Bombay High Court
Sushma Murlidhar Ghadge & Another vs The State Of Maharashtra & Others on 13 December, 2013
Bench: A.S. Oka, S.C. Gupte
ash 1 wp-4121,4123.13-group
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.4121 OF 2013 with WRIT PETITION NO.4122 OF 2013
WRIT PETITION NO.4123 OF 2013 with WRIT PETITION NO.4124 OF 2013
WRIT PETITION NO.4125 OF 2013 with WRIT PETITION NO.4126 OF 2013
WRIT PETITION NO.4127 OF 2013 with WRIT PETITION NO.4128 OF 2013
WRIT PETITION NO.4129 OF 2013 with WRIT PETITION NO.4130 OF 2013
WRIT PETITION NO.5998 OF 2013 with WRIT PETITION NO.5999 OF 2013
WRIT PETITION NO.6000 OF 2013 with WRIT PETITION NO.6001 OF 2013
WRIT PETITION NO.6002 OF 2013 with WRIT PETITION NO.6003 OF 2013
WRIT PETITION NO.6004 OF 2013 with WRIT PETITION NO.6005 OF 2013
WRIT PETITION NO.6006 OF 2013 with WRIT PETITION NO.6007 OF 2013
WRIT PETITION NO.6487 OF 2013 with WRIT PETITION NO.6488 OF 2013
WRIT PETITION NO.6489 OF 2013 with WRIT PETITION NO.6514 OF 2013
WRIT PETITION NO.6515 OF 2013 with WRIT PETITION NO.6516 OF 2013
WRIT PETITION NO.6517 OF 2013 with WRIT PETITION NO.6518 OF 2013
WRIT PETITION NO.6519 OF 2013 with WRIT PETITION NO.7308 OF 2013
WP NO.4121 OF 2013
Sushma Murlidhar Ghadge & Another. .. Petitioners
Vs
The State of Maharashtra & Others. .. Respondents
-
WP NO.4122 OF 2013
Abhiman Pandurang Pandhre. .. Petitioner
Vs
The State of Maharashtra & Others. .. Respondents
-
WP NO.4123 OF 2013
Digambar Devrao Bhosle,
(Since deceased through Lrs)
Lakshman Digambar Bhosle & Others. .. Petitioners
Vs
The State of Maharashtra & Others. .. Respondents
-
ash 2 wp-4121,4123.13-group
WP NO.4124 OF 2013
Muktabai Ramchandra Suryavanshi
(Since deceased through Lrs.)
Nagnath Ramchandra Suryavanshi. .. Petitioner
Vs
The State of Maharashtra & Others. .. Respondents
-
WP NO.4125 OF 2013
Jaya Ankush Aldar. .. Petitioner
Vs
The State of Maharashtra & Others.
ig .. Respondents
-
WP NO.4126 OF 2013
Arjun Krishna Survase. .. Petitioner
Vs
The State of Maharashtra & Others. .. Respondents
-
WP NO.4127 OF 2013
Ambadas Govind Salgar. .. Petitioner
Vs
The State of Maharashtra & Others. .. Respondents
-
WP NO.4128 OF 2013
Maruti Udhhav Bhosle & Anr. .. Petitioners
Vs
The State of Maharashtra & Others. .. Respondents
-
ash 3 wp-4121,4123.13-group
WP NO.4129 OF 2013
Narayan Ganpati Nagre. .. Petitioners
Vs
The State of Maharashtra & Others. .. Respondents
-
WP NO.4130 OF 2013
Nagnath Bhimrao Salgar. .. Petitioner
Vs
The State of Maharashtra & Others. .. Respondents
-
WP NO.5998 OF 2013
Vs
Latif Babu Shaikh. .. Petitioner
The State of Maharashtra & Others. .. Respondents
--
WP NO.5999 OF 2013
Motiram Fatru Shaikh & Anr. .. Petitioners
Vs
The State of Maharashtra & Others. .. Respondents
-
WP NO.6000 OF 2013
Ambadas Tukaram Sawant,
(Since deceased through Lrs.)
