Bombay High Court
Shamkumar Manohar Kadam And ... vs The Union Of India And Others on 30 August, 2022
Bench: Mangesh S. Patil, Sandeep V. Marne
909.RA.143.21.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
REVIEW APPLICATION NO.143 OF 2022
IN
WRIT PETITION NO.5049 OF 2019
1. Shamkumar Manohar Kadam,
Age : 47 years, Occu: Agri.,
2. Ravsaheb Nivrutti Shelke
Age : 69 years, Occu: Agri.,
3. Shobha Shitalrao Pawar
Deceased through LR's namely
3-A. Reshma w/o Mahesh Anpat,
Age : years, Occu.
3-B. Seema w/o Dipak Londhe,
Age : years, Occu.
3-C. Mahesh s/o Shitalrao Pawar,
Age: years, Occu.
3-D. Rishikesh s/o Shitalrao Pawar,
Age: years, Occu.
4. Dagadu Narayan Surwase,
Age : 56 years, Occu.
5. Balu Vithoba Lawate
Age: 64 years, Occu. Agri.,
6. Kashinath Madhav Lavate
Age: 57 years, Occu. Agri.,
7. Vitthal Shankar Kulkarni,
Deceased through L.Rs. namely,
7-A. Sindhutai w/o Vitthal Kulkarni,
Age: 77 years, Occu. Household,
7-B. Hemant s/o. Vitthal Kulkarni,
Age: 46 years, Occu.
7-C. Madhura w/o Makarant Godbole,
Age: 54 years, Occu.
7-D Sangita w/o. Sanjay Joshi,
Age: 52 years, Occu.
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909.RA.143.21.odt
7-E. Vininita w/o Ganesh kulkarni
Age: 49 years, Occu.
7-F. Sujata w/o. Shrikant Kulkarni,
Age: 49 years, Occu.
7-G. Manali d/o Shrikant Kulkarni,
Age : 20 years, Occu. Education,
7-H. Sayali d/o. Shrikant Kulkarni,
Age: 16 years, Occu : Education,
Since minor through natural
guardian i.e. Applicant No.7-F,
8. Bhagwat Madhav Lavate
Age : 69 years, Occu. Agri.,
9. Shaukat Imam Patel
Age : 44 years, Occu: Agri.,
10. Balkrushna Ambadas Shelke
Age : 65 years, Occu: Agri.,
11. Vasant Maruti Nalawade,
Deceased through LR/s namely
11-A. Sunil s/o Vasant Nalawade,
Age: 51 years, Occu:
11-B. Sudarshan s/o. Vasant Nalawade,
Age: 45 years, Occu:
11-C. Chandan s/o. Vasant Nalawade
Age: 43 years, Occu:
11-D. Aparna w/o. Vishwanath Gore,
Age: 49 years, Occu:
11-E. Aruna w/o. Dipak Mohite
Age: 47 years, Occu:
12. Bhalchandra Rama Pawar
Age: 67 years, Occu: Agri.,
13. Subhash Vinayak Shinde,
Age: 52 years, Occu: Agri.,
14. Ganesh Kisan Pawar
Age : 47 years, Occu: Agri.,
15. Janabai Shrirang Pawar
Age : 42 years, Occu: Agri.,
16. Arvind Limba Shelake
Age: 69 years, Occu: Agri.,
17. Dilipkumar Abasaheb Patil
Age: 64 years, Occu: Agri.,
18. Tanaji Yeshwant Pawar
Age : 74 years, Occu: Agri.,
19. Anand Changdev Jeve
Age : 54 years, Occu: Agri.,
20. Madhukar Pralhad Nalawade
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909.RA.143.21.odt
Age : 50 years, Occu: Agri.,
21. Sharad Krushnaji Nalawade
Age : 54 years, Occu: Agri.,
All R/o. Village Yedshi,
Tq. & Dist. Osmanabad. ... APPLICANTS
VERSUS
1. Union of India,
through its Secretary,
Ministry of Road Transport & Highways,
New Delhi.
2. Project Director,
Implementation Unit,
National Highway Authority of India,
Plot No.80, Old Santosh Nagar,
Opposite Devika Gas Agency,
Jule, Solapur-413003.
3. Deputy Collector,
Land Acquisition (Competent Authority)
Medium Project No.2, Osmanabad.
4. State of Maharashtra,
through its Principal Secretary,
Public Work Department,
Mantralaya, Mumbai - 32. ... RESPONDENTS
...
Mr. A.N. Nagargoje advocate for the petitioners/applicants.
Mrs. Sudha S. Kulthe for the respondents nos. 1 and 3
Mr. Sagar Varma h/f. Mr. Sagaar Ladda Advocate for respondent No.2.
Ms. Vaishali N. Patil Jadhav AGP for respondent No.4
...
CORAM : MANGESH S. PATIL &
SANDEEP V. MARNE, JJ.
