Bombay High Court
Sunil Mahadev Nagap And Ors vs The State Of Maharashtra Through Gp , ... on 13 December, 2023
Author: M.M. Sathaye
Bench: B. P. Colabawalla, M.M. Sathaye
2023:BHC-AS:37546-DB
WP-2114-2020 (J).doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 2114 OF 2020
1. Sunil Mahadev Nagap )
Age 47 years Resident of Post- )
Aakhavane, Tal.- Vaibhavwadi )
District - Sindhudurg )
2. Mahadev Aatamaram Nagap )
Age 72 years Resident of Post- )
Aakhavane, Tal.- Vaibhavwadi )
District - Sindhudurg )
3. Santosh Mahadev Nagap )
Age 49 years Resident of Post- )
Aakhavane, Tal.- Vaibhavwadi )
District - Sindhudurg ) ... Petitioners
Versus
1. The State of Maharashtra )
Through Government Pleader, )
(Appellate Side), High Court, )
Mumbai - 400 032 )
2. The Chief Secretary )
Revenue & Forest Department )
Mantralaya, Mumbai-400 032 )
3. The Divisional Commissioner )
Kokan Division, Room No. 226 )
2nd Floor, Kokan Bhavan, CBD )
Belapur, Navi Mumbai - 400 614 )
4. The Collector District Head )
Quarter, Oras, Tal. Sindhudurg, )
Dist. Sindhudurg )
5. The Dy. Collector )
(Land Acquisition) District Head )
Quarter, Oras Tal. Sindhudurg, )
Dist. Sindhudurg )
Page 1 of 13
DECEMBER 13, 2023
Husen
::: Uploaded on - 14/12/2023 ::: Downloaded on - 15/12/2023 03:02:24 :::
WP-2114-2020 (J).doc
6. Executive Engineer Medium )
Irrigation Project, )
Unit Aambadpald, Tal. Kudal )
Dist. Sindhudurg )
7. Assistant Engineer Grade I, )
Medium Irrigation Project )
DivisionUnit Aambadpald, Desk-3 )
Kankavali, Dist. Sindhudurg )
8. M/s. Mahalaxmi Construction )
Corporation Ltd. )
363/11, Balaji Niwas, Deep )
Bungalow Chowk Shivaji Nagar, )
Pune- 411 016 ) .... Respondents
Mr. Ajit Jakhadi a/w. Mr. Amol Chile, for Petitioner .
Mr. R. S. Pawar, AG.P., for Respondent Nos. 1 to 7/State.
CORAM : B. P. COLABAWALLA &
M.M. SATHAYE, JJ.
RESERVED ON : NOVEMBER 8, 2023
PRONOUNCED ON : DECEMBER 13, 2023
JUDGMENT (Per M.M. SATHAYE, J.)
1. Rule. The learned AGP waives service on behalf of Respondent
Nos. 1 to 7/State. Notice to Respondent No. 8 is dispensed with. Rule made
returnable forthwith. Taken up for the final disposal with consent of the
parties.
DECEMBER 13, 2023
Husen
WP-2114-2020 (J).doc
2. By this Petition, filed under Article 226 of the Constitution of
India, the Petitioners are seeking various prayers which are stated in prayer
clauses 28(a) to 28(e) of the petition. However, Mr. Jakhadi, the learned
counsel for the Petitioners, has fairly stated that he is limiting the scope of this
petition as stated below :
The Petitioners are praying for compensation payable to them with
interest, under the Right to Fair Compensation and Transparency in
Land Acquisition, Rehabilitation and Resettlement Act, 2013 (for short
'the 2013 Act'), for their properties (lands, houses, & trees) at Village
Nagapwadi & Akhavane, Tal. Vaibhavwadi, Dist. Sindhudurg, acquired
for Aruna Medium Irrigation Project. Necessary details such as survey
numbers etc. are indicated in the paragraphs below. Part of the total
compensation (Rs.1,64,152/-) has already been received by Petitioner
No. 2 on 8th February 2021 in respect of the acquisition of lands at
Village Nagapwadi. On this part payment, Petitioner No. 2 is praying
for interest payable under law.
3. Heard Mr. Jakhadi, the learned counsel appearing on behalf of
the Petitioners and Mr. Pawar, learned AGP for Respondents/State.
