The Ex. Engineer, Minor Irrigation Division, Latur Thr Gmidc, Aurangabad v. Youvraj Sangram Tondare And ORS

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD 910 FIRST APPEAL NO.363 OF 2018

1. Vishwanath Mahadappa Gudale

2. Nandku Vishwanath Gudale

3. Vishwanath Mahadappa Gudale All R/o. - Chandegaon, Tq. Udgir,

4. The State of Maharashtra,

5. The land Acquisition Officer, FIRST APPEAL NO.364 OF 2018 Sangram Deorao Tondare (Died_ Through L.Rs.

1. Baburao Sangram Tondare

2. Gajanan Baburao Tondare

3. Shivanand Baburao Tondare All R/o. - Chandegaon, Tq. Udgir,

4. The State of Maharashtra,

5. The land Acquisition Officer, FIRST APPEAL NO.365 OF 2018

1. Vaijanath Basvant Tondare

2. Dhondiram Sopan Musne Both R/o. - Chandegaon, Tq. Udgir,

3. The State of Maharashtra,

4. The land Acquisition Officer,

FIRST APPEAL NO.366 OF 2018

1. Hirabai Bhimrao Tondare

2. Bhimrao Baswant Tondare

3. Vimalbai Shivraj Tondare

4. Mankarnabai Malikarjun Swami All R/o. - Chandegaon, Tq. Udgir,

5. The State of Maharashtra,

6. The land Acquisition Officer, FIRST APPEAL NO.367 OF 2018

1. Umakant Kashinath Tondare

2. Rajkumar Kashinath Tondare

3. Subhash Kashinath Tondare

4. Vilas Kashinath Tondare

5. Sharnappa Kashinath Tondare All R/o. - Chandegaon, Tq. Udgir,

6. The State of Maharashtra,

7. The land Acquisition Officer, FIRST APPEAL NO.368 OF 2018

1. Deenanath Sanganna Musane

2. Sandip Deenanath Musane Both R/o. - Chandegaon, Tq. Udgir,

3. The State of Maharashtra,

4. The land Acquisition Officer,

FIRST APPEAL NO.370 OF 2018

1. Ashok Bhimrao Kharajge

2. Digambar Bhimrao Kharajge

3. Veershetty Bhimrao Kharajge (Died through L.Rs.) Panchphulabai w/o Veershetty Kharajge

4. Avinash Ashok Kharajge (Under Guardianship) Minabai w/o Ashok Kharajge

5. Abhijit Ashok Kharajge (Under Guardianship) Minabai W/o Ashok Kharajge

6. Swarup Veershetty Kharajge Age : Major, Occu.: Agriculturist.

7. Shivanand Veershetty Kharajge Age : Major, Occu.: Agriculturist

8. Devanand Veershetty Kharajge Age : Major, Occu.: Agriculturist

9. Vishwas Digambar Kharagje Age : Major, Occu.: Agriculturist

10. Rahul Swarup Kharajge Age : Major, Occu.: Agriculturist

11. Pravin Shivanand Kharajge (Under Guardianship) Mangal w/o Shivanand Kharajge

12. Shivaji Trimbak Sontakke Age : Major, Occu.: Agriculturist All R/o. Chandegaon, Tq. Udgir,

13. The State of Maharashtra,

14. The land Acquisition Officer, ...

Respondents.

FIRST APPEAL NO.371 OF 2018

1. Rajkumar Baliram Mhetre

2. Vijaykumar Baliram Mhetre

3. Sandip Baliram Mhetre

4. Sanjiv Baliram Mhetre

5. Dnyanoba Mokind Mhetre

6. Dhondiram Prabhu Mhetre Age : Major, Occu.: Agriculturist

All R/o. - Chandegaon, Tq. Udgir,

7. The State of Maharashtra,

8. The land Acquisition Officer, FIRST APPEAL NO.372 OF 2018

1. Harichandra Hanmantrao Tondare

2. Ramesh Harichandra Tondare

3. Vijaykumar Harichandra Tondare

4. Rajkumar Harichandra Tondare All R/o. Chandegaon, Tq. Udgir,

5. The State of Maharashtra,

6. The land Acquisition Officer,

FIRST APPEAL NO.373 OF 2018

1. Youvraj Sangram Tondare

2. Kalappa Sangram Tondare

3. Sangram Baswant Tondare Died through L.Rs.

i) Niamma w/o Sangram Tondare ii) Sulochanabai w/o Ram Sontakke All R/o. - Chandegaon, Tq. Udgir,

4. The State of Maharashtra,

5. The land Acquisition Officer, FIRST APPEAL NO.374 OF 2018 Annarao Sangram Kalgapure Died through L.Rs.

1. Kalyanrao Annarao Kalgapure

2. Yeshwantrao Annarao Kalgapure

3. Gunwantrao Annarao Kalgapure

4. Apparao Annarao Kalgapure Age : Major, Occu.: Agriculturist All R/o. Chandegaon, Tq. Udgir,

5. The State of Maharashtra,

6. The land Acquisition Officer, ....

Mr. S.G. Bhalerao, Advocate for Appellants.