Shambhaji Ambadas Sawant (Pawar) & Ors. .. Petitioners
Vs
The State of Maharashtra & Others. .. Respondents
-
WP NO.6001 OF 2013
Changdev Bhimrao Khatal. .. Petitioner
Vs
The State of Maharashtra & Others. .. Respondents
-
ash 4 wp-4121,4123.13-group
WP NO.6002 OF 2013
Pandit Sonaba Pawar. .. Petitioner
Vs
The State of Maharashtra & Others. .. Respondents
--
WP NO.6003 OF 2013
Dattatray Krushnat Survase. .. Petitioner
Vs
The State of Maharashtra & Others. .. Respondents
--
WP NO.6004 OF 2013
Mahadev Sopan Aldar. .. Petitioner
Vs
The State of Maharashtra & Others. .. Respondents
--
WP NO.6005 OF 2013
Bakshubhai Iman Shaikh & Ors. .. Petitioners
Vs
The State of Maharashtra & Others. .. Respondents
--
WP NO.6006 OF 2013
Ganpat Appa Waghmode. .. Petitioner
Vs
The State of Maharashtra & Others. .. Respondents
--
WP NO.6007 OF 2013
Jagganath Dada Sawant. .. Petitioner
Vs
The State of Maharashtra & Others. .. Respondents
--
ash 5 wp-4121,4123.13-group
WP NO.6487 OF 2013
Prabhakar Appa Waghmode. .. Petitioner
Vs
The State of Maharashtra & Others. .. Respondents
--
WP NO.6488 OF 2013
Mahaling Shivmurti Gadgade,
(since deceased through Lrs.)
Sushila Mahaling Gadgade and Another. .. Petitioners
Vs
The State of Maharashtra & Others. .. Respondents
-
WP NO.6489 OF 2013
Bharat Keshav Jawle & Anr. .. Petitioners
Vs
The State of Maharashtra & Others. .. Respondents
-
WP NO.6514 OF 2013
1. Ramjan Manik Shaikh,
(Since decesed through Lrs.)
a. Yunus Ramjan Shaikh & Anr.
2. Saifan Ramjan Shaikh. .. Petitioners
Vs
The State of Maharashtra & Others. .. Respondents
--
WP NO.6515 OF 2013
Vasant Bhagwan Gund. .. Petitioner
Vs
The State of Maharashtra & Others. .. Respondents
--
ash 6 wp-4121,4123.13-group
WP NO.6516 OF 2013
Digambar Babaji Gavli. .. Petitioner
Vs
The State of Maharashtra & Others. .. Respondents
--
WP NO.6517 OF 2013
Kalawati Bhagwan Gund,
(Since deceased through Lrs.)
Vasant Bhagwan Gund. .. Petitioner
Vs
The State of Maharashtra & Others. .. Respondents
--
WP NO.6518 OF 2013
Nagnath Tamanna Dhotre. .. Petitioner
Vs
The State of Maharashtra & Others. .. Respondents
-
WP NO.6519 OF 2013
Padminibai Namdev Bhosle & Others. .. Petitioners
Vs
The State of Maharashtra & Others. .. Respondents
--
WP NO.7308 OF 2013
Gopinath Digambar Patil & Others. .. Petitioners
Vs
The State of Maharashtra & Others. .. Respondents
--
Shri Vineet B. Naik, Senior Advocate along with Shri Tejas Deshmukh
and Shri Ritesh V. Kulkarni and Shri Samrat K. Shinde for the Petitioners
in all the Petitions.
Shri V.G. Gokhale, AGP for Respondent Nos.1 to 3 in all the petitions.
Shri G.S. Hegde along with Shri C.M. Lokesh and Ms. Vaibhavi S. Gole
i/by A.R. Bhole & Co for Respondent Nos.4 and 5 in all the petitions.