Reserved on : 25.08.2022
Pronounced on : 30.08.2022
JUDGMENT (MANGESH S. PATIL, J.) :
We have heard the learned advocate Mr. Nagargoje for the
applicants, Mrs. S.S. Kulthe for the respondent Nos.1 and 3, Mr. Sagar
909.RA.143.21.odt
Varma holding for Mr. Ladda for respondent No.2 and learned AGP for
respondent No.4,
2. By way of this review the applicants who are the petitioners in
Writ petition No.5049/2019 are seeking review of the order dated
29.04.2019 whereby the petition was disposed of with liberty to them to
take recourse to a remedy provided under sub-section 5 of Section 3-G of
the National Highways Act, 1956.
3. The checkered history which, in our considered view, is
important to be noted is as under:
i. The petitioners' land was acquired for a national highway. An award
was passed under the provisions of Section 3-G(1) of the National Highways
Act, 1956 (hereinafter the Highways Act) on 14.01.2015. Since they were
not satisfied with the award they preferred Writ Petition No.4227/2016 with
following prayer :
" A] For writ of mandamus order of direction in the nature of
mandamus, directing the respondent No.1 to 3 herein to pay the
compensation to the petitioners by applying the multiplier
provided in the Schedule-I of 2013 Act on the amount of
compensation, which is already determined and paid to the
petitioners in pursuance to the award dated 14.1.2015 (Exhibit-A)
within such stipulated period as this Hon'ble High Court may deem
fit and proper."
ii. This Court disposed of the Writ Petition by order date 20.04.2016
which reads as under :
"1] Heard. Rule. Rule made returnable forthwith. Heard finally by
consent of parties.
2] Mr. Nagargoje, learned counsel submits that the award has been
passed on 14.1.2015, in respect of the land owned by the
petitioners which was acquired under the National highways
909.RA.143.21.odt
Act. Learned counsel for the petitioners submits that Section
105 of the Right to Fair Compensation and Transparency in
Land Acquisition and Rehabilitation and Resettlement Act, 2013
has been amended. Learned counsel submits that by virtue of
the said amendment, provisions of the Act of 2013 are made
applicable to the acquisition under the National Highways Act as
and from 1.1.2015. As such, the compensation to be paid to
such acquisition would be computed as per the Act of 2013.
2] We have heard Mr. Nagode and Mr. Manorkar for the National
Highways Authority.
3] It is not disputed that the land of the petitioners has been
acquired under the National Highways Act and the award is
passed on 14.1.2015 as per Section 3(g) of the National
Highways Act. On perusal of the award it is manifest that the
compensation has not been computed as per the Act of 2013. As
the award has been passed after 1.1.2015, compensation even
in respect of acquisition under the National Highways Act has to
be computed as per the Act of 2013. It is submitted that the
amount under the award is already received by the petitioners.
Naturally, the amount already paid will have to be adjusted
while calculating the difference of the amount of compensation
to be paid.
4] In the result, we pass the following order :-
[a] Respondent authority shall re-determine the amount of
compensation payable to the petitioners for their
respective land acquired vide award dated 14.1.2015. As
per the Act of 2013, the amount of difference of the
amount shall be paid to the petitioners, after adjusting
the amount already paid.
[b] The said exercise would be done expeditiously by the
respondents, preferably within six months.
[c] Writ petition is accordingly disposed of. No costs."
iii. Pursuant to such directions the respondents undertook the exercise
and passed another award on 17.06.2017 under Section 3-G(1) of the
Highways Act.
iv. Even with this second award the petitioners were not satisfied and
filed Writ Petition No.5049/2019 with following prayers :
909.RA.143.21.odt
"A] For writ of mandamus order or direction in the nature of
mandamus, directing the respondent no.1 to 3 herein to pay the
compensation to the petitioners for their respective land by
giving effect of Schedule-I of the Right to Fair Compensation
and Transparency in Land Acquisition, Rehabilitation and
Resettlement Act, 2013 by considering the basic rate of
compensation for land as Rs.1737/- per sq. meter, which is
already determined in the Award dated 14.01.2015 alongwith
all consequential benefits.
B] For writ of certiorari order of direction in the nature of
certiorari, calling for the record and proceeding of the notices
dated 31.01.2019 (Exhibit-H Colly) issued by the respondent
no.3 and after examining the legality, validity and propriety
thereof; the notices dated 31.01.2019 (Exhibit-H Colly) issued
by the respondent no.3 may kindly be quashed and set aside.
C] For writ of certiorari order of direction in the nature of
certiorari, calling for the record and proceeding of the Award
dated 17.06.2017 (Exhibit-F) passed by the respondent no.3
and after examining the legality, validity and propriety thereof;
the Award dated 17.06.2017 (Exhibit-F) passed by the
respondent no.3 may kindly be quashed and set aside."
v. By the order dated 27.04.2019 this Court disposed of the Writ petition
No.5049/2019 inter alia observing that remedy to take recourse to the
provision of sub-section 5 of Section 3-G of the Highways Act was available
to them.
vi. The petitioners challenged the order dated 29.04.2019 before the
Supreme Court in Special Leave Petition (Civil) Diary No.8060/2020. The
Supreme Court passed following order on 25.10.2021 :
"The grievance of the petitioners is that the High Court has not
dealt with the basic issue raised by the petitioners that it was not
open to pass successive awards. This contention has been specifically
taken by the petitioners in the writ petition filed before the High
Court.
