Bombay High Court
Prakash G Patel vs The Land Acquisition Collector ... on 28 April, 2023
Bench: R.D. Dhanuka, Gauri Godse
2023:BHC-AS:12879-DB
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Iresh IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 14354 OF 2022
1. Prakash G. Patel
Aged about 59 years, Adult,
Indian inhabitant, having address
at Survey No. 5/1, Nani Daman,
Village Dabhel, Daman - 396 210
2. Kalpanaben Prakashbhai Patel
Aged about 52 years, Adult having
address at - H. No. 272 Amaliya Falia,
Dabhel, Daman, Daman and Diu 396210 ....Petitioners
V/s.
1. The Land Acquisition Collector
U. T. Administration of Dadra & Nagar
Haveli & Daman and Diu, Revenue
Department, Collectorate, Dholar,
Moti Daman 369 220.
2. Mr. Mohit Mishra
Deputy Collector, 9RVM+M56,
Bhitwadi Road, Municipal Market,
Dholar, Moti Daman, Daman, Dadra
and Nagar Haveli and Daman
and Diu - 396210
3. Sagar S. Thakkar
The Mamlatdar, Daman
and Enquiry Officer, City Survey,
Daman of the Union Territory
of Administration of Dadra &
Nagar Haveli & Daman and Diu
having office at Collectorate,
Dholar, Moti Daman 396 220
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4. Public Works Department, Daman
Through the Executive Engineer,
PWD, Work Division - I Moti
Daman 396 220.
5. Ministry of Road Transport
Highway & Shipping Transport
Bhawan 1, Sanad Marg, New
Delhi - 110 001.
6. Union Territory Administration of
Dadra and Nagar Havelii and Daman
and Diu through the Administrator
of the Union Territory of Administration
of Dadra and Nagar Haveli and Daman
& Diu, having office at Collectorate
Dholar, Moti Daman 369 220.
Also having office at Aykar Bhavan,
Maharashi Karve Road, New Marine
Line, Churchgate, Mumbai - 400 020. ....Respondents
Mr. Rakesh D. Kumar, along with Mr. Shivkumar Mishra and Mr. Vijendra
S. Jabra for the Petitioners
Mr. Hiten S. Venegaonkar, along with Mr. Aayush Kedia for Respondent
Nos. 1 to 6
CORAM: R. D. DHANUKA &
GAURI GODSE, JJ.
RESERVED ON : 5th APRIL 2023
PRONOUNCED ON : 28th APRIL 2023
JUDGMENT: (PER: GAURI GODSE, J.)
1. Rule. Mr. Venegaonkar waives service for Respondents. Rule is
made returnable forthwith. By consent of the parties, the petition is taken
up for final disposal.
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2. This Petition was initially filed for challenging the illegal action of
partial demolition and damage caused to hotel premises, viz. "M/s. Hotel
Grand Heritage" at the hands of Respondent Nos. 1 to 5. The Petitioners
had prayed for directing Respondent Nos. 1 to 5 to forthwith restore and
repair the demolished part of the building. In the alternative, the
Petitioners had prayed for allowing the Petitioners to restore and repair
the building as it existed prior to illegal partial demolition and recover the
expenses from Respondent Nos. 1 to 5.
3. By way of amendment, the Petitioners challenged the corrigendum
dated 31st May 2022 issued by the Land Acquisition Officer, Daman, as
well as modification to the corrigendum issued on 23 rd November 2022 by
the Land Acquisition Officer, Daman.
4. Initially the Petition was filed only by Petitioner No. 1 - husband of
the owner of the writ property. Subsequently, by way of amendment, the
owner of the property was also joined as Petitioner No. 2. The Petitioners
contended that Petitioner No. 2 is the owner and occupier of the land in
question along with the hotel building known as "M/s. Hotel Grand
Heritage" situated at Survey Nos. 795/1 and 795/2 at Village Dabhel, Nani
Daman. The Petitioners contended that after obtaining the necessary
permissions, construction of the hotel premises was carried out. It was
contended that without following any procedure of law, Respondent No. 2
initiated action and carried out partial demolition and caused damage to
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the hotel structure.