-
ash 7 wp-4121,4123.13-group
CORAM : A.S. OKA & S.C. GUPTE, JJ
DATE : 13TH DECEMBER 2013
ORAL JUDGMENT ( PER A.S. OKA, J )
1. On 16th September 2013, this Court directed final disposal
of these Petitions at the admission stage. The facts leading to filing of
these petitions are more or less identical. For the sake of convenience,
we are making a reference to the facts of Writ Petition No.4121 of 2013.
A notice under Sub-section (2) of Section 32 of the Maharashtra
Industrial Development Act, 1961 ( for short "the said Act") was issued
on 16th August 1988. A notice under Sub-section (1) of Section 32 of
the said Act was issued on 27 th March 1989. A notice/order under Sub-
section (2) of Section 33 of the said Act was issued on 1 st September
1989 unilaterally fixing compensation. In Writ Petitions filed by some
of the owners, the notices/orders dated 1 st September 1989 were set
aside and a direction was issued to the State to refer the cases to the
Collector under Sub-section (3) of Section 33 of the said Act.
Ultimately, the notices under Sub-section (3) of Section 33 of the said
Act were issued calling upon the petitioners to remain present on 19 th
February 2001. On 19 th March 2010, again a notice under Sub-section
(3) of Section 33 of the said Act was issued. It is undisputed that the
negotiations were held between the Petitioners in these Petitions and
the State Government on 17th April 2010 when an agreement was
ash 8 wp-4121,4123.13-group
arrived at by which the Petitioners/Claimants agreed to accept total
compensation at the rate of 2,50,000/- ( Rupees Two Lakhs Fifty
Thousand ) per Hectare inclusive of interest from the date on which the
possession was taken over. The present Petitions have been filed for
seeking a writ of mandamus directing the Respondents to immediately
release the amount of compensation as agreed in terms of the
Settlement dated 17th April 2010. Another prayer is for directing the
Respondents to pay interest at the rate of 10% per annum on the
compensation agreed between the parties from 17 th April 2010 till the
date of realization of the amount.
2. There is a common reply filed by Mrs. Shakuntala
Vishwanath Gaikwad, Deputy Collector, Special Land Acquisition Officer
No.1, Solapur, wherein, it is stated that the awards have been made on
22nd May 2013 under Sub-section (5) of Section 33 of the said Act.
Details of the awards have been incorporated in the chart enclosed with
the said affidavit. Learned counsel appearing for the Maharashtra
Industrial Development Corporation ( for short "MIDC") has tendered
across the bar a letter dated 3 rd December 2013 addressed to the Chief
Executive Officer of MIDC by which the State Government has
permitted release of compensation in terms of the awards.
ash 9 wp-4121,4123.13-group
3. Learned senior counsel appearing for the Petitioners
submitted that undisputedly the agreements between the Petitioners
and the State Government reached on 17 th April 2010 under which the
Petitioners agreed to accept total compensation of Rs.2,50,000/- per
hectare. He urged that notwithstanding the orders of this Court, the
awards in terms of the said Agreements were not made and the awards
have been belatedly made on 22 nd May 2013. He pointed out that the
present Petitions have been filed in the month of April 2013. He
invited our attention to the judgment and order dated 18 th November
20091. He relied upon the law laid down by the said decision. He
submitted that in the present cases, there is inordinate delay in passing
the awards from the date of agreements i.e. 17 th April 2010 and
therefore, as held by the Division Bench of this Court, the Petitioners
are entitled to interest at the rate of 10% per annum on the unpaid
amount of compensation payable under the awards from 17 th April
2010 till the date of payment of compensation. He pointed out that the
said decision of this Court has been affirmed by the Apex Court in a
Special Leave Petition filed by the MIDC. He invited our attention to
the various provisions of the said Act and in particular Section 33 of the
said Act. He submitted that Sub-section (3A) of Section 33 of the said
Act starts with a non-obstante clause. He urged that the compensation
ought to have been awarded in terms of the agreements immediately on
1 Writ Petition No.2419 of 2009 (Ashok Appasaheb Sathe & Ors v. The collector, Pune & Ors with
other connected Writ Petitions).
