Bombay High Court
Zumbar Shriniwas Kulkarni vs The State Of Maharashtra Through ... on 10 February, 2021
Author: V. K. Jadhav
Bench: V. K. Jadhav
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
926 WRIT PETITION NO.2698 OF 2021
DHANGIR PANDURANG GOSAVI
VERSUS
THE STATE OF MAHARASHTRA AND OTHERS
...
Advocate for Petitioners : Mr. Ingale Vivekanand V.
AGP for Respondents: Mr. K B Jadhavar
Advocate for Respondent no.3 : Smt. S D Shelke
..
.
AND
933 WRIT PETITION NO.2747 OF 2021
BASHIR CHANDRAKANT PATHAN DIED THR LRS IRPHAN BASHIR
PATHAN
VERSUS
THE STATE OF MAHARASHTRA THR COLLECTOR OSMANABAD
...
Advocate for Petitioners : Mr. Ingale Vivekanand V.
AGP for Respondents: Mr. K B Jadhavar
...
AND
935 WRIT PETITION NO.2752 OF 2021
SUDHIR MADHAVACHARYA JOSHI
VERSUS
THE STATE OF MAHARASHTRA AND ANOTHER
...
Advocate for Petitioner : Mr. Ingale Vivekanand V.
AGP for Respondents: Mr K B Jadhavar.
...
AND
943 WRIT PETITION NO.2771 OF 2021
VITHAL MARUTI JIWANGE
VERSUS
THE STATE OF MAHARASHTRA AND OTHERS
...
Advocate for Petitioner : Mr. Ingale Vivekanand V.
AGP for Respondents: Mr K B Jadhavar
Advocate for Respondent no.3 : Smt. S D Shelke
...
AND
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947 WRIT PETITION NO.2775 OF 2021
WAMAN RANGRAO PAWAR AND ANOTHER
VERSUS
THE STATE OF MAHARASHTRA THR COLLECTOR OSMANABAD
...
Advocate for Petitioners : Mr Ingale Vivekanand V.
AGP for Respondents: Mr K B Jadhavar.
...
AND
995 WRIT PETITION NO.381 OF 2021
WITH CA/10578/2019 IN WP/381/2021
BIRU DHONDAPPA GHODAKE
VERSUS
THE STATE OF MAHARASHTRA, THROUGH COLLECTOR
OSMANABAD, DIST. OSMANABAD AND OTHER
...
Advocate for Petitioner : Mr. Ingale Vivekanand V.
AGP for Respondents: Mr. K B Jadhavar
Advocate for Respondent 3 : Smt. S.D. Shelke
...
AND
996 WRIT PETITION NO.382 OF 2021
WITH CA/9585/2018 IN WP/382/2021
PANDURANG KRISHNA INGALE (DIED) THROUGH L.RS. RUKMINBAI
PANDURANG INGALE AND ANOTHER
VERSUS
THE STATE OF MAHARASHTRA, THROUGH COLLECTOR, LATUR
...
Advocate for Petitioners : Mr. Ingale Vivekanand V.
AGP for Respondents: Mr K B Jadhavar.
...
AND
997 WRIT PETITION NO.383 OF 2021
WITH CA/13669/2018 IN WP/383/2021
GUNDU SHRIDHAR POTDAR (DIED) THROUGH L.RS. BHAGWAT
GUNDU POTDAR AND OTHER
VERSUS
THE STATE OF MAHARASHTRA THROUGH COLLECTOR
OSMANABAD,DIST. OSMANABAD AND ANOTHER
...
Advocate for Petitioners : Mr. Ingale Vivekanand V.
AGP for Respondents: Mr R D Sanap
...
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998 WRIT PETITION NO.384 OF 2021
WITH CA/9133/2018 IN WP/384/2021
LIMBRAJ TUKARAM RAJGURU
VERSUS
THE STATE OF MAHARASHTRA, THROUGH COLLECTOR
OSMANABAD
...
Advocate for Petitioner : Mr. Ingale Vivekanand V.
AGP for Respondents: Mr. S B Pulkundwar
...
