Sadashiv Mangalya Pagade And Ors vs Principal Secretary Urban ...
2022 Latest Caselaw 2890 Bom

        IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                CIVIL APPELLATE JURISDICTION

              WRIT PETITION (ST) NO. 7014 OF 2021

1.   Sadashiv Mangalya Pagade,
     Age : 79 years, Occu. Agriculture,
     Address : Roadpali, Tal. Panvel,
     Dis. Raigad.

2.   Budhaji Hiru Thakur,
     Age : Adult, Occu. :Agriculture,
     Address : Roadpali, Tal. Panvel,
     Dis. Raigad.

3.   Ladku alias Umesh Goma Patil,
     Age : Adult, Occu. :Agriculture,
     Address : Roadpali, Tal. Panvel,
     Dis. Raigad.

4.   Aalya Kamalya Patil (deceased),
     Heir - Bharat Barsha Patil,
     Age : Adult, Occu. :Agriculture,
     Address : Roadpali, Tal. Panvel,
     Dis. Raigad.

5.   Kengarya Maruti Gondhali (deceased)
     Heir - Santosh Kengarya Gondhali,
     Age : Adult, Occu. :Agriculture,
     Address : Roadpali, Tal. Panvel,
     Dis. Raigad.

6.   Kesarinath Dattu Bhoir,
     Age : Adult, Occu. :Agriculture,
     Address : Khidukpada, Tal. Panvel,
     Dis. Raigad.

7.   Naga Janu Bhoir (deceased)
     Heir - Chandrakant Naga Bhoir,
     Age : Adult, Occu. :Agriculture,
     Address : Khidukpada, Tal. Panvel,
     Dis. Raigad.
                                                        WP St.7014/21
                                   2

8.    Baban Shivdad Ulwekar,
      Age : Adult, Occu. :Agriculture,
      Address : Khidukpada, Tal. Panvel,
      Dis. Raigad.

9.    Changu Namaji Bhoir (deceased)
      Heir - Minnath Natha Bhoir,
      Age : Adult, Occu. :Agriculture,
      Address : Khidukpada, Tal. Panvel,
      Dis. Raigad.

10.   Keshav Mukund Ulwekar,
      Age : Adult, Profession :Agriculture,
      Address : Khidukpada, Tal. Panvel,
      Dis. Raigad.

11.   Rama Motiram Jale,
      Age : Adult, Profession :Agriculture,
      Address : Kalamboli, Tal. Panvel,
      Dis. Raigad.

12.   Balaram Krishna Patil,
      Age : Adult, Profession :Agriculture,
      Address : Kalamboli, Tal. Panvel,
      Dis. Raigad.

13.   Jayram Vitthal Patil,
      Age : Adult, Profession :Agriculture,
      Address : Kalamboli, Tal. Panvel,
      Dis. Raigad.

14.   Vasant Govind Tokade,
      Age : Adult, Profession :Agriculture,
      Address : Kalamboli, Tal. Panvel,
      Dis. Raigad.

15.   Aalya Balya Mhatre (Deceased)
      Heir - Sandip Aalya Mhatre,
      Age : Adult, Profession :Agriculture,
      Address : Kalamboli, Tal. Panvel,
      Dis. Raigad.                            ...Petitioners.
                                                       WP St.7014/21
                                 3

