Executive Engineer Lower Dudhna Project Selu v. Appasaheb Bapurao Mhaske And Others

(1) FA No.461/2015 & ors.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD.

FIRST APPEAL NO.461 OF 2015 WITH CA NO. 12207 OF 2014 Rameshwar Asaram Garde FIRST APPEAL NO.410 OF 2015 WITH CA NO. 12259 OF 2014 Sheshrao Narayan Mhaske (Died) through LRs.

(2) FA No.461/2015 & ors. Rajebhau Sheshrao Maske Age : 25 years, occu.: labour Suresh Sheshrao Maske Age : 16 years, occu.: education Savitri d/o Sheshrao Maske Age : 14 years, occu.: education Applicant Nos.2 and 3 are minor, under guardianship of applicant No.1.

All r/o Padali, Taluka Partur, District Jalna.

FIRST APPEAL NO.411 OF 2015 WITH CA NO. 12492 OF 2014 WITH CA NO. 1924 of 2019 Sonaji Tukaram Mhaske

(3) FA No.461/2015 & ors. FIRST APPEAL NO.412 OF 2015 WITH CA NO. 10785 OF 2014 Appasaheb Bapurao Mhaske FIRST APPEAL NO.413 OF 2015 WITH CA NO. 10773 OF 2014

(4) FA No.461/2015 & ors. Rukhminibai Gitaram Vagharal FIRST APPEAL NO.414 OF 2015 WITH CA NO. 10768 OF 2014 Eknath Ravasaheb Mhaske FIRST APPEAL NO.449 OF 2015

(5) FA No.461/2015 & ors. WITH CA NO. 10787 OF 2014 WITH CA NO. 1922 of 2019 Madhukar Raosaheb Mhaske FIRST APPEAL NO.451 OF 2015 WITH CA NO. 10776 OF 2014 Datta Laxmanrao Mhaske

(6) FA No.461/2015 & ors. FIRST APPEAL NO.452 OF 2015 WITH CA NO. 10789 OF 2014 Datta Sudamrao Tanpure FIRST APPEAL NO.455 OF 2015 WITH CA NO. 12221 OF 2014

(7) FA No.461/2015 & ors. Sumitrabai Udhavrao Tanpure FIRST APPEAL NO.458 OF 2015 WITH CA NO. 10207 OF 2014 WITH CA NO. 15073 OF 2018 Asaram Jeenaji Bobade Laxman Jeenaji Bobde R/o as above.

(8) FA No.461/2015 & ors. 4.

FIRST APPEAL NO.460 OF 2015 WITH CA NO. 12223 OF 2014 WITH CA NO. 1920 of 2019 Sudam Anna Kakade FIRST APPEAL NO.2 OF 2016

(9) FA No.461/2015 & ors. Sarjerao Sheshrao Mote *** Mr. S.G. Sangle, Advocate for the appellant.

Ms. Kavita Shedge, Advocate holding for Mr. P.R. Katneshwarkar, Advocate for original claimants. Mrs. Asha Raakh, Advocate for original claimants. Mr. B.V. Virdhe, A.G.P. for respondents Nos.2 and 3. *** CORAM : SUNIL K. KOTWAL, J.

Dated :

6 June 2019 JUDGMENT.

.

All these appeals, filed by Acquiring Body challenging the judgment and award passed by the Reference Court in Land Acquisition Reference Nos. 752 of 2010, 440 of 2010 754 of 2010, 22 of 2010, 192 of 2010, 190 of 2010, 1085 of 2010, 761 of 2010 193 of 2010, 1013 of 2010, 1230 of 2010, 1018 of 2010 and 1173 of 2010 are disposed of by this common judgment.

(10) FA No.461/2015 & ors. Heard Mr. S.G. Sangle, learned Counsel for the appellant and Smt. Asha Rakh, learned Counsel for original claimants.

The challenge in these appeals, at the stage of arguments, is restricted only regarding interest awarded under Section 34 and under Section 28 of the Land Acquisition Act (hereinafter referred to as the "Act"), from the date of taking possession, though possession was taken prior to the publication of notification under Section 4 (1) of the Act. 4.

Notification under Section 4 (1) of the Act was published on 09.08.2002 and possession of the acquired land was taken by the Acquiring Body prior to the publication of notification.

5.

In view of the above situation, after considering the law settled by Full Bench of this Court in the case of "State of Maharashtra Vs. Kailas Shiva Rangari" [2016 (4) Bom.C.R. 1], the interest under Section 34 of the Act can only be granted from the date of declaration of award under Section 11 of the Act, if the possession of acquired land is obtained prior to the publication of notification under Section 4 (1) of the Act.

(11) FA No.461/2015 & ors. 6.

This Court has already taken a view that if the possession is obtained prior to the publication of notification under Section 4 (1) of the Act, even the interest under Section 28 of the Act is payable from the date of passing of award and not from the date of taking possession of the acquired land. In view of this legal position, all these appeals deserve to be partly allowed to the above-said extent. Hence, the following order is passed.

7.

The appeals are partly allowed.

8.

The judgment and award impugned in the present appeals, so far as they relate to grant of interest under Sections 28 and 34 of the Act from the date of taking possession, are set aside.

9.

The interest under Section 34 as well as under Section 28 of the Act shall be payable from the date of passing of award i.e. from 08.05.2005.

10.

The award be modified accordingly.

11.

The claimants are permitted to withdraw the compensation amount deposited by Acquiring Body in this Court, only in accordance with the modified award.

(12) FA No.461/2015 & ors. 12.

Parties to bear their respective costs of the appeals. 13.

Pending Civil Applications are disposed of accordingly.

( SUNIL K. KOTWAL) JUDGE vdd/