Bombay High Court
Pravin Jivraj Shah vs Sub Divisional Officer Bhiwandi Sub ... on 13 December, 2023
Author: M.M. Sathaye
Bench: B. P. Colabawalla, M.M. Sathaye
2023:BHC-AS:37547-DB
WP-9319-2023 and WP 9320-2023 (J).doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 9319 OF 2023
Sameer Vinodray Mehta )
Age 50 years Occ: Business )
Resident of 23, 6th Floor, )
Sindhu Apartment, 87, )
Netaji Subhashchandra Bose)
Road, Marine Drive )
Kalbadevi, Mumbai ) .... Petitioner
Versus
1. Sub-Divisional Officer, )
Bhiwandi Sub-Division, )
Bhiwandi )
2. Collector, Thane )
Competent Authroity For )
Land Acquisition, )
Court Naka, Thane (W) )
3. Public Works Department )
Bhiwandi, Dist. Thane )
4. State of Maharashtra )
Through Principal Secretary,)
Ministry of Revenue )
Having Offie at Mantralaya, )
Mumbai ) .... Respondents
WITH
WRIT PETITION NO. 9320 OF 2023
Pravin Jivraj Shah (Sumariya)
Age 45 years )
Resident Flat. 205, B Wing, )
Kailash Darshan, )
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WP-9319-2023 and WP 9320-2023 (J).doc
Shankar Dyeing, Narpoli, )
Bhiwandi - 421302 ) .... Petitioner
Versus
1. Sub-Divisional Officer, )
Bhiwandi Sub-Division, )
Bhiwandi )
2. Collector, Thane )
Competent Authroity For
Land Acquisition, )
Court Naka, Thane (W) )
3. Public Works Department )
Bhiwandi, Dist. Thane )
4. State of Maharashtra )
Through Principal Secretary,)
Ministry of Revenue )
Having Offie at Mantralaya, )
Mumbai ) .... Respondents
Mr. N.R. Bubna, for Petitioner in both Petitions.
Mr. A.I. Patel, Addl. G.P. a/w. Ms. M.S. Bane, AGP, for
Respondent /State in WP/9319/2023.
Mr. A.I. Patel, Addl. G.P. a/w. Mr. R.S. Pawar, AGP, for
Respondent /State in WP/9320/2023.
CORAM : B. P. COLABAWALLA &
M.M. SATHAYE, JJ.
RESERVED ON : OCTOBER 31, 2023
PRONOUNCED ON : DECEMBER 13, 2023
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COMMON JUDGMENT (Per M.M. SATHAYE, J.)
1. Rule. Learned AGP waives service on behalf of
Respondents. Rule made returnable forthwith. Heard finally by consent
of the parties.
2. Writ Petition No. 9319 of 2023 is filed inter alia seeking a
direction to the Respondents to immediately pay full compensation to
the Petitioner for acquisition of his premises being Gala Nos. 203 and
217 in Building No. BH Shree Rajlaxmi Complex, Kalher, Bhiwandi,
District Thane. Writ Petition No. 9320 of 2023 is filed inter alia seeking
a direction to the Respondents to pay full compensation to the
Petitioner for acquisition of his premises being Gala No. 19, Building
No. AQ-1, Rajlaxmi Complex, Village Purna, Taluka Bhiwnadi District
Thane. Both the Petitioners are also seeking a direction to the
Respondents to pay interest @ 18% p.a.
CASE AND SUBMISSIONS
3. The case of the Petitioners, as pointed out by their learned
Counsel Mr. Bubna, is that they are owners of the aforesaid subject
matter properties under registered documents, which were acquired for
the Mumbai-Ahmedabad High Speed Railway Project and the same
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were taken in possession and demolished without passing any Award,
much less paying any compensation therefor. It is their case that other
gala owners in the same building have been paid compensation under
Consent Awards. The Petitioners have produced on record 2 such
Consent Awards dated 10.11.2021 and 03.11.2021. It is their case that
despite various requests, correspondences and reminders sent to the
Respondent Authorities, they have not been paid the compensation
amount. In these circumstances, the Petitioners have filed present
petitions with prayers, as already set out hereinabove.
4. The learned AGP invited our attention to the affidavits-in-
reply filed by the concerned Competent Authority/S.D.O., Bhiwandi
Division dated 05/09/2023 in both petitions. In the affidavit-in-reply
filed in WP No. 9320/2023, it is stated that by following procedure
under law, an Award has been declared on 14/09/2022. Considering
that the Petitioners are only owners of shops and not the owner of the
land beneath, it is contended that owner of the land is entitled to receive
compensation at a particular rate which is decided by a Dist. Valuation
Committee headed by the Collector, based on agricultural and non-
agricultural type/s of lands. Since the Petitioners are not owners of the
land and are owners of the shops, they are only entitled to the amounts
as decided in the concerned Award. It is further stated that the
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Petitioners have failed to plead and adduce documentary evidence that
they have signed Consent Agreements and therefore, the Petitioners are
not entitled to claim 25% additional compensation, which is granted in
consent award in respect of other gala owners. Similarly, In the
affidavit-in-reply filed in WP No. 9319/2023, it is stated that by
following procedure under law, Awards have been declared on
17/02/2022. It is stated that compensation has been determined based
on valuation of the constructed structures and the Petitioner being the
owner thereof, has been awarded compensation. Alongwith these
affidavits, copies of letters issued by the competent authority to the
bank/s for transferring the award amounts in the respective bank
accounts of the Petitioners, are also produced in both writ petitions. The
learned AGP submitted that the amounts under the said Awards are
already received by the Petitioners being credited in their accounts.