AND
999 WRIT PETITION NO.385 OF 2021
WITH CA/9586/2018 IN WP/385/2021
DHONDABAI RAMRAO SALUNKE
VERSUS
THE STATE OF MAHARASHTRA, THROUGH COLLECTOR,
OSMANABAD
...
Advocate for Petitioner : Mr. Ingale Vivekanand V.
AGP for Respondents: Mr S P Deshmukh
...
AND
1000 WRIT PETITION NO.386 OF 2021
WITH CA/7413/2019 IN WP/386/2021
ZUMBAR SHRINIWAS KULKARNI
VERSUS
THE STATE OF MAHARASHTRA TROUGH COLLECTOR, OSMANABAD
...
Advocate for Petitioner : Mr. Ingale Vivekanand V.
AGP for Respondents: Mr K B Jadhavar
...
AND
1001 WRIT PETITION NO.387 OF 2021
WITH CA/10577/2019 IN WP/387/2021
PRABHAKAR YESHWANT PATIL
VERSUS
THE STATE OF MAHARASHTRA TROUGH COLLECTOR
OSMANABAD,DIST. OSMANABAD AND OTHER
...
Advocate for Petitioner : Mr. Ingale Vivekanand V.
AGP for Respondents: Mr K B Jadhavar
Advocate for Respondent 3 : Smt. S.D. Shelke
...
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AND
1002 WRIT PETITION NO.388 OF 2021
WITH CA/9879/2017 IN WP/388/2021
MALLIKARJUN APPANNA MANALE AND ANOTHER
VERSUS
THE STATE OF MAHARASHTRA TROUGH COLLECTOR OSMANABAD
AND OTHERS
...
Advocate for Petitioners : Mr. Ingale Vivekanand V.
AGP for Respondents: Mr R D Sanap
Advocate for Respondent 3 : Smt. S.D. Shelke
...
AND
1003 WRIT PETITION NO.389 OF 2021
WITH CA/1099/2019 IN WP/389/2021
UDHAV PANDURANG JAWALE
VERSUS
THE STATE OF MAHARASHTRA TROUGH COLLECTOR OSMANABAD
AND OTHER
...
Advocate for Petitioners : Mr. Ingale Vivekanand V.
AGP for Respondents: Mr S B Pulkundwar
Advocate for Respondent 3 :Mr. S.D. Shelke
...
AND
1004 WRIT PETITION NO.391 OF 2021
WITH CA/10981/2019 IN WP/391/2021
SURESH GURSIDAPPA INDE
VERSUS
THE STATE OF MAHARASHTRA, HROUGH COLLECTOR
OSMANABAD, DIST. OSMANABAD
...
Advocate for Petitioner : Mr. Ingale Vivekanand V.
AGP for Respondents: Mr K B Jadhavar
...
CORAM : V. K. JADHAV, J.
DATED : 10 th FEBRUARY, 2021
PER COURT :-
1. Being aggrieved by the judgment and orders passed by the
Reference Courts in all Land Acquisition References, thereby
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dismissing the Land Acquisition References filed by the petitioners
herein, these writ petitions have been preferred raising common
question of law and as such all these writ petitions are being decided
by this common order.
2. The petitioners herein being aggrieved and dissatisfied with
the awards passed by the Land Acquisition Officers, had preferred
Land Acquisition References as per the details given below:-
Sr. LAR No. and Name of the W.P. No. Name of the petitioner
No date of the Reference Court
order
1 86 of 2008 C.J.S.D. Omerga 2698 of Dhangir Pandurang Gosavi
06.11.2008 2021
2 275 of 2004 C.J.S.D. Omerga 2747 of Bashir Chandkhan Pathan
22.08.2006 2021 (died) through Lrs. Irphan
Bashir Pathan.
3 17 of 2008 C.J.S.D. Omerga 2752 of Sudhir Madhavacharya
(old 145 of 2021 Joshi.
2002)
26.02.2013
4 852 of 2005 C.J.S.D. Omerga 2771 of Vithal Maruti Jiwange
(old 355 of 2021
2001)
25.04.2012
5 203 of 2013 2nd C.J.S.D. 2775 of Waman Rangrao Pawar
23.11.2018 Omerga 2021 and another.
6 893 of 2005 C.J.S.D. Omerga 381 of 2021 Biru Dhondappa Ghodake
31.03.2012
7 906 of 1998 Adhoc District 382 of 2021 Pandurang Krishna Ingale
(old 99 of Judge, Nilanga, (Died) through L.Rs.
