Back
2019 Supreme(Bom) 2244
IN THE HIGH COURT OF JUDICATURE AT BOMBAY AT AURANGABAD BENCH
S.V. Gangapurwala, Avinash G. Gharote, JJ.
Bhupendrasingh - Appellant
Versus
Competent Authority, Dhule - Respondent
Writ Petition No. 5286 of 2018
Decided On : 20-12-2019
P.V. Mandlik, Advocate, P.P. Mandlik, Advocate, S.B. Deshpande, Advocate, S.G. Karlekar, Advocate, Dipak Manorkar, Advocate
Headnote:
Constitution of India, 1950 - Article 136 - Right to Fair Compensation and Transparency in Land Acquisition Rehabilitation and Resettlement Act, 2013 – Sections, 26, 33, 105, 23, 27, 3A, 3J, 106, 113, 4, 29, 31, 38, 30 and 32 - Land Acquisition Act, 1894 - Section 13A - Code of Civil Procedure, 1908 - Section 152 – National Highway Act, 1956 - Sections 3, 28, 23, 3I, 3A, 3C, 3D, 3G, 3H, 3I, 3B, 3E, 3F and 3J - Land Reforms Act, 1951 - Section 63 - Advocates Act, 1961 - Section 2 - General Clauses Act - Sections 21 and 29A - Acquire Land - Possession Of Land - It is contended that by a letter respondent No -1 not only turned down request for payment of balance amount but stated that while acquiring nonagricultural land of petitioner GR providing multiplier factor was used however in subsequent GR multiplier factor has been reduced for lands which are for residential/commercial and industrial use as a result of which corrigendum/clarification was prepared in respect of award in view of which amount petitioner was entitled to already stood deposited in his account - It is contended that respondents have ignored provisions - It is further contended that procedure as laid down has not been followed as a result of which corrigendum/clarification being illegal was required to be set aside by way of a writ of mandamus or any other appropriate relief and respondents be directed to deposit/transfer balance amount of compensation to account of petitioner with other consequential benefits and interest - Held, We therefore declare that provisions relating to solarium and interest contained and interest payable will apply to acquisitions made - It is axiomatic that honble apex court was not considering question of applicability to acquisition proceedings - Declaration as unconstitutional to extent as indicated therein cannot be construed or held to mean that provisions are held to be applicable to acquisition proceedings - Argument in this regard by learned ASG is totally out of context and misconceived and is therefore rejected - Net result of discussion as made above is that provisions are not available to competent authority constituted in process of acquisition of land and thus it is impermissible for competent authority to make any correction or for that matter to pass any order in nature of correction of an award or for that matter an amended award - Once award has been passed by competent authority competent authority loses any authority to tinker with it in any manner whatsoever - Order accordingly.
JUDGMENT
Avinash G. Gharote, J. - Rule. Rule made returnable forthwith. Heard learned Counsel for the respective parties finally with their consent.
2. The petitioner claims to be the owner of land Gat No. 98/B-1 admeasuring 4470 square meters situated at village Avdhan Taluka and District Dhule. It is contended that the respondent No.1 has undertaken the construction of National Highway No. 6 for widening of existing two lane carriage way to 4/6 lane carriage way configuration for Jalgaon-Maharashtra Gujarat Border (Kms. 441/950 to Kms. 4650/794). It is further contended that a notification u/s. 3(A) of the National Highway Act, 1956 (NH Act, 1956) was issued on 16/12/2015, and notification u/s. 3(D) was published on 14/12/2016, award is declared on 14/08/2017, under which the petitioner was held entitled for compensation to the tune of Rs. 11,88,30,748/-. Payment notice is claimed to have been issued on 20/12/2017 to the petitioner, asking him to remain present on 27/12/2017 in the office of respondent No.1, on which date it is stated that possession was taken. It is further contended that instead of depositing the entire compensation amount to the tune of Rs. 11,88,30,748/-, the respondents have deposited only Rs. 9,04,56,382/- resulting in a shortfall of Rs. 2,83,74,366/-, for which a request letter dated 13/04/2018 was issued by the petitioner to respondent No.1.
3. It is contended that by a letter dated 23/04/2018 respondent No.1, not only turned down the request for payment of the balance amount, but stated that while acquiring the nonagricultural land of the petitioner, the G.R. dated 26/05/2015 providing multiplier factor of 2.00 was used, however, in the subsequent G.R. dated 24/11/2017 the multiplier factor has been reduced to 1.50 for lands which are for residential/commercial and industrial use, as a result of which corrigendum/clarification dated 02/01/2018 was prepared in respect of the award dated 14/08/2017, in view of which the amount the petitioner was entitled to, already stood deposited in his account.
4. It is contended that the respondents have ignored the provisions of section 26 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (Act of 2013). It is further contended that the procedure as laid down in Section 33 of the Act of 2013 has not been followed, as a result of which the corrigendum/clarification dated 02/01/2018 being illegal was required to be set aside, by way of a Writ of Mandamus or any other appropriate relief and the respondents be directed to deposit/transfer the balance amount of compensation to the account of the petitioner with other consequential benefits and interest.
5. There is no dispute about the passing of the award and issuance of the corrigendum/clarification dated 02/01/2018 by the respondents. It is submitted that the Ministry of Road Transport and Highway had taken a decision to apply the First Schedule of the Act of 2013 to the awards made on or after 01/01/2016 for acquisition of lands under the National Highways Act, in light of which the compensation was worked out in accordance with the provisions of the First Schedule of the Act of 2013, while declaring the award on 14/08/2017, during which the factor to be applied for the market value as notified by the Revenue and Forest Department of the Government of Maharashtra in its notification dated 26/05/2015 was applied. It is further submitted that the notification dated 26/05/2015 was amended vide notifications dated 24/04/2017, 29/08/2017 and 24/11/2017, whereby the multiplying factor was declared as one (1) for the urban area where the development plans were prepared as per the provisions of the MRTP Act, 1966 and residential and commercial and industrial zones were proposed in such development plans. It is further submitted that the land in question is included in the draft regional plan for Dhule Region published by the Regional Planning Board on 23/02/201