ash 10 wp-4121,4123.13-group
execution of the agreements and in any event, within a reasonable
period from the date of the Agreements. He submitted that in the facts
of these cases, the actual agreements in writing were executed two
months after 17th April 2010 but the agreements contemplated by Sub-
section (3A) of Section 33 of the said Act were reached on 17 th April
2010. He, therefore, urged that there is a delay of more than three
years in passing the awards and that is the reason why the Petitioners
should be compensated by ordering payment of interest.
4. Learned counsel appearing for the MIDC urged that firstly
the agreements contemplated by Sub-section (3A) of Section 33 of the
said Act have to be in writing. Secondly, he contends that on the basis
of the agreements in writing, the awards cannot be mechanically made
and notices have to be issued in terms of Sub-section (4) of Section 33
of the said Act. He invited our attention to the awards made in these
cases. He pointed out that the rate arrived at by way of agreements
was treated as a proposal which was sent for approval of the MIDC and
that the MIDC approved it on 24th August 2011. He submitted that
the procedure contemplated by Sub-section (4) of Section 33 of the
said Act, the Claimants as well as MIDC are entitled to a notice and the
Collector will have to confirm the existence of the agreements before
passing the Awards. He invited our attention to Section 38 of the said
Act. He submitted that the interest is payable in accordance with
ash 11 wp-4121,4123.13-group
Section 38 the said Act at the rate of 4% per annum from the date of
taking over possession till the date of payment of compensation. He
submitted that there is no provision under the said Act for grant of
interest on the compensation till the date of payment. He submitted
that interest cannot be ordered to be paid. In any event, he submitted
that the decision relied upon by the Petitioners of the Division Bench of
this Court is not a binding precedent as the attention of this Court was
not drawn to Section 38 of the said Act. He, therefore, submitted that
the said decision was per incuriam. He submitted that unless there is
an approval of the State Government, the amount of compensation
cannot be disbursed and that the approval of the State Government has
been granted only on 3rd December 2013. The learned AGP reiterated
that interest is payable under the said Act only in accordance with
Section 38 of the said Act and in any case, interest at the rate of 10%
per annum cannot be granted. He submitted that the date of the
agreement will have to be taken as the date on which the written
agreement was executed by and between the parties. He would,
therefore, urge that no interest is payable.
5. We have carefully considered the submissions. It will be
necessary to make a reference to Section 33 of the said Act which reads
thus:-
ash 12 wp-4121,4123.13-group
"33.(1) Where any land is acquired by the State
Government under this Chapter, the State
Government shall pay for such acquisition
compensation the amount of which shall be
determined in accordance with the provisions
of this section.
(2) Where the amount of compensation has been
determined by agreement between the State
Government and the person to be
compensated, it shall be determined in
accordance with such agreement.
(3) Where no such agreement can be reached, the
State Government shall refer the case to the
Collector for determination of the amount of
compensation to be paid for such acquisition as
also the person or persons to whom such
compensation shall be paid.
[Provided that, no compensation exceeding
such amount as the State Government may by
general order specify, to be paid for such
acquisition shall be determined by the Collector
without the previous approval of the State
Government or such officer as the State
Government may appoint in this behalf.]
[(3A) Notwithstanding anything contained in sub-
section (3), if after the case is referred to the
Collector under that sub-section but before he
has finally determined the amount of
compensation, such amount is determined by
agreement between the State Government and
the person to be compensated, the
compensation shall be determined by the
Collector in accordance with such agreement].
(4) Before finally determining the amount of
compensation, the Collector shall give an
opportunity to every person to be compensated
to state his case as to the amount of
compensation.'
