Bombay High Court
New Millenium India Property ... vs Maharashtra Industrial ... on 11 April, 2023
Bench: R.D. Dhanuka, Gauri Godse
2023:BHC-AS:10709-DB
WP 11473 of 2022.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION No. 11473 OF 2022
1. New Millenium India Property )
Developers Private Limited )
Unit No.907, Aston, Sundervan )
Complex, Lokhandwala Road, )
Andheri -W, Bandra Suburban, )
Mumbai 400 053 )
2. Mr. Nikhil Mathur )
13/14, Neel Gagan, A-Wing, Four )
Bungalows Junction, J.P. Road, )
Versova, Andheri (West), )
Mumbai - 400 053 )
3. Mrs. Vandana Mathur )
13/14, Neel Gagan, A-Wing, Four )
Bungalows Junction, J.P. Road, )
Versova, Andheri (West), )
Mumbai - 400 053 )...Petitioners
Versus
1. Maharashtra Industrial Development )
Corporation, through its Chief )
Executive Officer, MIDC, "Udyog )
Sarathi", Marol Industrial Area, )
Mahakali Caves Road, Andheri-East, )
Mumbai - 400 093 )
2. The District Collector, Raigad )
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District Collector Office, )
Near Hirakot Lake, Tahasil-Alibaug, )
District-Raigad, Maharashtra- 410021)
3 Sub-Divisional Officer, Karjat )
Hydro Colony, Near Karjat Panchayat)
Samiti, Tahasil-Karjat, Dist. Raigar, )
Maharashtra- 410 201 )
4. The State of Maharashtra )
having its address at Industries, )
Energy and Labour Department )
Mantralaya, Mumbai through its )
Secretary, Government of Maharashtra)
5. Emerald Buildcon Pvt. Ltd. )
A company incorporated under the )
provisions of Companies Act, 1956, )
having its registered office at: )
404, Nirmal Tower, 26 Barkhamba )
Road, New Delhi-110001 )...Respondents
WITH
INTERIM APPLICATION No. 2449 OF 2023
IN
WRIT PETITION No. 11473 OF 2022
1. Sanket Janardhan Bhase )
Age 31 years, Occu. Business and )
Agriculture, R/o. Dahivali, )
Taluka- Karjat, Raigad )
Dist. Maharashtra )
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2. Abhishek Chandrakant Surve )
Age 31 years, Occu: Business and )
Agriculture, R/O Dahivali, Tal.Karjat )
Raigad District Maharashtra )
3. Harshad Nandkumar Vichare )
Age 39 years, Occu:Business and )
Agriculture, R/O Posari, Tal. Karjat )
Raigad, Dist. Maharashtra )
4. Santosh Babasaheb Dahiphale )
Age 31 years, Occu:Business )
And Agriculture, R/O. Avdhoot Plaza )
Taluka Dattawadi, Badlapur (East) )
Maharashtra )...Applicants
In the matter between:
1. New Millenium India Property )
Developers Private Limited )
Unit No.907, Aston, Sundervan )
Complex, Lokhandwala Road, )
Andheri -W, Bandra Suburban, )
Mumbai 400 053 )
2. Mr. Nikhil Mathur )
13/14, Neel Gagan, A-Wing, Four )
Bungalows Junction, J.P. Road, )
Versova, Andheri (West), )
Mumbai - 400 053 )
3. Mrs. Vandana Mathur )
13/14, Neel Gagan, A-Wing, Four )
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Bungalows Junction, J.P. Road, )
Versova, Andheri (West), )
Mumbai - 400 053 )...Petitioners
Versus
1. Maharashtra Industrial Development )
Corporation, through its Chief )
Executive Officer, MIDC, "Udyog )
Sarathi", Marol Industrial Area, )
Mahakali Caves Road, Andheri-East, )
Mumbai - 400 093 )
2. The District Collector, Raigad )
District Collector Office, )
Near Hirakot Lake, Tahasil-Alibaug, )
District-Raigad, Maharashtra- 410021)
3. Sub-Divisional Officer, Karjat )
Hydro Colony, Near Karjat Panchayat)
Samiti, Tahasil-Karjat, Dist. Raigar, )
Maharashtra- 410 201 )
4. The State of Maharashtra )
having its address at Industries, )
Energy and Labour Department )
Mantralaya, Mumbai through its )
Secretary, Government of Maharashtra)
5. Emerald Buildcon Pvt. Ltd. )
A company incorporated under the )
provisions of Companies Act, 1956, )
having its registered office at: )
404, Nirmal Tower, 26 Barkhamba )
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Road, New Delhi- 110001 )...Respondents
WITH
CONTEMPT PETITION No. 682 OF 2022
1. New Millenium India Property )
Developers Private Limited )
Unit No.907, Aston, Sundervan )
Complex, Lokhandwala Road, )
Andheri -W, Bandra Suburban, )
Mumbai 400 053 )
2. Mr. Nikhil Mathur )
13/14, Neel Gagan, A-Wing, Four )
Bungalows Junction, J.P. Road, )
Versova, Andheri (West), )
Mumbai - 400 053 )
3. Mrs. Vandana Mathur )
13/14, Neel Gagan, A-Wing, Four )
Bungalows Junction, J.P. Road, )
Versova, Andheri (West), )
Mumbai - 400 053 )...Petitioners
Versus
1. Dr. P. Anbalagan )
Chief Executive Officer, )
Maharashtra Industrial Development )
Corporation, )
having his office at MIDC, )
"Udyog Sarathi", Marol Industrial Area)
Mahakali Caves Road, Andheri- East )
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Mumbai - 400 093 )
and Also at No. 4 & 4(A), 12th Floor, )
World Trade Centre Complex, )
Cuffe Parade, Colaba, Mumbai-400005)
2. Dr. Mahendra Kalyankar )
The District Collector, Raigad )
District Collector Office )
Near Hirakot Lake, Tahasil -Alibaug )
Dist. Raigad, Maharashtra-4102021 )
3. Mr. Ajit Nairale )
Sub-Divisional Officer, Karjat )
Hydro Colony, Near Karjat Panchayat)
Samiti, Tahasil-Karjat, Dist. Raigad )
Maharashtra - 410 201 )
4. The State of Maharashtra )
having its address at )
Industries, Energy and Labour )
Department )
Mantralaya, Mumbai through its )
Secretary, Government of Maharashtra)...Contemnors/
Respondents
5. Emerald Buildcon Pvt. Ltd. )
A company incorporated under the )
Provisions of Companies Act, 1956, )
having its registered office at: )
404, Nirmal Tower, 26, Barkhamba )
Road, New Delhi- 110001 )...Proforma
Respondent
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Mr. Rahul Narichania, Senior Advocate i/by Mr. Pranav Tackur,
Advocates for the Petitioners
Mr. Y.S. Jahagirdar- Senior Advocate a/w. Ms. Vishakha Sane
a/w.Mr. Rohit Dangre i/by Mr. Jayesh Joshi Advocate for the
Applicants in IA/2449/2023
Mr. Anil Y. Sakhare, Senior Advocate a/w. Ms. Shyamali Gadre a/w.
Ms. Harshita Bhanushali i/by Little & Co. for Respondent No.1
M.I.D.C. in WP/114732022 and CP/682/2022
Ms. M.S. Bane-AGP for Respondent Nos.2,3 and 4- State.
