Bombay High Court
Niranjan Omprakash Agrawal vs Competent Authority And Or Special Land ... on 16 August, 2024
Author: Ravindra V. Ghuge
Bench: Ravindra V. Ghuge
2024:BHC-AUG:18356-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 3840 OF 2023
Niranjan S/o Omprakash Agrawal,
Age: 49 years, Occu: Agri. & Business,
R/o B.G. Agrawal Memorial English
Medium School, Chinchpada,
Navapur, Dist. Nandurbar. ... PETITIONER
V/s.
1. The Competent Authority and or
Special Land Acquisition Officer
(National Highway No.6) /
Assistant Collector, Nandurbar,
Tq. & Dist. Nandurbar.
2. National Highway Authority of India,
Through Project Director,
NHAI-PIU, Dhule, Mansaram Nagar,
Near Circuit House, Sakri Road,
Dhule - 424 002.
3. Deputy Superintendent of Land Record,
Nandurbar Tal. & Dist. Nandurbar.
4. The learned Collector,
Nandurbar. ... RESPONDENTS
......
Mr. D.S. Bagul, Advocate for the Petitioner
Mr. R.B. Bhosale, Advocate for Respondent-OUI
Mr. S.K. Tambe, AGP for Respondent-State
Mr. V.D. Sapkal, Sr. Advocate i/b. Mr. D.S. Manorkar, Advocate for Resp. No.2
......
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CORAM : RAVINDRA V. GHUGE &
Y.G. KHOBRAGADE, JJ.
RESERVED ON : 27th June, 2024
PRONOUNCED ON : 16th August, 2024
JUDGMENT (Per: Y.G. Khobragade, J.) :
-
1. Rule. Rule made returnable forthwith. With the consent of both
the sides, the matter is heard finally at the stage of admission.
2. By the present petition under Article 226 of the Constitution of
India, the Petitioner has put-forth prayer clauses-B, C, D, E, F & G as under :-
"B) By way of appropriate writ, order or directions in the like nature the
respondent authorities be directed to forthwith stop the construction
activities of national highway No. 6 at the sites (Gat No. 93/2) of petitioner.
C) By way of appropriate order or directions in the like nature,
appropriate contempt proceedings be initiated against respondents
authorities for deliberately violating the order passed by the Hon'ble High
Court in Writ petition No.7499/2022 and others.
D) By way of appropriate order or directions in the like nature, the
respondent authorities be directed to initiate and complete land acquisition
proceedings in respect of property of petitioner bearing Gut No. 93/2
situated at Mauje Navapur Tal. Navapur, Dist. Nandurbar and further pay
compensation to the petitioner.
E) Pending the hearing and final disposal of this Writ Petition the
respondent authorities directed to stop the construction of national highway
No. 6 at the sites of petitioner immediately and for that purpose issue
necessary orders;
F) Pending the hearing and final disposal of this Writ Petition
appropriate contempt proceedings be initiated against respondents
authorities for the deliberately violating the order passed by the Hon'ble
High Court in Writ petition No. 7499/2022 and others and for that purpose
issue necessary orders;
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G) Pending the hearing and final disposal of this Writ Petition the
respondent authorities be directed forthwith to initiate and complete land
acquisition proceedings in respect of property of petitioner bearing Gut No.
93/2 situated at Mauje Navapur Tal. Navapur, Dist. Nandurbar."
3. Heard at length Mr. D.S. Bagul, the learned counsel for the
Petitioner, Mr. Bhosale, the standing counsel for the Respondent No.1, Mr. V.D.
Sapkal, the learned senior counsel appearing for the Respondent No. 2 and Mr.
Tambe the leaned AGP for the Respondent Nos. 3 & 4.
4. Perused the written notes of arguments tendered on behalf of both
the sides. Having regard to the rival submissions canvassed on behalf of the
rival parties as well after going through the written submission the issue arises
for our consideration is that whether this Court can exercise Writ jurisdiction
under Article 226 of the Constitution of India to adjudicate disputed question
of facts about measurement carried out by the Respondent No.3 to show how
much area of the Petitioner's land has been acquired for four lane widening of
National Highway No.6 issued under Section 3A of National Highways Act,
1956 (hereinafter to be referred as the Act, 1956).
