Bombay High Court

Raosaheb Udaji Rathod And Another vs The State Of Maharashtra Through ... on 14 December, 2022

Bench: Mangesh S. Patil, Y. G. Khobragade

                                                               WP-7121-2022.odt



           IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                      BENCH AT AURANGABAD

                       WRIT PETITION NO. 7121 OF 2022

 1]       Raosaheb s/o Udaji Rathod
          Age: 62 years, Occu. Agril. & Retired

 2]       Kachru s/o Aalu Rathod
          Age: 63 years, Occu. Agril & Retired,

          Both R/o Asardoha (Dobi Tanda)
          Tq. Dharur, District Beed                   ... Petitioners

                  VERSUS

 1]       The State of Maharashtra
          Through the Secretary,
          Planning Department
          (Employees Guarantee Scheme)
          Mantralaya, Mumbai-32

 2]       The Divisional Commissioner,
          Divisional Commissioner Office,
          Aurangabad, District Aurangabad

 3]       The District Collector,
          Collectorate, Beed

 4]       The Sub Divisional Officer or
          Land Acquisition Officer, Majalgaon,
          Tq. Majalgaon, District Beed

 5]       The Executive Engineer
          Minor Irrigation Division,
          Zilla Parishad, Beed,
          District Beed                               ... Respondents




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                                 ....
Mr. Dnyaneshwar A. Bide, Advocate for petitioner
Mr. A. R. Kale, AGP for respondent Nos. 1 to 4
Mr. Ashok Tapse, Advocate h/f Mr. P. D. Suryawanshi, Advocate for
respondent No.5
                                 ....

                               CORAM : MANGESH S. PATIL AND
                                       Y. G. KHOBRAGADE, JJ.

RESERVED ON : 05.12.2022 PRONOUNCED ON : 14.12.2022

JUDGMENT (Per Y. G. Khobragade, J.) :-

1. Rule. Rule made returnable forthwith. With the consent of

parties, the petition is taken up for final disposal at the admission

stage.

2. Heard the learned counsel for the petitioner, the learned

AGP for respondent Nos. 1 to 4 and the learned counsel for

respondent No.5.

3. By way of present petition under Article 226 of the

Constitution of India, the petitioners are praying quashing of award

No.2018/SDO/LNQ/SR-13/2006, dated 13.08.2019 passed by

respondent No.4 - Sub-Divisional Officer, Majalgaon, whereby it has

decided to go for execution of sale-deeds through private negotiations

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in respect of acquired land bearing Gut No.116 admeasuring 4

Hectare 75 Are along with structure and fruit bearing trees for

construction of percolation tank No.8, Asardoha, Taluka Dharur,

District Beed. The petitioners further pray to quash and set aside

proposals dated 14.06.2016 and 31.08.2016 under which direct sale-

deed through private negotiations was directed and consent

agreement dated 15.02.2019 was executed. They have further prayed

for issuance of directions against the respondents to initiate

acquisition proceeding as per the provisions of Right to Fair

Compensation and Transparency in Land Acquisition, Rehabilitation

and Resettlement Act, 2013 (for short, "the Act of 2013").

4. The learned counsel appearing for the petitioners

submitted that the petitioners are the owners of land Gut No.116

admeasuring 4 Hectare 75 Are, situated at Asardoha, Taluka Dharur,

District Beed and the respondent No.5 acquired said land and taken

possession in the year 2004-2005 itself under notification dated

01.03.2004 but it was lapsed. Therefore, again on 01.03.2008 the

respondents initiated fresh land acquisition proceeding and the

respondent No.4 called for joint measurement vide communication

dated 18.05.2012. Accordingly, the joint measurement of petitioners

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land was conducted and during inspection 90 fruit bearing trees of

custard apple (Sitaphal) and 14 stone bands were found and joint

measurement report was submitted. However, again on 13.04.2016,

the respondent No.5 visited the spot and prepared spot inspection

panchanama, but did not proceed further.

5. The learned counsel appearing for the petitioners

submitted that respondent No.5 could have submitted proposal of

land acquisition as per new enactment i.e. the Act of 2013 which

came in force w.e.f. 01.01.2014, but no such proceeding was initiated

and submitted proposal for direct purchase method through private

negotiation, on 14.06.2016. The proposal through private negotiation

was refused by respondent No.4, but again on 31.08.2018, the

respondent No.5 submitted proposal for consent award through direct

sale-deed by private negotiation which is contrary to the Government

Resolution dated 12.05.2015 issued by the State Government,

whereby guidelines have been framed for direct purchase through

private negotiation.

