Hatim Fidaali Rajkotwala And Anr vs The Land Acquisition Officer The ...
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                                                                    WP-2965-2021 & 2966-2021(C).doc



                       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                             ORDINARY ORIGINAL CIVIL JURISDICTION

                                    WRIT PETITION NO. 2965 OF 2021

                                                    WITH

                                    WRIT PETITION NO. 2966 OF 2021

                  Hatim Fidaali Rajkotwala and Anr.                         .. Petitioners

                           Versus

                  Land Acquisition Officer, The Collector
                  and District Magistrate, Mumbai City & Anr.               .. Respondents

                      Mr.Mohd. Nawaz Haindaday i/b Gazala P. Shaikh,
                      Advocates for the Petitioners in both the matters.

                      Mr. L.T. Satelkar,           AGP    for      Respondent-State          in
                      WP/2965/2021.

                      Mr.Mansih Upadhyay, AGP for Respondent-State in
                      WP/2966/2021.

                      Ms. Fatema Kachwalla i/b                   JSA,      Advocate       for
                      Respondent No. 2 in both matters.



                                               CORAM       : B. P. COLABAWALLA &
                                                                M.M. SATHAYE, JJ.

RESERVED ON : AUGUST 11, 2023 PRONOUNCED ON : OCTOBER 06, 2023

JUDGMENT: [Per M.M.Sathaye, J.]

1. Rule. The learned AGP waives service for Respondent

No.1 and learned counsel for Respondent No.2 also waives service.

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Rule made returnable forthwith. Taken up for final disposal by

consent of the parties.

2. These two Petitions arise out of land acquisition under

The Right to Fair Compensation and Transparency in Land

Acquisition, Rehabilitation and Resettlement Act, 2013, (for short

"the 2013 Act"), between the same parties but in respect of two

different properties. The contentions in both the Petitions are the

same and therefore, they are being conveniently disposed of by a

common Judgment.

3. The subject matter property in Writ Petition No. 2965 of

2021 is Rajkotwala Building, standing on land bearing City Survey

No. 4337 of Bhuleshwar Division, at 16, Ibrahim Rehmatullah Road,

J.J. Hospital, Mumbai-40003 and the subject matter property in

Writ Petition No. 2966 of 2021 is Rukaiya Mansion, standing on land

bearing City Survey No. 4338 of Bhuleshwar Division at 14, Ibrahim

Rehmatullah Road, Bhendi Bazar, Mumbai-400003. The Petitioners

are owners of 25% undivided share in the property which is the

subject matter of Writ Petition No. 2965 of 2021 (Rajkotwala

Building) and full owners of the subject matter property of Writ

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Petition No. 2966 of 2021 (Rukaiya Mansion.

4. By these Petitions, filed under Article 226 of the

Constitution of India, the Petitioners are seeking a direction to

Respondent No. 1 (Land Acquisition Officer) to release the amount of

compensation awarded in respect of the subject matter properties

and also seeking a direction to pay interest on the awarded amount

as provided under the 2013 Act. The matters are arising out of LAQ

Nos. 18/2019 and 19/2019, both dated 30th December 2019.

5. At the outset, the learned Counsel for the Petitioners in

both the matters, has fairly submitted that so far as prayer clause (I)

is concerned in both matters [which seeks a direction to release the

amount of compensation under the Award], the same does not

survive because the amount of compensation under the Award is

already received by the Petitioners during pendency of these

Petitions. He however submitted that the second prayer regarding

payment of interest on the awarded amount, is being seriously

pressed.

6. Shorn of unnecessary details, following are the facts and

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circumstances, from which both the Petitions arise. By the aforesaid

two land acquisition Awards dated 30th December 2019, the said

subject matter properties were acquired and the compensation

amount was determined. It is common ground before us that

panchnamas and possession receipts are drawn on 3 rd February 2020

in respect of both subject matter properties. Even before the

possession receipts were executed, Respondent No. 2 (The Acquiring

body) has deposited the amount of the Awards with Respondent No.