Ms. Ayushi Anandpara a/w. Mr. Dhiren Durante a/w. Mr. Sahil
Namavati i/by Lexicon law Partners for Respondent No.5 in CP and
WP.
CORAM:- R.D. DHANUKA &
GAURI GODSE, JJ.
RESERVED ON : 20 MARCH, 2023
PRONOUNCED ON :11 APRIL, 2023
JUDGMENT [PER R.D. DHANUKA J.]
1. Rule. Mr. Sakhare, Learned Senior Counsel waives
service on behalf of Respondent No.1. Ms. M.S. Bane, learned
AGP waives service on behalf of Respondent Nos.2, 3 and 4.
Ms. Ayushi Anandpara, learned counsel waives service on
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behalf of Respondent No.5. Rule is made returnable forthwith.
By consent of parties, both the proceedings were heard finally
and are being disposed of by a common order.
2. Some of the relevant facts for deciding both the
Petitions are as under.
3. It is the case of the Petitioners that pursuant to
Agreement dated 26 December, 2006, between the Petitioners
and the Emerald Buildcon Pvt. Ltd., the said Emerald
Buildcon Pvt. Ltd. were to acquire 1300 acres of land situated
in Taluka Khalapur, Dist. Raigad, Maharashtra for
implementation of the project as described in the said
Agreement. Under the said Agreement i.e. Emerald Buildcon
Pvt. Ltd.,i.e. Respondent No.5 advanced aggregate sum of Rs.
41,38,23,000/- to Petitioner No.1.
4. On 27August, 2014, the State Government issued a
Notification determining compensation, rehabilitation and
resettlement package under Section 107 of the Right to Fair
Compensation and Transparency in Land Acquisition,
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Rehabilitation and Resettlement Act, 2013 (for short "Fair
Compensation Act").
5. On 28 April, 2019, Section 33 of the Maharashtra
Industrial Development Act, (for short "MID Act") is
substituted to include the Fair Compensation Act, wherein the
determination of compensation is as per the provisions of the
Fair Compensation Act.
6. On 2 September, 2020, Respondent No.5 filed a
Commercial Arbitration Petition (L) No. 1610 of 2018 under
Section 9 of the Arbitration and Conciliation Act, 1996
seeking interim reliefs pending arbitral proceedings
pertaining to disputes and differences between the parties
to Agreement dated 26 December, 2006. By an order dated
20 December, 2020, this Court rejected the said petition filed
by Respondent No.5, keeping all contentions of the parties on
merits open.
7. Petitioner No.1 and Respondent Nos.5 thereafter
entered into an Agreement dated 26 December, 2020
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whereby the Petitioners transferred approximately 115 acres
of land to Respondent No.5. The Petitioners retained
approximately 81 acres of land and transferred approximately
60 acres of land to the other parties. These retained lands,
transferred lands and other lands were acquired under the
provisions of the said MID Act for industrial purpose.
8. It is the case of the Petitioners that on 24
December, 2020, the Chief Manager of Respondent No.1
addressed a letter to the Sub-Divisional Officer, Karjat stating
that approval for issuing notification under Section 32(1)
under MID Act was granted by the State government vide
letter dated 23 October, 2020 and, therefore Respondent
No.1 forwarded the documents submitted by the Petitioners to
Respondent No.3 for further proceedings.
9. Final Notification under Section 32(1) of the MID
Act was published for the acquired lands which included the
retained lands, transferred lands and other lands on 26
November, 2020.
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10. On 17 February, 2021, a meeting of the High Power
Committee came to be held, whereby High Power Committee
approved the rate of compensation payable for land
admeasuring 559.607 H.A. lying and situate in villages
Nandpada, Gothivali, Gohe, Karambeli, Kharivali and Chiltan
of Khalapur Industrial Area, Phase III at Rs.55,00,000/- per
Acre i.e. Rs.1,37,00,000/- per Hectare.
11. By letter dated 1 March, 2021, the Under
Secretary, Government of Maharashtra addressed a letter to
the Chief Executive Officer, MIDC and called upon the MIDC
to take necessary action in accordance with the Minutes of
the Meeting dated 23 February, 2021. On 22 March, 2021, the
MIDC- Respondent No.1 forwarded the documents submitted
by the Petitioners to the Sub-Divisional Officer, wherein
reference to Application of the Petitioners dated 3 December,
2020 was made.
12. On 5 May, 2021, the Petitioners and Respondent
No.5 filed Consent Terms in Commercial Arbitration Petition
(L) No. 2735 of 2020 filed by Respondent No.5 against the
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Petitioners. The parties settled the dispute. This Court
disposed of the said Commercial Arbitration Petition in terms
of the Consent Terms. Consent Terms were between the
Petitioners, Respondent No.5 and its nominees i.e. Goldshine
Apartment Pvt. Ltd., Mr. Atul Jain, Mr. Paras Jain and Mr.
Sharat Jain.
13. Under the said Consent Terms, the Petitioners
agreed to pay Respondent No.5 and its nominees a sum of
Rs.62,50,00,000/- as 'Settlement Amount", on the terms and
conditions described under the Consent Terms within a
period of eight months from the date of execution of the
Consent Terms.
14. By a letter dated 29 June, 2021, the decision of
High Power Committee taken in its meeting dated 30 March,
2021, approving the rate of compensation payable at
Rs.55,00,000/- per acre was conveyed by Under Secretary,
State of Maharashtra to Chief Executive Officer of
Respondent No.1 MIDC.
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15. On 2 December, 2021, the Petitioners addressed a
letter to the Respondents calling upon them to take
immediate steps as per due process of law to enable the
Petitioners to comply with the order dated 5 May, 2021 passed
by this Court in the Commercial Arbitration Petition and to
make payment of compensation and pass a formal award to
that effect. The said letter dated 2 December, 2021 was
followed by reminder letter sent by Petitioners to Respondent
Nos. 1 and 3 seeking immediate payment of the
compensation amounts pertaining to the acquired lands.
16. On 3 January, 2022, the Petitioners sent another
reminder to Respondent Nos.1 and 3 requesting them to
expedite the disbursement of the compensation amount. On
23 February, 2022, Respondent No.3 addressed a letter to the
Petitioners, inter alia, informing that the final notification
under Section 32(1)of the MID Act has been issued in respect
of the certain gaonthans i.e. Nandpada, Gothivali, Karambeli,
Gohe, Swali and Narangi etc. The Petitioners were informed
that the High Power Committee had consented for a rate for
compensation. The acquiring body however did not deposit
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the compensation with the Sub-Divisional Officer.
17. The Petitioners were informed that upon receipt of
the compensation amount and excluding the land of Village
Gohe which came under Eco-Sensitive Zone, the amount of
compensation shall be released for the area of the said 5
villages acquired pursuant to the notification under Section
32(1) of MID Act as per directions of this Court.
18. The Petitioners, therefore, filed a Writ Petition
bearing No. 3119 of 2022 in this Court for writ of mandamus,
directing Respondent Nos. 1 to 4 to take physical possession
of the acquired lands which include Retained Lands
admeasuring approximately 81 acres, Transferred Lands
admeasuring approximately 115 acres, and Other Lands
admeasuring approximately 60 acres, and pass a formal
award under the MID Act to make payment of compensation
already decided by the High Power Committee to the
Petitioners.
