KAZI MOINUDDIN KAZI BASHIRODDIN & ORS. versus THE MAHARASHTRA TOURISM DEVELOPMENT CORPORATION, THROUGH ITS SENIOR REGIONAL MANAGER REGIONAL OFFICE, MTDC, AURANGABAD, MAHARASHTRA & ANR. on 30 September 2022

1. Leave granted.

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2. The appellants herein are respondents in First Appeal No. 1673of 2017 (First Appeal St. No. 37304 of 2016) pending in the High Courtof Judicature at Bombay, Bench at Aurangabad. They have preferredthis appeal for being aggrieved of the order dated 03.12.2018, as passedin Civil Application No. 7037 of 2018 moved in the said appeal, whereby H

the High Court has allowed the applicant-Maharashtra TourismDevelopment Corporation (‘MTDC’-respondent No.1)[1] to withdraw anamount of Rs. 1,37,50,547/-, which was deposited by them on 20.03.2018towards enhanced amount of compensation.

3. Put in a nutshell, the case of the applicant-MTDC before theHigh Court had been that 50% of the amount of compensation awardedby the Reference Court had already been deposited by them on20.01.2017 in terms of the order passed by the High Court on 14.12.2016;and the said order dated 14.12.2016 having not been altered by anyCourt, they had mistakenly deposited further an amount ofRs. 1,37,50,547/- and were entitled to withdraw the same.

3.1. On the other hand, the present appellants asserted before theHigh Court that in terms of the order dated 29.01.2018 passed by thisCourt in Civil Appeal No. 1348 of 2018[2], the said order dated 14.12.2016stood modified because this Court had directed release of 50% of theamount of compensation with security and remaining 50% without security.

3.2. In the impugned order dated 03.12.2018, the High Courtaccepted the submissions made on behalf of the applicant-MTDC andallowed them to withdraw the aforesaid amount deposited on 20.03.2018.

4. For what has been indicated hereinabove, the basic questionarising for consideration in this appeal is the purport of this Court’s orderdated 29.01.2018 and its effect on the order dated 14.12.2016 passed bythe High Court. The background aspects of the matter could be referredonly to the extent relevant for determination of the question so arising.

4.1. On 10.07.2000, a Notification under Section 4 of the LandAcquisition Act, 1894 (‘the Act of 1894’) was issued for acquisition ofthe land comprising Gut Nos. 90 & 91 of Village Pimpaldari, Taluk Sillod,District Aurangabad, for the purpose of Ajanta Verul Development Project.The Notification under Section 6 was thereafter issued on 21.06.2001.In the acquisition proceedings so undertaken, ultimately, an award wasmade by the Special Land Acquisition Officer (‘SLAO’) on 21.06.2004.The appellants being dissatisfied by the amount of compensation awardedby the SLAO, got the matter referred under Section 18 of the Act of1894 for enhancement. The Reference Court dealt with the matter in 1 Hereinafter, for continuity and uniformity, the respondent No. 1 is referred to as ‘theapplicant- MTDC’.

2 Arising out of SLP (C) No. 19818 of 2017.

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AL.A.R. No. 101 of 2005 and while partly allowing the same, awardedenhanced amount of compensation to the appellants. Being aggrievedby the enhancement so made, the applicant-MTDC preferred theaforesaid appeal bearing No. 1673 of 2017 (First Appeal St. No. 37304of 2016).

B4.2. In the said appeal, while issuing notice on the interlocutoryapplications moved by the applicant-MTDC, the High Court orderedstay over execution of the award subject to the condition that the applicantshall deposit 50% of the award amount along with interest accrued thereonwithin twelve weeks. This order dated 14.12.2016, on its materialcontents, reads as under: -C

“1. Issue notice to the respondents in both civil applications fordelay and stay, returnable on 25.01.2017.

2. The execution of the award impugned in the present appealshall stand stayed subject to deposit of the 50% of the amountDunder the impugned award along with interest accrued thereon inthis court by the acquiring body within twelve weeks from thedate of this order.”

4.3. In compliance of the order so passed by the High Court, theapplicant-MTDC deposited 50% of the award amount in the High Court.EThereafter, the present appellants filed Civil Application No. 3432 of2017 for withdrawal of the amount so deposited by the applicant-MTDC.However, on 07.06.2017, the High Court ordered on the application somoved by the present appellants that they would be entitled to withdraw50% of the deposited amount subject to filing of an undertaking to re-deposit, if so directed in future. The balance amount was ordered to beFinvested in a fixed deposit. This order dated 07.06.2017, on its materialcontents, reads as under:- “1. The application is partly allowed. The applicants are permittedto withdraw 50 per cent of the deposited amount on submitting anundertaking that in the event any adverse order is passed, theGapplicants will redeposit the said amount within four months ofpassing such order. The balance amount shall be invested in aFixed Deposit Receipt in any nationalized Bank initially for a periodof two years, and if required, for further period till disposal of theappeal. Civil Application stands disposed of.”