           Versus

1.   Principal Secretary Urban Development
     Department.

2.   Divisional Commissioner at Konkan
     Division Office at Kokan Bhavan

3.   Collector Office Raigad Alibaug

4.   Dy. Collector (Acquisition) Metro
     Centre No. 1 Panvel Special Land
     Acquisition Officer

5.   Dy. Collector (Acquisition) Metro
     Centre No. 3 Panvel Special Land
     Acquisition Officer

6.   Dy. Collector (Acquisition) Metro
     Centre Urban Special Land
     Acquisition Officer

7.   CIDCO
     Through M.D. havin office at
     CIDCO Bhavan, CBD Belapur

8.   Chief Land and Land Survey Officer
     Cidco Bhavan CBD Belapur, New

9.   State of Maharashtra                           ....Respondents.
                                 ...
Mr. Shriram S. Kulkarni, Advocate for petitioners.
Mr. S.B. Kalel, A.G.P. for respondent Nos. 1 to 6 and 9.
Mr. Ashutosh M. Kulkarni a/w. Ms. Akansha Helaskar, Advocate for
respondent Nos. 7 and 8.
                                    ...
                                CORAM : R. D. DHANUKA &
                                            S. M. MODAK, JJ.

                                RESERVED ON :            02 /03/2022.
                                PRONOUNCED ON :          24/03/2022.
                                                           WP St.7014/21



JUDGMENT : [PER R.D. DHANUKA, J.]

1. Rule. Learned AGP Mr. S.B. Kalel waives service for

respondent Nos. 1 to 6 and 9. Learned counsel Mr. Ashutosh M.

Kulkarni waives service for respondent Nos. 7 and 8. Rule made

returnable forthwith. By consent of parties, heard finally.

2. By this petition filed under Article 226 of the Constitution

of India, the petitioners seek a writ of mandamus, directing the

respondents to forthwith deposit the amount determined in respect of

the land acquisition reference mentioned in chart at Exh. H which is

settled in 'Maha Lok Adalat' dated 9.12.2017 with all statutory benefits

and accrued interest till the date of actual disbursement of payment

with immediate effect.

3. The petitioners also seek writ of mandamus to direct the

Special Land Acquisition Officer ('SLAO' for short) Metro Centre

Panvel to dispose of the pending applications under section 28-A of the

Land Acquisition Act 1898, which were directed to be disposed of by

this Court by judgment and order dated 19.1.2004 passed in Writ

Petition No. 8450/2003 and judgment and order dated 9.10.2006

passed in Writ Petition No. 6659/2006. Some of the relevant facts for WP St.7014/21

deciding the petition are as under :-

4. During the period between 1965 to 1970, the State

Government took a decision to establish new town to reduce pressure

on Mumbai by exercising powers under section 113-A of the

Maharashtra Regional Town Planning Act, 1966 ('MRTP Act' for short)

and notified lands situated at 96 villages under section 113-CD as a

site for New Bombay. The State Government thereafter exercised

powers under section 113-A of the Act and commenced acquisition

proceedings under the Land Acquisition Act, 1894. The State

Government issued various notifications in respect of those lands

situated in 96 villages for New Bombay Project in the month of

February 1976.

5. The petitioners are the agriculturists from generations to

generations. The lands of the petitioners situated in village Roadpali,

Taluka Panvel, District Raigad-Alibaug were initially notified for

acquisition for new Bombay Project by the State Government with

notification dated 3rd February 1970.

6. It is the case of petitioners that the petitioners could not WP St.7014/21

prefer the application under section 18 of the Land Acquisition Act

1894 and submitted in all 376 reference applications under section

28-A of the Land Acquisition Act.

7. It is the case of petitioners that this Hon'ble Court

determined the market rate at the rate of Rs.25/- per Sq. Mtrs. in

respect of the lands situated in village Roadpali acquired in 1970. The

State Government has acquiesced this rate. Around 22.11.2002 the

petitioners submitted an applications to the SLAO Metro Centre No. 1

Panvel stating that the market rates determined by this Court at the

rate of Rs.25/- per Sq. Mtrs. in respect of the lands situated at village

Roadpali has attained the finality.

8. On 19th January 2004 a Division Bench of this Court

directed the authority to dispose of the reference under section 28-A

preferred by the petitioners preferably within six months. The

respondents, however, did not comply with the said order. The

petitioners therefore preferred Contempt Petition No.156/2005 in this

Court. On 15th July 2005 this Court disposed of the said contempt

petition by observing that there was no case of contempt made out

though there is delay in disposing of the applications under section WP St.7014/21

28-A of the Act.