4. With the assistance of both the counsels, who have taken us
through the Petition as well as documents placed on record, the following
admitted facts emerge, which are necessary to be stated for the disposal of this
DECEMBER 13, 2023
Husen
WP-2114-2020 (J).doc
Petition.
i. Petitioner No. 2 is the father of Petitioner Nos. 1 and 3.
ii. Petitioner No.2 is claiming compensation in respect of lands
bearing S. Nos. 7/13, 41/4, 77/18, 11/17, 11/20, 12/10 and 37/2
with a well & trees at Village Akhavane and Nagapwadi.
iii. Petitioner Nos. 1 and 3 are claiming compensation for their
houses (bearing Nos. 28/1A & 28/1B) at Village Nagapwadi.
iv. An Award dated 31/10/2012 being LAQ No. 8 of 2006 has been
passed in respect of Village Nagapwadi under the Land
Acquisition Act, 1894 (for short "the 1894 Act"). Admittedly, the
aforesaid houses were not considered while passing this award.
v. An Award dated 3/11/2012 being LAQ No. 9 of 2006 has been
passed in respect of Village Akhavane.
vi. Both the subject matter awards are passed within 5 years prior to
the 2013 Act coming into force on 01/01/2014.
vii. Since the compensation was not paid, correspondence ensued
between the Petitioners and the State.
viii. Notice u/s. 12(2) of the 1894 Act, was issued calling upon
Petitioner No. 2 to visit the tahsil office on 16/08/2018 and
accept the compensation in respect of Nagapwadi properties
without prejudice to his rights.
DECEMBER 13, 2023
Husen
WP-2114-2020 (J).doc
ix. On 24/09/2018, Petitioner No. 2 submitted the necessary
documents; however, a third party (Mr. Suresh Gunaji Nagap)
took an objection to disbursement of compensation in respect of
several survey numbers at Village Nagapwadi & Akhavane
including the subject matter properties.
x. On 30/04/2019, the Petitioners issued legal notice.
xi. On 14/06/2019, the present petition is filed, as per High Court
official website record.
xii. The amounts for compensation in respect of the house
properties of Petitioner Nos. 1 & 3 were offered on 25/06/2019.
xiii. During pendency of the petition, the Petitioner Nos. 1 and 3
accepted plots under the scheme for project affected persons on
16/12/2020.
xiv. During pendency of the petition, the objection of the third party
was rejected on 15/01/2021 and part compensation amount (as
awarded by the Respondent) in respect of the property of
Petitioner No. 2 at Village Nagapwadi viz. Rs. 1,64,152/- was
deposited in his bank account on 08/02/2021.
xv. On 13/10/2022, it was informed to the Court by the AGP that
the State has taken a beneficial decision under which, Petitioner
No. 2 will get an additional enhanced compensation.
DECEMBER 13, 2023
Husen
WP-2114-2020 (J).doc
xvi. It appears that Petitioner No. 2 is claiming 16.66% share in the
compensation payable for acquisition of ancestral properties at
both Village Nagapwadi & Aakhavane. During the pendency of
this Petition, the co-sharers of Petitioner No. 2 (Khandu Jairam
Nagap & heirs of Sambhaji Ramchandra Nagap) have filed
consent affidavits in this Petition, which were fairly considered
by the Respondent/State and Petitioner No.2's admitted share
of 16.66% is accepted, of which valuation has been made by
Respondent Authorities. The share of compensation payable to
Petitioner No. 2 has been calculated at Rs.2,23,269/- and Rs.
4,96,191/- for Village Nagapwadi and Village Aakhavane
respectively. Learned AGP has fairly stated that these amounts
are payable over and above the amount already paid to
Petitioner No. 2.
xvii. By filing Affidavit in Reply dated 15/02/2021, the Respondent /
State has admitted that the houses of the Petitioner No. 1 & 3 at
Village Nagapwadi were not included during joint measurement
and therefore the same were not considered while passing
Award in LAQ No. 8/2006. We are not going into why the
houses were not included at the relevant time. Be that as it may.
Now the Respondent/ State has admitted the mistake and ex-
gratia compensation payable to Petitioner Nos. 1 & 3 for the
DECEMBER 13, 2023
Husen
WP-2114-2020 (J).doc
acquisition of their houses is calculated at Rs. 1,77,595.96 each.
Mr. Pawar, the learned AGP has submitted that these amounts
were offered to Petitioner Nos. 1 & 3 on 25/06/2019, who have
not accepted the said amount.
ABOUT CONTENTIOUS ISSUES
5. Mr. Jakhadi, the learned counsel for the Petitioners submitted
that it is his specific contention in the Petition that possession of the subject
matter lands was taken in the year 2005 and this averment is not denied by
the Respondents and therefore, he is entitled to interest from the year 2005
on the compensation payable under the 2013 Act. The learned AGP, on the
other hand submitted that the aspect of possession is a question of fact and
the 'rule of non-traverse' as applicable in the civil proceedings cannot be
applied in a writ petition, especially in the manner suggested by Mr. Jakhadi.
