Bombay High Court
Seetabai Rambhau Derkar vs State Of Maha., Thr. Revenue And Forest ... on 30 November, 2023
Author: Anuja Prabhudessai
Bench: Anuja Prabhudessai
2023:BHC-NAG:17289-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
: NAGPUR BENCH : NAGPUR.
WRIT PETITION NO. 4545 OF 2022
PETITIONER : Smt. Seetabai Rambhau Derkar,
Aged about 70, Occupation - Agriculture,
R/o Rama, Tah. Hingna, Dist. Nagpur.
VERSUS
RESPONDENTS : 1] State of Maharashtra,
through Revenue & Forest Department
through Collector, Nagpur Civil Lines,
Nagpur - 1.
2] Maharashtra Industrial Development Corporation
having its Office at Marol Industrial Estate,
Andheri (East), through its Regional Officer,
at Udyog Bhavan, Civil Lines, Nagpur - 1.
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Mr. R. V. Gaikwad, Advocate for the petitioner.
Mrs. K. R. Deshpande, A.G. P. for the respondent no.1
Mr. M. M. Agnihotri with Mr. Parth Sagdeo, Advocates for
respondent no.2.
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CORAM : SMT. ANUJA PRABHUDESSAI and
MRS. VRUSHALI V. JOSHI, JJ.
DATED : NOVEMBER 30, 2023.
ORAL JUDGMENT (Per : Smt. Anuja Prabhudessai, J.)
1. RULE. Rule made returnable forthwith. Heard finally
with consent of learned counsel for the respective parties.
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2. By this petition, filed under Articles 226 and 227 of the
Constitution of India, the petitioner has sought the following reliefs :
(B) hold that award passed by the Dy.Collector Land
Acquisition (General) Nagpur dated 25.04.1991 and the
revised award dated .12.2015 is lapsed, as far as it relates to
the petitioner's land ;
(BB) quash and set aside the revised award passed by the Dy.
Collector Land Acquisition dated 27.04.2018 at
Annexure-2 of the reply and submission by respondent
no.2, being in violation of the rules of natural justice and
direct him to pass fresh award, as for as it relates to the land
of the petitioner, after granting opportunity o being heard.
(C) direct the respondent not to interfere in the possession of
the subject matter land comprised in S.No. 89 of mouza
Pohi, District Nagpur, in view of lapsing of the award.
3. Learned counsel for the petitioner, under instructions,
states that he is not pressing for prayer clauses 'B' and 'C' and restricts
the relief in terms of prayer clause 'BB'.
4. The respondent no.2 - acquiring body had proposed to
acquire land from village Pohi, dist. Nagpur under the provisions of the
Maharashtra Industrial Development Act, 1961 (hereinafter referred to
as "the MID Act" for short) for extension of Butibori Industrial Estate,
in Nagpur district. Notification under Section 32(2) of the MID Act
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was issued on 28.10.1988. The Land Acquisition Officer, after
complying with all other requisite statutory provisions, declared the
award on 25.04.1991 awarding compensation @ Rs.26,180/- per
hectare.
5. The land of the petitioner bearing old Survey No. 59 (new
survey No. 89) admeasuring 5.18 hectare was also acquired under the
said notification. The petitioner accepted the compensation on
21.03.1992. Some of the land holders had filed reference under Section
34 of the MID Act. In Land Acquisition Case No.348 of 1993, the
Reference Court had awarded compensation of Rs.1,60,000/- per
hectare. The said judgment and award was modified by this Court in
First Appeal No.535/2007 and the compensation was reduced to the
rate of Rs.80,000/- per hectare with all statutory benefits.
6. The applications under Section 28-A of the Land
Acquisition Act, 1894 (hereinafter referred to as "the L.A. Act" for
short) filed by some of the land holders to re-determine the
compensation on the basis of the judgment of the Reference Court were
initially rejected, but were subsequently considered in view of the
judgment in Writ Petition No. 6688 of 2014 [Rambhau Mahadeorao
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Tembhurkar thr. L.Rs. & Ors. .vs. State of Maharashtra, through the
Collector, Nagpur & Ors. reported at 2015 SCC OnLine Bom 6331 .
Subsequently, as per the compromise entered into between the land
holders and the acquiring body, the land owners agreed to receive
compensation of Rs.1,60,000/- per hectare towards full and final
settlement. Accordingly, the references under Section 34 of the MID
Act filed by some of the land holders were allowed and vide judgment
dated 08.10.2010 in L.A.C. No.348/1993, the LAO/acquiring body was
directed to pay compensation in lumpsum amount of Rs.1,60,000/- per
hectare towards full and final settlement of the claim.