5. During the course of the hearing, as per the liberty granted
by this Court on 12/09/2023, it appears that a common additional
affidavit has been filed by the same competent authority / S.D.O. on 4 th
October 2023. Perusal of this affidavit shows that a completely different
stand is now taken in respect of the same subject Awards. It is stated in
this affidavit, that valuation details about Purna Village (where subject
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matter properties are situated) have been inadvertently mentioned in
the Awards. It is further stated that it was necessary and expected to
mention in the subject Awards, the valuation of the construction worked
out and received from Public Works, Sub Division Bhiwandi. It is
further stated that valuation details of Purna Village mentioned at the
beginning of para 9 of the subject Awards are not relevant to the subject
matter properties and it is a typographical error. It is further stated that
the valuation rate mentioned in the subject Awards is wrongly
mentioned. It is now stated that in fact, valuation of the subject matter
properties is based on 'Unit wise Valuation Reports' which are produced
along with this affidavit. The Unit Wise Valuation Reports now sought
to be produced for justifying the rates, show that it is issued by a
Government Approved Valuer.
6. Mr. Bubna, the learned Counsel for the Petitioners has
brought to our attention that during the pendency of the Petitions, the
Petitioner in WP No. 9319/2023 has filed additional affidavit on 7 th
October 2023 placing on record a copy of the covering letter dated
25/11/2021 issued by him to the Competent Authority submitting
necessary documents, including consent agreement and indemnity
bond. It is at page no. 142 of the paperbook. This document shows the
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acknowledgment by the Competent Authority. Likewise, the Petitioner
in Writ Petition No. 9320 of 2023 has also produced a copy of the
covering letter dated 01/11/2021 issued by him to the Competent
Authority submitting necessary documents, including consent
agreement and indemnity bond. It is at page no. 30 of the paperbook.
This document also shows the acknowledgment by the Competent
Authority. Both the Petitioners have specifically contended in their
additional affidavits that the forms of the documents (consent
agreements and indemnity bonds) were submitted to the competent
authority and that they have purchased the required stamp papers for
printing the said forms and have signed them and have submitted in the
office of Respondent No. 1. They have further specifically contended that
their thumb impressions and photographs were also taken at that time.
He further pointed out that the fact that the competent Authority had
the Petitioners' bank account details, itself lends credence to the
Petitioners' case that they had submitted necessary documents for the
Consent Awards, including bank account details, which are apparently
utilized by the authorities to directly deposit the amounts under the
Awards.
7. Mr. Bubna argued that the forms submitted by the
Petitioners are similar/same to the cases where 25% additional
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compensation is already granted to others under consent awards. It is
also fairly stated by him that though the Petitioners do not have the
copies of the documents submitted by them, but the acknowledgments
on their respective covering letters are undeniable. He further
submitted that if the recitals of the Consent Awards passed in respect of
other similarly situated persons are perused, then they are almost
identical with the recitals of the subject Awards passed in respect of the
Petitioners' properties. In short, it is argued that in essence the subject
awards are consent awards only, but still 25% additional compensation
is not paid to the Petitioners as was paid to other similarly placed
persons.
8. He submitted that the above argument is further fortified
by the fact that the subject Awards are passed without following the
process envisaged for compulsory acquisition. He submitted that no
notice for determination of compensation or any hearing as to the
amount of compensation was held before passing the subject Awards. It
is submitted that possession has been taken in the year 2021 without
any compensation, however, no procedure under section 40 (urgency
clause) of 2013 act is followed. It is further submitted that if the
provisions of Section 25 of the 2013 Act are applied, then the Awards
passed in the present matter (17/02/2022 & 14/09/2022) are ex-facie
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passed beyond a period of one year from the Section 19 declaration
dated 07/02/2021 and as such the acquisition would thus lapse.
9. Despite all this, Mr. Bubna, on instructions submitted that
if the Petitioners are paid 25% additional amounts as given to other
similarly placed persons, along with interest as provided in section 80 of
the 2013 Act, he will not press his arguments about procedure not being
followed or the proceedings lapsing by virtue of Section 25 of the 2013
Act.
REASONS AND CONCLUSIONS
10. We have carefully considered the submissions of both sides.
We have also perused the documents produced on record.