5. Mr. Bagul the learned counsel appearing for the Petitioner
canvassed that originally Gut No.93 (S.No.68) ad-measuring 7 H 42 R (total
742 R) at Navapur, Dist. Nandurbar was Gairan land. Smt. Jenabai Budya
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Mavachi was the owner of land to the extent of 5 H 97 R and one Kashiram
Aahir was the owner to the extent of 1 H 45 R out of Gut No.93 (S.No.68). The
same was allotted by the State Government to said Kashiram Aahir and
mutation entry no.68 was recorded in the revenue record. Subsequently, Ms.
Sarubai Kashinath Aahir inherited the land ad-measuring 1 H 45 R. As a result
Gut No. 93 was bifurcated in two parts i.e. Gut bearing No. 93/1 (93/A) of
Smt. Jenabai Budya Mavachi and Gut No. 93/2 (93/B) of Sarubai Kashinath
Aahir.
6. He further canvassed that the State authorities did not acquire any
part of land out of Gut No. 93/2 for the purpose of road. KJP (Lesser
Assessment Register) maintained by Revenue Department suggest that no
existing old road passes from Gut No.93/2. Smt. Jenabai Budya Mavachi had
given part of her land to the extent of 2 H 98 R out of her total land
admeasuring 5 H 97 R to her daughter namely Fulabai and Smt. Jenabai Budya
Mavachi kept remaining land ad-measuring 2 H 99 R with herself. As a result
again Gut No. 93 was divided into 2 parts i.e. Gut No.93/1/A to the extent of 2
H 99 R belonging to Smt. Jenabai Budya Mavachi and Gut No.93/1/B to the
extent of 2 H 98 R belonging to Smt. Fulabai.
7. The learned counsel appearing for the Petitioner canvassed that in
the year 2006 Smt. Sarubai Kashiram Aahir sold her entire land ad-measuring 1
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H 45 R out of Gut No. 93/2 (93/B) to one Shri Vipinbhai Chokhawala and on
20.06.2019, the Petitioner has purchased the entire Gut No. 93/2 (93/B) ad-
measuring 1 H 45 R from said Shri Vipinbhai Chokhawala by registered sale-
deed dated 20.06.2019 and the same is subject matter of the present Writ
Petition.
8. Mr. Bagul, the learned counsel appearing for the Petitioner
canvassed that in the year 2016 Smt. Jenabai Budya Mavachi owner of Gut
No.93/1/A sold 1 H out of 2 H 99 land in favour of the Petitioner. As a result
again Gut No.93/1/A was sub-divided in two parts i.e. 93/1/A/1 belonging to
Smt. Jenabai Budya Mavachi and 93/1/A/2 belonging to Petitioner.
Subsequently, on 24.07.2017, the Petitioner again purchased remaining land
ad-measuring 1 H 99 R from Gut No.93/1/A/1 from Smt. Jenabai Budya
Mavachi.
9. Prior to execution of sale-deed i.e. on 24.02.2015 the Assistant
Director of Town Planning, Nandurbar sanctioned the lay out plan for Gut No.
93/1/A ad-measuring 2 H 99 R. As per said layout map Gut No. 93/1/A is
towards northern side of Gut No.93/2. Even in the year 2013, Smt. Jenabai
Budya Mavachi had applied to the Collector, Nandurbar for permission under
Section 36A of the M.L.R. Code and in pursuance of same necessary enquiry
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was conducted by the Collector. During the course of enquiry, the Circle Officer
recorded statements of neighboring owners of land.
10. The learned counsel appearing for the Petitioner canvassed that,
on 30.10.2015, the Central Government issued a notification under Section 3A
of the Act, 1956 for acquisition of specified land for NH-6 bye-pass on stretches
of land kilometers 606-000 to 649-000 (Jalgaon - Maharashtra / Gujarat
border section) in Nandurbar District. As per the notification dated 30.10.2015,
land ad-measuring 5115 sq.mtrs from Gut No.93 was shown to be acquired.
Thereafter, on 28.10.2016 the Central Government published a notification
under Section 3D (2) of the Act, 1956 was published showing intention for
acquisition of land ad-measuring 5080 sq.mtrs from Gut No.93/1/A and 35
sq.mtrs from Gut No.93/2 i.e. total 5115 sq.mtrs from Gut No.93. Though the
land of the Petitioner was affected due to widening of NH. 6, but his land was
not included in the notification dated 28.10.2016 published under Section 3D
of the Act.