9. On 21st September 2006 the petitioners preferred writ

petition in this Court bearing No. 6650/2006 inter-alia praying for

directions to the respondents to hear the petitioners and decide the

said applications under section 28-A and to pay compensation under

time bound programme. On 9th October 2006 a Division Bench of this

Court directed respondent No. 4 to decide the said applications under

section 28-A within a period of three months and if applications are

allowed, to disburse the compensation within a period of one month

thereafter to the petitioners. The said order was also not complied

with by the respondent No. 4. The petitioners therefore filed fresh

Contempt Petition No. 226/2009.

10. On 7th December 2015 this Court disposed of the contempt

petition by holding that substantial compliance of the order has been

made by the contemnors and thus, it was not a case of deliberate or

willful breach of the order dated 9th October 2009. This Court

accordingly disposed of the said contempt petition.

11. It is the case of petitioners that out of 378 references WP St.7014/21

submitted by the respective claimants under section 28-A, only 178

references were disposed of by the SLAO, wherein he had offered

compensation granted by this Court at the rate of Rs.25/- per Sq. Mtrs.

The petitioners filed an applications under section 28-A (3) before the

District Court at Alibaug District Raigad for enhancement of

compensation. On 9th December 2017 the State of Maharashtra

organised 'Maha Lok Adalat'. It is the case of the petitioners that they

were insisted and persuaded by the Court to enter into the

compromise in the said applications by accepting compensation at the

rate of Rs.25/- per Sq. Mtrs.

12. It is also the case of petitioners that respondent Nos. 4 and 9

also assured that market value at the rate of Rs.25/- per Sq. Mtrs. and

all other benefits would be given to them within a period of six months

from the date of order of Lok Adalat. The petitioners relied upon the

said oral assurance of the officers of the respondent Nos. 4 and 7 and

had to give the consent without putting any time limit of payment of

compensation. Those applications filed by the petitioners were

disposed of by compromise before the 'Maha Lok Adalat' on 9 th

December 2017. The petitioners have annexed the copy of the chart

showing the matters settled at 'Maha Lok Adalat'. The respondents, WP St.7014/21

however, did not pay the amount even agreed before the Lok Adalat

for last several years.

13. Since the respondents neither paid any compensation even

at the rate agreed by the respondents before Lok Adalat on 9th

December 2017 nor decided the balance applications under section

28-A of the Land Acquisition Act, on 18 th March 2021 the petitioners

filed this writ petition.

14. Mr. Shriram S. Kulkarni, learned counsel for the

petitioners invited our attention to some of the exhibits annexed to the

petition, averments made by the respondents in their affidavit in reply

and various interim orders passed by this Court from time to time. It is

submitted by the learned counsel that though the State Government

had agreed to pay compensation at the rate of 25/- per Sq. Mtrs. for

the lands situated at village Roadpali before the Lok Adalat and based

on such agreement, the Lok Adalat had passed order, no amount of

compensation has been paid by the respondents till date. He submits

that the respondents have also not decided the balance applications

under section 28-A of the Land Acquisition Act.

WP St.7014/21

15. The learned counsel invited our attention to the order

dated 1st September 2021 passed by this Court and submits that the

State Government was directed to send proposal to CIDCO within two

weeks from the said order. The learned counsel also placed reliance on

the order dated 29th November 2021 passed by this Court in this

petition. He also placed reliance on the order in Writ Petition No.

2085/2021 and 2087/2021 and submits that though the CIDCO has

been making payments to various claimants, who are similarly

circumstanced with the petitioners, CIDCO has not deposited any

amount with the State Government to enable the State Government to

release the compensation in favour of the petitioners. The learned

counsel for the petitioners relied upon the communication dated 8 th

February 2019 which refers to disbursement of amount towards

compensation and this disbursement of amount is post the order

passed by the Supreme Court. It is submitted that two of the claimants

whose lands were from village Roadpali i.e. Prabhakar Bhiva Patil and

Dadu Balaram Patil have been paid the amount of compensation that

has been awarded.

