Ramdas Baburao Avhad And Ors vs The State Of Maharashtra And Anr
2023 Latest Caselaw 10643 Bom

2023:BHC-AS:30516-DB


                                                                 WP 10269-2023 (J).doc



                     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                             CIVIL APPELLATE JURISDICTION

                             WRIT PETITION NO. 10269 OF 2023
            1. Shri Ramdas Baburao Avhad )
               Age 53 years, Occ. Agri.,  )
            2. Shri Balu Baburao Avhad    )
               Age 40 years, Occ. Agri.,  )
            3. Shri Pandurang Baburao     )
               Avhad                      )
               Age 38 years, Occ. Agri.,  )
            4. Shri Sukdeo Baburao Avhad )
               Age 50 years, Occ. Agri.,  )
            5. Shri Shivaji Baburao Avhad )
               Age 46 years, Occ. Agri.,  )
               All residing at Dodi Bk.,  )
               Tal. Sinnar, Dist. Nashik  )                  .... Petitioners
                    Versus
            1. The State of Maharashtra   )
               Through Government Pleader )
               High Court, Mumbai         )
            2. The Competent Authority      )
               The National Highway         )
               Authority and Deputy         )
               Collector [Land Acquisition] )
               Nashik                       )                .... Respondents

              Mr. Sachin Gite, for Petitioners.
              Mr. R. S. Pawar, AGP for Respondents/State.

                                     CORAM                : B. P. COLABAWALLA &
                                                          M.M. SATHAYE, JJ.
                                     RESERVED ON          : OCTOBER 9, 2023

                                     PRONOUNCED ON : OCTOBER 13, 2023
                                         Page 1 of 15
                                       OCTOBER 13, 2023
            Husen
                                                       WP 10269-2023 (J).doc



JUDGMENT (Per M.M. SATHAYE, J.)

1. This matter was heard on 26/09/2023 and we informed the

parties that we would pass the order. However, after going through the

papers, we required some clarifications and therefore, we placed the

matter on board on 09/10/2023 in the Chambers, when both parties

appeared and cleared our doubts and the judgment was reserved. This is

duly recorded in our Order dated 09/10/2023.

2. Rule. The learned AGP waives service for Respondents.

Rule made returnable forthwith. Heard finally with the consent of the

parties. By this Petition under Articles 226 and 227 of the Constitution

of India, the Petitioners are seeking direction to Respondents (The State

and the Competent Authority under the National Highways Act, 1956)

to forthwith release the enhanced amount of compensation in favour of

the Petitioners as per Order dated 15/02/2023 passed by Respondent

No. 2. The subject matter of this petition is compensation receivable for

land acquisition for construction of National Highway.

CASE & SUBMISSIONS

3. Heard Mr. Gite, the learned counsel for the Petitioners. He

submitted that the Petitioners' lands are situated at Village Dodi Bk;

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Taluka Sinnar, District Nashik, which are more particularly described in

paragraph 3 of the Petition. It is the case of the Petitioners that the

subject matter lands were acquired for the purpose of construction of

Nashik Pune Highway under the provisions of National Highways Act,

1956 ("the said Act" for short). It is contended by the Petitioners that

Respondent No. 2 - the Competent Authority declared the final Award

on 06/11/2013 and awarded compensation to the Petitioners @ Rs.

727/- per square meter. A copy of the Award is produced on record. It is

further contended that at the time of publication of the Award, only the

Petitioners appeared in the Award as interested persons/owners. It is

contended that by Notice dated 31/12/2013 the Competent Authority

called upon the Petitioners to receive the amount of compensation. It is

further contended that they have executed compensation receipts about

their respective shares in the subject matter land. Copies of the

compensation receipts as well as notice for receiving payment, are

produced on record. It is contended that they filed reference u/s. 3G of

the said Act before the learned Arbitrator constituted under the said Act

and claimed enhanced rate of compensation and led evidence in support

thereof. It is contended that after considering submissions of the

Petitioners, the learned Arbitrator by its Order dated 18/04/2017

passed an Order of enhancement of compensation @ Rs. 2191/- per

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square meter. The said order of the Arbitrator is produced on record. It

is further contended that since only the Petitioners were entitled to

receive enhanced compensation, the Competent Authority again issued

notice dated 07/10/2022 to the Petitioners to receive enhanced amount

of compensation.