5. There was an Affidavit-in-Reply filed on behalf of Respondent No.
1, thereby contending that Respondents had acted as per the provisions
of The Right to Fair Compensation and Transparency in Land Acquisition,
Rehabilitation and Resettlement Act, 2013. ("Act of 2013"). It was
contended that after following the provisions under the Act of 2013,
Award was passed on 14th March 2022 under Section 23 of the Act of
2013 in respect of the Petitioners' land being survey No. 795/1 and 795/2.
It was stated in the affidavit that the compound wall and front structure of
the hotel building of the Petitioners were under acquisition. At the time
when the concerned officers visited the land under acquisition to verify
whether the affected structure was demolished or not, it was brought to
the knowledge of the concerned officers that only the compound wall was
affected in view of the acquisition and the hotel structure was not affected
under the acquisition proceedings. It was thus contended that the Award
for Compensation was passed on 14 th March 2022, a corrigendum Award
was issued on 31st May 2022, and a modification order dated 23 rd
November 2022 was issued with respect to the affected portion of the
hotel building of the Petitioners.
6. It was further stated in the Affidavit that the Petitioners were well
versed with the issuance of the corrigendum, and the concerned
authorities had on several occasions requested the Petitioners to
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demolish the affected structure. It was thus contended that the demolition
of the affected structure was carried out by following the procedure under
the Act of 2013 with respect to the structure which was affected by the
acquisition.
7. Petitioners filed an Affidavit dated 22 nd November 2022, thereby
placing on record the photographs showing the demolition work that was
carried out by Respondent No. 2 with respect to the hotel building of the
Petitioners. By way of said Affidavit, Petitioners contended that under the
land acquisition proceedings, only a portion of Petitioners' property, i.e.
survey No. 795/1 and 795/2, admeasuring about 146 square meters and
83 square meters was affected, and the hotel building standing on the
aforesaid land was not at all affected as per the land acquisition Award
passed on 14th March 2022. In view of the contentions raised by the
Respondents with respect to the corrigendum issued to the original
Award, the Petitioners, by way of amendment, challenged the
corrigendum dated 31st May 2022 as well as modification to the
corrigendum issued on 23rd November 2022.
SUBMISSIONS ON BEHALF OF THE PETITIONERS:
8. Learned counsel appearing for the Petitioners submitted that the
Award dated 14th March 2022 passed under Section 23 of the Act of 2013
was regarding a total area of land admeasuring 20852 square meters.
Learned counsel invited our attention to the summary of the Award, which
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shows that an amount of Rs. 15,01,23,142/- was awarded towards the
value of structures and trees, including 100% solatium. The learned
counsel further invited our attention to the corrigendum dated 31 st May
2022, which summarised the Award for a total area of land acquired as
20611 square meters. He further invited our attention to the valuation of
structures and trees, including 100% solatium increased to Rs.
16,18,97,534/- from the original valuation of the structures and trees as
summarised in the original Award.
9. Learned counsel also invited our attention to an order dated 23 rd
November 2022 issued by the Land Acquisition Collector, Daman. The
said order stated that in partial modification to Annexure - II of the
corrigendum Award, the type of structure at serial No. 1 was directed to
be read as "G+3 Hotel Building" instead of a compound wall. Thus,
learned counsel for the Petitioners submitted that after the Award under
Section 23 of the Act of 2013 was passed, the corrigendum Award, as
well as modification to the corrigendum Award, recorded that there was a
partial modification to the Award. He thus submitted that by way of a
corrigendum Award, the area under acquisition was modified, and the
value of structures and trees was increased. He further submitted that by
the modification to the corrigendum Award, hotel building of the
Petitioners was made subject matter of the Award in place of the
compound wall as affected by the original Award. Learned counsel for the
Petitioner submitted that after the Award was declared under Section 23
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of the Act of 2013, Respondent No. 2 had no authority to modify the
Award. He submitted that under Section 33 of the Act of 2013, only
corrections to the Award are permissible within a period of six months
from the date of the Award and before making Reference under Section
64 of the said Act of 2013.