16. On 9th February 2022 this matter appeared before this

Court when the learned counsel for CIDCO informed this Court that WP St.7014/21

out of 124 claimants, CIDCO had received calculations in respect of 73

claimants from the State Government with a direction to deposit the

amount. Out of 73 claimants, CIDCO has already disbursed the claim

for compensation in respect of 52 cases to SLAO in the sum of

Rs.5,14,07,042/- and the balance 21 cases are pending for

consideration.

17. This Court accordingly by the order dated 9 th February

2022 directed the State Government to make a statement as to when

the calculations in respect of the remaining claimants would be

submitted to CIDCO for disbursement and also shall indicate the

calculations submitted so far in respect of such claimants out of 124

claimants by submitting a chart before this Court to be supported by

an affidavit.

18. This Court directed CIDCO to submit an additional

affidavit to indicate in respect of 52 cases in which the CIDCO has

disbursed the amount in the sum of Rs.5,14,07,042/- and as to when

the disbursement in respect of 21 pending cases with CIDCO would be

made to SLAO. This Court directed the State Government to indicate

the details of pending references filed by the petitioners under section WP St.7014/21

28-A of the Land Acquisition Act in the affidavit directed to be filed.

19. This matter thereafter appeared on board on 2 nd March

2022. The State Government did not submit any chart or affidavit

before this Court. CIDCO also did not file any additional affidavit as

directed by the order dated 9th February 2022. Mr. Ashutosh Kulkarni,

learned counsel for CIDCO, however, tendered a chart for

consideration of this Court in support of his statement that in cases of

52 parties, who names were mentioned in the said chart and whose

lands were acquired, CIDCO has already deposited the compensation

as awarded by the Lok Adalat with the SLAO. This Court took the said

chart on record and marked it as 'X' for identification.

20. Mr. Ashutosh Kulkarni, learned counsel for CIDCO on

instruction made a statement that insofar as balance claimants are

concerned, those applications for deposit of the compensation are still

pending. The learned counsel further submitted that in respect of 51

claimants whose lands were acquired and which are subject matter of

this petition, the State Government has not forwarded the claim to

CIDCO for making deposit of the said amount.

WP St.7014/21

21. This Court permitted the petitioners to delete the

sentence, 'in the light of orders passed in Maha Lok Adalat held on

9.12.2017' from prayer clause 'B' of the petition by granting leave to

amend and closed the matter for orders.

22. Mr. Shriram Kulkarni, learned counsel for the petitioners

states that though CIDCO has deposited the amount for payment to

the claimants whose cases were decided by the Lok Adalat

subsequently, however, did not deposit the amount in respect of the

petitioners in this case CIDCO has not treated all the claimants equally.

23. The learned AGP for the State placed reliance on some of

the averments made in the affidavit filed before this Court and submits

that the State Government has already submitted the decrees in Lok

Adalat in some of the cases to CIDCO for payment. The State

Government, however, has not received the decreetal amount from

CIDCO till date. It is further submitted that in most of the Lok Adalat

cases decreetal amounts were processed by the State Government,

however, as and when the decreetal amount would be received from

CIDCO, the State Government would deposit it before the Civil Court.

He submits that, the claim of the remaining petitioners would be WP St.7014/21

submitted with CIDCO along with degrees within eight weeks from

today.

24. Mr. Ashutosh Kulkarni, learned counsel for CIDCO, on the

other hand, raises an issue of maintainability of this writ petition on

the ground that there is efficacious alternate remedy available to the

petitioners. He submitted that as per the routine procedure whenever

awards under the Land Acquisition Act are passed, the calculations are

made by the SLAO and then forwarded to officer of CIDCO for

necessary payment. The calculations are verified by CIDCO and

thereafter are sent to finance department for approvals. After

necessary approval, the finance department of CIDCO releases the

amount to the office of concerned SLAO and the payments are

accordingly released to the petitioners through the said office. It is

submitted by the learned counsel that all the claims which are settled

before the Lok Adalat have not been sent to CIDCO by SLAO and some

of the references under section 28-A are not decided till date. Learned

counsel states that CIDCO has undertaken several projects at Navi

Mumbai and has no funds available with it for deposit.