19. On 8 April, 2022 the Division Bench of this Court
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disposed of the said Writ Petition No. 3119 of 2022. This
Court recorded the stand taken by Respondent No.1 MIDC
that unless the demand is made by the Special Land
Acquisition Officer and the possession of the land is received,
amount of compensation cannot be deposited. This Court also
took cognizance of the Consent Terms arrived between the
Petitioners and Respondent No.5 before Learned Single Judge
of this Court.
20. This Court recorded the statement made by the
Learned Senior Counsel for the Petitioners that the
Petitioners were ready to deliver possession of the acquired
lands at any point of time. The Learned AGP for the State
made a statement that the demand had been made upon the
Respondent No.1 MIDC for the amount of compensation.
Learned counsel for the MIDC made a statement that within
four weeks from the date of possession is received, amount of
compensation would be paid. This Court recorded the
statement as an undertaking given to this Court.
21. This Court accordingly directed the Petitioners to
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start delivering possession of the acquired land to the
concerned Special Land Acquisition Officer from 11 and 12
April, 2022 and directed the Special Land Acquisition Officer
in turn to hand over possession to the acquiring body
(MIDC). The MIDC was directed to deposit the amount as per
the demand with the Sub-Divisional Officer within four weeks
and also directed to the Sub-Divisional Officer to deposit the
amount with the Prothonotary and Senior Master of this Court
within one week from the date of receipt of the said
compensation amount from the MIDC. This Court permitted
the Respondent No.5 to withdraw the said amount in terms of
the consent terms dated 5 May, 2021 passed by the learned
Single Judge under Commercial Arbitration Petition (L) No.
2735 of 2020.
22. This Court made it clear that after the entire
amount is deposited, the parties would make an application
for withdrawal. This Court recorded the statement made by
the learned Senior Counsel for the Petitioners that if
Respondent No.5 makes an application for withdrawal of the
amount of Rs.62.5 crores, Petitioners would give no objection
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to the same.
23. It is the case of the Petitioners that on 18 April,
2022, the Petitioners handed over the requisite documents
and consent letters to the Sub-Divisional Officer for land
admeasuring 38.8525 Acres owned by Respondent No.5. On
20 April, 2022, the Petitioners handed over requisite
documents and consent letters to the Sub-Divisional Officer
for land 3.325 Acre owned by the Petitioners and handed over
requisite documents to the Sub-Divisional officer for land
admeasuring 137.2145 Acre owned by third parties on 20
April, 2022 and 26 April, 2022.
24. Respondent No.1 by letters dated 4 May, 2022 and
11 May, 2022 addressed to the Sub-Divisional Officer raised
an issue that the lands in question were not contiguous lands
and also raised dispute in respect of title. On 19 May, 2022
and 25 May,2022, the Sub-Divisional Officer addressed letters
to Respondent No.1 -MIDC stating that on scrutiny of
documents, majority of lands and title of lands are found
disputed. On 30 May, 2022, Respondent No.1- MIDC
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addressed a letter to the Sub-Divisional Officer asking them to
call upon the Petitioners to submit requisite documents and
consent letter and to take physical possession of the acquired
lands. On 30 May, 2022 the Petitioners once again requested
the Sub-Divisional Officer to take physical possession of the
acquired land.
25. On 7 June, 2022, the Sub-Divisional Officer
addressed a letter to the Petitioners pointing out the
objections received from local farmers from that area. On 10
June, 2022, the Petitioners through their Advocate issued
notice to the Respondent No.1 MIDC and Sub-Divisional
Officer respectively highlighting efforts taken by Petitioners
and calling upon them to comply with the order dated 8 April,
2022 passed by this Court in Writ Petition No.3119 of 2022.
26. On 22 June, 2022, the Petitioners filed Interim
Application bearing IA No. 10159 of 2022, inter alia, praying
for an order directing against the Sub-Divisional Officer to
the issue notice under Section 32(5) of the MID Act to take
physical possession of the land and to forthwith pass an
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award under Section 33 of the MID Act and in the meanwhile,
issue direction to the MIDC to make pro-term payment of
compensation by depositing the same in the court.
27. On 14 July, 2022, the learned counsel for the MIDC
made a statement that his client has no objection to deposit
the compensation of the land in question, if the award is made
by Special Land Acquisition Officer and possession of
acquired land is handed over to MIDC. This Court accepted
the said statement. The AGP sought time to take instructions
as to when Award would be made by the Special Land
Acquisition Officer and as to when the possession of the lands
will be taken over by the Special Land Acquisition Officer
from the Petitioners and would be handed over to MIDC.
28. On 20 July, 2022, this Court recorded the
statement made by the learned counsel for the Petitioners that
his client is ready and willing to hand over the possession and
had offered possession, in the past also. Learned counsel for
Respondent No.1-MIDC made a statement that till the award
is made by the Special Land Acquisition Officer and
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possession is handed over to the MIDC, MIDC is not required
to pay any amount to Special Land Acquisition Officer.
29. Learned AGP on behalf of the State relied upon a
Government Resolution dated 14 June, 2001 issued under the
provisions of the Land Acquisitions Act, 1894 stating that 25%
of the amount, if not deposited, the Award would not be made.
This Court directed the Special Land Acquisition Officer to
quantify the amount payable on the land in question and
communicate the same to the learned counsel for the
Petitioners as well as to the MIDC. On 21 July, 2022, the
Sub-Divisional Officer, Karjat addressed a letter stating that
63.232 Hectares equivalent to 156 Acres belonging to
Petitioner No.1 were acquired for which the payment of
compensation would be Rs. 86,94,40,000/-
30. On 22 July, 2022, this Court passed an order in
Interim Application No. 10159 of 2022 directing the Special
Land Acquisition Officer to publish Award on or before 26
July, 2022 at 5.00 p.m. and directed the MIDC to deposit
Rs.86,94,40,000/- within a week from the date of receipt of
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the copy of the Award.
31. On 26 July, 2022, the Petitioners submitted
consents/sanmati patras to the Sub-Divisional Officer and
handed over the physical possession of the entire land. It is
the case of the Petitioners that the Petitioner submitted
sanamti patras to the Sub-Divisional Officer and later by
email on 26 July, 2022 and Sub-Divisional Officer in purported
compliance with the order of this Court dated 22 July, 2022
made an Award as per Section 33(2) of the MID Act only for
16.871 Hectares and not for whole 63.232 Hectares. On 27
July, 2022, the Sub-Divisional Officer served upon the a copy
of the Award upon the learned counsel for the Petitioners.
32. On 27 July, 2022, learned counsel for the
Petitioners requested the Sub-Divisional Officer to
immediately comply with the order as Award under Section
33(2) for holding 16.871 hectares was passed, whereas this
Court had directed the Sub-Divisional Officer to pass Award
for 63.232 hectares. It is the case of the Petitioners that
award under Section 33(2) was incorrect and same should
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have been under Section 33(3) of the MID Act. On 3 August,
2022, Writ Petition No. 3119/2022 as well as Interim
Application came to be disposed of.
33. On 5 August, 2022, the learned counsel for the
Petitioners moved a Praecipe seeking further direction
against inaction or partial modification in the order passed on
22 July, 2022 and for speaking to the minutes. On 10 August,
2022, this Court passed an order clarifying that an
inadvertent error regarding physical possession of the land
was made. The Petitioners had corrected the statement made
before this Court that Petitioners were not to hand over
vacant possession of the land in question but to handover the
possession on 'as is where is basis' to the Special Land
Acquisition Officer.
