Allowed

Dhondu Dadunath Gosavi (Since Decd, through Legal Heirs) Shri. Kacharu Dhondu Gosavi and Anr. v. the Deputy Collector (Acquisition), Vaiterna Jal Vidyut Project, Nashik and Ors.

Bombay HC5 Feb 2014WP/10256/2013

Case brief

AI extract

What is this about?

The High Court quashed orders rejecting applications for enhanced compensation filed by petitioners containing a clerical error in the reference number. It directed the Deputy Collector to allow amendments and conduct a fresh enquiry under Section 28A of the Land Acquisition Act, 1894.

What did the court decide?

Impugned orders rejected under Section 28A applications quashed; applications restored; Deputy Collector directed to permit amendment and conduct fresh enquiry within three months.

Dhondu Dadunath Gosavi (Since Decd, through Legal Heirs)… — Land Acquisition | Bombay HC (2014)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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WRIT PETITION NO.10256 OF 2013

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1 Dhondu Dadunath Gosavi

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since deceased through His

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Legal Heirs and Representatives:

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1-a Shri Kacharu Dhondu Gosavi

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Age: Major,

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1-b Shri Keru Dhondu Gosavi

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Age: Major, Both residing at Bharvir (Budruk)

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Taluka Igatpuri, District Nashik.

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2 Dagdu Sayaji Phokane Since deceased through His Legal Heirs and Representatives:

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2-a Shri Sudhakar Dagdu Phokane, Age: Major,

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2-b Shri Madhukar Dagdu Phokane

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Age: Major

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2-c Smt. Punjabai Dagdu Phokane

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(deceased)

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2-d Smt. Mamtabai Dagdu Phokane Age: Major,

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2-e Smt. Kamal d/o Dagdu Phokane Alias Smt. Kamal Dnyaneshwar Khalkar Age : Major

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2-f Smt. Mandabai Uttam Kale, Age: Major

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2-g Smt. Vimal Chandrabhan Sahane Age: Major,

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All residing at Bharvir (Budruk) Taluka Igatpuri, District Nashik ... Petitioners.

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Versus

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The Deputy Collector (Acquisition) Vaiterna Jai Vidyut Project,

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Nashik.

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The Collector, Nashik.

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The State of Maharashtra ... Respondents.

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Mr. P.N. Joshi for the Petitioners. Mr. V.S. Gokhale, AGP for Respondent nos.1 to 3.

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CORAM : A.S. OKA &

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M.S. SONAK, JJ.

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DATE : 05 FEBRUARY 2014.

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ORAL JUDGMENT (PER: A.S. OKA, J.) :-

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Rule. Learned AGP waives notice for the Respondents. The Petition is forthwith taken up for final disposal.

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2 This Petition arises out of the Awards made under sub section (2) of section 28A of the Land Acquisition Act, 1894 (for short ‘the said Act’).

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3 With a view to appreciate the submissions of the learned Counsel appearing for the parties, it will be necessary to make a brief reference to the facts:

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The Petitioners' land was acquired for Kadwa Medium Project by Award No.30 of 1982 under the provisions of the said Act. The Petitioners did not apply for a Reference under section 18 of the said Act. Relying upon Judgment and Award dated 7^th April, 1995 made by the District Court in Land

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Acquisition Reference No.498 of 1989, the Petitioners filed separate Applications under sub section (1) of section 28A of the said Act. In the body of the said Applications, instead of referring to the Award in Land Acquisition Reference No.498 of 1989, the Petitioners referred to the Award in Land Acquisition Reference No.270 of 1989. As the Applications were kept pending, the Petitioners approached this Court by filing a Petition being Writ Petition No.5421 of 2008. By an order dated 21 November 2008, this Court directed the first Respondent to decide the Applications within a time bound schedule. On 2^nd May 2009, the Awards were made under sub section (2) of section 28A of the said Act by which enhanced compensation was granted to the Petitioners.

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5 On 18 February 2011, a show cause notice was issued by the first Respondent calling upon the Petitioners to show cause as to why the Applications under sub section (1) of section 28A of the said Act should not be rejected as the incorrect number of the Land Acquisition Reference under section 18 of the said Act was mentioned. On 4^th March, 2011, the Petitioners replied to the notices and pointed out that it was a bonafide typing mistake. However, it was pointed out that a certified copy of the Award in Land Acquisition Reference no.498 of 1989 was filed by the Petitioners along with Applications under sub section (2) of section 28A of the said Act.

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6 By the impugned orders, the first Respondent has withdrawn the earlier Awards under sub section (2) of section 28A of the said Act on the ground that the Petitioners had set out incorrect particulars regarding the Land Acquisition

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Reference under section 18 of the said Act on the basis of which the Applications were filed. Therefore, by the impugned orders, the first Respondent proceeded to reject the Applications made by the Petitioners.