[(5) In determining the amount of compensation,
ash 13 wp-4121,4123.13-group
the Collector shall be guided by the provisions
contained in sections 23 and 24 and other
relevant provisions of the Land Acquisition Act,
1894, subject to the modifications that the
references in the said sections 23 and 24 to the
date of the publication of the notification under
section 4, sub-section (J), were references to
the date 4(of the service or publication of the
notice under sub section (2) of section 32 of
this Act in the manner for the time being laid
down under this Act], and the references to the
time or date of the publication of the
declaration under section 6 were references to
the date of the publication of the notice under
Sub-section (l) of section 32 of this Act in the
Official Gazette.].
[Explanation.-For the purposes of this sub-
section the date of the service of a notice under
sub-section (2) of section 32 of this Act shall
before the 8th day of June 1967mean the date
on which the notice is served in the manner
laid down in section 52 of this Act; and on and
after the 8th day of June 1967 the date of the
publication of a notice under the said sub-
section (2) of section 32 shall be the date on
which the notice is published in the Official
Gazette.].
(6) For the purpose of determining the amount of
compensation-
(a) the Collector shall have power to require
any person to deliver. to him such
returns and assessments as he
considers necessary;
(b) the Collector shall also have power to
require any person known or believed
to be interested in the land to deliver
to him a statement containing, as far as
may be practicable, the name of every
other person having any interest in the
land as co-owner, mortgagee, tenant,
or otherwise, and the nature of such
interest, and of the rents and profits (if
ash 14 wp-4121,4123.13-group
any) received or receivable on account
thereof for three years next preceding
the date of the statement.
(7) Every person required to deliver a return,
assessment or statement under sub-section (6)
shall be deemed to be legally bound to do so
within the meaning of section 175 and section
176 of the Indian Penal Code.
(8) The Collector may hear expert witnesses if it be
necessary to do so in any particular case.
(9) The Collector or any officer authorised by him
in this behalf shall be entitled to enter in and
inspect any land which is subject to
proceedings before him.
(10) The Collector shall dispose of every case
referred to him under sub-section (3) for
determination of compensation as expeditiously
as possible and in any case within such time as
may be prescribed by rules.
(11) The Collector shall determine the amount or
cost incurred in any case disposed of by him
under the section, and by what persons and in
what proportions they are to be paid. "
[(12) Where any case is referred to any Collector
under sub-section (3), the State Government
may, at any stage, by order in writing and for
reasons to be recorded therein, transfer it to
any other Collector, and upon such transfer,
unless some special directions are given in the
order, the Collector to whom the case is
transferred may hear and dispose of the case
from the stage at which it was transferred or
the case may be heard and disposed of by him
de novo.]".
6. Sub-section (1) of Section 32 of the said Act provides that
if any land is required for the purposes of development, the State
ash 15 wp-4121,4123.13-group
Government is entitled to acquire the land by publishing a notice in the
official gazette giving necessary particulars. Before publishing a notice
under Sub-section (1) thereof, the State Government is under an
obligation to issue notice calling upon the owner or the person
interested to show cause as to why the land should not be acquired.
Sub-section (4) of Section 32 of the said Act provides that when a
notice under Sub-section (1) is published in the official gazette, from
the date of publication, the land notified therein vests in the State
Government free from all encumbrances. After vesting as aforesaid,
under Sub-section (5) thereof, the State Government is empowered to
issue notice calling upon the person in possession to surrender or
deliver the possession of the said land to the State Government.
7. Now coming to Section 33 of the said Act, Sub-section (2)
thereof provides that amount of compensation can be determined by an
agreement between the State Government and the person to be
compensated. If there is such an agreement, the amount of
compensation shall be determined in accordance with such agreement.