6. The learned counsel for the petitioners submits that as

per the new enactment of 2013, the Collector submitted proposal for

fixation of rates of acquired land with Town Planning Authority and

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rates of acquired land @ Rs.8,224/- per Are fixed but the Sub-

Divisional Officer declared the draft consent award. However,

respondent No.4, without any legal base, reduced rates of

compensation from Rs.8224/- per Are to Rs.5,412/- per Are, though it

was the statutory duty of respondent No.4 to consider rates fixed by

the District Level committee which requires multiplication and could

have applied multiplier as per the provisions of Sections 26 to 30 of

the Act of 2013. However, the respondent No.4 arbitrarily reduced

fixed rates of acquired land and declared the consent award and

directed execution of sale-deed/consent letter dated 15.02.2019

through private negotiation in favour of respondent No.5, but, again

on 20.06.2019, the respondent No.5 was directed to draw

panchanama. According to the learned counsel for the petitioner, the

respondent No.5 drew panchanama on 02.07.2019 and described

about actual acquisition of petitioners land for construction of

percolation tank No.8 and though proposal for allocation of fund was

forwarded by the respondent No.2 - Divisional Commissioner vide its

communication dated 26.08.2019 to the Collector, but instead of

allocation of fund, on 12.10.2021, the Divisional Commissioner held

that if the award under the provisions of the Act of 2013 is passed,

then the proposal needed to be submitted for amount of

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Rs.03,32,97,840/-. However, said proposal for direct purchase

through private negotiation by consent award was already obtained

from the petitioners. Therefore, the proposal for allocation of fund of

Rs.87,87,500/- was submitted instead of Rs.03,32,97,840/-, which is

without any basis and the respondents reduced the compensation of

petitioners' acquired land. Therefore, the consent award dated

13.08.2019 passed by the respondent No.4 is illegal, bad in law, so

also, the proposal dated 14.06.2016 and 31.08.2016 submitted by the

respondent No.5 for direct purchase through private negotiations

from the petitioners, is contrary to the provisions of the Act of 2013

and the consent letter dated 15.02.1999 through private negotiation,

needs to be quashed and set aside.

7. The learned counsel appearing for the petitioners

submitted that the Government Resolutions dated 12.05.2015,

30.09.2015 and 25.01.2017 are contrary to the provisions of the Act

of 2013 on the ground that it does not provide for direct purchase

through the private negotiation so also while fixation of price of

acquired land, the acquiring body failed to consider standing fruit

bearing trees, stone bands. Therefore, the entire land acquisition

proceeding and consent deed dated 15.02.2019 are liable to be

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quashed and set aside and to issue directions to the respondents to

initiate acquisition proceeding under the provisions of the Act of

2013.

8. In support of these submissions, the learned counsel

appearing for the petitioners has placed reliance on the judgment

dated 09.12.2021 passed by the Division Bench of this Court in Writ

Petition No. 2806 of 2020, wherein it has been held that Section 63

bars the Civil Court from entertaining disputes relating to land

acquisition in respect of which the Collector or the Authority is

empowered by or under the said act. The dispute relating to the land

acquisition is essentially the dispute as regards the right of the land

owners to have fair compensation, apportionment of shares and the

measurement of the lands.

9. The learned counsel appearing for the petitioners further

placed reliance on the case of Tukaram Kana Joshi and others vs.

Maharashtra Industrial Development Corporation - (2013) 1 SCC

353, wherein the Hon'ble Apex Court held that the right to property is

now considered to be not only a constitutional or the statutory right

but also a human right. Though, it is not a basic feature of the

Constitution or a fundamental right.

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10. The respondent No.4 - Sub Divisional Officer has filed its

reply affidavit and countered the claim of the petitioners. The learned

AGP submitted that consent award of acquired land of the petitioners

was prepared on 13.08.2019 as the petitioners gave their consent for

award as per the guidelines of Government Resolution dated

12.05.2012, 30.09.2015 and 25.01.2017 and the petitioners executed

bond on 05.02.2019, so also, the rate of acquired land ascertained as

per ready reckoner provided under circular dated 30.11.2018 with

undertaking that they will not approach any Court for further

compensation. Accordingly, on 31.03.2022, the compensation from

planning department was received and letter was issued to the Circle

Officer and Talathi to execute sale-deed in the name of Government.

