Bombay High Court
Ramesh Narayan Patil And Ors vs State Of Maharashtra Through The ... on 20 December, 2016
Bench: Shantanu S. Kemkar
wp-1074-2015
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.1074 OF 2015
WITH
WRIT PETITION NO.1075 OF 2015
Ramesh Narayan Patil and Others ...Petitioners
vs.
The State of Maharashtra and Others ...Respondents
Mr. Milind Sathe, Senior Advocate a/w. Mr. Amit Karkhanis, Mr.
Bhushan Deshmukh and Ms. Suparna Holamagi i/b. M/s. Kay Legal &
Associates LLP, for the Petitioners.
Ms. Nisha Mehra, AGP for Respondent Nos. 1 to 3.
Mr. Ram Apte, Senior Advocate a/w. Mr. Ajay Khaire and Mr. Roop
Basin, for Respondent Nos. 4 and 5.
ORDER RESERVED ON : 14th DECEMBER, 2016
ORDER PRONOUNCED ON : 20th DECEMBER, 2016
CORAM : SHANTANU KEMKAR &
PRAKASH NAIK, JJ.
ORAL JUDGMENT (Per Shantanu Kemkar, J.)
. With the consent of the parties, the matter is finally heard
and disposed of.
2. This judgment will dispose of both the Writ Petitions. For
the sake of convenience, facts are taken from Writ Petition No. 1074
of 2015.
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3. Through this Petition filed under Article 226 of the
Constitution of India, the Petitioners who are claiming to be the legal
heirs of late Narayan Aditwar Patil who was the owner of the land
bearing Gat No. 91/1 admeasuring about 3.25 Acres equivalent to
14670 sq. mtrs. situated at Talavali village, Taluka and District Thane
within the municipal limits of Navi Mumbai Municipal Corporation
are seeking declaration to the effect that the acquisition proceedings
in respect of the said land, resulting in the award dated 31 st August,
1984 deemed to have lapsed in view of Section 24 of the Right to Fair
Compensation and Transparency in Land Acquisition, Rehabilitation
and Resettlement Act, 2013 (for short "Act of 2013").
4. In the Writ Petition through the Petitioners have raised a
ground that the physical possession of the said land is still with them
and on that ground in view of Section 24(2) of the Act of 2013, the
acquisition proceeding deemed to have lapsed but during the course
of arguments, learned Senior Counsel for the Petitioners has
submitted that the Petitioners are not pressing this ground. In the
circumstances, we are not dealing with the said ground.
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5. The other ground of the Petitioners which has been
pressed is that the Special Land Acquisition Officer /Respondent No. 3
had passed the award on 31 st August, 1984 but the compensation
amount determined in the award has not been paid either to the
original owner or to them till date. In the circumstances the
acquisition proceeding deserves to be declared to have deemed to be
lapsed under Section 24(2) of the Act of 2013.
6. In support of his contention, that since the compensation
amount as per the award has not been paid, the acquisition
proceeding are deemed to have been lapsed, the learned Senior
Counsel for the Petitioners has placed reliance on Section 24 of the
Act of 2013 as also on the judgment passed by the Hon'ble Supreme
Court in the case of Pune Municipal Corporation and Another vs.
Harakchand Misirimal Solanki and Others 1 .
7. The Respondents-State as also the Respondent- Municipal
Corporation (for short "the Corporation") have filed their respective
reply.
1 (2014) 3 Supreme Court Cases 183.
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8. A preliminary objection has been raised by the learned
Senior Counsel for the Corporation that the Petitioners are not legal
heirs of the original owner and therefore the Petition at their instance
is not maintainable. Replying this learned Senior Counsel for the
Petitioners argued that in the affidavit filed by the Petitioners, they
have made a categorical statement that they are legal heirs of the
original land owner late Narayan Aditwar Patil. The Petitioners have
also filed copy of the ration card showing their names with the
original land lord Narayan Aditwar Patil and a certificate issued by
the Talavali Village Gramastha Mandal stating that the Petitioners are
the legal heirs of Narayan Aditwar Patil. Having considered the
affidavit and the documents, we are of the view that preliminary
objection raised at the instance of the Corporation is not tenable.
Hence rejected.
9. Coming to the merits of the matter, we find that in the
reply filed by the Corporation, the following statement has been made
in regard to payment of compensation amount :-
I submit that the Collector's office/SLAO office was always
willing and ready to pay compensation to Narayan Aditwar Patil.
However, Shri Narayan Patil refused to accept the compensation
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which was offered to him and decided to challenge the said
acquisition proceedings. Thus the compensation amount with respect
to the present land was deposited in the Government Revenue
Account, which was maintained solely for this purpose, on 29 th
September, 1986. Hereto annexed and marked as Annexure 2 is a
copy of the receipt dated 29 th September, 1986 which clearly shows
that the said compensation was deposited in the Govt. account.