7. The petitioner herein had also filed an application under
Section 28-A of the L.A. Act, claiming enhanced compensation of
Rs.1,60,000/- per hectare, based on the award of the Court. By award
dated 27.04.2018, the Land Acquisition Officer re-determined the
compensation @ Rs.1,60,000/- per hectare. This was communicated to
the petitioner by communication dated 04.05.2018 and he was called
upon to collect the compensation determined under Section 28-A of
the L.A. Act.
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8. It is stated that the petitioner did not come forward to
receive the enhanced compensation offered vide communication dated
04.05.2018 and filed present petition alleging lapsing of acquisition for
not taking possession of the acquired land. Subsequently, the petitioner
amended the petition and challenged the award dated 27.04.2018 on
the ground that he was not given hearing and that no inquiry was
conducted as stipulated under sub-section (2) of Section 28-A of the
L.A. Act resulting in violation of the principles of natural justice. The
petitioner has also raised an issue of delay in passing the award.
9. Learned counsel for the petitioner submits that the LAO
had kept the application pending for considerable time and that he had
not afforded hearing to the petitioner before passing the award dated
27.04.2018. Learned counsel for the petitioner submits that the
petitioner had no opportunity to satisfy the authority that he was
otherwise entitled for compensation under the Right to Fair
Compensation and Transparency in Land Acquisition, Rehabilitation
and Resettlement Act, 2013 (hereinafter referred to as "the 2013 Act"
for short).
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10. Learned AGP as well as learned counsel for the acquiring
body have stated that the delay in deciding the application was due to
ambiguity in applicability of the provisions of Section 28-A of the L.A.
Act to the acquisition under the MID Act. It was only after the issue
was resolved by this Court in Rambhau Mahadeorao Tembhurkar's case
(supra), that the applications of the land holders under Section 28-A of
L.A. Act were decided and the compensation, as agreed between the
parties, was awarded to the said land holders. It is further submitted
that the petitioner has not accepted the compensation though the award
was communicated to him vide correspondence dated 04.05.2018 and
hence, he is not entitled for interest from the date of the award.
Reliance is placed on the decision of Hon'ble Apex Court in Indore
Development Authority .vs. Manoharlal and others, reported at (2020)
8 SCC 129.
11. We have perused the record and considered the
submissions advanced by Mr. R.V. Gaikwad, learned counsel for the
petitioner, Mrs. K.R. Deshpande, learned Assistant Government
Pleader for respondent no.1 and Mr. M. M. Agnihotri, learned counsel
for respondent no.2 - acquiring body.
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12. It would be relevant to refer to the provision under Section
28-A of the L.A. Act, which reads thus :
"28-A - Re-determination of the amount of
compensation on the basis of the award of the Court -
(1) where in an award under this Part, the Court allows to
the applicant any amount of compensation in excess of
the amount awarded by the Collector under Section 11,
the persons interested in all the other land covered by the
same notification under Section 4, sub-section (1), and
who are also aggrieved by the award of the Collector may,
notwithstanding that they had not made an application
to the Collector under section 18, by written application
to the Collector within three months from the date of the
award of the Court require that the amount of
compensation payable to them may be re-determined on
the basis of the amount of compensation awarded by the
Court.
Provided that in computing the period of three
months within which an application to the Collector shall
be made under this sub-section , the day on which the
award was pronounced and the time requisite for
obtaining a copy of the award shall be excluded.
(2) The collector shall, on receipt of an application
under sub- section (1), conduct an inquiry after giving
notice to all the persons interested and giving them a
reasonable opportunity of being heard, and make an
award determining the amount of compensation payable
to the applicants.
(3) Any person who has not accepted the award
under sub-section (2) may, by written application to the
Collector, require that the matter be referred by the
Collector for the determination of the Court and the
provisions of Sections 18 to 28 shall, so far as may be,
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apply to such reference as they apply to a reference under
Section 18."
13. The right to make an application under Section 28-A of
the L.A. Act arises from the award of the Reference Court. This
provision enables all the other persons covered by the same notification
and who are also aggrieved by the award of the Collector, to seek
enhanced compensation on the basis of the award of the Court
notwithstanding that they had not sought any reference to the Collector
under Section 18 for enhanced compensation.