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4.4. Thus, at the given stage, the resultant position was that pursuantto the order dated 14.12.2016, only 50% of the amount awarded by theReference Court was to be deposited by the acquiring agency and evenout of this amount, only 50% was allowed to be withdrawn by theclaimants/appellants. Thus, in effect, the appellants were to get in handonly 25% of the compensation amount awarded by the Reference Court.

4.5. Against the aforesaid order dated 07.06.2017, the claimants/appellants approached this Court by way of S.L.P. (C) No. 19818 of2017 leading to Civil Appeal No. 1348 of 2018. When the said appealcame up for consideration before this Court, it was not disputed by theparties that in a similar matter, being the case of Wajidmiya AbdulRaheman Shaikh & Ors. v. Maharashtra Ind. Dev. Cor. & Ors.,Civil Appeal No. 8056 of 2013, the High Court order staying payment ofthe enhanced amount of compensation had been modified to the effectthat 50% of the enhanced amount of compensation would be releasedwithout security and the balance 50% would be released on furnishingsecurity. There being no dispute about applicability of the order so passedby this Court in Civil Appeal No. 8056 of 2013 (supra), the appeal filedby the present appellants was also allowed in the same terms and theimpugned order of the High Court was modified. The order dated29.01.2018 passed by this Court in disposal of the said appeal of theappellants, Civil Appeal No. 1348 of 2018, on its material contents, readsas under: - “Heard learned counsel for the parties. Leave granted.

It is not disputed that in a similar matter being WajidmiyaAbdulRaheman Shaikh & Ors.Vs. Maharashtra Ind. Dev.Corpn. &Ors.(Civil Appeal No. 8056 of 2013 etc. etc.), theHigh Court order staying payment of enhanced compensation hasbeen modified to the effect that 50% of the enhancedcompensation be released without security and the balance of50% to be released on furnishing security.

Accordingly, the Civil Appeal is allowed in the same termsand the impugned order of the High Court is modified.”

4.6. After passing of the aforesaid order dated 29.01.2018 by thisCourt, the applicant-MTDC deposited the said amount ofRs. 1,37,50,547/- in the High Court on 20.03.2018. However, thereafter,they moved the said application before the High Court seeking to withdraw A

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Athe amount so deposited with the submissions that such a deposit wasmade per mistake. It was submitted that in the order dated 29.01.2018,the Supreme Court had not directed the applicant-MTDC to deposit theentire compensation amount awarded by the Reference Court and thedirections in the order dated 29.01.2018 had only been in respect of theamount which was deposited in the High Court before passing of theBorder by the Supreme Court.

4.7. The High Court accepted the submissions so made by theapplicant-MTDC while observing that the order dated 29.01.2018 passedby this Court could not be read as a permission to the claimants towithdraw the entire compensation amount awarded by the ReferenceCCourt. The High Court, therefore, allowed the applicant-MTDC towithdraw the amount deposited on 20.03.2018 while observing, interalia, as under: - “4. Undisputedly, the applicant MTDC filed this appeal challengingthe judgment and award, passed by 2nd Joint Civil Judge, SeniorDDivision, Aurangabad, in Land Acquisition Reference No. 101 of2005. In this appeal, the MTDC filed Civil Application No. 16090of 2016 with Civil Application No. 16091 of 2016 for condonationof delay and stay. On 14.12.2016, this Court passed stay ordersubject to deposit of 50 per cent of compensation amount awardedEby the Reference Court, with accrued interest thereon.

5. In obedience of this order, the MTDC deposited 50 per centamount of compensation in this Court. Thereafter original claimantsfiled Civil Application No. 3432 of 2017 for withdrawal of said 50per cent deposited compensation. On 7.6.2017, this Court allowedFthe claimants to withdraw 50 per cent amount out of deposited 50per cent compensation subject to filing of undertaking to depositthe withdrawn amount if directed by this Court in future. Thebalance amount was directed to be invested in fixed deposit.Against that order, the claimants approached Supreme Court andin Civil Appeal No. 1348 of 2018 on 29.1.2018, the Supreme CourtGmodified the order passed by this Court and released 50 per centof enhanced compensation without security and balance 50 percent was released on furnishing security.