34. This Court noted that the award was passed under
Section 33(2) and not under Section 33(3) of the MID Act,
despite there being no agreement between the Sub-Divisional
Officer and the Petitioners. On 18 August, 2022, this Court
once again passed an order for speaking to the minutes of
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order dated 10 August, 2022 modified by order dated 18
August, 2022. This Court corrected the word 'contentious'
by substituting it with word 'contiguous' and in paragraph 6,
Section mentioned as 33(1) to be read as 33(2).
35. On 25 August, 2022, the Petitioners addressed two
letters to the Sub-Divisional Officer and to the Advocates for
the Respondent No.1- MIDC, calling upon them to comply
with the order passed by this Court and to pass Award for
the remaining lands and rectify the award dated 26 July, 2022
under Section 33(3) of the MID Act.
36. On 29 August, 2022, the Petitioners filed Interim
Application No. 21513 of 2022 seeking direction and order
from this Court that Sub-Divisional Officer to pass an award
in accordance with Section 33(3) of the MID Act in respect of
the remaining 49.349 hectares and to rectify award dated
26 July, 2022 and direct MIDC to pay Rs.86,94,40,000/- in
respect of entire area as computed by Sub-Divisional Officer
by its letter dated 21 July, 2022.
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37. On 19 September, 2022, the Petitioners filed Writ
Petition No. 11473 of 2022 for an order and direction against
the Respondent No.3 to pass an award in accordance with
Section 33(3) of the MID Act in respect of the balance portion
of 49.349 hectares and for other reliefs. On 26 September,
2022, the Petitioners filed Contempt Petition No. 682/2022,
inter alia, praying for a punishment against the contemnors
i.e. the Chief Executive Officer of MIDC, The District
Collector, Raigad, Sub-Divisional Officer, Karjat and the State
of Maharashtra for committing alleged contempt of Court by
willful disobedience of the orders dated 8 April, 2022 passed
in WP No. 3119 of 2022 and 22 July, 2022, 10 August, 2022
and 18 August, 2022 passed in IA No. 10159 of 2022.
38. The said contempt petition appeared on board on
28 November, 2022, when the learned Senior Counsel for the
MIDC made a statement that a Special Leave Petition has
been filed by the MIDC bearing Special Leave Petition (Civil)
Diary No.(s). 36924/2022 and would be listed on 2 December,
2022. This Court accordingly adjourned the matter to 7
December, 2022. The Hon'ble Supreme Court adjourned the
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matter on 2 December, 2022. This Court accordingly directed
the contempt petition to be placed on board on 14 December,
2022. The matter was further adjourned to 20 December,
2022.
39. On 22 December, 2022, the parties tendered a
copy of the order dated 15 December, 2022 passed by the
Supreme Court in Special Leave Petition (Civil) Diary No(s).
36924/2022 directing Respondent No.1 MIDC to deposit Rs.
23,19 crores which is proportionate to 16.87 hectares of land
regarding the award stated to have been made in compliance
with the order passed by this Court on 2 July, 2022. The
learned Senior Counsel for the Petitioners and the learned
counsel for the Respondent No.3 made a request for amount
of Rs. 23.19 crores directed to be deposited by the Supreme
Court and have been allowed to be withdrawn in view of the
direction issued by this Court in Contempt Petition,
paragraph 4 of the order dated 22 July, 2022, granting liberty
to Respondent No.5.
40. Since this Court noticed that the Supreme Court
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has not granted any such liberty to withdraw the said amount
that was directed to be deposited by MIDC, this Court did not
allow the Petitioners or Respondent No.5 to withdraw the said
amount at this stage and granted liberty to Respondent No.5
to apply for withdrawal before the Hon'ble Supreme Court, if
so advised. On 17 February, 2023, this Court accordingly
decided to hear the matter finally.
41. On 10 March, 2023, the matter was partly heard. This
Court was informed by the parties that the MIDC has already
deposited the amount pursuant to the interim order passed by
this Court in respect of the land admeasuring 16.871 hectares
out of 63.232 hectares. The said amount was not disputed
by Respondent No.5. This Court accordingly directed that if
the possession of the land admeasuring 16.871 hectares is
not handed over by the Petitioners to the MIDC, the same
shall be handed over within one week from the date of the
said order.
42. The Petitioners accordingly handed over the
possession of the land admeasuring 16.871 hectares to the
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Sub-Divisional Officer. By the said order, this Court dismissed
the contempt petition insofar as Respondent No.1 is
concerned, in view of the order passed by the Supreme Court
on 8 February, 2023. in SLP No. 23802-23805/2022 and made
is clear that the Contempt Petition would be considered along
with Writ Petition insofar as other Respondents are
concerned.
43. Mr. Narichania, learned Senior Counsel for the
Petitioners invited our attention to various documents
annexed to the Writ Petition, Contempt Petition and also to
various interim orders passed by this Court in the Writ
Petition filed by the Petitioners in Writ Petition No. 3119 of
2022 and also in Writ Petition No. 11473/2022 and Contempt
Petition No. 682/2022. It is submitted that this Court had
already acknowledged in the order dated 30 March,2022 that
the MIDC did not dispute its liability to make payment but had
only contended that the Sub-Divisional Officer had not yet
issued the demand, and thus payment could not be released
in respect of the land under acquisition. This Court had
accordingly granted time to Learned AGP for Respondent
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Nos. 2 to 4 to take instructions from Sub-Divisional Officer
about the demand to be made upon Respondent No.1
44. It is submitted that similarly by order dated 8 April,
2022, this Court had directed the Sub-Divisional Officer to
pass formal award and to take possession of the land and also
directed the MIDC to make payment of compensation already
decided by the High Power Committee to the Petitioners
within four weeks after handing over possession. He directly
placed reliance on the order dated 22 July, 2022 directing the
Sub-Divisional Officer to publish Award on or before 26 July,
2022 and directed the MIDC to deposit Rs.86,94,40,000/-
within one week from the date date of receipt of a copy of
the award. It is submitted that both these orders had attained
finality. The MIDC never raised dispute about the title in
respect of the writ property before the Court earlier.
45. It is submitted that since notification under Section
32(2) was already issued and published prior to issuance of
notification under Section 32 (4) in the Official Gazette , the
land had already vested in the State Government free from all
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encumbrances and neither Sub-Divisional Officer nor the
MIDC could raise an issue of title and thus could not have
refused to pay compensation in respect of the land under
acquisition. He submitted that even after publishing the
notification under Section 32(1), the MIDC or Sub-Divisional
Officer did not raise any question or queries in respect of the
dispute in title of the land pertaining to the Petitioners and
Respondent No.5. He submitted that only after having been
satisfied and after considering the objections, the State
Government had issued final notification under Section 32(1)
of the MID Act. The writ property accordingly stood acquired
by the State Government.
46. Learned Senior Counsel for the Petitioners invited
our attention to clause 3 of the Award dated 3 August, 2022
and submitted that even according to the Award, a joint
measurement of the area under the present award has been
done on 5 November, 2019 and 13 November, 2019 to 19
November, 2019 by the Deputy Registrar, Land Records,
Khalapur. No complaint has been received during the said
joint measurement. He submitted that personal hearing was
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conducted on 23 December, 2019 and 30 December, 2019 and
thereafter a report had been sent to the Corporation on 2
June, 2020 along with the feedback of the Sub-Divisional
Officer.