Mr. S.S. Halkude, Advocate for Respondents-Original Claimants. Mr. A.M. Phule, AGP for Respondent-State.

....

CORAM : P.R. BORA, J.

DATED : 10th JANUARY, 2019 ORAL JUDGMENT:- 1.

Since the present appeals are arising out of a common judgment and award passed by the court of Joint Civil Judge, Senior Division, Udgir in LAR No.100/2011 with connected LARs., I have heard common arguments in all these appeals and I deem it appropriate to decide all these appeals by a common reasoning. 2.

The common judgment and award is challenged by the acquiring body restricted to the interest as has been awarded by

the Reference Court under Section 28 and 34 of the Act from the date of taking possession of the acquired lands. 3.

Shri S.G. Bhaleralo, learned counsel appearing for the appellant, placing his reliance on the Full Bench Judgment of this Court in the Case of The State of Maharashtra Vs. Kailash Shiva Rangari, 2016 (4) ALL MR 513, submitted that the interest under Section 28 as well as Section 34 of the Act could have been granted by the Reference Court from the date of passing the award under Section 11 of the Act and not from any prior date whereas the same has been granted by it from the date of taking possession of the acquired lands. The learned counsel, therefore, prayed for modification of the common judgment and award to the aforesaid extent.

4.

Learned counsel appearing for the claimants in all these matters has conceded the legal position as has been canvassed on behalf of the appellant, and in the circumstances, prayed for passing appropriate order.

5.

Learned AGP Shri Phule supported the arguments advanced by Shri Bhalerao, the learned counsel appearing for the appellant. 6.

I have carefully perused the common judgment and award, which has been impugned in the present appeals. The Reference Court has awarded the interest under Section 28 of the Act from the date of taking possession of the lands by the acquiring body. The award under Section 11 of the Act was admittedly passed on

18.10.2010.

7.

The Full Bench of this Court in the Case of The State of Maharashtra Vs. Kailash Shiva Rangari (cited supra) has ruled that, the interest under Section 34 of the Act can only be made payable from the date of Award under Section 11 of the Act and not from any prior date. The learned Single Judge of this court (Coram: S.B.Shukre,J.) while deciding the First Appeal No.

383/2004, vide the judgment delivered on 23rd November, 2017, has held that the interpretation accorded to Section 34 of the Act by the Full Bench of this Court would also have its equal application while understanding the import of Section 28 of the Act, and has accordingly set aside the Award impugned in the said appeal wherein the Reference Court has awarded the interest from the date of taking over possession of the land and instead made it applicable from the date of declaration of the Award under Section 11 of the Act. In the subsequent judgment, another learned Single Judge of this court (Coram : Sunil P.Deshmukh, J.) in First Appeal No.

483/2018 with connected appeals, has affirmed the said interpretation and has held that the interest under Sections 28 and 34 of the Land Acquisition Act payable to the claimants would be from the date of award and not from the date of possession. 8.

In view of the law laid down as above, the common judgment and award so far as it relates to grant of interest under Section 28 of the Act from the date of the possession cannot be

sustained. The challenge raised by the acquiring body to the aforesaid part of the impugned common judgment and award, therefore needs to be upheld. In the result the following order is passed:-

ORDER

[i] The common judgment and award impugned in the present appeals is quashed and set aside so far as it relates to grant of interest under Section 28 of the Act from the date of possession. Instead it is directed that the interest under Section 28 of the Act shall be made payable from the date of passing the award under Section 11 of the Act i.e. from 18.10.2010. The common judgment and award be modified to the aforesaid extent. [ii] The other part of the Award is maintained as it is. [iii] From out of the amount deposited by the appellant in this Court in the present appeals, the original claimants in the respective appeals are permitted to withdraw such an amount which shall be found payable to them as per the modified award with interest accrued thereon. Balance amount with interest accrued thereon be refunded to the appellant. [iv] The appeals thus stand partly allowed in the aforesaid terms. Pending Civil Applications, if any, stands disposed of. ( P.R. BORA ) JUDGE Sudhir Rane