1, on 6th January 2020. On the same date, when the amount was

deposited by Respondent No. 2, letters were issued to the original

owners / Awardees, calling upon them to submit their identity

documents and bank details for payment of compensation. It

appears, and is not disputed, that these letters dated 6 th January

2020 were issued by Respondent No. 1 in the name of the original

owners/ Awardees who were no more at the relevant time. It appears

from the record that the present Petitioners, claiming to be legal

heirs of the original owners, contacted Respondent No. 1 and by a

common letter dated 27th January 2020, issued through their lawyer,

informed Respondent No. 1 that the copies of the Awards have not

been received by them and further made it amply clear that they

intend to challenge the said Awards. The record further shows that

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thereafter, till 19th November 2020, no communication took place

from Respondent No. 1. On 19 th November 2020, Respondent No. 1

issued letters, again in the name of original owners/ Awardees calling

upon them to submit documents, including copies of bank pass-book,

canceled cheque, Pan Card, Aadhar Card, documents of witnesses,

Indemnity Bond and 'documents of heir-ship' if the person/s in

whose favour Award is passed, is dead. The Petitioners, again

thereafter, through their lawyer's letter dated 16 th December 2020

informed Respondent No. 1 that the Petitioners are the legal heirs of

the original owners. They gave details about the Documents such as

the Release Deed and Letters of Administration submitted earlier,

and pointed out that they will claim the amount of compensation

under sec. 77 of the 2013 Act without prejudice to their rights to

apply for a Reference under Section 64 of the 2013 Act.

7. Inviting our attention to Section 77 of the 2013 Act,

learned Counsel for the Petitioners has contended that on making an

Award, the Collector was duty bound to tender payment of

compensation to the persons interested who are entitled to the

Award. He further submitted that under Section 77(2), it is

specifically provided that if there being any dispute as to the title to

JUNE 19, 2023 Yugandhara Patil WP-2965-2021 & 2966-2021(C).doc

receive the compensation or as to the apportionment of it, then the

Collector was duty bound to deposit the amount of compensation

with the authority to which a Reference under Section 64 of the Act

lies. It is submitted on behalf of the Petitioners that if the chronology

of the events is considered carefully, it can be seen that under letter

dated 12/07/2019 itself, the Petitioners had produced copies of

letters of administration issued by the High Court and the death

certificate of deceased son of deceased Rukaiyabai. Copy of this

letter dated 12/07/2019 is also produced on record. It is also clear

that on 27th January 2020 itself, they clarified through their lawyer's

letter that they intend to challenge the Award. It is further submitted

that from the letter dated 19 th November 2020 issued by the Land

Acquisition Officer/ Respondent No. 2- Deputy Collector Mumbai, it

is clear that the authorities were waiting for documents of heir-ship

or proof of succession so far as the title of the subject matter

properties are is concerned. Therefore, the matter squarely falls

under Section 77 (2) of the 2013 Act. It is therefore submitted that

Respondent No. 1 ought to have deposited the compensation amount

with the authority to whom the reference lies. He submitted that

admittedly this was not done and the amount kept lying with

Respondent No. 1.

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8. Inviting our attention to Section 80 of the 2013 Act, the

learned counsel for the Petitioners urged that if the amount of the

compensation is neither paid nor deposited on or before taking

possession, then there is a mandate to pay interest @ 9% p.a. from

the date of taking possession until it has been so paid or deposited

and if the compensation is not paid or deposited within a period of

one year from taking possession, then interest @ 15% p.a. shall be

payable from the expiry of first year till the amount is either paid or

deposited.

9. On the other hand, the learned AGP appearing on behalf

of Respondent No. 1 has pointed out the common affidavit in reply

filed by Respondent No.1, affirmed on 16 th February 2023. The AGPs

in both the matters submitted on behalf of Respondent No.1 that the

provisions of Section 80 of the 2013 Act will not apply in the present

case because there is an inordinate delay in complying with the

requisitions which were raised by Respondent No.1 for the purpose of

disbursing the compensation amount. It is submitted that by letter

dated 6th January 2020, Respondent No. 1 had called upon the

original owners to provide bank details and identity proof for the

purpose of disbursement. It is contended that instead of complying

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with the requirements, the Petitioners (who are not the original