1998) Dist. Latur. Rukminbai w/o Pandurang
29.10.2005 Inglae and another.
8 606 of 2005 C.J.S.D. Omerga 383 of 2021 Gundu s/o Shridhar Potdar
(old No.284 of (Died) through Lrs.
2000) Bhagwat s/o Gundu Potdar
03.01.2009 and others.
9 148 of 1996 C.J.S.D. 384 of 2021 Limbraj Tukaram Rajguru
25.03.2011 Osmanabad
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10 06 of 2011 C.J.S.D. Omerga, 385 of 2021 Dhondabai Ramrao
12.01.2016 Dist. Osmanabad Salunke.
11 777 of 2009 C.J.S.D. Omerga, 386 of 2021 Zumbar Shriniwas Kulkarni
08.11.2013 Dist. Osmanabad
12 656 of 2009 C.J.S.D. Omerga, 387 of 2021 Prabhakar Yeshwant Patil
21.01.2016 Dist. Osmanabad
13 62 of 2014 C.J.S.D. Omerga, 388 of 2021 Mallikarjun Appanna
01.01.2016 Dist. Osmanabad Manale and another.
14 27 of 2002 C.J.S.D. 389 of 2021 Udhav Pandurang Jawale.
08.02.2013 Osmanabad
15 415 of 2004 C.J.S.D. Omerga, 391 of 2021 Suresh Gursidappa Inde.
03.08.2006 Dist. Osmanabad
3. It is almost a common ground raised by all the petitioners that
due to some unavoidable circumstances the petitioners could not
adduce the evidence before the Reference Court. The Reference
Court has considered the award and the sale instances relied upon
by the Special Land Acquisition Officer and dismissed the Land
Acquisition References. In some of the cases, the petitioners have
filed applications before the Reference Court for restoration of the
said Land Acquisition Reference, however, those applications came
to be rejected by the Reference Court.
4. Learned counsel for the petitioners in respective writ petitions,
submit that the Division Bench came to be constituted by the Hon'ble
the Chief Justice to consider "where a reference under Section 18 of
the Land Acquisition Act was dismissed otherwise than on merits, a
civil revision application under Section 115 of the Civil Procedure
Code was permissible and to consider also as to whether the appeal
is maintainable". The Division Bench of this Court (Coram:
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Prasanna B. Varale and Avinash G. Gharote, JJ.) while dealing with
the said question, by referring the case of Khazan Singh vs. Union
of India, reported in 2002 (2) SCC 242, has held that the reference
has to be decided by the civil court on the basis of the material
before it, on merits, alongwith the other findings recorded as
summarized in para 31 of the said judgment. Learned counsel
submit that in view of the observations made by the Supreme Court
in the case of Chimanlal Hargovinddas vs. Special Land
Acquisition Officer, Poona and another, reported in AIR 1988 SC
1652, the impugned orders passed by the Reference Courts are
liable to be quashed and set aside.
5. Learned A.G.P. for the respondent State and its authorities
submit that though the reference petitions are pending since long, the
petitioners herein failed to lead oral and documentary evidence to
substantiate their claim for enhanced compensation. Learned Judge
of the Reference Court has recorded finding to the effect that the
Special Land Acquisition Officer has awarded compensation as per
the market price and there is no evidence produced by the petitioners
claimants to show that the compensation awarded by the Special
Land Acquisition Officer is inadequate. Learned A.G.P. submit that
even learned Judges of the respective Reference Courts have also
considered the sale instances referred to in the awards and also the
opinion recorded by the S.L.A.O. while discussing and analyzing the
sale instances and other evidence for awarding the compensation.
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The learned A.G.P. submit that all Land Acquisition Reference
petitions came to be decided on merits and as such, these writ
petitions are not maintainable. All writ petitions are thus liable to be
dismissed.