10. The Respondents-State in para 3 of its affidavit in reply
made the following statement in regard to payment of compensation
amount:-
3. At the outset, it is submitted that the Petitioner has
come to this Court with unclean hands. It is not true that the
physical possession of the suit premises was never taken. That
there is panchanama dated 6th June, 1986 which was drawn
up and physical possession of the acquired land has been
handed over to authorities of CIDCO on the same date. That
interns of possession been taken over by CIDCO the structure
standing thereon have become unauthorized, illegal and
encroachment and therefore CIDCO has rightly issued notice
under Section 53 of MRTP Act. The same notices were
challenged by the Petitioner in Civil Court at Thane in Civil
Suit No. 666 of 2012. That the Petitioner are the trespasser
or holder of unauthorized structure. Further it is not true
that compensation was not offered to the Petitioner. That
award under Section 11 of the Land Acquisition Act was
declared on 31st May, 1986 and the Petitioner's father
Narayan Aditwar Patil was served the notice under Section
12 of the said Act on 31st May, 1986 but the said notice was
duly refused by him. Further the Petitioner on his own did
not receive the compensation of Rs. 26,690.15/- and
therefore the said amount was deposited in the Government
Revenue Account on 29th September, 1986 as per the practice
prevalent.
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Similarly in para 7 of the affidavit in reply, a categorical
statement has been made by Respondents-State which reads as under:
"Thus the compensation amount of Rs. 26,690.15/-
with respect to the present land in question, was deposited in
the Government Revenue Account, which was maintained
solely for this purpose, on 29th September, 1986"
11. Learned Senior Counsel for the Respondents-Corporation
has strenuously urged that in the reply the Corporation has taken a
specific stand that though the Collector's office/SLAO was ready and
willing to pay the compensation to the land owner but he himself
refused the compensation which was offered to him and decided to
challenge the said acquisition proceedings. In the circumstances,
according to learned Senior Counsel for the Corporation, the land
owner having refused to accept the amount of compensation, the
benefit of Section 24 of the Act of 2013 will not be available to the
Petitioners.
12. We have considered the rival contentions of the learned
counsel for the parties and perused the record.
13. The only question which is required to be considered is as
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to whether the offer by the Special Land Acquisition Officer to pay
compensation amount to the land owner and denial to receive the
same by him and thereafter deposit of it by the SLAO in the
Government Revenue Account can be treated to be compensation
"paid" within the meaning of Section 24(2) of the Act of 2013.
14. In order to decide the said question, it is necessary to look
into the relevant provisions of Act of 2013 and the land Acquisition
Act, 1894 (for short "the Act of 1894").
15. Section 24 of the Act of 2013 reads thus:-
24. Land acquisition process under Act No. 1 of 1984
shall be deemed to have lapsed in certain cases -
(1) Notwithstanding anything contained in this Act, in any
case of land acquisition proceedings initiated under the Land
Acquisition Act, 1894 (1 of 1894).
(a) where no award under Section 11 of the said Land
Acquisition Act has been made, then, all provisions of this Act
relating to the determination of compensation shall apply; or
(b) where an award under said Section 11 has been
made, then such proceeding shall continue under the
provisions of the said Land Acquisition Act, as if the said Act
has not been repealed.
(2) Notwithstanding anything contained in sub-section
(1), in case of land acquisition proceedings initiated under
the Land Acquisition Act, 1894 where an award under the
said Section 11 has been made five years or more prior to the
commencement of this Act but the physical possession of the
land has not been taken or the compensation has not been
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paid the said proceedings shall be deemed to have lapsed and
the appropriate Government, if it so chooses, shall initiate the
proceedings of such land acquisition afresh in accordance
with the provisions of this Act.
Provided that where an award has been made and
compensation in respect of a majority of landholdings has not
been deposited in the account of the beneficiaries, then, all
beneficiaries specified in the notification for acquisition under
Section 4 of the said Land Acquisition Act, shall be entitled to
compensation in accordance with the provisions of this Act."
16. Section 31 of the Act of 1894 reads as under:-
31. Payment of compensation or deposit of same in
Court -
(1) On making an award under Section 11, the Collector
shall tender payment of the compensation awarded by him to
the persons interested entitled thereto according to the
award, and shall pay it to them unless prevented by some one
or more of the contingencies mentioned in the next sub-
section.
(2) If they shall not consent to receive it, or if there be no
person competent to alienate the land, or if there be any
dispute as to the title to receive the compensation or as to the
apportionment of it, the Collector shall deposit the amount of
the compensation in the Court to which a reference under
Section 18 would be submitted."
17. The aforesaid provisions have been considered by the
Supreme Court in the case of Pune Municipal Corporation (supra).
The Supreme Court taking note of the aforesaid provisions in almost
identical circumstances after recording stand of Pune Municipal
Corporation in para 7, 17 to 20 of judgment had observed as under :
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7. "Section 24(2) begins with non obstante clause. This
provision has overriding effect over Section 24(1). Section
24(2) enacts that in relation to the land acquisition
proceedings initiated under 1894 Act, where an award has
been made five years or more prior to the commencement of
the 2013 Act and either of the two contingencies is satisfied
namely (i) physical possession of the land has not been taken
or (ii) the compensation has not been paid, such acquisition
proceedings shall be deemed to have lapsed. On the lapse of
such acquisition proceedings, if the appropriate Government
still chooses to acquire the land which was the subject matter
of acquisition under the 1894 Act then it has to initiate the
proceedings afresh under the 2013 Act. The proviso appended
to Section 24(2) deals with a situation where in respect of
the acquisition initiated under 1894 Act an award has been
made & compensation in respect of majority of land holdings
has not been deposited in the account of beneficiaries then
all the beneficiaries specified in Section 4 notification become
entitled to compensation under 2013 Act".