If no such agreement can be reached, under Sub-section (3) of Section
33 of the said Act, the State Government is under an obligation to refer
the case to the Collector for determination of the amount of
compensation to be paid for such acquisition. Proviso to Sub-section
(3) of Section 33 of the said Act makes it clear that, no compensation in
ash 16 wp-4121,4123.13-group
excess of such amount as the State Government may by general order
specify, to be paid for such acquisition shall be determined by the
Collector. If the Collector wants to determine an amount in excess of
the amount specified by the State Government, he is required to obtain
prior approval from the State Government in that behalf. The proviso
to Sub-section (3) will operate only when Sub-section (3) is applicable.
The Sub-section (3) of Section 33 will apply only when there is a failure
to arrive at an Agreement. In the present case, we are concerned with
Sub-section (3A) of Section 33 of the said Act. It provides that even
after the State Government refers the case in accordance with Sub-
section (3) to the Collector for determination of compensation, there
can be an agreement executed between the State Government and the
person to be compensated. If there is such an agreement, the
compensation shall be determined by the Collector in accordance with
the said agreement. Looking to the language of the Sub-section (3A)
which starts with a non-obstante clause, once there is an agreement
between the State Government and the person to be compensated after
the matter is referred to the Collector in accordance with Sub-section
(3) of Section 33 of the said Act, there is no choice for the Collector but
to determine compensation in accordance with such agreement.
Thus, there can be an Agreement between the State Government and
person to be compensated at two stages. The first stage is before
making a reference to the Collector under Sub-section (3) of Section 33
ash 17 wp-4121,4123.13-group
of the said Act. If there is no such Agreement, the State Government is
under an obligation to make a reference to the Collector in accordance
with Sub-section (3) for determination of compensation. Even after
such a reference but before passing an Award under Sub-section (5),
there can be an Agreement between the State Government and the
person to be compensated as regards the compensation on account of
acquisition of the land. In both the cases, it is mandatory that the
compensation shall be paid in accordance with such Agreement.
8. A submission was canvassed that even after execution of
such Agreement which is covered by Sub-section (3A), the provisions of
Sub-section (4) will have to be followed by giving opportunity of being
heard to the persons concerned. We must note here that Sub-section
(4) of Section 33 of the said Act contemplates opportunity to be given
only to the person to be compensated to state his case as to the amount
of compensation. The notice under Sub-section (4) of Section 33 of the
said Act to a person to be compensated is contemplated to enable the
said person to state his case as to the amount of compensation.
Obviously, once there is an agreement governed by Sub-section 3A, the
inquiry contemplated by Sub-section (5) of the said Act is dispensed
with inasmuch as the Collector is under an obligation to determine
compensation in terms of the agreement between the State Government
and the person to be compensated. In case of such agreement
ash 18 wp-4121,4123.13-group
executed before the determination of the compensation in accordance
with Sub-section (5), the prior approval of the State Government is not
contemplated. The prior approval of the State Government is
contemplated only when the Collector determines the compensation in
accordance with Sub-section (3) of Section 33 of the said Act when
there is no agreement reached between the State Government and the
person to be compensated. Therefore, we find that once there is a
legal and valid agreement as contemplated by Sub-section (3A) of
Section 33, the MIDC has no role to play and all that remains to be
done by the Collector is to pass a formal award in terms of the
agreement.
9. At this stage, we turn to the awards made in the present
cases as an argument is canvassed that the Collector issued notice under
Sub-section (4) of Section 33 after the Agreement. Perusal of Paragraph
4 of the awards shows that after the matter was referred to the
Collector, the affected persons applied for negotiations. Thereafter, a
notice under Sub-section (4) of Section 33 of the said Act was issued. It
is true that there is a reference in the awards to the grant of approval
to the proposal to pay compensation at Rs.2,50,000/- per Hectare by
the MIDC but according to us, the said approval is irrelevant as such
approval for compensation payable in terms of Agreements is not
contemplated by the scheme of Section 33 of the said Act.
