale,J.)