Bombay High Court

Avinash Balaram Bhoir Decd. Thr. Lhr ... vs State Of Maha Thr. Prin. Sec. And Ors on 13 December, 2023

Author: B. P. Colabawalla

Bench: B. P. Colabawalla

2023:BHC-AS:37822-DB

                                                                               5.WP.10765.2023.doc



                              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                        CIVIL APPELLATE JURISDICTION


                                       WRIT PETITION NO.10765 OF 2023


                 Avinash Balaram Bhoir                                                  ...Petitioner

                              Versus

                 The State of Maharashtra & Ors.                                        ...Respondents



                    Mr. J.D. Khairnar a/w. Mr. Vikas Shivarkar & Ms Ankita
                    Hajare, Advocates for Petitioner.

                    Ms Heena Shaikh i/b. M.V. Kini & Co., Advocates for
                    Respondent No.2/NHAI.

                    Mr. Mohansinh U. Rajput a/w. Mr. Sachin A. Ambulkar ,
                    Advocates for Respondent No.4.

                    Mr. A.I. Patel, Addl.G.P. a/w. Mr. R.P. Pawar, AGP for
                    Respondent Nos.1 & 3.


                                   CORAM           : B. P. COLABAWALLA &
                                                   SOMASEKHAR SUNDARESAN, JJ.

                                   DATE            : DECEMBER 13, 2023

               P. C.

1. Rule. Ms Heena Shaikh, the learned counsel waives service

on behalf of Respondent No.2/NHAI, Mr. Mohansinh U. Rajput, the

learned counsel waives notice for Respondent No.4 and Mr. A.I.

Patel, the learned Addl.G.P. waives notice for Respondent Nos.1 & 3.

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With consent of parties, Rule made returnable forthwith and heard

finally.

2. The above Writ Petition is filed seeking to challenge the order

dated 26.04.2022 passed by Respondent No.3 ["Competent

Authority"] under the National Highways Act, 1956 [for short "NH

Act 1956"). Initially, the property was acquired by passing an Award

u/s.3G. of the NH Act, 1956 dated 10.09.2018. It is the case of the

Petitioner that after this Award, though unaware of it, the

Petitioner's father by a notarized Sale Deed dated 01.102018

purchased the acquired property from one Dinesh Bhagwan Gaikar.

Since compensation in respect of the structure on the acquired land

was not passed, a supplementary Award came to be passed on

01.04.2022 by Respondent No.3 in respect of the subject property,

by which he awarded compensation to the Petitioner's father to the

tune of Rs.1,03,82,764/-. This amount was thereafter disbursed to

the Petitioner's father. Thereafter, on 05.05.2022 the Petitioner's

father passed away as he was suffering from cancer. It appears that

much thereafter, Respondent No.4 made complaints to Respondent

No.3 on 28.12.2022 and 20.02.2023, alleging that there was no

structure standing on the acquired land as clarified by the office of

the Public Works Department. Therefore, it was alleged that the

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compensation awarded against the alleged non-existing construction

had been obtained by fraud and by producing false documents, and

therefore, the same must be cancelled and recovered from the

Petitioner. The Petitioner thereafter received a notice from

Respondent No.3 and appeared and opposed the said complaints on

substantive grounds alongwith documentary evidence, proving that

the structure was very much in existence as on the date of the

acquisition, and therefore, the compensation awarded was legal and

justified and that the same had not been obtained by playing any

fraud or fabricating any documents. After hearing the parties, the

impugned order dated 26.04.2022 came to be passed by Respondent

No.2 partly allowing the complaint and directing the Petitioner to

deposit the compensation as received, with his office within 10 days

from the date of the order and further directed initiation of criminal

action against all the persons involved in the said fraud. It is this

order that is challenged in the present Writ Petition.

3. The main ground in the Writ Petition is that the Competent

Authority, having passed an order disbursing the amount to the

Petitioner, had no power to ask the Petitioner to refund the amount

and/or initiate any criminal action against the Petitioner. The

learned counsel appearing on behalf of the Petitioner submitted that

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this is nothing but the Competent Authority reviewing its earlier

order under which the disbursement was made to the Petitioner.

This apart, the learned counsel submitted that Respondent No.4 had

absolutely no locus to file any complaint before Respondent No.3 as

he was not in any way concerned with the land and has not claimed

any title or interest therein. Therefore, and in any event the

complaint filed by Respondent No.4 ought not to have been

entertained by Respondent No.3 at all. He, therefore, submitted that

on these two grounds alone the impugned order dated 26.04.2023

passed by Respondent No.3 ought to be quashed and set aside.