25. Mr. Shriram Kulkarni, learned counsel for petitioners WP St.7014/21

placed reliance on the judgment of the Hon'ble Apex Court in the case

of Bhusawal Municipal Council Vs. Nivrutti Ramchandra Phalak

(2015) 14 SCC 327 in support of the submission that the State

Government, having acquired the lands of these petitioners, who are

the poor farmers long back, cannot refuse to pay compensation for

decades though agreed to a particular rate before the Lok Adalat. The

petitioners have suffered serious prejudice and gross injustice in the

hands of respondents by not paying compensation. He submits that

under the Government Resolution dated 12th February 2008 CIDCO is

authorized to pay enhanced compensation amount for New Mumbai

Project acquired lands.

Reasons and Conclusions

26. Neither the State Government nor the CIDCO has disputed

the fact that the large number of lands of these petitioners had been

acquired long back. Land Acquisition awards have been made. The

petitioners filed applications under section 28-A of the Land

Acquisition Act which remained pending for quite some time. The

petitioners and the State Government have settled their claims before

Maha Lok Adalat by accepting the rate of compensation at the rate of

Rs.25/- per Sq. Mtrs. from the lands situated at village Roadpali. It is

the case of petitioners that the said compensation granted at a WP St.7014/21

particular rate to the petitioners was on lower side, the respondents

though agreed before Lok Adalat, have not released even at such rate

to the petitioners for last several years.

27. The petitioners have brought on record the instances

where the CIDCO has deposited the amount of compensation with the

State Government in respect of several plots, lands from the same

village where the cases were settled before Maha Lok Adalat

subsequent in point of time. During the course of hearing of this writ

petition, Mr. Ashutosh Kulkarni, learned counsel for CIDCO tendered a

chart for consideration of this Court in support of his statement that in

case of 52 persons whose lands were acquired, CIDCO has already

deposited the compensation amount as awarded in Maha Lok Adalat

with SLAO.

28. In our view, the CIDCO ought to have deposited the

amount with SLAO in respect of the lands acquired for New Mumbai

Project in accordance with the Government Resolution dated 12 th

February 2008. It is now the case of CIDCO that CIDCO has already

deposited the payment of compensation in respect of 52 cases out of

124 cases and the claims of 29 petitioners are pending for WP St.7014/21

consideration before the CIDCO. In our view, CIDCO thus cannot be

allowed to raise a plea that this writ petition is not maintainable on

the ground of alternate remedy available to the petitioners, though the

CIDCO having not complied with their part of the obligation under the

said Government Resolution.

29. In our view, stand taken by the CIDCO in affidavit in reply

is not a bonafide plea and is taken just to deprive the petitioners to

recover the compensation even at the rate agreed by the State

Government which amount is liable to be deposited by the CIDCO.

30. Insofar as the State Government is concerned, the State

Government has already submitted the decrees in respect of 81

claimants with CIDCO out of which in 52 cases CIDCO has deposited

amount with SLAO. The State Government cannot cause any further

delay in sending the decrees passed by the Lok Adalat to CIDCO for

making deposit in case of 51 cases as brought to our notice by the

learned counsel for CIDCO. The learned AGP has made statement

before this Court that in respect of balance 51 cases, claim would be

submitted with CIDCO within eight weeks from 2nd March 2022.