However, the Talathi submitted a report on 01.09.2022 stating that

the petitioners have declined to execute sale-deed though they

consented and shown willingness to accept compensation as per

ready reckoner rate. Therefore, now the petitioners cannot refuse to

execute sale-deeds, hence, prayed for dismissal of the petition.

11. Having regard to the submissions canvassed on behalf of

both the sides, we have gone through the record. Since the petitioners

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have claimed that the respondents - Acquiring Body acquired their

land for the public project i.e. construction of percolation tank, but no

compensation has been paid and though the Town Planning Authority

determined the price of acquired land, but the respondent No.2 -

Divisional Commissioner determined very low price and the

petitioners were directed to execute consent sale-deed by private

negotiation. However, the petitioners have refused to accept low

compensation under this circumstance question arises as to whether

there is previty of contract between the petitioners and the

respondents.

12. As per Section 2(d) of the Indian Contract Act, 1872.

"Consideration" is the most important element of any contract.

Consideration is regarded as the foundation of every contract which

forms the basis of it. In case in hand, it is not in dispute that on

01.03.2004, the respondents initiated land acquisition proceeding

under the provisions of the Land Acquisition Act, 1894 and acquired

the land of the petitioners land bearing Gut No.116, admeasuring 4

Hectare 75 Are along with fruits bearing trees of Custard apple

(Sitaphal) for construction of percolation tank No.8 at village

Asardoha, Taluka Dharur, District Beed and on 17.08.2013, the joint

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measurement of petitioners' land was undertaken, but no

compensation was paid to them.

13. The acquisition of land of the petitioners was initiated

under the old enactment i.e. Land Acquisition Act, 1894 and during

the pendency of said proceeding the new enactment i.e. the Act of

2013 came into force w.e.f. 01.01.2014 prior to determination of

compensation and on 14.06.2016 and 31.08.2016, the respondent

No.5 submitted proposal for acquisition of land in question under

new enactment of 2013 as per guidelines contemplated under

Government Resolution dated 12.05.2015 and 30.05.2015 for direct

purchase through private negotiation, which the respondent Nos. 3

and 4 accepted. Thereafter, the land Acquiring body conducted

panchanama for determination of compensation under the Act of

2013. While drawing the panchanama, the respondents - Acquiring

body found standing 50 fruit bearing trees on the field of petitioner

No.1. As per the amended schedule, out of Gut No.116 admeasuring

4 Hectare 75 Are, the petitioner No.1 is in possession of 1 Hectare 89

Are and the petitioner No.2 is in possession of 2 Hectare 86 Are land.

14. It is needless to mention here that on 17.12.2016, the

respondent No.3 - Collector issued communication to the Deputy

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Collector, Land Acquisition Officer and forwarded proposal for

acquisition under the the Act of 2013 by direct purchase and proposal

for determination of compensation was forwarded to the Town

Planning Authority. Accordingly, on 07.11.2016, the Town Planning

Authority ascertained the rate of the petitioners land at the rate of

Rs.8,224/- per Are i.e. total Rs. 8,22,400/- for 4 Hectare 75 Are on

the basis of last three sale transactions of S. No.298, 162 and 215.

Thereafter, the said proposal was submitted with respondent No.2.

Accordingly, on 15.02.2019, the petitioners were called to execute

consent award. Thereafter, on 12.10.2019, proposal for allocation of

fund was submitted with respondent No.2 Divisional Commissioner,

but the respondent No.2 considered the amount of Rs.87,87,500/-

instead of Rs.93,37,250/- which was ascertained by the committee.

15. Section 11 of the Act of 2013 provides procedure for

acquisition of land for public purpose. Section 28 provides parameters

for determination of compensation amount for acquired land. Section

3(u) provides definition of "market value" of land determined in

accordance of Section 26, which provides as under:

"26. Determination of market value of land by Collector.-(1) The Collector shall adopt the following criteria in assessing and determining the market value of the land, namely:--

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(a) the market value, if any, specified in the Indian Stamp Act, 1899 (2 of 1899) for the registration of sale deeds or agreements to sell, as the case may be, in the area, where the land is situated; or

(b) the average sale price for similar type of land situated in the nearest village or nearest vicinity area; or

(c) consented amount of compensation as agreed upon under sub-section (2) of section 2 in case of acquisition of lands for private companies or for public private partnership projects, whichever is higher:

Provided that the date for determination of market value shall be the date on which the notification has been issued under section 11.