10. Learned counsel submitted that Section 33 provides for only
correction of any clerical or arithmetical mistakes in the Award or errors
arising therein. He submitted that such corrections, which are likely to
affect any person prejudicially, the same shall not be made unless such
person is given a reasonable opportunity of making a representation in
the matter. Learned counsel thus submitted that in any event, Respondent
No. 2 could not have issued the corrigendum Award and modification to
the corrigendum award without giving a reasonable opportunity to the
Petitioner to make a representation with respect to the proposed
modification. Learned counsel submitted that in any event, modifications
carried out by way of corrigendum Award and the modification to the
corrigendum Award amounts to a substantial change in the original Award
and corrections that are made cannot be termed to be clerical or
arithmetical corrections as permissible under Section 33 of the Act of
2013. Learned counsel thus submitted that the corrigendum Award, as
well as modification to the corrigendum Award issued by Respondent No.
2, is illegal and not permissible under any of the provisions of the Act of
2013. He, therefore, submitted that the corrigendum Award, as well as
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modification to the corrigendum Award, deserve to be quashed and set
aside.
11. Learned counsel, in support of his submissions, has relied upon
the decisions of the Hon'ble Supreme Court in the case of Naresh Kumar
and Ors Vs. Govt. of NCT of Delhi 1, Judgment of this Court (Aurangabad
Bench) in the case of Bhupendrasingh S/o Sardarsingh Parmar Vs. The
Competent Authority and Ors2, and the Judgment of this Court in the
case of Shri Shrikant Govind Taklikar and others Vs. State of Maharashtra
and others3.
12. By relying upon the aforesaid decisions of the Hon'ble Supreme
Court as well as this Court, learned counsel for the Petitioners submitted
that the provisions of Section 33 of the said Act of 2013 do not permit to
make any correction or pass corrigendum Award to change the original
Award. He thus submitted that once the Award is declared, it is
impermissible for the Competent Authority to reopen the same on the
ground that the area affected under acquisition was required to be
modified. He, thus, submitted that the action of Respondent No. 2 of
demolishing the hotel structure under the guise of following the provisions
for acquisition under the Act of 2013 is high-handed and illegal.
13. He submitted that perusal of the original Award clearly shows that a
1 (2019) 9 SCC 416
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portion of the hotel structure which was demolished by Respondent No. 2
did not form part of the acquisition proceedings. He submitted that the
very fact that Respondent No. 2 was required to issue the corrigendum
Award and modification to the corrigendum Award for including the hotel
structure in place of the compound wall, as mentioned in the original
Award, shows that the structure that is demolished was not affected by
the acquisition under the original Award dated 14 th March 2022. He thus
submitted that the action of Respondent No. 2 of demolishing the said
structure is high-handed and arbitrary, and thus, the Petitioners are
entitled to restore the hotel building to its original status and are also
entitled to recover the expenses and compensation from the
Respondents. He, therefore, submitted that the corrigendum Award, as
well as the order modifying the corrigendum Award, be quashed and set
aside, and the Petitioners be permitted to reconstruct the demolished part
of the hotel building and restore the same to its original condition. He
submitted that in view of the high-handed and illegal action on the part of
Respondents, Petitioners are also entitled to recover the expenses
towards restoration as well as claim damages against the Respondents.