6. On perusal of the judgment delivered the Division Bench of
this Court (Coram: Prasanna B. Varale and Avinash G. Gharote, JJ.)
in civil revision application No. 63 of 2017 and other connected
matters, in para 31 of the judgment, the Division Bench has made the
following observations:-
"31. In the result, we hold as under :
(A) that a civil revision application u/s. 115 of C.P.C.
against, any order passed, otherwise than on merits, in an
application u/s. 18 of the L.A. Act by the Civil Court, is not
maintainable.
(B) We also hold that the judgments in the case of Kawadu
Madhav Bansod, Appasaheb Mohanrao Chede, Kamlakar
Laxman Suryawanshi and Irnappa @ Irappa Angire
(supra), holding that a civil revision application is maintainable,
are rendered per-incuriam to the statutory provisions as
contained in the proviso to sub-section (1) of section 115 of the
Code of Civil Procedure and are also rendered per-incuriam in
view of the judgment of the Hon'ble Apex Court in the case of
Shiv Shakti (supra).
(C) We also hold that an 'order otherwise than on merits',
passed in proceedings u/s. 18 of the L.A. Act, by the Civil
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Court, cannot be considered as an award and, therefore, does
not amount to a decree, as defined in Section 2(2) of C.P.C. by
virtue of the deeming provision u/s. 26(2) of the L.A. Act and,
therefore, an appeal against it also would not be maintainable.
(D) We hold that the judgment in Venkat's case (supra),
holding that an appeal is maintainable, is on a different footing
altogether considering that the judgment passed therein was on
merits after considering the evidence and, therefore, was an
award and consequently a decree u/s. 2(2) of C.P.C. by
application of Section 26(2) of the L.A. Act.
(E) We further hold that a reference u/s. 18 of the L.A. Act, in
the light of the mandate as laid down by the Hon'ble Apex Court
in the case of Khazan Singh (supra), has to be decided by the
Civil Court on the basis of the material before it, on merits.
(F) We further hold that an 'order passed otherwise than on
merits' in proceedings u/s. 18 of the L.A. Act by the Civil Court,
in case it has been so passed, would be susceptible to a
challenge under Article 227 of the Constitution of India before
the High Court in its supervisory jurisdiction, or u/o IX Rule 9
r/w. Sec. 151 CPC. by virtue of section 53 of the L.A. Act."
7. In the case of Khazan Singh vs. Union of India, reported
(supra) the Supreme Court has held that the Civil Court hearing a
reference has no jurisdiction to dismiss reference for default.
8. In the case of Chimanlal Hargovinddas vs. Special Land
Acquisition Officer, Poona and another, (supra) the Supreme
Court, in para 4 of the judgment, has made the following
observations:-
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"4. The following factors must be etched on the mental screen:
(1) A reference under section 18 of the Land Acquisition Act is
not an appeal against the award and the Court cannot take into
account the material relied upon by the Land Acquisition officer
in his Award unless the same material is produced and proved
before the Court.
(2) So also the Award of the Land Acquisition officer is not to be
treated as a judgment of the trial Court open or exposed to
challenge before the Court hearing the Reference. It is merely
an offer made by the Land Acquisition officer and the material
utilized by him for making his valuation cannot be utilized by the
Court unless produced and proved before it. It is not the
function of the Court to sit in appeal against the Award, approve
or disapprove its reasoning, or correct its error or affirm, modify
or reverse the conclusion reached by the Land Acquisition
officer, as if it were an appellate court.
(3) The Court has to treat the reference as an original
proceeding before it and determine the market value afresh on
the basis of the material produced before it.
(4) The claimant is in the position of a plaintiff who has to show
that the price offered for his land in the award is inadequate on
the basis of the materials produced in the Court. Of course the
materials placed and proved by the other side can also be taken
into account for this purpose.
(5) The market value of land under acquisition has to be
determined as on the crucial date of publication of the
notification under sec. 4 of the Land Acquisition Act (dates of
Notifications under secs. 6 and 9 are irrelevant).
(6) The determination has to be made standing on the date line
of valuation (date of publication of notification under sec. 4) as if
the valuer is a hypothetical purchaser willing to purchase land
from the open market and is prepared to pay a reasonable price
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as on that day. It has also to be assumed that the vendor is
willing to sell the land at a reasonable price.
(7) In doing so by the instances method, the Court has to
correlate the market value reflected in the most comparable
instance which provides the index of market value.