11. It is further canvassed that Smt. Jenabai Budya Mavachi did not
receive any compensation in respect of acquired land from Gut No.93/1/A ad-
measuring 5080 sq.mtrs, as her land was not under acquisition and the
adjacent land owner of of Gut No.93/2 (93/B) namely Vipinbhai Chokhawala,
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the vendor of Petitioner had objected Smt. Jenabai Budya Mavachi from
accepting compensation by instituting a suit bearing RCS No.27/2017.
12. Mr. Bagul, the learned Counsel appearing for the Petitioner further
canvassed that on 08.06.2017, the Central Government published second
notification under Section 3A of the Act, 1956 and decided to acquire land ad-
measuring 11876 from Gut No. 93. On 09.01.2018, second notification under
Section 3D was published and decided to acquire 3476 sq.mtrs land from Gut
No.93/1/A/2, which was purchased by the Petitioner. The Petitioner has
received the compensation for the acquired land ad-measuring 3476 sq.mtrs.
Thereafter, on 24.05.2018 the Central Government published third notification
under Section 3D and decided to acquire 350 sq.mtrs land out of Gut No.93/B
(93/2) of Shri Vipinbhai Chokhawala and compensation for the same was
received in the month of June-July 2019 by the Petitioner after he purchased
the land from said Shri Vipinbhai Chokhawala.
13. Mr. Bagul, the learned Counsel appearing for the Petitioner further
canvassed that as per third notification under section 3D dated 24.05.2018,
land of Smt. Jenabai Budya Mavachi bearing Gut No. 93/1/A admeasuring
5080 sq.mtrs., was shown to be acquired, but the Gut was wrongly typed as
Gut No. 93/A/1 in the notification dated 24.05.2018. Though, after
publication of 3A and 3D notifications however, while passing the award the
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Respondents realized that the land of Smt. Jenabai Budya Mavachi is not
affected for road widening. Therefore, the Respondent-Authorities deleted Gut
No.93/1/A and no compensation was paid to said Smt. Jenabai Budya
Mavachi. Therefore, the notification issued for acquisition has been lapsed to
the extent of land ad-measuring 8050 sq.mtrs out of 2 H 99 R.
14. It is further canvassed that on 23.08.2018, fourth notification
under Section 3D of the Act, 1956 was published for acquisition of 715 sq.mtrs
land from Gut No.93/B (93/2) for widening of road which was owned by
Vipinbhai Chokhawala and the proceeding for determination of compensation
is pending with the Competent Authority.
15. It is further canvassed that Smt. Jenabai Budya Mavachi never
received any compensation as her land Gut No.93/1/A was never under
acquisition and in the meanwhile the Petitioner has purchased the remaining
land ad-measuring 1 H 99 R from Smt. Jenabai Budya Mavachi on 24.07.2017.
On 20.06.2019, the Petitioner purchased the land ad-measuring 1 H 45 R
bearing Gut No.93/2 (93/B) from Vipinbhai Chokhawala.
16. Mr. Bagul, the learned Counsel appearing for the Petitioner further
canvassed that since more land has been affected in the acquisition, therefore,
the Petitioner had moved to the Respondent Authorities for measurement of the
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land. Accordingly, on 28.12.2018 the office of Respondent No.3 issued notice
dated 05.01.2019 to the interested owners and directed them to remain present
on 18.01.2019 at the site for measurement. Accordingly, the officers of
Respondent No. 3 measured the land and submitted its report dated
15.06.2019 along with map and measurement sheet. As per measurement
sheet, the Petitioner's land ad-measuring 11150 sq.mtrs out of 13400 sq.mtrs
from Gut No.93/2 (93/B) has been affected. So also, land ad-measuring 3476
sq.mtrs out of 10000 sq.mtrs from Gut No. 93/1/A/2 in total 14976 sq.mtrs has
been affected due to acquisition.
