Bombay High Court
Shantinagar Zopadpattidharak ... vs The Competent Authority And ... on 18 August, 2023
Bench: B.P. Colabawalla, M. M. Sathaye
2023:BHC-AS:23358-DB
WP-228-2021.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 228 OF 2021
Shantinagar Zopadpattidharak Sangh
through its President Adv. Amol K. Kotiwale &
its slum dweller Members
1. Kasimali Mahiboob Shaikh
Age- 49, Occu. - Business.
R/o-Zopadi No. 2, Shanti Nagar,
Near Siddheshwar Market Yard,
Hyderabad Road, Solapur.
2. Shakilabegam Masumali Shaikh
Age-53, Occu .- Household.
R/o- Zopadi No. 62, Shanti Nagar,
Near Siddheshwar Market Yard,
Hyderabad Road, Solapur.
3. Masumali Bashamiya Shaikh
Age- 67, Occu. - Business.
R/O- Zopadi No. 63, 64, 65, 66,
Shanti Nagar, Near Siddheshwar
Market Yard, Hyderabad Road,
Solapur.
4. Bhimrao Laxaman Dupargude
Age- 46, Occu. - Worker.
R/o- Zopadi No. 27-A, Shanti Nagar,
Near Siddheshwar Market Yard,
Hyderabad Road, Solapur.
5. Babasaheb Shekumber Dupargude
Age-33, Occu. - Business.
R/o- Zopadi No. 27-B, Shanti Nagar,
Near Siddheshwar Market Yard,
Hyderabad Road, Solapur
6. Jagannath Narayan Gadpalli (Galpalli)
Age- 60, Occu.- Business.
R/o- Zopadi No. 111, Shanti Nagar,
Page 1 of 14
JUNE 19, 2023
Yugandhara Patil
::: Uploaded on - 18/08/2023 ::: Downloaded on - 19/08/2023 06:01:20 :::
WP-228-2021.doc
Near Siddheshwar Market Yard,
Hyderabad Road, Solapur.
7. Anil Kalyani Kotiwale
Age-27, Occu. - Business.
R/o- Zopadi No. 60-B, Shanti Nagar,
Near Siddheshwar Market Yard,
Hyderabad Road, Solapur.
8. Sanjay Vithhalrao Kulkarni
Age-46, Occu. - Business.
R/o- Zopadi No. 46 & 58, Shanti Nagar,
Near Siddheshwar Market Yard,
Hyderabad Road, Solapur.
9. Prabhakar Sidram Gopale
Age-70, Occu. - Business.
R/o- Zopadi No. 43, Shanti Nagar,
Near Siddheshwar Market Yard,
Hyderabad Road, Solapur.
10. Pratap Anjayya Palli
Age-34, Occu. - Business.
R/o- Zopadi No. 59, Shanti Nagar,
Near Siddheshwar Market Yard,
Hyderabad Road, Solapur. .. Petitioners
Versus
1. The Competent Authority and Deputy
Collector Land Acquisition Officer No. 11,
Krushna Khore Solapur, New Administrative
Building, 2nd Floor, Collector Office Compound
Solapur- 413001.
2. The Collector of Solapur,
Solapur- 413001.
3. The Project Director,
The National Highway Authority of India,
Solapur Plot No. E-2, Jia Jalaram Nagar,
Behind Shivdare College,
Jule Solapur- 413004
4. (a) Kamalabai Gurappa Deshmukh,
Page 2 of 14
JUNE 19, 2023
Yugandhara Patil
::: Uploaded on - 18/08/2023 ::: Downloaded on - 19/08/2023 06:01:20 :::
WP-228-2021.doc
(b) Pratibha Mallikarjun Pasare,
(c) Basavraj @ Raju Gurrapa Deshmukh
(d) Drakshayani Sanjeev Jatti
(e) Sanjay Gurrapa Deshmukh
(f) Usha Shivprasad Manavi
YUGANDHARA
Through their Power of Attorney Holder
SHARAD
PATIL Mr. Basavraj @ Raju Gurrapa Deshmukh
Digitally signed
by
All R/o- 21/B/1, Budhwar Peth,
YUGANDHARA
SHARAD PATIL
Date: 2023.08.18
11:35:30 +0530
Solapur. .. Respondents
Dr. Ramdas Sabban a/w Ms. Arundhati Sabban,
Advocates for the Petitioners.