(8) only genuine instances have to be taken into account. (Some
times instances are rigged up in anticipation of Acquisition of
land).
(9) Even post notification instances can be taken into account (1)
if they are very proximate,(2) genuine and (3) the acquisition
itself has not motivated the purchaser to pay a higher price on
account of the resultant improvement in development prospects.
(l0) The most comparable instances out of the genuine instances
have to be identified on the following considerations:
(i) proximity from time angle,
(ii) proximity from situation angle.
(11) Having identified the instances which provide the index of
market value the price reflected therein may be taken as the
norm and the market value of the land under acquisition may be
deduced by making suitable adjustments for the plus and minus
factors vis-a-vis land under acquisition by placing the two in
juxtaposition.
(12) A balance-sheet of plus and minus factors may be drawn for
this purpose and the relevant factors may be evaluated in terms
of price variation as a prudent purchaser would do.
(13) The market value of the land under acquisition has there
after to be deduced by loading the price reflected in the instance
taken as norm for plus factors and unloading it for minus factors
(14) The exercise indicated in clauses (11) to (13) has to be
undertaken in a common sense manner as a prudent man of the
world of business would do. We may illustrate some such
illustrative (not exhaustive) factors:
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Plus factors Minus factors
1. Smallness of size 1. largeness of area
2. proximity to a road. 2. situation in the interior at a
distance from the road
3. frontage on a road 3. narrow strip of land with very
small frontage compared to
depth.
4. nearness to developed Lower level requiring the
area. depressed portion to be filled up.
5. regular shape 5. remoteness from developed
locality.
6. level vis-a-vis land under 6. some special
acquisition disadvantageous factor which
would deter a purchaser
7. special value for an owner
of an adjoining property to
whom it may have some very
special advantage.
(15) The evaluation of these factors of course depends on the
facts of each case. There cannot be any hard and fast or rigid
rule. Common sense is the best and most reliable guide. For
instance, take the factor regarding the size. A building plot of land
say 500 to 1000 sq. yds cannot be compared with a large tract or
block of land of say l0000 sq. yds or more. Firstly while a smaller
plot is within the reach of many, a large block of land will have to
be developed by preparing a lay out, carving out roads, leaving
open space, plotting out smaller plots, waiting for purchasers
(meanwhile the invested money will be blocked up) and the
hazards of an entrepreneur. The factor can be discounted by
making a deduction by way of an allowance at an appropriate rate
ranging approx. between 20% to 50% to account for land required
to be set apart for carving out lands and plotting out small plots.
The discounting will to some extent also depend on whether it is a
rural area or urban area, whether building activity is picking up,
and whether waiting period during which the capital of the
entrepreneur would be locked up, will be longer or shorter and the
attendant hazards.
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(16) Every case must be dealt with on its own fact pattern bearing
in mind all these factors as a prudent purchaser of land in which
position the Judge must place himself.
(17) These are general guidelines to be applied with
understanding informed with common sense."
9. In para 4 (1) of the aforesaid case, the Supreme Court
observed that a reference under Section 18 of the Land Acquisition
Act is not an appeal against the award and the court cannot take into
account the material relied upon by the Land Acquisition Officer in his
award unless the said material is produced and proved before the
court. In almost all the Land Acquisition References, which are
subject matter of the present writ petitions, the learned Judges of the
respective Reference Courts suo moto gone through the award and
sale instances relied upon by the Land Acquisition Officers even
though the said sale instances are not produced and proved before
the Reference Courts.
10. In view of the same, even though there was an attempt on the
part of Reference Courts to decide the reference on merits, however,
in the given set of facts and in terms of the ratio laid down by the
Supreme Court in the cases, as referred above, I conclude that the
Land Acquisition Reference petitions, which are subject matter of
these writ petitions, are not decided on merits and as such, the
impugned judgment and orders passed by the respective Reference
Courts in Land Acquisition References, as mentioned in the chart in
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para 3 of this order, are not sustainable in the eyes of law and thus
required to be quashed and set aside.
11. Learned A.G.P. in the alternate vehemently submits that the
petitioners are at fault in not adducing oral and documentary
evidence for long period to substantiate their case and for that
purpose the State should not be held liable to pay the interest.