47. Learned Senior Counsel placed reliance on the
order passed by this Court on 5 May,2021 in Commercial
Arbitration Petition No. 359 of 2021 whereby the said Petition
was disposed of in terms of the Consent Terms and submitted
that by the said order, this Court had directed the Authorities
viz. Respondent No.1 MIDC and Respondent No.3 Sub-
Divisional Officer- Karjat to comply with the terms and to act
on the basis of the order passed by this Court. He submitted
that the Sub-Divisional Officer and the Respondent No.1
MIDC never objected to the orders passed by this Court in
the said Commercial Arbitration Petition No.359/2021.
48. Learned Senior Counsel placed reliance on various
clauses of the Consent Terms entered into between Petitioners
and Respondent No.5 in the said Commercial Arbitration
Petition and submitted that the Petitioners were permitted to
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take necessary steps to ensure that MIDC or Sub-Divisional
Officer or any other officer, as the case may be, directly
deposit the compensation amount payable for the acquisition
of lands mentioned in Annexure "E"hereto with the
Prothonotary & Senior Master of this Court until such time
as the entire settlement amount is paid by Respondent No.5.
It is submitted that the Intervernor also agreed and
confirmed that they have no objection if the compensation
amounts payable by the Sub-Divisional Officer, Karjat for the
acquisition of lands of 60 acres mentioned in Annexure 'F'to
the Consent Terms would be deposited by the concerned
paying authority directly with the Prothonotary and Senior
Master of this Court, who in turn would deposit the entire
amount in a fixed deposit with a nationalized bank. The
Intervenor also filed an affidavit before this Court recording
and confirming the consent terms between the Petitioners and
Respondent No.5.
49. It is submitted by the Learned Senior Counsel that
the Respondent No.1 MIDC and Sub-Divisional Officer cannot
be allowed to raise an issue regarding title by relying upon
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Index II of Sale Deed between the Intervenor and four persons
Mr. Sanket Janardhan Bhase, Mr. Abhishek Chandrakant
Surve, Mr. Harshad Nandkumar Vichare and Mr. Santosh
Babasaheb Dahifale as those persons had admitted in the
affidavit annexed at Exhibit 'F-1' that they have no objection if
the compensation amount, when payable by MIDC or any
other authority to them towards the compulsory acquisition
of the lands mentioned above is deposited by MIDC or any
other authority directly with the Learned Prothonotary &
Senior Master, High Court, Bombay and that the amount shall
remain deposited in this Court till such time the payment of
Rs.62,50,000/- payable to Respondent No.5. He submitted that
the Intervenors have on locus to intervene in this Petition. If
they have any cause of action, they are required to file an
independent proceeding for impugning the order dated 5
May, 2021.
50. Insofar as Agreement entered into between the
Petitioners and Intervener is concerned, it is vehemently
urged by the learned Senior Counsel for the Petitioners that
the intervenor have not paid any single penny towards
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consideration to the Petitioners and falsely alleged that they
purchased the land for valuable consideration.
51. Learned Senior Counsel for the Petitioners also
placed reliance on the letter dated 25 February, 2022
addressed by the Sub-Divisional Officer whereby he agreed
and informed the Petitioners that the final Notification under
Section 32(1) had been published and once the amount for
compensation was received from the MIDC, for whom the
acquisition had taken place, the same would be disbursed to
the Petitioners.
52. Learned Senior Counsel also placed reliance upon
the order dated 30 March, 2022 passed by this Court
recording the statement made by the MIDC that it does not
dispute its liability to make the payment, but submitted that
compensation had not been paid only because the Sub-
Divisional Officer had not issued the demand and as a result
thereof the payment could not be made by the MIDC. It is
submitted by the learned Senior Counsel that the Sub-
Divisional Officer did not produce any proof of any claim
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claimed by any other claimant in respect of right, title and
interest in the writ property. The 7/12 extract produced by
the Sub-Divisional Officer cannot be considered as a proof of
title.
53. It is submitted that though this Court had passed
an order directing the Sub-Divisional Officer to pass an award
for an area admeasuring 63.232 hectares, the Sub-Divisional
Officer has wilfully disobeyed the said order and has passed
an Award only for 16.871 hectares to the tune of Rs.
23,19,76,250/-. He submitted that the Contempt Petition
against Respondent Nos. 2 to 5 are made absolute and those
Respondents be punished under the provisions of the
Contempt of Courts Act, 1971 read with Article 215 of the
Constitution of India. Learned Senior Counsel tendered a list
of survey numbers without any remarks of the Sub-Divisional
Officer as per the affidavit of Sub-Divisional Officer dated 23
February, 2023 and submitted that though there was no
remark made by the Sub-Divisional Officer, the Award was not
passed in respect of those lands.
54. It is submitted by the learned Senior Counsel that
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though the Sub-Divisional Officer temporarily made an award
for a portion of land under acquisition and the MIDC has
released the substantial amount in respect of that portion of
the land forming part of the award, Respondent No.1 MIDC
and Sub-Divisional Officer have raised a frivolous plea of
dispute of title in respect of the entire land for which no
award is made. He submitted that the Sub-Divisional Officer
or the MIDC could not have raised any dispute about title for
any portion of land under acquisition or that the land must be
contiguous.
55. It is submitted that defence raised by the MIDC is
contrary to the provisions of MID Act. He submitted that
compensation was paid by the MIDC in respect of portion of
land that was not contiguous land. The remaining portion of
the land is also not a contiguous land. Though various
documents were submitted by the Petitioners to the Sub-
Divisional Officer, no comments were passed by the Sub-
Divisional Officer on the documents or award. The Sub-
Divisional Officer relied upon some other third party
documents without giving an opportunity to the Petitioner. He
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submitted that Sub-Divisional Officer ought to have made an
award about the entire land under acquisition.
56. It is submitted that the Intervenors have claimed
about 24 hectars of land on the basis of 7/12 extract
regarding their claims, which is disputed by the Petitioners.
He submitted that any event, the Sub-Divisional Officer ought
to have made partial award in respect of the land
admeasuring 63.232 hectares which are claimed by the
intervenors along with first award made by the Sub-Divisional
Officer.
57. Learned Senior Counsel invited our attention to the
Affidavit filed by the Intervenors. He submitted that the Sub-
Divisional Officer cannot take advantage of the transaction
between the Petitioners and the Intervenors and could not
have refused to make an award on the ground that there is a
dispute about title on the writ property. He placed reliance
on Sections 36(1) and 36(3) of the MID Act and submitted
that even if there is any dispute between the Petitioners and
the intervenors, the Sub-Divisional Officer has to deposit the
amount of compensation in Court.
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58. Learned Senior Counsel submitted that even if the
payment would have been made to the Petitioners by the
MIDC in respect of a writ property, the Petitioners were liable
to pay the amount to the persons entitled for which the MIDC
had no say. Learned Senior Counsel tendered a copy of the
circular dated 17 January, 2008 and submitted that the
Respondents have committed breach of the said circular . He
submitted the possession receipt is in respect of land
admeasuring 2.350 Hectare and 14.521 Hectare. It is
submitted that the Sub-Divisional Officer be directed to make
an Award for the balance portion of land even if there is any
title dispute as canvassed by the Sub-Divisional Officer and
MIDC.