17. It is further canvassed that on receipt of measurement report
dated 15.06.2019 from Dy. SLR, Navapur, the Respondent No. 1-CALA
prepared a report and submitted it to Respondent No. 2-NHAI to notify the
same under section 3A of the Act, 1956, but Respondent No. 2-NHAI on
06.09.2019 raised certain queries to the said report and directed to rectify the
same. Therefore, Respondent No.1 rectified said queries and submitted fresh
report dated 20.12.2019 and requested for issuance of notification under
Section 3A of the Act, 1956. Again, Respondent No. 2-NHAI raised queries in
report dated 20.12.2019, therefore, Respondent No.1 again submitted a fresh
report dated 23.06.2020. Thereafter, again Respondent No.2 raised queries on
report dated 23.06.2020 vide communication dated 27.07.2020 in respect of
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six different gut numbers. Thereafter, vide letter dated 17.08.2020,
Respondent No.1 rectified those queries and requested the office of Respondent
No.2 for issuance of notification under Section 3A of the Act, 1956.
18. It is further canvassed that pursuant to above proposal dated
23.06.2020 and letter dated 17.08.2020, Respondent No.2 deputed it's
representatives and Respondent No.3 - Dy. SLR, Navapur to revisit the Writ land
for verification of the actual position, however, the Respondent Nos.2 & 3
visited the writ land behind the back of the Petitioner and without giving prior
notice to him and without carrying out any measurement, submitted a report.
Therefore, the Project Director of NHAI-PIU, Dhule issued the impugned order
on 19.10.2020 and refused to issue notification u/s 3A of the Act, 1956 but
observed that the land of the Petitioner should not be considered as a new land
pocket.
19. Being dissatisfied by order dated 19.10.2020, the Petitioner had
filed W.P. No.7499/2020 before this Court. On 29.07.2021, the Co-ordinate
Bench of this Court has passed an order and observed that, the area of 9656
sq.mtrs land is acquired and compensation has been paid to the beneficiaries.
Further, the NHAI desires to acquire 8050 sq. mts. land, a notification is issued
and an award is yet to be passed. The NHAI submits that the legal procedure
set out u/s 3 of the Act, 1956, shall be followed and any person who may have
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a title or interest, may raise an objection before the Competent Authority. The
Ld. Collector Nandurbar was directed to monitor the measurement in presence
of all the litigating parties/ title holders/ persons having interests in the
property. So also, any land over and above the details set out in 'X-1' is to be
acquired, the procedure laid down in law shall also be followed.
20. Thereafter, on 27.02.2023, the Petitioner submitted a
representation with the Respondent No.1 and requested for carrying out
widening of road in respect of field Gut numbers as per chart Exhibit 'X-1' filed
in Writ Petition No.7499/2020 and not to carry out laying of road work in
other Gut numbers. Again on 13.03.2023 the Petitioner submitted an
application with the Respondent No.1 and prayed that the award in respect of
8050 sq.mtrs is pending and only land ad-measuring 3476 + 5080 = 8656
sq.mtrs has been approved and prayed for enquiry.
21. Mr. Bagul, the learned Counsel appearing for the Petitioner further
canvassed that inspite of the undertaking given to this Court in W.P. No.
7499/2020, the Respondent-Authorities forcibly entered the Petitioner's land
bearing Gut No.93/2 and carried out construction activities in disregard to the
order passed by this Court in W.P. No.7499/2020. Therefore, the Petitioner's
right to property under Article 300-A of the Constitution of India is violated.
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22. To buttress these submissions the learned counsel for the Petitioner
relied on case of Sukh Dutt Ratra and Anr. V/s. State of H. P.; (2022) 7 S.C.C.
508, wherein the Hon'ble Supreme Court has held that, nobody can be
deprived of liberty or property without due process, or authorization of law and
the State on ground of delay and laches cannot evade its legal responsibility
towards those from whom private property has been expropriated.
23. He further relied on the case of Govind Poslya Gavit and Anr. V/s.
Competent Authority, 2022 (5) Mh. L.J. 632, wherein the Co-ordinate Bench of
this Court has held that the Petitioner cannot be dispossessed without due
process of law and without acquiring the land of the Petitioners by following
procedure under Section 3-A to 3-E of the Act, 1956. An attempt made by
Respondent No. 2 to take possession of the lands of the Petitioners to carry out
construction is clearly in breach of Section 3-A to 3-D of the Act, 1956 and
Article 300-A of the Constitution of India. However, the ratio laid down in both
these judgments are not applicable to the facts and circumstances of this case.