However, it is for the Reference Courts to consider the said issue
and pass appropriate orders considering the facts and circumstances
of each and every case and no general direction can be given in this
regard. In view of the discussion above, I proceed to pass the
following order:-
ORDER
I. All these writ petitions are partly allowed.
II. The judgment and orders dated 06.11.2008 passed by Civil Judge, Senior Division, Omerga in L.A.R. No. 86 of 2008 (writ petition No. 2698 of 2021), dated 22.08.2006 passed by Civil Judge, Senior Division, Omerga in L.A.R. No. 275 of 2004 (old No. 296 of 1994) (writ petition No. 2747 of 2021), dated 26.02.2013 passed by Civil Judge, Senior Division, Omerga in L.A.R. No. 17 of 2008 (old No. 145 of 2002) (writ petition No. 2752 of 2021), dated 25.04.2012 passed by Civil Judge, Senior Division, Omerga in L.A.R. No. 852 of 2005 (Old No. 355 of 2001) (writ petition No. 2771 of 2021), dated 23.11.2018 passed by 2nd Jt. Civil Judge, Senior Division, ::: Uploaded on - 10/02/2021 ::: Downloaded on - 11/02/2021 01:03:50 ::: wp2698.21+ -15- Omerga in L.A.R. No. 203 of 2013 (writ petition No. 2775 of 2021), dated 31.03.2012 passed by Civil Judge, Senior Division, Omerga in L.A.R. No. 893 of 2005 (writ petition No. 381 of 2021), dated 29.10.2005 passed by Ad-hoc District Judge, Nilanga, district Latur in L.A.R. No. 906 of 1998 (writ petition No. 382 of 2021), dated 03.01.2009 passed by Civil Judge, Senior Division, Omerga in L.A.R. No. 606 of 2005 (Old 284 of 2000) (writ petition No. 383 of 2021), dated 25.03.2011 passed by Civil Judge, Senior Division, Osmanabad in L.A.R. No. 148 of 1996 (writ petition No. 384 of 2021), dated 12.01.2016 passed by Civil Judge, Senior Division, Omerga in L.A.R. No. 6 of 2011 (writ petition No. 385 of 2021), dated 08.11.2013 passed by Civil Judge, Senior Division, Omerga in L.A.R. No. 777 of 2009 (Old No. 473 of 2003) (writ petition No. 386 of 2021) dated 21.01.2016 passed by the Civil Judge, Senior Division Omerga in L.A.R. No. 656 of 2009 (writ petition No. 387 of 2021), dated 01.01.2016 passed by the Civil Judge, Senior Division, Omerga in L.A.R. No. 62 of 2014 (writ petition No. 388 of 2021), 08.02.2013 passed by the Civil Judge, Senior Division, Osmanabad in L.A.R. No. 27 of 2002 (writ petition No. 389 of 2021) and dated 03.08.2006 passed by the Civil Judge, Senior Division, Omerga in L.A.R. No. 415 of 2004 (old No. 40 of 1996) (writ petition No. 391 of 2021) are hereby quashed and set aside.
III. All the Land Acquisition References are hereby restored to its respective original position.
IV. The concerned Reference Courts shall permit the respective petitioner/s-claimant/s to lead oral and documentary evidence in support of his/her/their contentions so also permit the respondent-State or the acquiring body, as the case may be, to lead oral and documentary evidence in support of their rival ::: Uploaded on - 10/02/2021 ::: Downloaded on - 11/02/2021 01:03:50 ::: wp2698.21+ -16- contentions.
V. The petitioners shall appear before the concerned Reference Court in their respective Land Acquisition References on 10.03.2021.
VI. The concerned Reference Court shall dispose of the Land Acquisition Reference as expeditiously as possible, preferably within a period of six months from 10.03.2021.
VII. The petitioners shall cooperate the concerned Reference Court to dispose of the pending reference petitions in time bound manner, as directed by this court.
VIII. Writ petitions are accordingly disposed of.
IX. In view of disposal of writ petitions, all pending civil applications are also disposed of.
(V. K. JADHAV, J.) rlj/ ::: Uploaded on - 10/02/2021 ::: Downloaded on - 11/02/2021 01:03:50 :::