He submitted that the State has produced along with its affidavit-in-reply,
possession receipts demonstrating that the possession of the lands at Village
Nagapwadi and Aakhavane were taken on 11/09/2018 and 19/11/2018
respectively. The learned AGP has taken us through the possession receipts dt.
11/09/2018 and 19/11/2018 (page Nos. 395 to 401 of paper-book) evidencing
the aforesaid dates. We are in agreement with the learned AGP, so far as the
aspect of possession is concerned. In writ jurisdiction, a finding of fact cannot
be rendered in the absence of material to support a specific date, especially on
an issue such as possession. In that view of matter, accepting the possession
DECEMBER 13, 2023
Husen
WP-2114-2020 (J).doc
receipts, as per guideline in para 366.7 by the Hon'ble Supreme Court in the
case of Indore Development Authority V. Manoharlal (2020) 8 SCC 129, we
hold that the possession of properties at Nagapwadi and Aakhavane were
taken by the Respondent Authorities 11/09/2018 and 19/11/2018 respectively.
6. Mr. Jakhadi, the learned counsel for the Petitioners next
submitted that he is entitled to statutory benefits under 2013 Act including
solatium and other benefits as per Schedule I thereof. He submitted that the
Petitioners are also entitled to the interest from the date of possession under
the 2013 Act. He submitted that he is covered by proviso to Section 24(2) of
the 2013 Act. He submitted that the Awards passed in the present matter are
dated 31/10/2012 and 03/11/2012 and they being passed before the 2013 Act
coming into force (01/01/2014), since the Petitioners / majority landholders
as contemplated in the said proviso, have not been paid the compensation, the
Petitioners are entitled to all the benefits under the 2013 Act including 100%
solatium.
7. Per contra, Mr. Pawar, the learned AGP invited our attention to
paragraph Nos. 190 and 191 of the Indore Development Authority Judgment
(Supra). He submitted that in the said paragraphs, the Hon'ble Supreme Court
has clearly held that the proviso in Section 24 of the 2013 Act is applicable to
only Section 24(2). Stressing on the 'colon mark' at the end of Section 24(2),
the learned AGP contended that the placement of the proviso and its apparent
continuation with Section 24(2) has been interpreted by the Hon'ble Supreme
DECEMBER 13, 2023
Husen
WP-2114-2020 (J).doc
Court in the above case, to mean that the proviso is only applicable to the
cases covered under sub-section (2) of Section 24. Mr. Jakhadi in rejoinder
attempted to rely upon a letter dated 30th December 2014 issued by
Commissioner Konkan Division to the Chief Secretary of Revenue and Forest
Department, Mantralaya, Mumbai issued in respect of land acquisition at
Village Nagapwadi for the said dam project. He invited our attention to
paragraph 19 of the said letter which makes reference to a Government
Circular No. LQN 12/2013/pra. kra. 190/A2 dated 09/05/2014 (for short "the
said 2014 Circular") to contend that since the Award is passed prior to
31/12/2013, but the compensation is not paid in the bank accounts of the
interested persons, they are entitled to all the benefits under the 2013 Act
including solatium.
8. We are unable to agree with Mr. Jakhadi. We say so because
apparently the said 2014 Circular was issued when the 5 judges judgment of
the Hon'ble Supreme Court in the case of Indore Development Authority
(supra) was not holding the field. In the teeth of paragraph Nos. 190 & 191 of
the said judgment, in our considered opinion, the said 2014 Circular will not
help the Petitioners' case. This is simply because now it is clarified that the
proviso to Section 24(2) applies only to such cases where the Award is passed
more than 5 years before the cut off date of 01/01/2014 (when the 2013 Act
came into force). Admittedly in the present case, the Awards are passed on
31/10/2012 and 03/11/2012. Therefore, the subject matter Awards are within
DECEMBER 13, 2023
Husen
WP-2114-2020 (J).doc
the range of 5 years prior to cut off date. Therefore, the proviso to Section
24(2) will not apply to the facts and circumstances of the present case. In that
view of the matter, we hold that the present case is squarely covered by
Section 24(1)(b) of the 2013 Act where the Awards under the 1894 Act are
made within a span of 5 years prior to 01/01/2014 and therefore, the
proceedings shall continue under the 1894 Act as if the 1894 Act has not been
repealed. In that view of the matter the prayer of 100% solatium and other
benefits under the 2013 Act as per Schedule I thereof, cannot be granted to the
Petitioners. It is not disputed that the subject matter Awards in the present
case are made including 30% solatium as contemplated under the 1894 Act.