24. Mr. Ajay Yadav, Project Director, PIU Dhule, National Highways
Authority of India, the Respondent No.2 filed affidavit in reply and strongly
resisted the claim of the Petitioner. Mr. V.D. Sapkal, Sr. Advocate for the
Respondent No.2 canvassed that the Respondent No.2, the Central Government
issued Gazette notification No. 2958 (A) dated 30.10.2015 u/s 3-A of the
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Act,1956 declaring its intention to acquire 5115 sq.mtrs of land from Gut No.93
village Navapur, Dist. Nandurbar for operation of the NH-6.
25. He further submits that Section 3C provides that any person may
raise objection within a period of 21 days from the date of publication of
notification to the Competent Authority and object the use of land for the
purpose or the purposes mentioned in Section 3A. After publication of
notification under Section 3A of the Act, 1956, the Respondents are authorized
to enter into the land to be acquired for the purposes of measurement.
Accordingly, a joint measurement was carried out in respect of Gut No. 93 and
it was noticed that an area of 8556 sq.mtrs land owned by Smt. Jenabai Budya
Mavachi from Gut No.93/A/1 and an area of 35 sq.mtrs owned by Vipinbhai
Chokhawala (vendor of present Petitioner) from Gut No.93/B i.e. total 8906
sq.mtrs from Gut No. 93 is under acquisition. The joint measurement reports
dated 06.05.2016 and 24.06.2016, clearly show the acquisition of land from
Gut Nos. 93/A/1 and 93/B.
26. It is further canvassed on behalf of the Respondents that in
furtherance of notification under Section 3A, the Central Government issued a
notification No. 3345 (A) dated 28.10.2016 under Section 3D of the Act for
acquisition of 5080 sq.mtrs land. Accordingly, the Competent Authority passed
an award on 27.11.2017, for acquisition of land to the extent of 5080 sq.mtrs
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i.e. from Gut Nos.93/A/1 and 93/B, after completion of acquisition vide
notification u/s 3D issued on 28.10.2016 from Gut No. 93/A/1. However,
subsequently the Petitioner purchased the land admeasuring 1 H which was
under acquisition on 23.01.2017 and remaining land ad-measuring 1 H 99 R
out of Gut No.93/A/1 on 17.08.2017 out of Gut No.93/A/1 including the land
acquired from Smt. Jenabai Budya Mavachi before passing of award under
Section 3G of the Act. So also, the Petitioner filed an objection with the CALA,
Nandurbar contending that his land ad-measuring 8400 sq.mtrs from Gut
No.93/1/A/2 was affected due to acquisition and this fact was recorded by the
Competent Authority while passing award dated 27.11.2017. Therefore, the
Competent Authority had referred the dispute to the District Court Nandurbur
(Exh. R-7).
27. The learned senior counsel further canvassed that as per joint
report dated 12.05.2017 an area of 8556 sq.mtrs from Gut No.93/1/A/2 and
an area of 750 sq.mtrs from Gut No.93/B is under acquisition. Accordingly,
notification dated 08.06.2017 under Section 3A of the Act,1956 was published
for acquisition of land ad-measuring 11876 sq.mtrs for Gut No.93. As per
notification dated 09.01.2018 under Section 3D of the Act, the land ad-
measuring 3476 sq.mtrs from Gut No.93/A/1, was published and balance area
of 8050 sq.mtrs from Gut No.93/A/1 in respect of Smt. Jenabai Budya Mavachi
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and area of 350 sq.mtrs from Gut No.93/B, is standing in the name of
Vipinbhai Chokhawala.
28. Further, as per joint measurement reports dated 12.05.2017 and
24.06.2016, prepared by Respondent No.3, the area under acquisition from Gut
No.93/B was shown to the extent of 350 sq.mtrs and 750 sq.mtrs i.e. total 1100
sq.mtrs. However, acquisition was completed for the area 35 sq.mtrs and 350
sq.mtrs vide notification dated 28.10.2016 and 24.05.2018. Therefore,
notification dated 23.08.2018 under Section 3A and notification dated
21.12.2018 under section 3D was published for balance area of land i.e. 715
sq.mtrs and compensation was duly paid to Vipinbhai Chokhawala under award
dated 04.09.2019.