6. If the sequence of above events is considered, it is crystal clearthat the order passed by Apex Court, dated 29.1.2018 pertains to H

50 per cent amount deposited by appellant MTDC in accordancewith the direction given by this Court on 14.12.2016 in CivilApplication No. 16090 of 2016. Till passing of order by SupremeCourt on 29.1.2018, only 50 per cent amount out of awardedamount was deposited and lying in this Court. Even in the order,dated 29.1.2018, the Supreme Court has not directed the appellantMTDC to deposit the entire compensation amount awarded bythe Reference Court. Therefore, the direction given by Apex Courtin the order, dated 29.1.2018 is in respect of amount which wasdeposited in this Court till 29.1.2018. This order is not applicableto the amount which is inadvertently deposited by MTDC on20.3.2018 i.e. after passing order by the Supreme Court on29.1.2018. Therefore, by taking benefit of order of the SupremeCourt, the claimant cannot withdraw the amount deposited byMTDC inadvertently. The order dated 29.1.2018 does not showexercise of jurisdiction under Article 142 of the Constitution ofIndia as argued. Thus, the inadvertently deposited amount needsto be refunded to the applicant MTDC, as that amount wasdeposited in this Court without direction of this Court as well aswithout direction given by Supreme Court. The order, dated29.1.2018, passed by Supreme Court cannot be read as permissionto withdraw entire compensation awarded by the Reference Courtin Land Acquisition Reference No. 101 of 2005. Therefore,Application filed by the applicant/appellant MTDC to withdrawthe amount of Rs. 1,37,50,547/ deposited inadvertently in this Courtdeserves to be allowed.

7. Accordingly, applicant MTDC is permitted to withdraw amountof Rs.1,37,50,547/ (Rs.One Crore Thirty Seven Lakh FiftyThousand Five Hundred Forty Seven Only) deposited on 20.3.2018.

8. Civil Application is disposed of accordingly.”

5. While questioning the order so passed by the High Court, learnedcounsel for the appellants has referred to various orders passed by thisCourt from time to time in similar matters involving akin issues, includingthe aforesaid relied upon order dated 10.09.2013 in Civil Appeal No.8056 of 2013. The learned counsel has contended that the appellants,who lost their land way back in the year 2001, could ultimately receivethe amount of compensation only in terms of the orders passed by thisCourt on 29.01.2018 and they cannot be deprived of the same on the A

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Ahyper-technical submissions sought to be made by the applicant-MTDC,which had wrongly been accepted by the High Court.

5.1. Learned counsel for the appellants has further contended thatreliance on the order dated 14.12.2016 of the High Court is erroneousinasmuch as it was only an interlocutory order and the same wasBsuperseded by the order dated 29.01.2018 passed by this Court,specifically permitting the appellants to withdraw 50% of the enhancedcompensation amount without security and remaining 50% with security.Learned counsel has referred to various other orders passed in similarmatters and has submitted that this Court has consistently taken theview that the persons who are deprived of their land due to acquisitionCshould be paid/disbursed 50% of the enhanced amount of compensationwithout security and the remaining 50% with security during the pendencyof appeal by the acquiring agency. The same order was passed betweenthe parties in the present matter by this Court on 29.01.2018 and its fulland practical effect cannot be whittled down merely by reference to aDprevious order of the High Court.

6. Per contra, learned counsel for the respondent No. 1 (applicant-MTDC) has strenuously argued that the controversy which reached thisCourt earlier was only with regard to the release of 50% of the amountof compensation awarded by the Reference Court, which had alreadyEbeen deposited by the applicant-MTDC on 20.01.2017. This deposit wasmade in compliance of the order dated 14.12.2016, which alwaysremained operative, for having neither been challenged nor modified.