Explanation 1.--The average sale price referred to in clause (b) shall be determined taking into account the sale deeds or the agreements to sell registered for similar type of area in the near village or near vicinity area during immediately preceding three years of the year in which such acquisition of land is proposed to be made.

Explanation 2.--For determining the average sale price referred to in Explanation 1, one-half of the total number of sale deeds or the agreements to sell in which the highest sale price has been mentioned shall be taken into account. Explanation 3.--While determining the market value under this section and the average sale price referred to in Explanation 1 or Explanation 2, any price paid as compensation for land acquired under the provisions of this Act on an earlier occasion in the district shall not be taken into consideration. Explanation 4.--While determining the market value under this section and the average sale price referred to in Explanation 1 or Explanation 2, any price paid, which in the opinion of the Collector is not indicative of actual prevailing market value may be discounted for the purposes of calculating market value.

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(2) The market value calculated as per sub-section (1) shall be multiplied by a factor to be specified in the First Schedule.

(3) Where the market value under sub-section (1) or sub- section (2) cannot be determined for the reason that--

(a) the land is situated in such area where the transactions in land are restricted by or under any other law for the time being in force in that area; or

(b) the registered sale deeds or agreements to sell as mentioned in clause (a) of sub-section (1) for similar land are not available for the immediately preceding three years; or

(c) the market value has not been specified under the Indian Stamp Act, 1899 (2 of 1899) by the appropriate authority, the State Government concerned shall specify the floor price or minimum price per unit area of the said land based on the price calculated in the manner specified in sub-section (1) in respect of similar types of land situated in the immediate adjoining areas:

Provided that in a case where the Requiring Body offers its shares to the owners of the lands (whose lands have been acquired) as a part compensation, for acquisition of land, such shares in no case shall exceed twenty-five per cent, of the value so calculated under sub-section (1) or sub-section (2) or sub-section (3) as the case may be:

Provided further that the Requiring Body shall in no case compel any owner of the land (whose land has been acquired) to take its shares, the value of which is deductible in the value of the land calculated under sub-section (1): Provided also that the Collector shall, before initiation of any land acquisition proceedings in any area, take all necessary steps to revise and update the market value of the land on the basis of the prevalent market rate in that area:

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Provided also that the appropriate Government shall ensure that the market value determined for acquisition of any land or property of an educational institution established and administered by a religious or linguistic minority shall be such as would not restrict or abrogate the right to establish and administer educational institutions of their choice. "

16. In the case in hand, the respondent No.1 - Collector

determined compensation of Rs.93,37,250/-, because if the award of

compensation was to be passed under the Act of 2013, it would come

to Rs.3,32,97,840/-. It is not in dispute that the respondent Acquiring

Body prepared consent letter from the petitioners for acquiring their

land by determining compensation on the basis of ready recknor,

however, the petitioners refused to accept the same. Therefore, to our

conscious there is no privity of contract between the petitioners and

the Acquiring Body and there is no consensus ad-idem in respect of

the consideration/compensation to be paid to the petitioners.

Therefore, impugned award dated 13.08.2019 for direct purchase

through private negotiations is not binding upon the petitioners and

the respondents can initiate afresh proceeding for determination of

compensation under the provisions of new Act of 2013 (Right to Fair

Compensation and Transparency in Land Acquisition, Rehabilitation

and Resettlement Act, 2013) in adherence to the Government

Resolutions dated 12.05.2015, 30.05.2015 and 25.01.2017.

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17. In view of above discussions, we are inclined to allow the

present writ petition and proceed to pass the following order:

ORDER

(i) The writ petition is allowed in terms of prayer clauses (C) and (F).

(ii) The respondent Nos. 3 to 5 are directed to initiate fresh proceeding for determination of compensation under the provisions of Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 in respect of acquisition of petitioners' land for public project within a period of four months from the date of this order.

(iii) The District Level Compensation Determination Committee shall give pre-decision hearing to the petitioners before determination of the compensation.