17. While enacting Section 24(2), Parliament definitely
had in its view Section 31 of the 1894 Act. From that one
thing is clear that it did not intend to equate the word "paid"
to "offered" or "tendered". But at the same time, we do not
think that by use of the word "paid", Parliament intended
receipt of compensation by the landowners/persons
interested. In our view, it is not appropriate to give a literal
construction to the expression "paid" used in this sub-section
(sub-section (2) of Section 24). If a literal construction were
to be given, then it would amount to ignoring procedure,
mode and manner of deposit provided in Section 31(2) of the
1894 Act in the event of happening of any of the
contingencies contemplated therein which may prevent the
Collector from making actual payment of compensation. We
are of the view, therefore, that for the purposes of Section
24(2), the compensation shall be regarded as "paid" if the
compensation has been offered to the person interested and
such compensation has been deposited in the court where
reference under Section 18 can be made on happening of any
of the contingencies contemplated under Section 31(2) of the
1894 Act. In other words, the compensation may be said to
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have been "paid" within the meaning of Section 24(2) when
the Collector (or for that matter Land Acquisition Officer)
has discharged his obligation and deposited the amount of
compensation in court and made that amount available to
the interested person to be dealt with as provided in Sections
32 and 33.
18. 1894 Act being an expropriatory legislation has to be
strictly followed. The procedure, mode and manner for
payment of compensation are prescribed in Part V (Sections
31-34) of the 1894 Act. The Collector, with regard to the
payment of compensation, can only act in the manner so
provided. It is settled proposition of law (classic statement of
Lord Roche in Nazir Ahmad vs. King Emperor,
MANU/PR/0020/1936, that where a power is given to do a
certain thing in a certain way, the thing must be done in that
way or not at all. Other methods of performance are
necessarily forbidden.
19. Now, this is admitted position that award was made
on 31.01.2008. Notices were issued to the landowners to
receive the compensation and since they did not receive the
compensation, the amount (Rs.27 crores) was deposited in
the government treasury. Can it be said that deposit of the
amount of compensation in the government treasury is
equivalent to the amount of compensation paid to the
landowners/persons interested? We do not think so. In a
comparatively recent decision, this Court in Agnelo
Santimano Fernandes and Ors. vs. State of Goa and Another,
MANU/SC/0552/2011, relying upon the earlier decision in
Prem Nath Kapur vs. National Fertilizers Corpn. of India
Limited, MANU/SC/1097/1996 has held that the deposit of
the amount of the compensation in the state's revenue
account is of no avail and the liability of the state to pay
interest subsists till the amount has not been deposited in
court.
20. From the above, it is clear that the award pertaining to
the subject land has been made by the Special Land
Acquisition Officer more than five years prior to the
commencement of the 2013 Act. It is also admitted position
that compensation so awarded has neither been paid to the
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landowners/persons interested nor deposited in the court. The
deposit of compensation amount in the government treasury
is of no avail and cannot be held to be equivalent to
compensation paid to the landowners/persons interested. We
have, therefore, no hesitation in holding that the subject land
acquisition proceedings shall be deemed to have lapsed under
Section 24(2) of the 2013 Act.
18. Keeping in view the aforesaid judgment of the Supreme
Court and Section 31(2) of the Act of 1894 which provides that if the
amount is not consented to be received, the amount of compensation
is required to be deposited in the Court to which a reference under
Section 18 would be submitted, the contention of the learned Senior
counsel for the Corporation that the deposit of the compensation
amount in the Government Revenue Account on refusal of the owner
to receive the amount would debar the Petitioners to get the benefit
of Section 24(2) of the Act of 2013 cannot be accepted. If the amount
of compensation was offered to the land owner and he did not give
consent to receive, it was the duty of the SLAO to have deposited the
amount of compensation in the Court to which the reference under
Section 18 would be submitted. The SLAO having not done so, in our
considered view the Petitioners are entitled to get the benefit of
Section 24(2) of the Act of 2013.
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19. As a result, we allow both the Petitions and hold that the
subject land acquisition proceedings deemed to have lapsed under
Section 24(2) of the Act of 2013. Consequently, the actual physical
possession of the subject land is ordered to be restored to the
Petitioners.
20. No orders as to the costs.
(PRAKASH NAIK, J.) (SHANTANU KEMKAR, J.)
21. At this stage learned counsel appearing for Respondent
Nos. 4 and 5 has prayed for stay of the operation of the order. Having
considered the submissions, we find no ground to stay the operation
of the order passed by this Court today. The said prayer is rejected.
(PRAKASH NAIK, J.) (SHANTANU KEMKAR, J.)
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