6.1. As regards the order dated 29.01.2018, it has been arguedthat in manner and effect, this Court merely directed release of 50%Famount with security and 50% amount without security while followingthe order passed in a different matter, i.e., Civil Appeal No. 8056 of2013 but, without modifying the earlier order dated 14.12.2016 in thepresent case. According to the learned counsel, the implication of theorder of this Court had only been that 50% of the deposited amount wasto be released with security and 50% without security. It has also beenGcontended that though no further deposit was required to be made bythe applicant- MTDC, but even if such a deposit was made at theinstance of the appellants in abundant caution, the excessively depositedamount could not have been withdrawn or received by the appellants.Learned counsel has submitted that the appellants were trying to takeHadvantage of a fiction which might have been created because of the order dated 29.01.2018 but, if the said order is read together with theorders dated 14.12.2016 and 07.06.2017, the picture would be crystalclear that the appellants were entitled to get only 50% of the total amountof enhanced compensation, where they could receive half by furnishingsecurity and other half without security, but there was neither anyobligation on the applicant-MTDC to deposit whole of the amount ofcompensation nor there was any corresponding entitlement of theappellants to withdraw the same by taking half on security and the otherhalf without security. Learned counsel had relied upon an order by a3-Judge Bench of this Court in the case of Nayara Energy Limited v.The State of Gujarat & Ors., Civil Appeal Nos. 4102-4103 of 2020arising from S.L.P. (Civil) Nos. 14215-14216 of 2020 and particularlythe following passage therein: - “6. ….we are of the opinion that if the original claimants arepermitted to withdraw 25% of the enhanced amount ofcompensation, as awarded by the learned Reference Court,together with proportionate interest and cost, without furnishingany security and the balance 75% of the enhanced amount ofcompensation, together with proportionate cost and interest, asawarded by the learned Reference Court is permitted to beinvested in a fixed deposit in any nationalised bank with cumulativeinterest, it will meet the end of justice and take care of the interestof both the parties.”

7. We have given thoughtful consideration to the rival submissionsand have thoroughly examined the material placed on record.

8. A somewhat peculiar situation of the present case has its genesisin the fact that on 14.12.2016, the High Court had ordered stay overexecution of the award dated 19.03.2016 on the condition of the applicant-MTDC depositing 50% of the amount of compensation along with interestaccrued. On 01.02.2017 the applicant-MTDC indeed deposited the said50% of the amount of compensation but, by the order dated 07.06.2017,the High Court permitted withdrawal only of 50% of the said depositedamount (which itself was 50% of the compensation amount) on anundertaking and the remaining amount was ordered to be placed in fixeddeposit. This order was in challenge in this Court in Civil Appeal No.1348 of 2018 wherein this Court passed the order dated 29.01.2018, asreproduced hereinbefore.

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A9. At the first blush, it may appear that when only the said order07.06.2017 (disbursal order) was in challenge before this Court and theprincipal order dated 14.12.2016 (stay order requiring only 50% deposit)was not in question, the order passed by this Court co-relates only withthe disbursal order and thereby, the appellants would be entitled to withdraw50% of the deposited amount without security and balance 50% onBfurnishing security. However, a close look at the order 29.01.2018 andthe relied upon order therein bring to fore a situation entirely different;and it is difficult to accept the submissions of the applicant-MTDC asalso the observations of the High Court that this Court’s order relatedonly to the deposited amount of compensation and not to the entireCenhanced amount of compensation.

10. As noticed, the said order dated 29.01.2018 was passed bythis Court without raising of any dispute on the part of any of the partiesas regards applicability of the earlier decision in Civil Appeal No. 8056of 2013, i.e., the case of Wajidmiya Abdul Raheman Shaikh (supra).DThe appeal filed by the present appellants was allowed “in same terms”and the impugned order of the High Court was “modified”. To appreciatethe implication of the expression “in the same terms”, we may fruitfullyrefer to the order dated 10.09.2013 passed by this Court in Civil AppealNo. 8056 of 2013. In the said order, this Court, after condoning delayand granting leave, took note of the fact that the appeals were directedEagainst interim orders passed by the High Court of Judicature at Bombay,Bench at Aurangabad in various civil applications moved in respectivecivil appeals; and while observing that the High Court had rejected thereasonable prayer made by the appellant, this Court proceeded to disposeof the case with the following observations and directions: -F

“4. Having heard the learned counsel for the parties to the lis, weare of the opinion that the prayer made by the appellants requiresto be accepted and granted. Accordingly, we pass the followingorder- “We direct that the 50% of the enhanced compensationgranted to the appellants shall be released without security whereasGbalance of 50% shall be released to them on furnishing security tothe satisfaction of the Collector”.”

10.1. Several other orders passed by this Court in differentmatters have also been placed before us for perusal by the learnedcounsel for the appellants. The common thread running through all theHorders aforesaid is that this Court issued similar directions, of allowing 50% of enhanced amount of compensation to be released without securityand balance 50% to be released on furnishing security. Instead ofmultiplying the reference to several orders passed by this Court, for thepresent purpose, suffice would be to refer to the order dated 22.11.2019in Civil Appeal No. 8931 of 2019 [arising out of S.L.P. (C) No. 15491 of2017] wherein, while dealing with a nearly akin situation that the HighCourt had permitted withdrawal of 25% of the compensation amountwithout security and 25% on furnishing solvent security, this Courtreferred to the order passed in Civil Appeal No. 1348 of 2018 i.e., thecase of the present appellants and allowed the appeal in the same terms.The relevant part of the said order dated 22.11.2019 reads as under: - “Heard learned counsel for the parties. Leave granted.