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7 We have heard the learned counsel appearing for the Petitioners and learned AGP appearing for the Respondents.

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8 The learned Counsel appearing for the Petitioners has relied upon the law laid down by the Division Bench of this Court in the case of State of Maharashtra vs. Sitaram Narayan Patil (since deceased through L.Rs.) & Anr.¹ as well as the decision of the Apex Court in the case of Shri Ambiya

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Kalya Mhatre (d) Through legal heirs & Ors. vs. The State of Maharashtra² . He urged that the Petitioners ought to have been granted a permission to correct the accidental mistake in the Applications under sub section (1) of section 28A of the said Act. He pointed out that the mistake was a bonafide mistake which is apparent from the fact that a certified copy of the Award in the correct Reference was produced along with the Applications. He pointed out that Land Acquisition Reference no.270 of 1989 was also decided on the same date on which Land Acquisition Reference No.498 of 1989 was decided. Learned AGP has supported the impugned orders.

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9 The view taken by the Full Bench of this Court (State of Maharashtra vs. Sitaram Narayan Patil) as well as the Apex Court ( Shri Ambiya Kalya

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1 . 2010 (2) All MR 508

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2011(6) All MR 974 (SC)

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Mhatre (d) Through legal heirs & Ors. vs. The State of Maharashtra) is that an Application under section 18 of the said Act can be permitted to be amended after expiry of the prescribed period of limitation even for claiming additional compensation.

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10 In the present case, it is true that there is a period of limitation which is provided under sub section 1 of section 28A of the said Act to a claimant who has not applied for enhanced compensation under section 18 of the said Act to pray for re-determination of compensation on the basis of an Award made under section 18 of the said Act in relation to a land subject matter of the same notification under section 4 (1) of the said Act. In the present case, the re-determination was sought on the basis of one such Award. As stated earlier, there was an error while incorporating the correct number of the Land Acquisition Reference under section 18 of the said Act, but a certified copy of the Award in the correct Reference was produced which is very clear from the Awards made under sub section (2) of section 28A of the said Act. In paragraph 9 of the said Awards, it is specifically set out that certified copies of the Judgment and Award in Land Acquisition Reference No.498 of 1989 were produced along with the Applications. The certified copies of the Judgment and Award in the correct Reference were produced. The mistake was only in the body of the Applications while mentioning the case number.

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11 As Applications under sub section (1) of section 28A of the said Act were made within stipulated period of limitation, the Petitioners could have been always permitted to correct the said Applications by carrying out

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necessary amendment. In fact, by way of Reply to the show cause notice, a case of bonafide mistake was made out.

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12 In a case like this, the first Respondent could have always allowed the Petitioners to amend their Applications under sub section (1) of section 28A of the said Act for correcting the accidental error.

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13 Now as a result of the impugned orders, not only that Awards have been recalled, even the Applications made by the Petitioners have been rejected. Without going in to the issue whether the first Respondent had a power to recall the Awards, by setting aside the impugned orders to extent to which the Applications under sub section (1) of section 28A of the said Act were rejected, an order of remand will have to be passed to enable the Petitioners to carry out the amendment to the Applications.

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14 Hence we pass following order:

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i) The impugned orders are quashed and set aside to the extent of which the Applications filed by the Petitioners under sub section (1) of section 28A of the said Act were rejected;

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ii) The Applications made by the Petitioners under sub section (1) of section 28A of the said Act are restored to file of the first Respondent;

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iii) We direct the Petitioners to appear before first Respondent on 13^rd March 2014 at 11 a.m., The first Respondent shall permit the

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Petitioners to carry out amendment to the said Applications for correcting inadvertent errors;

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iv) The first Respondent shall hold a fresh enquiry under sub section 2 of section 28A of the said Act;

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v) The enquiry shall be concluded as expeditiously as possible and in any event within a period of three months from 13th March, 2014;

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vi) Rule is made absolute above terms;

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vii) No costs.

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katkam

Dhondu Dadunath Gosavi (Since Decd, through Legal Heirs) Shri. Kacharu Dhondu Gosavi and Anr. v. the Deputy Collector (Acquisition), Vaiterna Jal Vidyut Project, Nashik and Ors.

Case brief

What is this about?

What did the court decide?

Dhondu Dadunath Gosavi (Since Decd, through Legal Heirs) Shri. Kacharu Dhondu Gosavi and Anr. v. the Deputy Collector (Acquisition), Vaiterna Jal Vidyut Project, Nashik and Ors.

Case brief

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What did the court decide?

What the court decided

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