59. Mr. Sakhare, Learned Senior Counsel for the MIDC
invited our attention to the Affidavit in Support of Interim
Application filed by the Intervenors and more particularly,
paragraph 9 and submitted that the averments made by the
Intervenors clearly show that there is a title dispute in
respect of the writ property. He also invited our attention to
the averments made by the Petitioners in paragraph 14 of the
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writ petition and submitted that even the averments made by
the Petitioners would indicate that there is a title dispute
between the Petitioners and the Intervenors in respect of the
writ property. He relied upon Section 32(1) to 32(4), Sections
33,34,35, 36(3), 37 and 38 of MID Act.
60. It is submitted that Section 34 of the MID Act
provides that an appeal is maintainable against the decision
taken by the Sub-Divisional Officer before the Appellate
Authority which ought to have been filed within 60 days from
the date of the service of the copy of the Award passed by the
Sub-Divisional Officer. He submitted that the dispute as to
the apportionment within the Petitioner and the Intervenors,
also can be adjudicated upon under Section 35 by making a
Reference of dispute to the Authority.
61. Insofar as the order passed by the Learned Single
Judge of this Court in Commercial Arbitration Petition filed by
Respondent No.5, in which an order of deposit in Court came
to be made, is concerned, it is submitted that the MIDC or
the Sub-Divisional Officer are not party to the said
Commercial Arbitration Petition and thus the said order of
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deposit in Court, cannot be relied upon in support of the plea
that MIDC shall be directed in this case to deposit the amount
of compensation in this Court in respect of balance writ
property.
62. It is submitted by Learned Senior Counsel that the
Petitioners had suggested the amount of compensation to the
MIDC for payment of compensation to the Petitioners. There
was negotiation between the parties and only thereafter the
amount was paid by the Sub-Divisional Officer under Section
33(2) of the MID Act. No award thus can be made in respect
of the balance land under Section 33(3) of the MID Act as
sought to be canvassed by the Petitioners.
63. Learned AGP for the State relied upon the Affidavit
in Reply dated 3 August, 2022 filed by Shri Ajit Nairale, Sub-
Divisional Magistrate, Karjat-Khalapur Sub Division, Karjat,
and submitted that the area admeasuring 16.871 Hector
which was acquired by consent of the Petitioners was not
'contiguous land'. This fact was conveyed to the Regional
Officer, MIDC, Panvel by the Special Land Acquisition Officer
on 25 May, 2022. She submitted that the said Award in
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respect of 16.871 hectors was based on a clear title and the
consent given by the Petitioners and so far as balance land
admeasuring 46.361 hectares equivalent to 115.90 Acres,
award cannot be declared as the Petitioner does not have
clear title.
64. It is submitted there are several disputes regarding
ownership of land pending before Revenue Authorities. There
are various objections to the payment of compensation to the
Petitioners and their objections should be considered as per
due procedure under the law. She submitted that the Sub-
Divisional Officer must follow the rules and procedure
prescribed under Section 32(5) and 33(2) of the MID Act for
the Award. She submitted that Award cannot be passed as
no land owner other than the Petitioners have given their
consent in respect of the lands that are part of the Petition.
The learned AGP also placed reliance on Affidavit dated 8
November, 2022 filed by the Sub-Divisional Officer raising
similar issues.
65. Learned counsel for Respondent No.5 relied upon
the Consent Terms filed by the Petitioners and the
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Respondent No.5 and submitted that the liabilities of the
Petitioners towards Respondent No.5 were crystalized by the
consent terms dated 5 May, 2021 and order passed by this
Court in Commercial Arbitration Petition, taking the consent
terms on record for recovery of the balance compensation
amount from the Sub-Divisional Officer by the MIDC. She
submitted that her client has already filed Execution
Application for recovery of the balance amount under the said
Consent Terms.
66. Mr. Y.S. Jahagirdar, Learned Senior Counsel for the
Applicant in Interim Application No. 2449 of 2023 submitted
that his clients have purchased the land admeasuring about
60 acres out of total writ property for lawful consideration
from the Petitioners and have paid such consideration to the
Petitioners. They relied upon the Agreement for purchase. He
submitted that the Applicants have thus become owners of the
land admeasuring 60 acres and have right, title and interest
over the same and thus, if any payment of compensation is
paid to the Petitioners in respect of land admeasuring about
60 acres, rights of the Applicants in the Interim Application
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would be seriously affected.
67. Mr. Narichania, learned Senior Counsel for the
Petitioners in his rejoinder arguments relied upon Section
34(4) of the MID Act and submitted that the remedy in case
of any dispute about payment of compensation, can be
exercised under the said provisions by the party aggrieved.
He invited our attention to the prayers in the writ petition and
also the Affidavit in Reply filed by the Sub-Divisional Officer.
He submitted that since there is no private negotiation
between the parties, at any stage, or in any event in respect
of the balance portion of the writ property, the Award has to
be made by the Sub-Divisional Officer under Section 33(3) of
the MID Act and not under Section 33(2) of the MID Act. The
Petitioners are always read and willing to hand over the
balance portion of land to the Sub-Divisional Officer. He
submitted that the Division Bench of this Court on 8 April,
2022 had directed the MIDC to deposit the amount in Court
and thus, the MIDC be directed to deposit the balance
amount of compensation in this Court. If this Court directs
the MIDC to deposit the amount before the Authority, serious
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prejudice would be caused to the Petitioners.
68. Insofar as submissions made by the Intervenors
are concerned, Learned Senior Counsel for the Petitioners
relied upon the Affidavit in Reply filed by his clients to the
said Interim Application and vehemently urged that the
Learned Single Judge of this Court passed an order in terms
of the Consent Terms in the said Commercial Arbitration
Petition filed by Respondent No.5. The Learned Single Judge
had recorded an undertaking on behalf of the Intervenors
herein that in case of any shortfall or deficit to achieve the
amount of Rs. 62,50,00,000/- payable by the Petitioners to the
Respondent No.5, such shortfall shall be made good from the
amount deposited in the Court.
69. Learned Senior Counsel submitted that the
Intervenors cannot be allowed to contend that the Agreement
entered between the Petitioners and the Intervenors has
created any right in their favour and in the writ property.
REASONS AND CONCLUSIONS :
70. The questions that arise for consideration of this
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Court are;
(i) Whether the State Government who is empowered to
pass an order of compulsory acquisition under Section 32 of
the Maharashtra Industrial Development Act, 1961 can refuse
to make an Award after issuance of notice under Section 32(2)
of the MID Act on the ground that there is title dispute
between the land owners with a third party or not?
(ii) Whether MIDC can refuse to deposit the amount of
compensation with the State Government in respect of land
under acquisition for which Notice under Section 32(2) of the
MID Act was issued though the land has vested in the State
Government, free from all encumbrances, in view of Section
32(4) on the ground that the alleged title dispute between the
Petitioners on one hand and the Respondent No.5 or the
Intervenors on the other hand?
71. Under Section 32(1) of the MID Act, the State
Government is empowered to acquire such land by
publishing in the Official Gazette a notice specifying the
particular purpose for which such land is required, and
stating therein that the State Government has decided to
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acquire the land in pursuant of the said section.
72. Under Section 32(2) of the MID Act, the State
Government is empowered to issue a notice before
publishing a notice under sub-section (1) of Section 32 of the
MIDC calling upon the owner of the land and any other
person who in the opinion of the State Government may be
interested therein, to show cuase, within such time as may be
specified in the notice, why the land should not be acquired.