ash 19 wp-4121,4123.13-group
10. Therefore, once there is a lawful agreement contemplated
by Sub-section (3A) of Section 33 of the said Act, the Collector is under
an obligation to make an award directing payment of compensation in
terms of the agreement. It is obvious that such award has to be made
expeditiously and atleast within a reasonable time from the date on
which the Agreement is reached. On this aspect, the scheme of the
said Act is completely different from the Land Acquisition Act, 1894. In
view of Sub-section (1) of Section 32 of the said Act, on the basis of a
notice published in Government Gazette, there is a vesting of the land
in the State Government. Under the provisions of the Land Acquisition
Act, 1894, vesting can be in terms of Section 16 when the possession
of the acquired land is taken over only after passing of the Award under
Section 11 and only after the compensation is offered in terms of the
Award. Only in exceptional cases, when Section 17 is invoked, the
possession can be taken over of the acquired land even before an Award
is made. But, in such a case, before the possession is taken, 80% of the
estimated compensation has to be offered to the owner or the person
interested. In case of acquisition under the said Act, the owner or
person interested is divested of his rights in respect of the acquired land
immediately on publication of a notice under Sub-section (1) of Section
32 of the said Act in Gazette.
ash 20 wp-4121,4123.13-group
11. There is a second aspect which is more important. Once
there is an award made in accordance with the agreement under Sub-
section (3A) of Section 33 of the said Act, the Claimant or the person to
be compensated is deprived of his remedy under Section 34 of the said
Act of making an application for Reference to the Court for claiming
enhancement in the compensation. The reason being that once the
compensation is determined in terms of the agreement under Sub-
section (3A), the person to be compensated cannot be said to be a
person aggrieved by the decision of the Collector as the compensation is
determined in accordance with the agreement.
12. Coming back to the facts of the cases in hands, it is
undisputed that the negotiations were concluded on 17 th April 2010
when the rate of Rs.2,50,000/- per Hectare was agreed. The awards
ought to have been made in terms of the agreement within a reasonable
time. It is an admitted position that the agreements reached on 17 th
April 2010 were executed in writing two months after 17 th April 2010.
There is an inordinate delay in making awards in terms of the
settlement as the awards were belatedly made on 22 nd May 2013.
When the agreements were arrived at on 17 th April 2010, by no stretch
of imagination, it can be said that the awards made three years
thereafter were made within a reasonable time. As we have held
earlier, once there is an agreement contemplated under Sub-section
ash 21 wp-4121,4123.13-group
(3A) of Section 33 of the said Act, nothing further is required to be
done by the Collector and he has to grant compensation in terms of the
agreement. In the cases in hands, this formal process has taken a long
period of more than three years. We must note here that the vesting
of the acquired lands in the cases in hands is of the year 1989. The
relevant date for determination of the compensation is 16 th August 1988
as stated in the Awards.
13.
Now we deal with the arguments based on Section 38 of
the said Act. Section 38 applies to cases where amount of
compensation is not paid or deposited before the possession of the
acquired land is taken over in accordance with Sub-section (5) or (6)
of Section 32 of the said Act. In such a case, there is a provision to
compensate the person to be compensated by paying interest at the rate
of 4% per annum. The Petitioners are not seeking interest under the
provisions of the said Act. Their contention is that after having agreed
to accept a lumpsum amount by way of compensation, for a period of
more than three years, the compensation was not paid. This has to be
understood in the context of the fact that the vesting relates back to the
year 1989. Moreover, the agreements in writing which are executed
record that a lumpsum compensation of Rs.2,50,000/- per Hectare will
include interest from the date on which the possession was taken till the
date of the agreements. Going by the submissions canvassed by the
ash 22 wp-4121,4123.13-group
learned counsel appearing for the MIDC and the learned AGP, even in
terms of Section 38 of the said Act, the interest at the rate of 4% per
annum will be payable from the date of agreements i.e. 17 th April 2010,
till the date on which the compensation is paid to the Claimants as the
agreements provide that the interest only upto the date of agreements is
included in the agreed amount.