4. The Petitioners further contended that at this stage, they

received one notice dated 14/11/2022 from the Office of the Competent

Authority which indicated that one Smt. Kachhabai @ Kasabai Ananda

Avhad and Shankar Ananda Avhad have raised objections about the

disbursement of the amount of compensation to the Petitioners. It is

contended that these Objectors have no right to claim any amount of the

compensation. It is contended that these Objectors have never raised

objections in the past, either in the year 2013 when the Award was

passed or thereafter during the process of enhancement. It is contended

that the Petitioners filed their reply and pointed out how the said

Objectors have no right to claim any share in the compensation amount.

It is contended that the Petitioners pointed out that the subject matter

land was recorded in their name in the year 1986 by a mutation entry,

which has not been challenged by the Objectors till date and it was also

pointed out that the Objectors have never filed any civil suit claiming

title over the subject matter land.

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5. It is contended that the Competent Authority by its Order

dated 15/02/2023 rejected the objections raised by the said Objectors

by a reasoned Order and directed that the enhanced amount of

compensation as per the Order of the Arbitrator, be paid over to the

Petitioners. It is contended that despite this Order the amounts were not

released in favour of the Petitioners and therefore, the present Petition

was filed.

6. After hearing the parties, it is recorded by our Order dated

12/09/2023 that it appears from the record that the Officer who was the

Competent Authority at the time of passing the Order dated 15/02/2023

who rejected the objections, is now changed and the new Officer in

charge seems to be taking a different view of the matter i.e. referring the

dispute between the Petitioners and the objectors to a Civil Court. In

these circumstances, we had directed the affidavit to be filed by the

Respondents.

7. Heard Mr. Pawar, the learned AGP for the Respondents. He

invited our attention to the affidavit in reply filed by the present Deputy

Collector (Land Acquisition) National Highway Project, Nashik affirmed

on 15/09/2023. He pointed out that the present Competent Authority

has referred the dispute to the Civil Court as per the Circular dated

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18/11/2022, especially under Clauses 1, 2, 3 & 4 thereof, which are

reproduced in the affidavit in reply. He further submitted that the said

circular is based on interim guidelines issued pursuant to certain orders

passed by this Court, in Writ Petition No. 3551 of 2021 with other

petitions. It was pointed out that the Competent Authority has already

referred the dispute to the Civil Court on 07/07/2023 and deposited the

enhanced amount of compensation in the Civil Court on 11/09/2023.

The copies of the said circular, communication with the concerned Civil

Court and deposit cheque are placed on record.

8. Mr. Gite, the learned counsel for the Petitioner has brought

to our notice, Orders passed in said Writ Petition No. 3551 of 2021

including the Order dated 21/10/2022, which is apparently the basis for

issuance of the said circular. He submitted in rejoinder that the circular

dated 18/11/2022 is in fact contrary to the provisions of law itself. He

submitted that it firstly provides that once the determination of

objection U/s. 3H(3) takes place, the decision must be intimated to all

claimants and thereafter the authority must wait for a period of

minimum four weeks for the claimants to either accept the decision or

raise a dispute. He submitted that secondly, it provides that the

Competent Authority cannot proceed with disbursement till all the

claimants accept such determination. He submitted that it further

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provides that if any of the claimants raise any dispute about such a

decision, within four weeks, the Competent Authority will have to refer

the matter to the Civil Court in terms of Section 3H(4) of the said Act.

He submitted that if this circular is interpreted to mean that by mere

raising objection or dispute to the decision U/s.3H(3) of the said Act,

the Competent Authority must refer the dispute to the Civil Court, it will

run contrary to the provisions of the said Act itself. He submitted that

this is not the true purport of law contemplated under Section 3H(3)

and 3H(4) of the said Act, which provide for separate and distinct

considerations. He further submitted that the circular dated 18/11/2022

provide only interim guidelines which is borne out from the language of

the circular and they are subject to the final guidelines. He therefore,

submitted that the explanation given in the affidavit ought to be

rejected.

9. Mr. Gite further pointed out that a letter dated 07/07/2023

produced by the State along with its affidavit in reply, shows that a

passing reference is made to one more person viz. Ms. Sangita Dhatrak

who is stated to have raised an objection to disbursement of the

compensation in favour of the Petitioners. He submitted that without

verifying the truthfulness of such a claim, merely because someone has

raised an objection, the matter cannot be referred to the Civil Court.