WP St.7014/21

31. The Hon'ble Supreme Court in the case of Bhusawal

Municipal Council (supra) has held that in case the person aggrieved is

deprived of the land without making the payment of compensation as

determined by the Collector/Court, it would tantamount to forcing the

said uprooted persons to become vagabond or to indulge in anti-social

activities as such sentiments would be born in them on account of such

ill-treatment. It is not permissible for any State/authority to uproot a

person and deprive him of his human rights, without ensuring

compliance with the statutory requirement under the garb of

development. A delayed payment may lose the charm and utility of the

compensation. Thus, the compensation must be determined and paid

without loss of time.

32. The Hon'ble Supreme Court has held that the fundamental

right of a farmer to cultivate his land is a part of right to livelihood.

Agricultural land is the foundation for a sense of security and freedom

from fear. It is held that the excuse that the authority has paucity of

funds cannot be accepted as a justified cause to entertain the petition.

If the land is to be acquired, law requires prompt payment of

compensation. In case the party by whom or for whom the land is

acquired is not in a position to make the payment of compensation, WP St.7014/21

the person aggrieved becomes entitled to get the land restored.

Payment of compensation as per award under Section 11 of the Land

Acquisition Act cannot be sufficient security to serve the interest of the

person interested pending adjudication of appeal against the award of

Reference Court.

33. The Hon'ble Supreme Court held that the Court cannot sit

limply and allow the defaulter to go scot-free and force the person

seeking protection to lose hope. The Court cannot adopt an indifferent

and passive attitude in such circumstances. The Hon'ble Supreme

Court directed Bhusawal Municipal Council to make the payment of

the enhanced amount of compensation within a period of ten weeks

from the said of said order and made it clear that in case of failure to

pay the enhanced compensation, the Bhusawal Municipal Council shall

restore the possession of the suit land to the persons aggrieved who in

turn would refund the entire amount received as compensation.

34. In our view, the principles laid down by the Hon'ble

Supreme Court would squarely apply to the facts of this case. The

respondents having acquired the lands of the petitioners long back are

bent upon to delay the payment of compensation on one or other WP St.7014/21

flimsy grounds. CIDCO cannot be allowed to raise a plea that it has no

funds available for making deposit with the SLAO after obtaining

possession of the lands from SLAO long back and utilizing those lands

for various purposes.

35. In the light of above facts and circumstances discussed

above, we pass the following order :-

ORDER

(i) CIDCO is directed to process the claims in respect of 29

claimants which are pending with CIDCO within four

weeks from today and shall deposit the said amount

with SLAO simultaneously. SLAO is directed to release

such amount in favour of 29 claimants within two

weeks from the date of receipt of amount from CIDCO

without fail.

(ii) The State Government is directed to submit the

certified copies of the decrees passed by the Maha Lok

Adalat to CIDCO in respect of the remaining claimants/

petitioners within eight weeks from 2 nd March 2022 for

payment of compensation. Upon receipt of such

decrees from SLAO by CIDCO, the CIDCO shall deposit WP St.7014/21

the amount in respect those 51 petitioners within two

weeks thereafter without fail with SLAO.

(iii) The SLAO is directed to release such amount that

would be deposited by the CIDCO in favour of those

applicants within two weeks thereafter.

(iv) The SLAO is directed to dispose of the pending

applications under section 28-A of the Land Acquisition

Act within four weeks from today and communicate

the order to those applicants within one week from the

date of passing of such order. The SLAO shall forward

the copies of the orders under section 28-A of the Land

Acquisition Act to CIDCO for deposit of compensation

amount within two weeks from the date of passing of

such order. The CIDCO is directed to deposit the

amount in accordance with the said order with SLAO

within four weeks thereafter without fail.

(v) Writ Petition is allowed accordingly. No order as to

costs. Rule is made absolute in above terms.

Parties to act on authenticated copy of this order.

[ S. M. MODAK, J. ]                               [ R. D. DHANUKA, J. ]

ssc/         VASANT          Digitally signed by VASANT
                             ANANDRAO IDHOL
             ANANDRAO        Date: 2022.03.25 16:09:27
             IDHOL           +0530