Mrs. S.S. Bhende, AGP for the Respondent Nos. 1 and 2 -
State.
Mr. Rakesh Singh a/w Ms. Heena Shaikh i/b M.V.
Kini and Co., Advocates for Respondent No.3.
Mr. Sumit Kothari, Advocate for Respondent No. 4.
CORAM : B. P. COLABAWALLA &
M.M. SATHAYE, JJ.
RESERVED ON : JULY 27, 2023
PRONOUNCED ON : August 18, 2023
JUDGMENT: [PER M.M.SATHAYE, J.]
1. Rule. The learned AGP waives service for Respondent
Nos. 1 and 2. Learned Counsel appearing for Respondent No. 3
(National Highway Authority) and for Respondent Nos. 4(a) to 4(f)
waive service. Rule made returnable forthwith. Taken up for final
disposal by consent of the parties.
JUNE 19, 2023
Yugandhara Patil
WP-228-2021.doc
2. By this Petition under Article 226 of the Constitution of
India, the Petitioners are seeking a writ to quash and set aside the
impugned order dated 20/01/2020, passed by Respondent No. 1 -
Competent Authority under the National Highways Act, 1956
whereby the Petitioners' claim to share in land-compensation is
rejected. The Petitioners are also seeking an appropriate writ
directing the Respondent authorities to recover back the
compensation (with interest) already paid to the Respondent-land
owners [Respondent Nos. 4(a) to 4(f)] granted under section 3(G) of
the National Highways Act, 1956 passed under original
compensation order dated 08/05/2015 and supplementary
compensation order dated 15/07/2017 and deposit the same in the
Court or appropriate authority, for lawful apportionment.
3. It is the case of the Petitioners that they are 10 out of a
total of about 60 slum-dwellers on the subject matter land, which is a
land portion admesauring 1436 sq. mtrs. situated at Gat No. 98-A
(part) of village Kasbe Solapur (Shelgi), Taluka- North Solapur,
District-Solpaur.
JUNE 19, 2023
Yugandhara Patil
WP-228-2021.doc
4. It is contended by the Petitioners that the subject matter
land was acquired for Pune-Solapur National Highway No. 9 under
Land Acquisition Case No. SR No.1 of 2013. It is contended that
while determining the compensation payable to the land owners as
well as the Petitioners [as slum dwellers], an amount of Rs.
1,15,21,028/- was determined to be awarded as land compensation
and Rs.51,96,716/- was determined as compensation for the
structures thereon. It is further contended that the Petitioners agreed
not to claim any compensation payable for the land on the promise
given by the Respondent-land owners that they will help the
Petitioners financially, to buy other land for them and their displaced
families in the acquisition. It is contended that the Respondents-
land owners cheated the Petitioners and did not keep their promise.
It is contended that because of this promise by the land owners, the
Petitioners gave no objection to the land owners to receive the entire
land compensation without any claim by the Petitioners therein. It
appears from the Affidavit in Reply filed by Competent Authority that
under the original compensation order dated 08/05/2015, the
Petitioners have received compensation for the structures. This is
also not disputed by the Petitioners.
JUNE 19, 2023
Yugandhara Patil
WP-228-2021.doc
5. The petitioners further contended that thereafter they had
filed a writ petition (W.P. No. 10060/15) in this court, where an
order dated 31/07/2017 came to be passed directing the respondents
to decide the Petitioners' application for rehabilitation and
resettlement benefits within a stipulated time. It is further contended
that by order dated 20/05/2017 and 9/10/2017 the said application
of the Petitioners were rejected, against which a contempt petition
was filed, and which was withdrawn with liberty to challenge the
rejection order dated 20/05/2017 passed by the competent authority.
6. It is further contended that thereafter the Competent
Authority issued a supplementary compensation order dated
15/07/2017 granting land compensation of Rs. 86,00,204/- and Rs.
76,58,649/- towards compensation for the structures. It is clearly
stated in petition (para 10) that the amount of compensation for
structures was paid to the Petitioners in May 2018 under the
supplementary compensation order.