11. Perusal of the subject Awards and Consent Awards (granted
in favour of similarly placed persons in the same building), shows that
recitals therein are not only almost identical but make reference to the
same rates which are approved by the District Level Committee for
acquisition through private negotiations. Although a reference is made
to the provisions of the 2013 Act about methods of calculation, actual
consideration either of ready-reckoner values or the sale instances of
nearby lands is conspicuously missing in the subject Awards. It is true
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that the heading of the subject Awards passed are "Final Award" as if to
suggest that the procedure under the 2013 Act has been adopted.
However, on a careful reading of the recitals in the subject Awards show
that at the operative part when the competent authority is exercising its
power, it is clearly stated that "a consent award is being passed (.... कलम
२३ प्रमाणे संमती ननवाडा करीत आहे ) ". Further the column regarding hearing
given to the Petitioners about their objections is stated to be Nil. This
apart, there is also no actual consideration about applicable rates based
on either the ready reckoner value or sale instances. In short, the
method adopted by the Competent Authority while passing the subject
Awards is ex facie not as per the usual procedure adopted and
calculating the compensation seems to have been arrived at in arbitrary
manner, for reasons best known to the authority.
12. It is clear from the 2 affidavits in reply that the concerned
Competent Authority/S.D.O. has taken different stands at different
points of time, for justifying the valuation applied in the subject matter
Awards. The actions of the authority, as sought to be explained in the
additional affidavits, cannot be accepted for more than one reason. It is
a settled position of law that an order (or an action under the order) is to
be judged on what is stated by the Authority in the Order and it cannot
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be improved upon by a subsequent affidavit. This has been so held by
the Hon'ble Supreme Court in the case of Mohinder Singh Gill Vs. Chief
Election Commissioner - (1978) 1 SCC 405. Firstly, if the Unit Valuation
Report was available at the time of passing Award and it formed basis of
consideration, there is no explanation at all, why the same is not
referred. Secondly, if the valuation of the subject matter property was
not connected or concerned with the fixed valuations as decided by the
valuation committee for the consent awards, then there was no reason
to mention the same in the Award. Therefore, the explanation, as sought
to be given in the additional affidavit, justifying the award amounts,
cannot be accepted.
13. This is apart from the fact that perusal of the
acknowledgments dated 25/11/2021 (in WP/9319/2023) and dated
01/11/2021 (in WP/9320/2023) produced by the Petitioners, clearly
show that both the Petitioners had submitted consent agreements as
well as indemnity bonds. These acknowledgments produced by the
Petitioners are not denied by the Respondents, not even, orally much
less by filing affidavits in reply. What is merely submitted by the learned
AGP orally, is that the authorities have not received necessary
documents from the Petitioners. This, we are afraid, cannot be accepted
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in the teeth of the acknowledgments produced by the Petitioners.
14. In view of the aforesaid facts and circumstances there is
considerable material to suggest that the Petitioners were indeed in the
process of participating in the acquisition by private negotiations for
which necessary documents were executed and submitted and the
subject awards are, in essence, consent awards only.
15. So far as the prayer of interest is concerned, Mr. Bubna
fairly submitted that he is not claiming any interest on the award
amount in Writ Petition No. 9320 of 2023 because within a reasonable
time from the date of the award (14/09/2022), the petitioner therein,
has been paid on 11/10/2022. He however submitted that in Writ
Petition no. 9319 of 2023, he is pressing for interest on the award
amount from the date of award (17/02/2022) since the same has been
paid after an inordinate delay on 14/08/2023. Perusal of section 80 of
the 2013 Act shows that when the amount of compensation if not paid
or deposited on or before taking possession of the land, the Collector
'shall' pay the interest @9 % p.a. from the date of possession for the first
year and thereafter @ 15% p.a. from second year till payment/ deposit.
In the present case, though it is admitted position that possession has
been taken before the award, interest is claimed only from the award
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date, which is later in point of time. In that view of the matter, we do not
see any difficulty in granting statutory interest.
16. For all these reasons, we find these to be fit cases to exercise
our extra ordinary writ jurisdiction and accordingly we hold that the
subject Awards are consent awards and the Petitioners are entitled to
25% additional compensation just as it was paid to other similarly
placed persons. We therefore direct the Respondents to calculate and
pay 25% additional compensation to the Petitioners in respect of subject
matter properties described in para 2 above, within a period of 8 weeks
from today. We further direct the Respondents to pay to the Petitioner
in Writ Petition No. 9319 of 2023 interest on awarded amount @9% p.a.
from 18/02/2022 till 18/02/2023 and @15% from 19/02/2023 to
14/08/2023. The said interest amount shall also be paid within a period
of 8 weeks from today.
17. Rule is made absolute in the aforesaid terms and the writ
petitions are also disposed of in terms thereof. No order as to costs.
18. Place these matters for reporting compliance on 14 th
February, 2024.
19. All concerned to act on authenticated or digitally signed
copy of this order.
[ M.M. SATHAYE, J.] [ B. P. COLABAWALLA, J.]
DECEMBER 13, 2023
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