4. An affidavit-in-reply is filed by Respondent No.3. In the said

reply, it is stated that after the complaint was filed, Respondent No.3

issued notice to both parties and after giving sufficient opportunity,

the matter was closed for final decision on 17.04.2023. The affidavit

goes on to narrate all that was done by Respondent No.3 before

passing the impugned order. It is stated that at the time of hearing in

the office of Respondent No.3, Dinesh Bhagwan Gaikar (the

predecessor in title) of the Petitioner submitted that his signatures

were obtained by the Petitioner by misrepresentation. It is for this

reason that Respondent No.3 has come to the conclusion that though

there was construction of Survey No.25/4 (the subject property) and

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may be entitled to compensation, it is revealed that the Petitioner

had submitted false and fabricated documents in respect of the

subject property. It is on this basis that the order dated 26.04.2022 is

sought to be justified by Respondent No.3.

5. As far as Respondent No.4 is concerned, he has not filed any

affidavit-in-reply. In fact, by our orders dated 25.10.2023 and

29.11.2023, we had twice given Respondent No.4 time to file his

affidavit in reply and explain his locus to file the complaint. Today,

the learned Advocate appearing on behalf of Respondent No.4 has

fairly stated that Respondent No.4 has no real locus because he

admittedly has no interest in the subject property namely Survey

No.25/4. He submitted that the complaint was filed only because

according to him the fraud was played on the exchequer and he being

a taxpayer, was entitled to file the complaint.

6. We have heard the learned Counsel for the parties at some

length. We have also perused the papers and proceedings in the

above Writ Petition.

7. It is not in dispute that two Awards have been passed in the

present case, namely, first in 2018 and the second in 01.04.2022.

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After the passing of the supplementary Award, compensation has

also been disbursed to the Petitioner. In such a situation and

especially at the instance of Respondent No.4, who had absolutely no

locus, we failed to understand how Respondent No.3 could have

passed any order directing the Petitioner to refund the amount

disbursed and initiate criminal action against the Petitioner. We find

that this is way beyond the scope of the power and authority of the

Competent Authority under the NH Act, 1956. This is more so in the

facts of the present case because the Competent Authority seeks to

justify its order on the basis that the original owner of the property

had submitted that his signatures had been obtained by

misrepresentation. However, an affidavit of the original owner dated

01.04.2022 is submitted before us, which states that the complaint

made by him before the Competent Authority on 29.03.2022 was

based on some misunderstanding and that he is withdrawing the

complaint. Once this is the position, we find that the impugned order

is wholly unsustainable. It is now well settled, that the Competent

Authority appointed under the NH Act, 1956, Act has absolutely no

power to review his own orders. This has been so held by several

decisions of this Court. If one requires any authority on the subject,

we may refer to a Division Bench Judgment of this Court

(Aurangabad Bench) in the case of Bhupendrasingh Sardarsingh

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Parmar V/s. Competent Authority for National High Way No.6 and

the Deputy Collector (Gen.), Land Acquisition (Gen.), Dhule & Ors.,

[2020 (2) Bom. C.R. 296]. This decision of Bhupendrasingh [supra]

has thereafter been followed by our Court in the case of Sau.

Sangeeta Natwarlal Karwa & Anr. Vs. The State of Maharashtra &

Ors. [Writ Petition No.5327 of 2022 decided on 28.02.2023] and in

the case of Ramesh Ganpat Gaikwad & Ors. Vs. Dilip Dattu Jadhav &

Ors, [Writ Petition No.7858 of 2022 decided on 23.06.2023] .

8. For all the forgoing reasons, we are of the opinion that the

impugned order cannot be sustained and it has to be set aside.

Accordingly, the Writ Petition is allowed in terms of prayer-clauses

[b] and [c], which read thus:-

[b] That this Hon'ble Court be pleased to issue writ in the

nature of certiorari and/or any other writ, order and/or

direction, thereby calling for the record in respect of the

impugned order dated 26.4.2023 passed by the Respondent

No.3, being Exhibit E to this Petition.

[c] That after perusing the records and proceedings in

respect of the impugned order dated 26.4.2023 passed by the

Respondent No.3, this Hon'ble Court be pleased to quash and

set aside the impugned order dated 26.4.2023 passed by

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