SUBMISSIONS ON BEHALF OF THE RESPONDENTS:
14. Learned counsel appearing for Respondents supported the action
of the Respondents in issuing the corrigendum Award as well as order
modifying the corrigendum Award. Learned counsel submitted that the
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demarcations done before passing the original Award clearly showed that
the hotel structure of the Petitioners was affected by the acquisition. He
further submitted that, inadvertently, the original Award referred to the
compound wall instead of the hotel structure. He, therefore, submitted
that the hotel structure being affected for the purpose of carrying out
construction of the road, same was the subject matter of the original
acquisition, however, in view of the inadvertent mistake of not specifying
the hotel structure in the original Award, Respondent No. 2 has rightly
passed the corrigendum Award as well as modification order to the
corrigendum Award by taking recourse to Section 33 of the Act of 2013.
15. Learned counsel further submitted that in any event, Respondents
are entitled to initiate fresh proceedings under the provisions of the Act of
2013 for the purpose of acquiring the hotel building of the Petitioners,
which is affected for the purpose of carrying out construction of the road.
He, therefore, submitted that, at the most, the Petitioners would be
entitled to compensation towards the value of the hotel structure that is
affected by the acquisition for the purpose of construction of the road. He
thus submitted that the action of Respondents is sustainable and no
interference is warranted in the present Petition.
CONSIDERATION OF THE SUBMISSIONS AND CONCLUSIONS:
16. We have considered the submissions made by both parties. We
have carefully gone through the proceedings of the original Award as well
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as the corrigendum Award and the order modifying the corrigendum
award. The Award dated 14th March 2022, passed under Section 23 of the
Act of 2013, records that the total area of land acquired from the
interested persons is 20852 square meters and it also states the value of
the structures and trees, including 100% solatium, as Rs. 15,01,23,142/-.
Annexure II of the said Award shows details of compensation for trees
and structures. In the said Annexure II type of structure of Petitioners is
shown as a compound wall. A perusal of the corrigendum Award dated
31st May 2022 records that the total area of the land acquired is reduced
to 20611 square meters and the value of structures and trees, including
100% solatium, is enhanced to Rs. 16,18,97,534/-. Annexure II of the
corrigendum Award again shows the type of structure of Petitioners as a
compound wall.
17. By Order dated 23rd November 2022, Annexure II of the
corrigendum Award is modified by directing that in partial modification of
Annexure II of the corrigendum Award, the type of structure at Sr. No. 1
be read as "G+3 Hotel Building" instead of a "compound wall". In the
original Award, the subject matter of Petitioners' property in Annexure II
was only the compound wall. However, by way of partial modification to
the corrigendum Award, Annexure II is modified and the entire hotel
building is shown in place of the compound wall. By no stretch of the
imagination, the said modification made to the original Award by changing
the affected structure from the compound wall to the entire hotel building
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can be termed as clerical or arithmetical corrections that are permissible
under Section 33 of the Act of 2013.
18. The only provision permitting the Competent Authority to make
minor corrections in the Award is Section 33, which permits only clerical or
arithmetical errors. A plain reading of the corrigendum Award and order
modifying the corrigendum Award shows that Respondent No. 2 has
made substantial changes to the original Award, thereby affecting the
entire hotel building of the Petitioners in place of the compound wall as
originally stated in Annexure II of the Award. Such a modification amounts
to changing the entire subject matter of acquisition. Such modification
cannot be permitted under the guise of making corrections under Section
33 of the Act of 2013. Hence, the corrigendum Award dated 31 st May
2022, as well as the order modifying the corrigendum Award, passed on
23rd November 2022, deserves to be quashed and set aside as being
illegal and contrary to the provisions of the Act of 2013.
19. Respondents have contended that demolition of the part of the
hotel building is carried out pursuant to the provisions of the Act of 2013,
as the same was affected by acquisition proceedings. The original Award
does not provide for the acquisition of the hotel building. As per the
original Award, only the compound wall is shown affected by the
acquisition. However, Respondents have sought to contend that by way of
corrigendum Award and modification order to the corrigendum Award, the
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hotel building has been acquired. Thus, the change effected by the
corrigendum Award and the modification to the corrigendum Award is
substantial in nature and is not permissible under the provisions of the Act
of 2013.