14. In the present cases, the Petitioners have taken recourse to
a public law remedy under Article 226 of the Constitution of India.
The Petitioners have suffered serious prejudice. They solemnly agreed
to accept the compensation at a particular rate way back on 17 th April
2010, obviously with the hope that they will receive the compensation
within a reasonable time. But they were deprived of the same for a
period of more than three years. By entering into an agreement, they
forfeited their right to apply for enhancement of compensation as per
Section 34 of the said Act. As held by the Division Bench in the
decision relied upon by learned senior counsel appearing for the
Petitioners, the Petitioners deserve to be compensated on account of
inaction on the part of the Collector in complying with the mandatory
provisions under Sub-section (3A) of Section 33 of the said Act under
which he was under an obligation to make an award within a
reasonable time from the date of the agreement. Thus, the Petitioners
who were admittedly held to be entitled to receive compensation have
ash 23 wp-4121,4123.13-group
lost their title to the acquired land in the year 1989. With the
legitimate expectation of receiving compensation within a reasonable
time, they entered into agreements on 17 th April 2010. They agreed to
accept a lumpsum compensation at the agreed rate which was inclusive
of interest under Section 38 of the said Act. In the bargain, they
forfeited their right to apply for enhancement under Section 34 of the
said Act.
15.
In the facts of these cases, we find that the agreements in
writing were formally executed two months after 17 th April 2010 and in
some cases, the agreements were executed on 29 th September 2010.
The written agreements contain a specific recital that the agreements
were infact arrived at on 17 th April 2010. Therefore, undisputed
position which emerges is that the concluded agreements were reached
on 17th April 2010. As a reasonable time was available to the Collector
from 17th April 2010 to make awards, in the facts of these cases, we
propose to grant interest from the dates on which the agreements were
executed in writing.
16. Therefore, in exercise of powers under Article 226 of the
Constitution of India, this is a fit case to direct payment of interest on
the unpaid amount of compensation from the respective dates of the
written agreements. The question is what should be the rate of
ash 24 wp-4121,4123.13-group
interest. The interest has to be reasonable, but it must adequately
compensate the Petitioner for the delay. Therefore, we are of the view
that the interest will be payable at par with maximum rate of interest
paid by the State Bank of India on the fixed deposits as of 2010. In the
year 2010, rate of interest of the State Bank of India on the fixed
deposits for a period of 3 to 5 years was 8.25% per annum. We propose
to grant three months' time to the Respondents to pay compensation to
the Petitioners/Claimants together with interest as stated above.
17. We must note here that in Writ Petition Nos.4125 of 2013,
4126 of 2013 and 4130 of 2013, the compensation amount has been
already disbursed and, therefore, in these three Writ Petitions, a
direction will have to be given only for payment of interest till the date
of payment of compensation i.e. 24th January 2013
18. Hence, we dispose of the Writ Petitions by passing the
following order:
ORDER :
(a) We direct the Respondents to pay compensation to
the Petitioners/Claimants in terms of the awards
dated 22nd May 2013 within a period of three
months from today;
ash 25 wp-4121,4123.13-group
(b) The amount of compensation shall carry interest at
the rate of 8.25% per annum from the respective
dates on which the Petitioners have executed the
agreements in writing with the State Government
till the actual date of payment of compensation to
the Petitioners;
(c) We make it clear that the aforesaid directions will
apply to all the Writ Petitions except the Writ
Petition Nos.4125, 4126 and 4130 of 2013 and in
these Writ Petitions, interest will be payable on
above terms upto the date on which the
compensation has been paid to the Petitioners,
which is 24th January 2013;
(d) There will be no orders as to costs;
(e) Considering the fact that the Petitioners have been
deprived of the compensation for a long time, we
expect that the principal amount of compensation
shall be released to the Petitioners as expeditiously
as possible without waiting for expiry of period of
three months;
(f) The Petitions are disposed of on above terms.
(S.C. GUPTE, J) ( A.S. OKA, J )