29. It is further canvassed on behalf of the Respondent No.2 that as
per joint measurement report dated 12.05.2017 and Panchanama executed in
presence of Smt. Jenabai Budya Mavachi, Vipinbhai Chokhawala, present
Petitioner (Niranjan Omprakash Agrawal) and others have confirmed the
boundaries of their fields and on the basis of same, office of land records
prepared a report dated 12.05.2017 which shows that the land ad-measuring
8556 sq.mtrs from Gut No.93/1/A/2, an area of 750 sq.mtrs from Gut No.93/B
total 9306 sq.mtrs from Gut No.93 was affected due to acquisition.
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30. However, Vipinbhai Chokhawala had filed a Civil Suit bearing RCS
No. 27/2017 against Smt. Jenabai Budya Mavachi seeking compensation which
was granted in her favour. The present Petitioner had also intervened in the
said Civil Suit. Subsequently, said Civil Suit was compromised on 13.07.2019.
Thereafter, the Competent Authority passed an additional award on 15.12.2018
in respect of land Gut No.93/1/A/2 to the extent of 3476 sq.mtrs which is
shown in the name of the Petitioner and an area of land ad-measuring 350
sq.mtrs from Gut No.93/B owned by Vipinbhai Chokhawala (vendor of present
Petitioner). However, compensation was not determined in respect of 8050
sq.mtrs land which was standing in the name of Smt. Jenabai Budya Mavachi
as she already sold the complete land from Gut No.93/A/1, to the Petitioner.
Therefore, by way of all the above said awards the Respondent No. 2-NHAI has
acquired 9656 sq.mtrs of land from Gut No. 93.
31. According to the Respondent No.2, the area of 8050 sq.mtrs has
not been required for acquisition under communication dated 08.05.2023 but it
was requested to direct the Respondent No. 3-Dy. SLR for demarcation of ROW
(Right of Way) beyond 45 meters as per acquired land of 9656 sq.mtrs, for
which the compensation has already been deposited by the Respondent No.2.
The Competent Authority passed an award on 12.06.2023. Though, only 1867
sq.mtrs., of land is required for 45 meters., for right of way (ROW), however,
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the Petitioner in collusion with Smt. Jenabai Budya Mavachi and Vipinbhai
Chokhawala already gained huge compensation for area of 9656 sq.mtrs and
again the Petitioner claimed for compensation for the additional area of 10400
sq.mtrs from Gut No.93/B by showing that he is the only owner of Gut No.93.
Therefore, prayed for dismissal of the Petition.
32. Having regard to the submissions canvassed on behalf of both the
sides, we have gone through the Petition paper book. It is not in dispute that
area of original Gut No. 93 was ad-measuring 7 H 42 R of Smt. Jenabai Budya
Mavachi who owned land ad-measuring 5 H 97 R and one Kashiram Aahir was
the owner of 1 H 45 R. Further, Smt. Sarubai Kashinath Aahir inherited the
land of Kashinath Aahir ad-measuring 1 H 45 R. The land ad-measuring 5 H 97
R was mutated in the name of Smt. Jenabai Budya Mavachi and land ad-
measuring 1 H 45 R in the name of Sarubai Kashinath Aahir. The separate Gut
Nos. bearing No.93/1 (93/A) given to the share of Smt. Jenabai Budya Mavachi
and separate Gut No.93/2 (93/B) was given for the land ad-measuring 1 H 45
R in respect of land of Ms. Sarubai Kashinath Aahir. In the year 2006 Ms.
Sarubai Kashiram Aahir sold entire Gut No.93/2 (93/B) ad-measuring 1 H 45 R
to Shri Vipinbhai Chokhawala.
33. The Petitioner himself admitted in his Affidavit in Rejoinder that
Shri Kashiram Motiram Ahir and Smt. Jenabai Budya Mavachi were
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encroachers on the Gairan land vide mutation entry no. 68 dated 29.09.1976
and mutation entry no. 183 dated 15.12.1979. However, Shri Vipinbhai
Chokhawala, the vendor of petitioner purchased said Gairan land and
subsequently the Petitioner purchased entire Gut No.93/2 (93/B) ad-measuring
1 H 45 R from Shri Vipinbhai Chokhawala under registered sale-deed dated
20.06.2019. The Petitioner has not pleaded about granting of permission for
transfer of occupancy rights by the Competent Authority in favour of Smt.