20. The decisions of this Court in the case of Bhupendrasingh S/o
Sardarsingh Parmar, and in the case of Shri Shrikant Govind Taklikar,
relied upon by the learned counsel for the Petitioners, are not applicable
to the facts of the present case. In the said decisions, this Court has held
that the provisions of Section 33 of the Act of 2013 are not applicable to
the acquisition under the National Highways Act 1956. The decision of
the Hon'ble Supreme Court in the case of Naresh Kumar relied upon by
the learned counsel for the Petitioners deals with Section 13A of the Land
Acquisition Act 1894. The Hon'ble Supreme Court has held that bare
reading of Section 13A would make it clear that the same is not a
provision for review of the Award but only for correction of clerical or
arithmetical mistakes in the Award. In the present case, the Award is
under the Act of 2013, and the modification done by the corrigendum
Award and modification to the said corrigendum is substantial in nature.
Section 33 of the Act of 2013 is pari materia with Section 13A of the Act of
1984. Thus, the principles laid down by the Hon'ble Supreme Court in the
case of Naresh Kumar would be squarely applicable to the present case.
21. For the reasons stated above, we are of the opinion that the act of
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issuing a corrigendum Award, as well as the modification order to the
corrigendum Award, is beyond the scope of Section 33 of the Act of 2013
and therefore is illegal. The learned counsel for the Respondents was
unable to support the action of issuing the corrigendum Award and the
modification to the corrigendum Award with any legal procedure
permissible in law. There is no merit in the submissions made by the
learned counsel for the Respondents.
22. Thus, it is clear that the action of demolishing a part of the building,
which is made subject matter of the acquisition only by way of the
corrigendum Award and the modification order, cannot be termed legal.
The action of Respondents of demolishing a part of the hotel building is
high-handed and arbitrary. Hence, the Petitioners are entitled to
reconstruct the demolished portion and restore the hotel building to its
original status.
23. The Petitioners have suffered loss for no fault on their part. The
hotel building was partly demolished by the Respondents without any due
process of law, and the action of demolition is high-handed and arbitrary.
Hence, Petitioners would be entitled to claim expenses towards the
restoration of the hotel building and compensation for the damage caused
to the Hotel structure in view of the illegal and high-handed action of
demolition. Hence, the Petitioners would be entitled to take out
appropriate proceedings to recover the cost of restoration of the hotel
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building as well as seek compensation towards loss suffered by the
Petitioners due to the damage.
24. Hence, Writ Petition is partly allowed by passing the following
order:
I. The corrigendum Award dated 31st May 2022 bearing
No. 3/82/LND-ACQ/2020-21/2546 issued by the Land
Acquisition Collector, Daman, is quashed and set aside.
II. Modification Order dated 23rd November 2022 bearing
No. 3/82/LND-ACQ/2020-21/5108 issued by the Land
Acquisition Collector, Daman, is quashed and set aside.
III. Petitioners are entitled to restore and repair the hotel
building being "M/s. Hotel Grand Heritage" as it existed prior
to partial demolition carried out on 27 th September 2022 at
their own cost.
IV. Petitioners are at liberty to make representation and/or
adopt appropriate remedy as permissible in law to recover
the expenses for restoration and repair of the hotel building
and also seek compensation towards the loss suffered by the
Petitioners. In the event such representation is made and/or
any appropriate remedies are adopted, the same would be
decided after considering the observations made by this
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Court in this order.
V. Respondents are at liberty to adopt appropriate
proceedings for the purpose of acquiring the area of the land
and/or structure as reflected in the corrigendum Award dated
31st May 2022 and modification order dated 23 rd November
2022 by following due procedure of law under the Act of
2013.
VI. Rule is made absolute in the above terms. Writ Petition
is partly allowed. There will be no order as to costs.
VII. All the parties to act on authenticated copy of this order.
(GAURI GODSE, J.) (R. D. DHANUKA, J.)