9. Mr. Jakhadi next submitted that the Respondent/State have
discriminated between the Petitioners and other similarly situated persons in
paying compensation for lands at the same villages. He submitted that many
others from the same village, have been paid as per the said 2014 Circular who
received full benefit of the 2013 Act. Learned AGP has strenuously disputed
this submission. Some villagers might have taken their call to accept what was
offered to them at the relevant time. The Petitioners have chosen to file this
petition and invite an Order. Be that as it may. In any case, after going
through the records and after hearing the Petitioners as well as the learned
AGP for the State, in our considered opinion, there is no concrete material to
positively indicate any discrimination. This consideration is squarely within
the realm of a disputed question of fact, which we do not propose to enter. In
DECEMBER 13, 2023
Husen
WP-2114-2020 (J).doc
that view of the matter, this argument of Mr. Jakhadi is rejected.
10. Now therefore, we are left with only the aspect of interest
claimed by the Petitioners. Since the present case is governed by the 1894 Act
[u/s. 24(1)(b) of the 2013 Act], as held by us above, the statutory interest
regime of 9% for first year and 15% for the second year onwards u/s. 34 of the
1894 Act will have to be held as applicable and payable. It is not disputed that
although part of the compensation amount was offered by the
Respondent/State after passing of the Award, the Petitioners did not accept it.
In such a situation, the Respondent Authorities ought to have deposited the
compensation amount with the Reference Court, as contemplated u/s. 31(2) of
the 1894 Act. This has not been done. This must be held to apply to the ex-
gratia amounts too. We say so because it is clear from the notices offering ex-
gratia amounts dated 25/06/2019 (page nos. 250 to 252) that it was offered
based on error report (ततटट अहववल) and in the Affidavit in Reply dated
15/02/2021, the Respondent / State has clearly admitted that the houses of
the Petitioner No. 1 & 3 were not included during joint measurement and
therefore the same were not considered while passing Award in LAQ No.
8/2006. Therefore the same interest regime will apply to the ex-gratia
amounts too.
11. The dates of taking possession have already been explained
above viz. 11/09/2018 for lands at Nagapwadi, 19/11/2018 for lands at
Akhavane. The amounts for houses of Petitioner No. 1 and 3 were offered on
DECEMBER 13, 2023
Husen
WP-2114-2020 (J).doc
25/06/2019 and admittedly the Petitioner Nos. 1 & 3 have claimed interest
only from 25/06/2019.
12. In view of the aforesaid facts and circumstances, we find this to
be a fit case to exercise our extra ordinary writ jurisdiction which we hereby
do to the following extent, and dispose of this Petition by passing the following
order :
A. Respondent No. 4/Collector (District Sindhudurg) or his duly
authorized officer is directed to pay Rs. 1,77,595.96 to Petitioner
Nos. 1 & 3 each, along with interest @ 9% p.a. from 25/06/2019
to 24/06/2020 (i.e. Rs. 15,983.63) and with interest @ 15% p.a.
from 25/06/2020 till actual payment. This compensation is
towards ex-gratia amounts for houses of Petitioner Nos. 1 & 3
each.
B. Respondent No. 4/Collector (District Sindhudurg) or his duly
authorized officer is further directed to pay to Petitioner No. 2
interest @ 9% p.a. from 11/09/2018 to 10/09/2019 and @ 15%
from 11/09/2019 till 07/02/2021 on amount of Rs. 1,64,152/-
which is admittedly already paid to the Petitioner No. 2 on
08/02/2021 as part payment for lands at Village Nagapwadi.
C. Respondent No. 4/Collector (District Sindhudurg) or his duly
authorized officer is further directed to pay further amount of
DECEMBER 13, 2023
Husen
WP-2114-2020 (J).doc
Rs. 2,23,269/- to Petitioner No. 2 along with interest @ 9% p.a.
from 11/09/2018 till 10/09/2019 and @ 15% p.a. from
11/09/2019 till actual payment towards compensation of
acquisition of lands at Village Nagapwadi.
D. Respondent No. 4/Collector (District Sindhudurg) or his duly
authorized officer is further directed to pay further amount of
Rs. 4,96,191/- to Petitioner No. 2 along with interest @ 9% p.a.
from 19/11/2018 till 18/11/2019 and @ 15% p.a. from 19/11/2019
till actual payment towards compensation of acquisition of lands
at Village Akhavane.
E. All the aforesaid payments shall be made within a period of four
weeks from today.
13. Rule is made absolute and the writ petition is also disposed of in
the aforesaid terms. No order as to costs.
14. Place the above Petition for reporting compliance on 24 th
January, 2024.
15. All concerned to act on authenticated or digitally signed copy of
this order.
[ M.M. SATHAYE, J.] [ B. P. COLABAWALLA, J.]
DECEMBER 13, 2023
Husen