It is also urged that in another case the High Court had set
aside such award passed in similar circumstances.
909.RA.143.21.odt
In that case, it is appropriate that the petitioners ought to
approach the High Court by way of review petition. We permit the
petitioners to take recourse to remedy of review which need to be
considered by the High Court on its own merits and in accordance
with law.
The High Court shall deal with the review petition without
non-suiting the petitioners on the ground of limitation, considering
the fact that the petitioners had approached this Court against the
impugned judgment by way of special leave petition.
We are informed that one of the petitioners has expired during
the pendency of this special leave petition. It will be open to the legal
representatives of the deceased petitioner to pursue appropriate
remedy before the High Court.
As aforesaid, all contentions available to the petitioners are left
open.
If the review petition is decided against the petitioners, it will
be open to the petitioners to challenge the said decision as well as
the impugned judgment by way of fresh Special Leave Petition before
this Court. This special leave petition is disposed of in the above
terms.
Pending applications, if any, stand disposed of. "
vii. Pursuant to such liberty granted by the Supreme Court the petitioners
have preferred this review.
4. Mr. Nagargoge would submit that the petitioners were vehemently
questioning legality of the second award on the ground that no such power
to pass a second award vests with the respondent No.3. This Court in
catena of judgments have consistently concluded the issue. He would refer
to the decision in the matter of Yasminbegum w/o Bakshulla Khan and Ors.
Vs. The State of Maharashtra and Ors. (WP No.1883/2018 with connected
matters decided on 08.11.2019), Bhupendrasing s/o Sardarsingh Parmar Vs.
The Competent Authority and Ors.; (WP No.5286/2018 decided on
20.12.2019). He would therefore submit that the issue was specifically
raised before this Court in Writ Petition No.5049/2019 but was not
909.RA.143.21.odt
considered while passing the order under review. The Supreme Court
therefore expects this Court to consider that aspect.
5. Per contra, Mr. Varma for the respondent No.2 would
vehemently submit that the petitioners are blowing hot and cold at the same
time. They had challenged the first award and at their request this Court
had issued the directions in Writ Petition No.4227/2016 pursuant to which
the exercise was undertaken second time, resulting in passing of the second
award. He would submit that in all the other matters cited on behalf of the
petitioners such was not the fact situation. The second award has been
passed as per the request of the petitioners and as ordered by this Court and
consequently, the petitioners cannot be allowed to turn around and question
the second award on the ground of its competency. The learned advocate
would submit that the fact regarding such passing of the second award
pursuant to a direction of this Court that too by an order passed in the
petitioners petition was apparently not brought to the notice of the Supreme
Court that is why it appears that it was impressed upon the Supreme Court
that this Court in above mentioned cases has set aside the awards which
were passed second time and the same course should have been followed.
6. Having considered the rival submissions and after noticing all
the aforementioned state of affairs, it needs to be observed at the inception
that the Supreme Court has granted liberty to the petitioners to apply for
review of the order dated 29.04.2019, only on the ground of competence of
the respondent No.3 to pass a second award which jurisdiction does not vest
909.RA.143.21.odt
in him pursuant to Section 33 of the Right to Fair Compensation and
Transparency in Land Acquisition and Rehabilitation and Resettlement Act,
2013 (hereinafter the Land Acquisition Act, 2013). Therefore, according to
us the scope for review is very limited and we are expected to decide the
issue as to the power and jurisdiction of the respondent No.3 to pass the
second award.
7. In the matters of Yasminbegum w/o Bakshulla Khan and
Bhupendrasing s/o Sardarsingh Parmar (supra) this Court has concluded
that there is no power under Section 33 of the Land Acquisition Act, 2013 to
undertake any review of the award passed earlier or even to modify it.
Therefore at the first blush it does appear that the second award suffers the
vice of lack of jurisdiction.
8. However, it is pertinent to note and bear in mind that
admittedly, at the request of the petitioners in Writ Petition No.4227/2016
and as per the order passed by this Court in that matter on 20.04.2016, the
respondent No.3 was called upon to redetermine the amount of
compensation payable to them. Therefore, it is quite evident that the second
award has not been passed by the respondent No.3 on his own motion. He
has apparently exercised the jurisdiction having been called upon to do so
by this Court.
9. Admittedly, neither the petitioners nor the respondents put up
any challenge to the order of this Court passed in Writ Petition
No.4227/2016. This being the state of affairs, wherein the second award
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has been passed pursuant to the directions of this Court in the peculiar
circumstances, the petitioners are not entitled to assail it on the ground of
competence of the authority to pass it, otherwise the latter would have been
blamed even for the contempt.
10. We, therefore, conclude that the only ground on which the
petitioners are entitled to seek a review pursuant to the liberty granted by
the Supreme Court, fails.
11. The Review Application is dismissed.
(SANDEEP V. MARNE, J.) (MANGESH S. PATIL, J.)
habeeb