OCTOBER 13, 2023 Husen WP 10269-2023 (J).doc

Mr. Gite, on instructions from his client present in Court, orally

submitted that Ms. Sangita Dhatrak is a daughter of the said Objectors

whose objection was already rejected vide Order dated 15/02/2023 and

therefore, even prima facie that objection has no meaning.

10. Mr. Gite has also raised an issue that once the Authority

has already ruled u/s. 3H(3) of the said Act, it can not review its own

order and therefore could not have referred the dispute to the Civil

Court.

REASONS & CONCLUSION

11. We have carefully considered the submissions of both the

sides and perused the record. Although it is brought to our notice that

the said Order dated 15/02/2023 is challenged by the said objectors, the

same is not stayed. It is a settled position of law that the Competent

Authority exercising its jurisdiction u/s. 3H of the said Act, cannot

review its own order. The power to review has to be statutorily provided.

There is no such provision in the said Act, under which the Competent

Authority can review its own decision. In fact, this Court in the matter of

Bhupendra Singh Vs Competent Authority [2020(2) Bom CR 296] has

already held it expressly, after considering the entire scheme of the said

Act. A 3 Judges' Bench of Madhya Pradesh High Court has also

OCTOBER 13, 2023 Husen WP 10269-2023 (J).doc

considered this Judgment and has confirmed the said view, in the

matter of Indrakala Agrawal and Ors. Vs State of Madhya Pradesh and

Ors. [(2021) AIR CC 1582]. We have also followed the said view in the

case of Ramesh Ganpat Gaikwad and Anr. Vs Dilip Dattu Jadhav and

Anr. (W.P. No. 7858 of 2022 Order dated 23/06/2023). What is sought

to be now done by the Competent Authority by referring the matter to

the Civil Court and depositing the compensation amount there, amounts

to review of its own Order under the garb of the said circular dated

18/11/2022.

12. From the language of the said circular, it is apparent that

the guidelines issued thereunder are only interim in nature. No further

information about any other guidelines, whether final or otherwise has

been brought to our notice from the Respondent / State. It is, therefore,

obvious that the Competent Authority, has acted upon such interim

guidelines, for which no final guidelines have been issued. In that view

of the matter, it becomes even more important to consider these

guidelines to check whether they are in conformity with the provisions

of the said Act. For the sake of convenience, the said interim guidelines

are reproduced below :

"1. The Competent Authority is required to determine not only the entitlement but also

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apportionment amongst several claimants claiming interest in the amount of compensation that is determined by the Competent Authority.

2. Once such determination takes place, each of the claimants ought to be informed/intimated of such determination and ought to be given time of at least four weeks after receipt of the intimation, either to accept the same or dispute the same.

3. In the meanwhile, Competent Authority cannot act upon such determination and distribute the amount in accordance with the same. If within the period of four weeks of the receipt of intimation, referred to hereinabove, either all the claimants accept such determination or do not communicate in writing, after obtaining in writing the acknowledgment in that regard, of their dispute and/or disagreement of such determination, the Competent Authority ought to make payment in accordance with the same.

4. Whereas, if an objection and/or dispute is raised in respect of such determination by any of the claimants, within four weeks of the date of receipt of such intimation, the Competent Authority will have to refer it to the competent Civil Court in terms of sub-section (4) of Section 3H of the Act.

5. The Competent Authority will have to give adequate time of at least four weeks to the claimants, either for agreeing with such determination or for disputing with the same. Resultantly, the Competent Authority ought not to act upon its determination and distribution of amount of compensation amongst the claimants unless the claimants get a reasonable time or opportunity to take appropriate steps in that regard, including raising, of a dispute."

(Emphasis supplied)

13. In this respect, it appears from the perusal of the Orders

passed in the said Writ Petition No. 3551 of 2021 (along with a bunch of

other Petitions) that the then Division Bench of this Court was given to

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understand that the State Government is considering issuance of certain

guidelines in respect of dealing with the rival claims received by the

Competent Authority under the said Act. It is clear from the Order dated

21/10/2022 passed therein that certain interim guidelines were

submitted before the Court. It further appears that time was sought a

few times for finalization of the guidelines. It further appears that by

Order dated 29/03/2023, it was finally submitted to this Court that no

further guidelines are necessary to be issued. For the sake of clarity, the

said Order dated 29/03/2023 is reproduced below :

"CORAM : R. D. DHANUKA & GAURI GODSE, JJ. DATED : 29 MARCH, 2023.