The appellant assails the interim order of the High Court ina Land Acquisition Appeal preferred by the State, permittingwithdrawal of 25% of the Compensation amount without securityand 25% on furnishing solvent surety by the appellant.

In view of our several orders on this issue, reference maybe made to one of them in Civil Appeal No. 1348 of 2018, wherethe following order has been passed:

“It is not disputed that in a similar matter being WajidmiyaAbdul Raheman Shaikh & Ors. Vs. Maharashtra Indu. Dev.Corpn. & Ors. (Civil Appeal No. 8056 of 2013 etc. etc.), the HighCourt order staying payment of enhanced compensation has beenmodified to the effect that 50% of the enhanced compensationbe released without security and the balance of 50% to be releasedon furnishing security.”

The civil appeal is allowed on the above terms.”

11. So far as the decision of this Court in Civil Appeal No. 4102-4103 of 2020 is concerned, therein the High Court had stayed theexecution of award passed by the Reference Court on the condition ofthe acquiring agency depositing 80% of the awarded amount alongwithproportionate cost and interest and thereafter, the High Court directedthat 50% of the deposited amount be placed in a cumulative fixed depositfor a period of five years and the balance was allowed to be withdrawnby the claimants. The High Court also allowed the claimants to withdraw50% of the accrued interest on fixed deposit. Taking note of the givenfact situation and the fact that the claimants were not in a position to A

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Afurnish any security, this Court issued directions for depositing entireawarded amount before the High Court and then, allowed 25% of thedeposited amount to be withdrawn by the claimants without security andthe remaining 75% was ordered to be placed in a cumulative fixed depositfor a period of five years. The said case essentially proceeded on itsown facts and it cannot be held that this Court has laid down any inflexibleBrule that in every such case, the claimants would be entitled to withdrawonly 25% of the awarded amount of compensation.

12. Apart from the above, fact of the matter remains that in thepresent case, specific order has been passed by this Court in terms ofthe order passed in the case of Wajidmiya Abdul Raheman ShaikhC(supra). The order passed by this Court had been explicit that the orderof the High Court staying the payment of enhanced compensation stoodmodified to the effect that 50% of the enhanced amount of compensationwas to be released without security and the balance 50% on furnishingsecurity. Even if the initial stay order dated 14.12.2016 had not, as such,Dbeen challenged before this Court, the disbursal order dated 07.06.2017had essentially been in continuity thereof and while considering challengeto the disbursal order, nothing prevented this Court from modifying theprincipal stay order itself.

13. In our view, the order dated 29.01.2018 passed by this CourtEin Civil Appeal No. 1348 of 2018 is required to be interpreted and appliedon its substance rather than technicalities. The intent of this Court inWajidmiya Abdul Raheman Shaikh (supra) had been clear that theentire amount of enhanced compensation should reach the claimantswhile they would be obliged to furnish security to the extent of 50%thereof. When the same terms were applied to the present case, theFattempt on the part of the applicant-MTDC to fall back again and againon the order dated 14.12.2016 could not have been countenanced.Unfortunately, the High Court has fallen in such an error by acceptingthe hyper technical submissions on behalf of the applicant-MTDC. Infact, the applicant-MTDC had correctly understood the meaning, purportGand effect of the order dated 29.01.2018 in the first instance when theremaining 50% of the amount of compensation was deposited on20.03.2018. Their second thought and late attempt to withdraw the saidamount, was required to be rejected.

14. Before closing this matter, we are impelled to observe that theHorders passed by the Courts, and particularly by this Court, are required KAZI MOINUDDIN KAZI BASHIRODDIN v. MAHARASHTRA TOURISMDEVELOPMENT CORPORATION [DINESH MAHESHWARI, J.]

to be understood on their pith and substance while avoiding an approachof technicalities. Moreover, when the matter relates to the payment ofamount of compensation to the land losers, if at all two views are possible,the view that advances the cause of justice is always to be preferredrather than the other view, which may draw its strength only fromtechnicalities. We say no more for the present.

15. Accordingly and in view of the above, this appeal succeedsand is allowed; the impugned order dated 03.12.2018 is set aside and theapplication filed by the applicant-MTDC for withdrawal of depositedamount of compensation stands rejected. No costs.

Bibhuti Bhushan Bose

Appeal allowed.

(Assisted by : Neha Sharma, LCRA)

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