Bombay High Court
Dalsing Shivlal Chandwade And ... vs The State Of Maharashtra And ... on 11 January, 2023
Bench: Mangesh S. Patil, S. G. Chapalgaonkar
1 947-WP-13031-2021
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
947 WRIT PETITION NO.13031 OF 2021
DALSING SHIVLAL CHANDWADE AND OTHERS
VERSUS
THE STATE OF MAHARASHTRA AND OTHERS
...
Advocate for Petitioners : Mr Dhananjay K. Thote
AGP for Respondent/State : Mr A.S. Shinde
CORAM : MANGESH S. PATIL AND
S.G. CHAPALGAONKAR, JJ.
DATE : 11-01-2023
ORAL ORDER : (MANGESH S. PATIL, J.)
Heard.
2. Rule. Rule is made returnable forthwith.
3. The learned Assistant Government Pleader waives service of
notice for the respondents. At the joint request of the parties, the matter is
heard finally at the stage of admission.
4. The petitioners are challenging the award dated 31-03-2017
passed purportedly under the Right to Fare Compensation and
Transparency in Land Acquisition Rehabilitation and Resettlement Act,
2013 (hereinafter referred to as "new Act") dated 31-03-2017 on two
grounds.
(i) Incorrect application of multiplier.
(ii) Incorrect assessment of compensation.
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5. The learned advocate for the petitioners submits that a wrong
multiplier has been applied without assigning any reason. The petitioners'
land falls in rural area and as per the notification dated 26-05-2015, the
appropriate multiplier was 2, instead the multiplier 1.5 as has been
applied.
6. He would further submit that though the notification under
section 4 of the Land Acquisition Act, 1894 (old Act) was issued, no award
was passed under section 11 of the old Act and consequently, in view of
the provisions of section 24 (1) (b) of the new Act, the award should have
been passed under the new Act. He would further submit that the
provisions of section 26 of the Act specifically provides the manner of
assessment of the market value by holding the cut off date as 01.01.2014.
It was the date of coming into force of the new Act. However, the award
has been passed by resorting to the valuation by taking the date of
notification issued under section 4 which is contradictory to the statutory
mandate and is void ab-inito. The learned advocate places reliance on the
following Judgments :-
(i) Sahebrao Bhausaheb Kalate and Ors Vs. The State of
Maharashtra and Ors; MANU/MH/2141/2019
(ii) Hardas and Ors. Vs. The State of Maharashtra and Ors;
MANU/MH/0620/2019
(iii) Abuli Abdul Husain Vora and Ors. Vs. Union Territory of
Dadra and Nagar Haveli and Ors; MANU/MH/2370/2018
7. The learned AGP by referring to the affidavit-in-reply raises a
primary objection regarding availability of alternate and efficacious remedy
under section 64 of the new Act. He submits that the Court should not
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exercise the extraordinary power under Article 226 of the Constitution of
India in view of such alternate and efficacious statutory remedy. All the
issues being raised by the petitioners could have been raised before the
Tribunal.
8. The learned AGP further submits that apart from the statement
made in the affidavit-in-reply, even the award specifically mentions that the
land of the petitioners falls under the development plan and consequently,
correct multiplier has been applied in accordance with Sr. No. 2 of the
notification dated 26-05-2015.
9. We have carefully considered the submissions of both the
sides. Admittedly, no award was passed under section 11 of the old Act
and only notification under section 4 was issued. Obviously, in view of the
provisions of section 24 (1) (a) of the new Act the provisions of the new
Act relating to the determination of compensation would apply.
10. Section 26 of the new Act prescribes for determination of the
market value of the land by the Collector and inter alia provides that the
determination of the market value shall be on the date on which the
notification has been issued under section 11 of the new Act. Admittedly,
on 01-01-2014 is the date on which the Act was enforced. Needless to say
that the compensation should have been determined by taking 01-01-2014
as the date.
11. Even the issue is no more res integra. This Court in the
aforementioned two decisions as also the Allahabad High Court has taken
the same view. Over and above, admittedly, the State had raised the
4 947-WP-13031-2021
queries with the Central Government and in response, the Central
Government has also informed the State Government that the date for
assessment of market value should be taken as 01-04-2014 wherever no
award was passed under the old Act prior to the coming into force of the
new Act.
12. True it is that the petitioners could have resorted to the statutory
remedy under section 64 of the Act raising all these disputes. However,
simultaneously, even we cannot ignore the fact that the respondents seek
to exercise the right of eminent domain which comes with an inherent duty
to act fairly. If the actions of the State are in blatant violation of the
legislative provisions, the action would be certainly arbitrary and capricious
and this Court in exercise of the extraordinary power under Article 226 of
the Constitution of India, should step in and rectify the error or the mischief
of the State. In such circumstances, it would not lie in the mouth of the
State to raise the objection regarding availability of alternate remedy or
even the delay and laches.
13. At this juncture, the learned AGP submits that the entire award
may not be quashed as apart from the petitioners such order would grant
relief even to the other persons/farmers covered by the same award but
who have not challenged it.
The E-statement shows that the award has been passed in
respect of four (4) persons and three (3) of them are before us as
petitioners. The fourth person is a lady whose 6 Are land has been
acquired. We have demonstrated the illegality in the award and also how it
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is arbitrary and capricious and demonstrates utter lack of application of
mind. In the circumstances allowing the award to stand qua her would be
like ignoring the injustice caused to her. Therefore, we discard the
submission of the learned AGP.
14. Irrespective of the petitioners putting up a grievance or
otherwise, the respondents should have acted fairly and passed the award
in tune with the provisions of the new Act. Precisely for this reason, we
are ignoring the objections being raised on behalf of the respondents
regarding availability of the alternate remedy and the delay and laches.
15. We allow the writ petition partly, quash and set aside the award
and direct the respondents to pass a fresh award in the light of the above
observations as early as possible and in any event within a period of six
months from today.
16. The writ petition to the extent of challenge to the multiplier, is
dismissed.
17. Any amount paid to the petitioners and the fourth land holder,
shall be set off against the compensation to be determined pursuant to this
order.
18. Rule is made absolute in the above terms.
[ S.G. CHAPALGAONKAR, J. ] [ MANGESH S. PATIL , J. ]
mta