73. Section 32(3) contemplates an opportunity of being
heard to be granted to the owner of the land or by any other
person interested therein after considering the cause, if any,
shown by the owners of the land and by any other person
interested therein, and after giving such owner a response to
the notice issued by the State Government.
74. Section 32(4) clearly provides that when a notice
under sub-section (1) is published in the Official Gazette, the
land shall, on or from the date of such publication, vest
absolutely on the State Government free from all
encumbrances.
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75. The proviso to Section 32(4) empowers the State
Government to withdraw the land from acquisition by issuing
notice and by publishing of such notice in the Official
Gazette, the land shall revest with restrospective effect in the
person in whom it was vesting immediately before the
publication of the notice under sub-section (1) subject to such
encumbrances, if any, as may be subsisting at that time. The
owner and other persons interested shall be entitled to
compensation for the damage, if any, suffered by them in
consequence of the acquisition proceedings as determined in
accordance with the provisions of Section 33.
76. Under Section 32(5) of the MID Act, the State
Government is empowered to issue a notice in writing, order
any person who may be in possession of the land to
surrender or deliver possession thereof to the State
Government or any person duly authorized by it in this behalf
within thirty days of the service of the notice where any land
is vested in the State Government under sub-section 4 of
Section 32. The consequence of not handing over possession
by such person in pursuance of notice under Section 32(5) is
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provided under Section 32(6).
77. Under Section 32(6) of the MID Act, the State
Government is empowered to take possession of the land and
may for that purpose use such force as may be necessary.
Under Section 32(7) of the MID Act, where the land has been
acquired for the corporation or any local authority, the State
Government shall, after it has taken possession thereof, by
notification published in the Official Gazette, transfer the
land to the Corporation or that local authority, as the case
may be, for the purpose for which it was acquired, and the
provisions of Section 43-1A shall apply apply to any land so
transferred.
78. Under Section 33(1) of the MID Act, the State
Government is under obligation to pay compensation for
acquisition, the amount of which shall be determined in
accordance with the provisions of Section 33. Under Section
33(2), where amount of compensation has to be determined
by agreement between the State Government and the person
to be compensated, it shall be determined in accordance with
such agreement.
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79. Under Section 33(3), however, it is provided that
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. Section 33 (3) is subject to
proviso 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.
80. The said Section 33(3) is subject to further proviso
that the State Government while issuing the general order
under the preceding proviso shall adhere to the provisions
of the Right to Fair Compensation and Transparency in Land
Acquisition, Rehabilitation and Resettlement Act, 2013 (for
short 'Fair Compensation Act') relating to the determination
of amount of compensation in accordance with the First
Schedule, and rehabilitation and resettlement specified in
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the Second and Third Schedules, being beneficial to the
affected families.
81. Under Section 33(4), the Collector is under
obligation to give an opportunity to every person to be
compensated to state his case as to the amount of
compensation. Section 33(5) and (6) of the MID Act provide
the factors to be considered by the Collector while
determining the amount of compensation.
82. Under Section 34 of the MID Act, an appeal is
provided by making an application to the Collector requiring
that the matter be referred by him for determination of the
Authority and in that event, the provisions of Fair
Compensation Act shall mutatis mutandis apply to further
proceedings in respect thereof. Under Section 35 of the MID
Act, when the amount of compensation has been settled
under Section 33, if any dispute arises as to the
apportionment of the same or part thereof, or as to the
persons to whom the same or any part thereof is payable, the
Collector may refer such dispute for the decision of the
Authority.
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83. Under Section 36(1) of the MID Act, where the
amount of compensation is determined by agreement, the
State Government shall pay such amount to the person or
persons entitled thereto. Under Section 36(2) of the MID Act,
where the amount of compensation is determined by the
Collector under the provisions of Section 33, State
Government shall tender payment of the compensation
determined to the persons entitled thereto according to such
determination and shall pay to them unless prevented by
someone or more of the contingencies mentioned in sub-
section (3).
84. Section 36(3) of the MID Act clearly provides that if
the persons entitled to compensation according to the
decision of the Collector do not consent to receive it, or if
there be no person competent to alienate the land or if there
be any disputes as to the title to receive the compensation,
the State Government shall deposit the amount of the
compensation so determined to the Authority. Section 36(3)
further provides that any person admitted to be interested
may receive such payment under protest as to the sufficiency
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of the amount of compensation. The said obligation is subject
to further proviso that nothing therein contained shall affect
the liability of any person, who may receive the whole or any
part of any compensation determined this Chapter, to pay the
same to the person lawfully entitled thereto.
85. Under Section 37 of the MID Act, where any
amount of compensation has been deposited to the Authority,
under the last preceding section, the Authority may either of
its own motion or on the application made by or on behalf of
any party interested or claiming to be interested in such
amount, order the same to be invested in such Government
or other securities approved by the State Government as it
may think proper, and may direct the interest or other
proceeds of any such investment to be accumulated and paid
in such manner as will, in its opinion, give the parties
interested therein the same benefit therefrom as they might
have had from the land in respect whereof such amount has
been deposited or as near thereto as may be.
86. Section 38 of the MID Act provides that when the
amount of compensation is not paid or deposited on or before
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taking possession of the land, State Government shall pay the
amount of compensation determined with interest thereon at
the rate of four per cent per annum from the time of so taking
possession until it shall have been so paid or deposited.
87. A perusal of the provisions in Chapter VI and more
particularly Section 32(2) clearly indicates that even before
passing an order of compulsory acquisition under Section
32(1) and even before publishing a notice under Section 32(1)
publishing the decision of the State Government for acquiring
the land for the purpose of development or by the
Corporation or for any other purpose in furtherance of the
land, merely on publishing of the notice under Section 32(2)
calling upon the owner of the land or any other person
interested who in the opinion of the State Government, the
land vested absolutely in the State Government free from all
encumbrances under sub-section (3) of Section 32 of the MID
Act. In this case, admittedly, the notice under Section 32(2)
was published on 19 November, 2019. Final Notification
under Section 32(1) of the MID was published in the
Government Gazette and local newspaper on 20 November,
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2019.
88. In our view, the entire writ property and the lands
which were the subject matter of the said Notification issued
under Section 32(2) vested in the State Government free
from all encumbrances from the date of such publication.
Once the land is vested in the State Government, free from all
encumbrances, the State Government is empowered to take
possession of such land by calling upon the person who may
be in possession of the land to surrender or deliver possession
thereof to the State Government or any person duly
authorized by it in that behalf within 30 days of service of
notice. Any refusal to comply with the said order, the State
Government is also empowered to take possession of such
land and by using such force as may be necessary. In view of
such powers vested in the State Government merely upon
publishing of the notice under Section 32(2) of the MID Act, in
our view, the State Government cannot refuse to make an
Award on the ground that there appears to be a title dispute
between the Petitioners and the Intervenors.
89. Be that as it may, under Section 32(3) of the MID
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Act, after considering the cause, if any, shown by the owner of
the land or by any person interested therein and after giving
personal opportunity of being heard, the State Government is
empowered to pass such order as it deems fit.
90. The dispute about apportionment has to be referred
by the Collector for the decision of the Authority. In our view,
the dispute between the parties, if any, in respect of
apportionment of the claim which may even if arises because
of the rival claims made by the parties, cannot be a ground
for refusal to make an Award. The Maharashtra Industrial
Development Act, 1961, is a self contained Code providing the
entire mechanism from the stage of vesting of land in the
State Government and for adjudication of the dispute, if any,
in respect of compensation which may arise even on the basis
of the rival claims made by the parties on the basis of their
respective titles. It is common ground that in this case
pursuant to an interim order passed by this Court and the
order passed by the Supreme Court, the Sub-Divisional Officer
had ultimately made an Award in respect of land
admeasuring 16.871 hectors which is implemented.