P.C. :-

1. Learned Advocate General for the State states that State Government is not required to issue any further guidelines or Government Resolution as the existing guidelines would cover the field. Statement is accepted.

2. Place these matters on board for directions on 7th June 2023 to enable this Court to fix an early date for final hearing of these Petitions. Interim relief granted by this Court, if any, to continue till the next date."

Apparently, the guidelines incorporated in the English

language in the said Circular dated 18/11/2022 are derived from interim

guidelines informed to this Court under Order dated 21/10/2022, albeit

with a change from "2 weeks" to "4 weeks" waiting period.

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14. The power to decide entitlement U/s. 3H(3) and the

mandate to refer the dispute as to apportionment to the Civil Court

U/s. 3H(4) are two different and distinct provisions of law. The

difference between the two is authoritatively concluded by the Hon'ble

Supreme Court in the recent case of Vinod Kumar and Ors. Vs. District

Magistrate, Mau and Ors. [(2023) SCC OnLine SC 787] arising out of

acquisition for National Highways. The concluding paragraph No. 34

reads thus:

"34. Our final conclusion is as under:- If any dispute arises as to the apportionment of the amount or any part thereof or to any person to whom the same or any part thereof is payable, then, the competent authority shall refer the dispute to the decision of the Principal Civil Court of original jurisdiction within the limits of whose jurisdiction the land is situated. The competent authority possesses certain powers of the Civil Court, but in the event of a dispute of the above nature, the summary power, vesting in the competent authority of rendering an opinion in terms of sub-section (3) of Section 3H, will not serve the purpose. The dispute being of the nature triable by the Civil Court that the law steps in to provide for that to be referred to the decision of the Principal Civil Court of original jurisdiction. The dispute regarding apportionment of the amount or any part thereof or to any person to whom the same or any part thereof is payable, would then have to be decided by that Court."

Therefore, there cannot be a situation that by mere raising

of dispute about the decision U/s. 3H(3) of the said Act, the Competent

Authority has to refer the dispute to the Civil Court.

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15. From bare reading of the said guidelines, it is clear that

they are not in consonance with the provisions of the said Act itself. If

what is provided in the said circular is accepted at its face value, it would

mean that after every decision u/s. 3H(3) of the said Act, the Competent

Authority will have to wait for 4 weeks and if any of the parties dispute it

or raise objection thereto, automatically the matter will have to be

referred to the Civil Court. Such a situation is not contemplated under

Section 3H of the said Act, especially in the teeth of Judgment in

Bhupendrasingh's case (supra), which holds that competent authority

can not review its own order. So far as the guideline of waiting for 4

weeks after the decision U/s. 3H(3) is concerned, we are afraid that the

interpretation suggested by Respondents that they have to wait for 4

weeks after each decision, cannot be accepted. We say so for the simple

reason that in a given case, if during that 4 weeks' time, a fresh objection

is raised by some other third party, then again after decision thereon,

the Competent Authority will have to wait for further 4 weeks and this

situation can go on and on without any finality. We cannot countenance

such an interpretation of law. Therefore, the action of the Respondents

based on the said Circular dated 18/11/2022 can not be sustained.

16. For all these reasons, The Petition succeeds and the

following Order is passed:

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i] Respondent No. 2 is directed to apply to the Civil Court at

Nashik, where the amount of compensation has been

deposited, seeking its withdrawal within a period of two

weeks from today.

ii] The concerned Judge of the Civil Court at Nashik, is

requested to pass appropriate Order for refund of the

amount deposited by Respondent No. 2 within 2 weeks

from the date of receipt of application as per clause [i]

above.

iii] Respondent No. 2 is further directed to pay the amount of

compensation to the Petitioners within a period of two

weeks from the date of its receipt from the Civil Court.

17. It is clarified that if the objectors file or have already filed a

civil suit against the Petitioners claiming right in the subject matter

land/s or its compensation, the same will be decided on its own merits

and the concerned Civil Court will be at liberty to pass appropriate

orders in accordance with law, including about compensation received

by Petitioners.

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18. Rule is made absolute in the above terms. No order as to

cost.

19. All concerned to act on production of an authenticated or

digitally signed copy of this order.

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





                                                    OCTOBER 13, 2023
                      Husen

Signed by: Husen Nadaf
Designation: PA To Honourable Judge
Date: 13/10/2023 21:06:37