owners) raised petty objections about non service of the Award. It is

contended that by the letter dated 19 th November 2020, Respondent

No.1 again called upon the Petitioners to comply with the requisitions

including the heir-ship documents, to which Petitioners sought an

extension of 4 weeks' time. It is contended that by letter dated 11 th

April 2022, Respondent No.1 once again called upon the Petitioners

to submit the required documents. It is further contended that the

Petitioners, vide letter dated 26 th April 2022 again forwarded certain

documents but the documents establishing their heir-ship were not

still submitted. It is contended that ultimately vide letter dated 19 th

October 2022, the Petitioners complied with submission of all

documents including documents of heir-ship and proof of title and

thereafter compensation amount has been paid on 20 th October

2022. Based on this chronology, it is urged that Respondent No. 1

cannot be saddled with any interest amount when compensation has

been already paid.

10. The learned counsel for Respondent No. 2 (Acquiring

Body) has pointed out that undisputedly Respondent No. 2 has

deposited the original Award amounts with Respondent No. 1 on 6 th

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January 2020 itself, which is even prior to drawing possession

receipts and therefore Respondent No. 2 cannot be held responsible

under any circumstances, for payment of any interest to the

Petitioners.

11. We have carefully considered the submissions. It is not

disputed that after the Awards were made on 30 th December 2019,

Respondent No. 2 deposited the amounts under the Awards with

Respondent No. 1 on 6th January 2020. The first communication was

made by Respondent No. 1 vide its letters dated 6 th January 2020,

calling upon the original owners (who were no more) for submissions

of identity documents and bank details. It is also not disputed that by

immediate letters dated 27th January 2020, the Petitioners, vide their

Advocate, contacted Respondent No. 1 and demanded copy of the

Awards and clarified that they intend to challenge the Awards. It is

clear from the letters of Respondent No. 1 dated 19 th November 2020

issued in respect of both the subject matter properties, that

documents of heir-ship or documents proving title to subject matters

properties were called for, for the first time. Therefore, from 27 th

January 2020 till 19th November 2020, no demand about documents

of heir-ship or documents of title was raised and as such no fault can

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be found on the part of the Petitioners, who had continued their

follow up.

12. It is important to note that in the letter dated 16 th

December 2020, written by the Petitioners' lawyer in respect of

Rajkotwala Building (subject matter of Writ Petition No. 2965 of

2021), it is specifically contended that vide earlier letter dated 12 th

July 2019 itself, the Petitioners have submitted an Affidavit

alongwith copy of the Letters of Administration. So far as the

Petitioners' letter dated 16th December 2020, written through their

lawyer in respect of other property i.e. Rukaiya Mansion, (subject

matter of Writ Petition No. 2966 of 2021) is concerned, it is

mentioned therein the Petitioners are legal heirs and descendants in

title as the exclusive owners of Rukaiya Mansion through a Release

Deed, which is already put on record vide letter dated 12 th August

2003.

13. It is therefore clear that according to Respondent No. 1,

due to lack of documents of title or heir-ship, the 1 st Respondent

withheld the amounts of compensation payable under the two

Awards. Considering these facts, we are of the opinion that this

matter is squarely covered by a situation contemplated under Section

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77 (2) of the 2013 Act, which is quoted below for ready reference :

"77(2): If the person entitled to compensation shall not consent to receive it, or if there be no person competent to alienate the land, or if there be any dispute as to the title to receive the compensation or as to the apportionment of it, the Collector shall deposit the amount of the compensation in the Authority to which a reference under section 64 would be submitted."

(Emphasis supplied)

14. It is therefore clear that Respondent No. 1 ought to have

deposited the amount of compensation with the authority to which

reference under Section 64 of the Act lies, immediately after the first

communication dated 27th January 2020 was made by the

Petitioners. In that view of the matter the subsequent

communications of heir-ship, exchange of documents and

compliance with the documentary requirements is of no

consequence. For the same reason, the date on which, according to

Respondent No. 1 all the documentary requirements were fulfilled

including heir-ship documents (19th October, 2022) also loses

relevance.