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91. The Supreme Court passed an order on 8 February,
2023 in Special Leave Petition filed by the Petitioners herein
and also the MIDC after taking note of deposit made by MIDC
in respect of land admeasuring 16.871 hector and had
permitted to be withdrawn by the Respondent No.5 herein.
Supreme Court noticed that there was a change of
circumstance, from that which existed as on the date when
this Court passed an order on 1 December, 2022, as the
Applicant therein has received a portion of the amount, that
be the position, this Court will have to take a look into the
matter and thereafter arrive at its conclusion. The Supreme
Court clarified that the High Court before seeking compliance
of the order dated 1 December, 2022 by the Respondents
shall take note of the subsequent development and pass an
order in accordance with law.
92. It is the case of the Sub-Divisional Officer in the
affidavit in reply that the land admeasuring 16.871 hectors in
respect of which the Award has been made was also not a
contiguous land. However, in respect of the balance portion,
an objection is raised that the land is not a contiguous land
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and thus, no Award can be made in respect of the balance
portion in addition to the dispute arose in title, raised for
refusing to make an Award.
93. In this backdrop, we shall now consider whether
Award has to be made by the Sub-Divisional Officer in respect
of the balance portion of land, whether the compensation
shall be paid to the Petitioners or Respondent No.5 or the
Intervenors in absence of any consensus between them to
receive any amount of compensation or upon making such
award, the amount should be directed to be deposited either
in this Court or before the Authority in terms of Section 36(3)
of MID Act or not?
94. The Petitioners have produced the Consent Terms
between the Petitioners and Respondent No.5 in Commercial
Arbitration Petition (L) No. 2735/2021 on 5 May, 2021. A
Learned Single Judge of this Court has disposed of the said
Commercial Arbitration Petition in terms of the Consent
Terms. There is a reference made of the writ property in the
Consent Terms. The Petitioners herein had agreed and
undertaken to this Court in the Consent Terms that in the
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event, the Petitioner and its nominees i.e. Goldshine and Jains
collectively, receive 50% of the Settlement Amount on or
before the Settlement Date, then Respondent Nos. 1 to 3
shall be entitled to a grace period of not more than 4 months
to make the payment of the balance 50% of the Settlement
Amount to the Respondent No.5.
95. It is not in dispute that under the Consent Terms,
the Petitioners agreed to pay a sum of Rs.62,50,00,000/- to
Respondent No.5 and its nominees towards full and final
settlement of all the disputes that had arisen between the
parties. It is a common ground that Respondent No.5 has not
been paid the entire settlement amount as agreed by the
Petitioners under the said Consent terms filed in the
Commercial Arbitration Petition. In view of the Award made
by the Sub-Divisional Officer in respect of the part of the land,
only part of the amount came to be released in favour of
Respondent No.5. Respondent No.5 has already filed an
application for execution of the order passed in the Consent
Terms against the Petitioners.
96. Insofar as the Applicants in the Interim
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Application No. 2449 of 2023 are concerned, the Intervenors
have contended that the Learned Single Judge had recorded
an undertaking given by the Applicants (Intervenors)
containing an assurance that the compensation amount
payable by the Sub-Divisional Officer, Karjat for acquisition of
lands purchased by third parties from the Petitioner herein,
including the Applicants shall be deposited with the
Prothonotary and Senior Master of this Court, only after the
amounts payable by the Petitioner have been paid. The
Applicants (Intervenors) are also having certain dispute with
the Petitioners.
97. Mr. Narichania, learned Senior Counsel for the
Petitioners during the course of his arguments denied the
claims of the Applicants and submitted that no amount was
paid by the Applicants to the Petitioners under the Sale Deed
relied upon by the Applicants.
98. It is thus clear that, the Petitioners have made a
claim for recovery of the entire amount of compensation in
respect of the land under acquisition, part of the amount
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received from the Sub-Divisional Officer under the first award
dated 26 July, 2022 has been paid to the Respondent No.5
under the Consent Terms entered into between them.
Respondent No.5 has to recover certain amount from the
Petitioners under the said Consent terms which admittedly
has been not paid. There are also rival claims made by the
intervenors.
99. Though this Court made a suggestion to the
Learned Counsel for the Petitioners, Respondent No.4 and the
Intervenors that in case of any award being made by the Sub-
Divisional Officer, if parties agree for apportionment even
before this Court, an appropriate order can be passed by this
Court based on such agreement. The parties however did not
agree to this suggestion.
100. In these circumstances, it would be appropriate if
we direct the Sub-Divisional Officer to make award in respect
of the balance portion of the land admeasuring 49.349 hectors
after complying with the provisions of law, expeditiously,
within six months from today and to deposit the amount of
compensation before the authority under Section 36 of the
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MID Act.
101. We, accordingly, pass the following order:
(i) Sub-Divisional Officer is directed to make an
Award in respect of the 49.349 hectare i.e. the
remaining portion of land under Section 33(3) of
the MID Act, without fail, within six months from
today.
(ii) Respondent No.1 to deposit the amount that
will be called for by the Sub-Divisional Officer in
respect of the said portion of land within two weeks
from the date of such requisition, without fail.
(iii) Upon making such Award under Section 33(3)
of the MID Act, the Sub-Divisional Officer shall
deposit the amount of compensation with the
Authority under Section 36(3) of the MID Act
within two weeks from the date of making Award,
without fail.
(iv) The Petitioners to hand over the possession of
the balance land admeasuring 49.349 hectares to
the Sub-Divisional Officer within two weeks from
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today, without fail on 'as is where is basis'.
(v) It is made clear that if there is any consensus
between the Petitioners, Respondent No.5 and the
Intervenors about apportionment of claim for
compensation or any other parties, who has any
right, title or interest of any nature whatsoever,
parties are free to file their agreement before the
Sub-Divisional Officer within four weeks from today
for apportionment of the claim. If no consensus on
the apportionment of the compensation by and
between the parties is arrived, the Sub-Divisional
Officer in the event, shall deposit the amount as
directed in the abovesaid order within the time
prescribed.
(vi) Upon the Petitioners handing over the
possession of the balance portion of the land to the
Sub-Divisional Officer, the Sub-Divisional Officer in
turn shall hand over possession of the balance
portion of the land to the Respondent No.1-MIDC
in accordance with Section 32(7) of the MID Act.
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(vii) The parties are at liberty to apply to the
Collector for making a Reference to the dispute as
to the apportionment for the decision of the
Authority within time prescribed,if any, under the
provisions of the MID Act.
(viii) Upon making a reference by the Collector to
the Authority on the dispute, the Authority shall
invest the amount in such fixed deposits or other
Securities as it is approved by the State
Government, as the case may be
(ix) The amount that would be deposited by the
Sub-Divisional Officer would be subject to the
outcome of the adjudication of the dispute as to the
apportionment by the Authority.
(x) Writ Petition is disposed of in the aforesaid
terms. Rule is made absolute.
(xi) There shall be no order as to costs
(xii) Parties shall act upon an authenticated copy
of the judgment.
(GAURI GODSE, J.) ( R.D.DHANUKA, J. )
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