Bombay High Court
Arun S/O Dashrath Kadukar vs The State Of Maharashtra, Through Its ... on 6 August, 2019
Author: Z.A.Haq
Bench: Z.A.Haq
Judgment 1 wp1788.19.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO.1788 OF 2019
1. Arun S/o Dashrath Kadukar,
Aged about 65 years, Occu.: Agricultural Labour
R/o At Post Jivnapur, Tq. Kuhi,
Distt. Nagpur.
2. Arjun S/o Dashrath Kadukar,
Aged about 62 years, Occu.: Agricultural Labour,
R/o At Post Jivnapur, Tq. Kuhi,
Distt. Nagpur.
3. Shivaji S/o Dashrath Kadukar,
Aged about 60 years, Occu.: Agricultural Labour,
R/o At Post Jivnapur, Tq. Kuhi,
Distt. Nagpur.
4. Shankar S/o Dashrath Kadukar,
Aged about 58 years, Occu.: Agricultural Labour,
R/o At Post Jivnapur, Tq. Kuhi,
Distt. Nagpur.
5. Gangadhar S/o Dashrath Kadukar,
Aged about 55 years, Occ. - Agricultural Labour,
R/o At Post Jivnapur, Tq. Kuhi,
Distt. Nagpur.
6. Vithabai Wd/o Dashrath Kadukar,
Aged Abot 90 years, Occ.- Nil,
R/o At Post Jivnapur, Tq. Kuhi,
Distt. Nagpur.
7. Shantabai W/o Damodar Nandardhane,
Aged about 68 years, Occ.- Labour,
R/o Bhivapur, Distt. Nagpur.
.... PETITIONERS
// VERSUS //
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Judgment 2 wp1788.19.odt
1. The State of Maharashtra,
Through its Secretary,
Department of Irrigation,
Mantralaya, Mumbai - 32.
2. Deputy Collector (Land Acquisition
Officer No.1, Vidarbh Irrigation
Department Corporation, Collector
Office, Civil Lines, Nagpur.
3. The Chief Engineer, Vidarbha
Irrigation Development
Corporation, Sinchan Bhavan,
Nagpur.
4. The Executive Engineer,
Vidarbha Irrigation Development
Corporation, Rehabilitation
Division, Plot No.13, Civil Lines,
Nagpur.
.... RESPONDENTS.
___________________________________________________________________
Shri P.D.Sharma, Advocate for Petitioners.
Shri N.R. Patil, A.G.P. for Respondent Nos. 1 & 2.
Shri M.A.Kadu, Advocate for Respondent Nos. 3 & 4.
___________________________________________________________________
CORAM : Z.A.HAQ, J.
DATED : AUGUST 06, 2019.
ORAL JUDGMENT :
1. Heard.
2. RULE. Rule made returnable forthwith.
3. By the impugned oder, the Collector has dismissed the application filed by the petitioner(s) under Section 28-A of the Land Acquisition Act, 1894 on the ground that the petitioner(s) had earlier ::: Uploaded on - 14/08/2019 ::: Downloaded on - 16/04/2020 08:46:16 ::: Judgment 3 wp1788.19.odt accepted the amount of rehabilitation compensation. Learned Advocate for the petitioner(s) submitted that whether such persons are entitled to file application under Section 28-A of the Land Acquisition Act, 1894 or not is considered by the Constitution Bench of Hon'ble Supreme Court in the judgment given in the case of Union of India vs. Hansoli Devi, reported in (2002) 7 SCC 273. Paragraph No.11 of the judgment is relevant and is as follows:
"11. Coming to the second question for reference the receipt of compensation with or without protest pursuant to the award of the Land Acquisition Collector is of no consequence for the purpose of making a fresh application under Section 28-A. If a person has not filed an application under Section 18 of the Act to make a reference, then irrespective of the fact whether he has received the compensation awarded by the Collector with or without protest, he would be a person aggrieved within the meaning of Section 28-A and would be entitled to make an application when some other land owner's application for reference is answered by the reference Court. It is apparent on the plain language of the provisions of Section 28-A of the Act. Otherwise, it would amount to adding one more condition, not contemplated or stipulated by the legislature itself to deny the benefit of substantial right conferred upon the owner."
The impugned order cannot sustain the scrutiny of law as it is not in consonance with the proposition laid down in the above referred judgment.
4. Hence, the following order:
(i) The impugned order is set aside.
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Judgment 4 wp1788.19.odt
(ii) The matter is remanded to the respondent No.2-Deputy
Collector / Special Land Acquisition Officer for considering the application of the petitioner(s) under Section 28-A of the Land Acquisition Act, 1894 on merits.
(iii) The petitioner(s) shall appear before the respondent No.2- Deputy Collector / Special Land Acquisition Officer on 18 th September 2019 at 11.00 a.m. Rule is made absolute in the above terms. In the circumstances, the parties to bear their own costs.
JUDGE RRaut..
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