7. It is further contended that thereafter the Petitioners issued
notice to the respondent authorities demanding 75% share in land
compensation, however no action was taken. It is contended that
JUNE 19, 2023
Yugandhara Patil
WP-228-2021.doc
therefore the Petitioners filed W.P. 6872/2018, which was decided on
14/01/2019 (a common order passed in a group of petitions),
directing the Petitioners to file their objections/ appropriate
applications/claim of interest etc. before the competent authority. It
is contended that accordingly Petitioners filed their
objections/applications, on which the impugned order dated
20/01/2020 is passed, rejecting the Petitioners claim.
8. Dr. Sabban, the learned counsel appearing for the
Petitioners, has argued that the Petitioners are entitled to a share in
the land compensation both under the original and supplementary
compensation order because they are protected slum dwellers who
have rights under the Maharashtra Slum Areas (Improvement,
Clearance and Redevelopment) Act, 1971 [for short "the said Act"].
Based on this case, the Petitioners are seeking the prayers as already
set out herein above.
9. On the other hand, according to Mr. Kothari, it is case of
the Respondent- land owners that the Petitioners being slum
dwellers are encroachers on the land and do not have any right to
occupy the same. It is contended that the Petitioners do not have any
JUNE 19, 2023
Yugandhara Patil
WP-228-2021.doc
right, per se in the subject matter land. It is contended that whatever
right the Petitioners have, is because of their structures (slum-units
or hutments) and they have already been paid compensation for their
structures.
10. Respondent Nos. 1 and 2, including the Competent
Authority, by filing an affidavit-in-reply, has contended that the
compensation is calculated for land and structures in accordance
with law and the compensation for the structures has been paid over
to the Petitioners and compensation for the land has been paid to the
Respondents-land owners.
11. Mrs. Bhende, the learned AGP invited our attention to
the additional affidavit-in-reply affirmed on 25/07/2023 on behalf of
Respondent No. 1, by the Deputy Collector and Competent Authority-
Solapur. She submitted that it is specifically contended in the said
affidavit [in paragraph no. 5] that each of the Petitioners had
executed an affidavit in the year 2016, before the Competent
Authority stating therein that they have no objection if the
compensation amount of the subject matter land (bearing Gat No.
98-A) is paid to the original owners. It is further contended that
JUNE 19, 2023
Yugandhara Patil
WP-228-2021.doc
thereafter the slum dwellers including the Petitioners had filed Writ
Petition No. 10060/2015 in this Court and pursuant to an order
dated 31.01.2017, hearing took place before the Competent Authority.
It is further stated that after hearing the Petitioners and after going
through the report submitted by the National Highways Authority, it
was noticed that affected persons were entitled for additional
compensation and hence supplementary compensation order was
passed on 15/07/2017 and additional compensation for the
structures has been paid to the Petitioners.
12. We have also heard Mr. Singh, the learned counsel
appearing for Respondent No. 3- the National Highways Authority of
India.
13. We must also mention that the Respondent-land owners
have denied the case of alleged cheating or the case of alleged
promise by them about financial help to the Petitioners for buying
other land. The Respondents-land owners have also specifically
contended that the Petitioners are just a handful of slum dwellers out
of many who had occupied the subject matter land and who have
received compensation for the structures. It is contended that the
JUNE 19, 2023
Yugandhara Patil
WP-228-2021.doc
present 10 slum dwellers who have come before the Court as a
"Sangh" cannot legally represent the case of all the slum dwellers as
the Petitioners are really not a lawful entity. He urged that the case of
the Petitioners about the alleged promise by the land owners and
case of cheating alleged against them, are disputed questions of fact
and as such they cannot be considered in writ jurisdiction of this
Court.
14. Dr.Sabban, the learned counsel for the Petitioners, in
answer submitted that the Petitioner 'Sangh' is very much a legal
entity and can maintain this Petition on behalf of all the slum
dwellers.
15. Since we propose to consider the case made out by the
Petitioners (although they are only few of the slum dwellers) on
merits, we do not find it necessary to comment upon the aspect of
locus and maintainability of the Petition.
16. In support of Petitioners' case, Dr. Sabban relied upon te
Judgment of the Hon'ble Supreme Court in the case of Brij Behari
Sahai Vs. State of U.P. [ (2004) 1 Supreme Court Case 641].