15. Having held that Respondent No.1 ought to have

deposited the amount of compensation with the authority to which

the reference lies under Section 64 of the 2013 Act, we would now

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turn our attention to Section 80 which is a provision for payment of

interest. For the sake of convenience, Section 80 is reproduced

hereunder:-

"80. Payment of interest-when the amount of such compensation is not paid or deposited on or before taking possession of the land, the Collector shall pay the amount awarded with interest thereon at the rate of nine per cent. per annum from the time of so taking possession until it shall have been so paid or deposited:

Provided that if such compensation or any part thereof is not paid or deposited within a period of one year from the date on which possession is taken, interest at the rate of fifteen per cent. per annum shall be payable from the date or expiry of the said period of one year on the amount of compensation or part thereof which has not been paid or deposited before the date of such expiry"

16. From this Section, it is clear that when the amount of

compensation is not paid or deposited on or before taking possession

of the land, the Collector shall have to pay the amount awarded with

interest thereon @9% p.a. from the time of taking possession until it

is so paid or deposited. The proviso to this Section stipulates that if

such compensation or any part thereof is not paid or deposited

within a period of one year from the date on which possession is

taken, interest @15% p.a. shall be payable from the date or expiry of

said period of one year on the amount of compensation which has not

been paid or deposited before the date of such expiry. In other

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words, what Section 80 stipulates is that where compensation is not

paid or deposited before taking possession of the land, then, the

Collector, for the first year, would have to pay interest @9% p.a., and

for any period subsequent thereto @15% p.a., until the payment is

made. Once this is the case, and finding that compensation was not

deposited with the Reference Authority under Section 64 at any time

and the compensation was paid only on 20 th October, 2022, the

provisions of Section 80 would squarely be attracted to the facts of

the present case. It is not in dispute that possession of the subject

properties in both the above Writ Petitions was taken on 3 rd

February, 2020, and which is the relevant date to be considered as

the date of taking possession as contemplated under Section 80 of

the 2013 Act. Accordingly, we are of the view that the Petitioners

would be entitled to interest @9% p.a. in the first year from the date

of taking possession of the subject properties and @15% p.a. from the

start of the second year till its actual payment. As mentioned earlier,

the actual payment was done only on 2oth October, 2022.

17. The learned counsel for the Petitioners have tendered

statement of interest calculations in both the matters. The same is

taken on record and marked as 'X' colly for identification, which is

duly shown to the learned AGP for Respondent No. 1, who in turn has

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shown it to the officer present in the Court on behalf of Respondent

No. 1. The dates and arithmetic calculations therein have not been

disputed.

18. In view of the foregoing discussion, both the Petitions

succeed and the Petitioners are entitled to receive an amount of

Rs.26,74,606/- in Writ Petition No. 2965 of 2021 and

Rs. 1,35,30,884/- in Writ Petition No. 2966 of 2021.

19. Rule is made absolute in the aforesaid terms and both

the Writ Petitions are disposed of in terms thereof. However, there

shall be no order as to costs.

[ M.M. SATHAYE, J.] [ B. P. COLABAWALLA, J.]

20. At this stage, the learned AGP sought 12 weeks' time

either for making payment or to challenge the present order, as the

Government may decide. Considering the overall circumstances,

Respondent No. 1 is granted 8 weeks' time to pay the amount to the

Petitioners in terms of this order.

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21. The learned counsel for the Petitioners, on instructions,

states that though possession of the subject matter properties were

taken on 3rd February 2020, they continued to be in occupation of the

same till 31st August, 2023 and have vacated the subject properties on

1st September, 2023. The same is duly noted.

22. This order will be digitally signed by the Private

Secretary/ Personal Assistant of this Court. All concerned will act on

production by fax or email of a digitally signed copy of this order.

                                [ M.M. SATHAYE, J.]                         [ B. P. COLABAWALLA, J.]





                                                                    JUNE 19, 2023
Signed by: Yugandhara Patil     Yugandhara Patil
Designation: PA To Honourable Judge
Date: 06/10/2023 15:53:23