14. In the instant case, it is not in dispute that the petitioner
had not filed any reference under Section 18 of the L.A. Act and he had
sought enhanced compensation @ Rs.1,60,000/- per hectare towards
full and final settlement of the claim, as per the compromise award
passed by the Reference Court. The application filed by the petitioner
has been allowed in its entirety and he has been awarded compensation
@ Rs.1,60,000/- per hectare. Though there was delay in deciding the
claim of the petitioner, the same has been explained. It is stated that the
delay was in view of the ambiguity on the issue of applicability of the
provisions under Section 28-A of the L.A. Act to the
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land acquisition proceedings under the MID Act. Once the issue was
resolved as per the decision of this Court in Rambhau Tembhurkar's
case (supra), the application of the petitioner was allowed and he was
granted enhanced compensation. This being the case, the delay per se
would not be a ground to quash the said award.
15. It is true that sub-section (2) of Section 28-A of the L.A.
Act contemplates an inquiry after giving notice to all the persons
interested and giving them a reasonable opportunity of being heard.
Undisputedly, in the instant case, the LAO had not given notice to the
petitioner and has allowed the application, without conducting an
inquiry as contemplated under sub-Section (2) of Section 28-A of the
L.A. Act. The question, which, therefore, arises is whether non-
compliance of this provision and consequent violation of principles of
natural justice invalidates the award.
16. It would be relevant to refer to the decision of the Apex
Court in M/s. Dharampal Satyapal Ltd. .vs. Deputy Commissioner of
Central Excise, Gauhati & Ors., reported at (2015) 8 SCC 519 , wherein
the Apex Court has observed that the principles of natural justice are
very flexible principles. They cannot be applied in any straight-jacket
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formula. It all depends upon the kind of functions performed and to
the extent to which a person is likely to be affected. The Apex Court
has further observed that the principles of natural justice are grounded
on procedural fairness which ensures taking of correct decision.
Nevertheless, there may be situations wherein for some reason - perhaps
because the evidence against the individual is thought to be utterly
compelling - it is felt that a fair hearing 'would make no difference' -
meaning that a hearing would not change the ultimate conclusion
reached by the decision-maker - then no legal duty to give a hearing
arises. The Apex Court has observed that even if it found by the Court
that there is violation of principles of natural justice, it may not be
necessary to strike down the action and refer the matter back to the
authorities to take fresh decision after complying with the procedural
requirement in those cases where the non-grant of hearing has not
caused any prejudice to the person against whom the action is taken.
Therefore, every violation of a facet of natural justice may not lead to
the conclusion that the order passed is always null and void. The
validity of the order has to be decided on the touchstone of ' prejudice'.
The ultimate test is always the same, viz. the test of prejudice or the test
of fair hearing.
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17. As noted above, in the instant case, the petitioner had
claimed enhanced compensation on the basis of award in Land
Acquisition Case No.348 of 1993, wherein the Reference Court, relying
upon the settlement between the other land holders and the acquiring
body, had awarded compensation of Rs.1,60,000/- per hectare towards
full and final settlement. Though the petitioner was not given a right of
hearing and no inquiry was held as contemplated under sub-section (2)
of Section 28-A of the L.A. Act, it is a matter of fact that the application
filed by the petitioner has been accepted in its entirety and
compensation of Rs.1,60,000/- per hectare has been awarded in favour
of the petitioner. The contention of learned counsel for the petitioner
that he would have satisfied the authority that the petitioner is entitled
for compensation under 2013 Act is devoid of any merits since it is not
in dispute that the acquisition is of the year 1991, the petitioner had
already received compensation in respect of acquired land without
protest and the possession of the land was also taken by the acquiring
body. Learned counsel for the petitioner has not been able to
demonstrate that non-adherence or non-compliance of the provision
under sub-section (2) of Section28-A of the L.A. Act has caused any
prejudice to the petitioner or that such hearing would have made any
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difference in the decision. Hence, the award cannot be quashed on the
ground of non-compliance of the provisions of sub-section (2) of
Section 28-A of the L.A. Act.
18. It is not in dispute that the award was communicated to
the petitioner vide communication dated 04.05.2018. The petitioner
did not receive the compensation determined by the Land Acquisition
Officer under Section 28-A of the L.A. Act. The petitioner, therefore,
cannot raise any grievance in this regard. Even otherwise sub-section
(3) of Section 28-A of the L.A. Act enables a person who has not
accepted the award to make an application to the Collector to refer the
matter to the Court.
19. Under the circumstances and in view of the discussions
supra, the petition has no merits and is accordingly dismissed. Rule
discharged. No order as to costs.
(VRUSHALI V. JOSHI, J.) (ANUJA PRABHUDESSAI, J.)
Diwale/Vijay
Signed by: Mr. Vijay Kumar
Designation: PA To Honourable Judge
Date: 18/12/2023 11:37:44