JUNE 19, 2023
Yugandhara Patil
WP-228-2021.doc
He submitted that the Hon'ble Supreme Court has recognised the
rights of the occupants in the said Judgment and a portion of land
compensation was paid to the occupants. He submitted that the
Petitioners stand on the same footing as being the occupants who are
protected under the said Act. We are afraid, this argument cannot
be accepted, for a fundamental reason that the Petitioners, who are
the slum dwellers, are originally encroachers on the subject matter
land, having no semblance of consent from the land owners in their
induction or occupation of the property. In the case of Brij Behari
Sahai (supra), the Hon'ble Supreme Court considered the rights of
the lessee of the property who were occupants. The facts of the
present case are clearly distinguishable in as much as, a lessee has a
right to occupy the land under the consent of the lessor/ land owner
and therefore was considered as a fit person to claim share in the
compensation of the land. In the present case the Petitioners were
not allowed to occupy the subject matter land by the owners and
there is no element of consent. What the Petitioners are entitled to,
is right to be rehabilitated as provided under the said Act and that
too, if they are found eligible.
JUNE 19, 2023
Yugandhara Patil
WP-228-2021.doc
17. In this respect, perusal of affidavit in reply of National
Highways Authority of India affirmed on 17/7/2021, shows that the
competent authority vide a detailed order dated 20/05/2017, had
found that the Petitioners are not entitled to resettlement benefits.
The said order is produced on record along with the reply.
Nonetheless, the Petitioners have in fact received compensation for
their structures, both in the original compensation order as well as
the supplementary compensation order. Once this is the position, the
argument that mere occupancy of the subject matter land as a slum
dweller would entitle the Petitioners for share in the compensation of
land as well, cannot be countenanced and will have to be rejected.
18. There is one more reason why the Petitioners cannot be
held entitled to any compensation of the land. We have perused the
affidavits of Petitioners produced by Ld. AGP along with the
additional affidavit in reply of Respondent No. 1, for our satisfaction.
We find that the Petitioners, in those affidavits [affirmed in January
2016], specifically referred to subject matter land Gat No. 98-A and
have stated that they had raised objection about land compensation
but the same was withdrawn and they have given their no objection
to the same being paid to the land owners and that they will not raise
JUNE 19, 2023
Yugandhara Patil
WP-228-2021.doc
any dispute about it in future. Having found this, we have no
hesitation to hold that the Petitioners cannot be permitted to raise
any contrary stand in the present Petition. Faced with this situation,
Dr. Sabban sought to contend that the No Objection given in the
affidavits affirmed in January 2016 was with reference to the original
compensation order dated 8th May, 2015 and not the supplementary
compensation order dated 15th July, 2017. Having heard Dr. Sabban
on this aspect, we are unimpressed with this argument. The affidavits
affirmed in January 2016 (by the Petitioners) have categorically
stated that they have given their No Objection for compensation
being paid for the subject land (Gat No.98-A) to the land owners and
that they will not raise any dispute about it in the future. It would be
ridiculous to suggest that for the very same land, and for which the
Petitioners had given up their right to claim any land compensation,
can today claim that by virtue of enhancement, they are entitled to
any part thereof. Once they have given up their claim for any land
compensation, it would certainly include any enhancement of that
compensation also. In these circumstances, even this argument of Dr.
Sabban cannot be accepted.
19. In any case, perusal of the impugned order shows that it
has been passed by the Competent Authority under the National
JUNE 19, 2023
Yugandhara Patil
WP-228-2021.doc
Highways Act, based on material available on record. In the light of
the aforesaid facts and circumstances, there is no perversity or error
apparent on the face of record to interfere with it under our limited
writ jurisdiction. The Petition is thus devoid of merits and the same
is hereby dismissed. Rule is Discharged. There shall be no order as to
costs.
20. We clarify that we have refrained from expressing any
opinion on the Petitioners' case of alleged cheating by Respondent /
land owners, being a dispute between private parties involving
disputed questions of fact. If the Petitioners adopt any legal
proceeding about said case against the land owners, the same shall be
decided on its own merits and contentions of both parties in that
regard are kept expressly open.
21. This order will be digitally signed by the Private
Secretary/ Personal Assistant of this Court. All concerned will act on
production by fax or email of a digitally signed copy of this order.
[ M.M. SATHAYE, J.] [ B. P. COLABAWALLA, J.]
JUNE 19, 2023
Yugandhara Patil