Jenabai Budya Mavachi.
34. It is further revealed that in the year 2016, Smt. Jenabai Budya
Mavachi sold Gut No.93/1/A to the extent of 1 H out of 2 H 99 R in favour of
the Petitioner. After execution of sale-deed of field Gut No.93/1/A to the
extent of 1 H land was sub-divided in two parts i.e. 93/1/A/1 and 93/1/A/2 to
the extent of land purchased by the Petitioner. Subsequently, on 24.07.2017
the Petitioner again purchased remaining land from Gut No.93/1/A/1 ad-
measuring 1 H 99 R from Smt. Jenabai Budya Mavachi. However, prior to
execution of sale-deed dated 24.02.2015, the Assistant Director of Town
Planning, Nandurbar, sanctioned the layout plan for Gut No.93/1/A ad-
measuring 2 H 99 R. As per layout map Gut No.93/1/A is standing towards
northern side of Gut No.93/2. In the year 2013, the original owner Smt.
Jenabai Budya Mavachi submitted an application for transfer of occupancy of
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land under Section 36A of the M.L.R. Code before the Collector, Nandurbar.
Thereafter , necessary enquiry was conducted by the Collector.
35. It is not in dispute that on 30.10.2015, the Central Government
issued a notification under Section 3A of the Act. The Petitioner purchased the
land ad-measuring 1 H 99 R from Gut No.93/2 out of which land ad-measuring
5115 sq.mtrs was shown under acquisition as per notification dated 30.10.2015
under Section 3A of the Act, 1956. The joint measurement report in respect of
land owned by Smt. Jenabai Budya Mavachi for the area of 856 sq.mtrs out of
Gut No.93/A/1 and area of 35 sq.mtrs standing in the name of Vipinbhai
Chokhawala from Gut No.93/B (93/2) in all total 8906 sq.mtrs has been shown
under acquisition. Again as per Government gazette No.3345(A) dated
28.10.2016, published under Section 3D, the acquisition of land ad-measuring
5080 sq.mtrs from Gut No.93/A/1 owned by Smt. Jenabai Budya Mavachi and
an area of 35 sq.mtrs from Gut No.93/B owned by Vipinbhai Chokhawala, was
shown under acquisition.
36. Indeed, on 27.11.2017 the Competent Authority passed an award
and determined compensation for the acquired land to the extent of 5080
sq.mtrs and 35 sq.mtrs as observed above. Therefore, it prima facie appears
that the Petitioner purchased the land ad-measuring 1 H on 23.01.2017, from
Gut No.93/1/A, after publication of notification dated 28.10.2016. So also, the
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remaining land ad-measuring 1 H 99 R was purchased on 17.08.2017, before
declaration of award under Section 3G of the Act, 1956. Thereafter, the
Petitioner filed objection with the Competent Authority Land Acquisition,
Nandurbar (CALA) raising objection that his land ad-measuring 8400 sq.mtrs
from Gut No.93/1/A/2 is affected. The Competent Authority recorded findings
in this regard while passing the award dated 17.11.2017.
37. As per the joint measurement report submitted by the Respondent
No.3 on 12.05.2017 it shows that an area of 8556 sq.mtrs from Gut
No.93/1/A/2 and an area of 750 sq.mtrs from Gut No.93/B was under
acquisition. As per the notification dated 08.06.2017 published under Section
3A of the Act an area of 11876 sq.mtrs was shown under acquisition from Gut
No.93. The notification published under Section 3D of the Act on 09.01.2018
for acquisition of land ad-measuring 3476 sq.mtrs standing in the name of the
Petitioner (Niranjan Omprakash Agrawal) from Gut No.93/A/1. On 24.05.2018
a notification under Section 3D was published for balance area of 8050 sq.mtrs
from Gut No.93/A/1 which was standing in the name of Smt. Jenabai Budya
Mavachi and an area of 350 sq.mtrs from Gut No.93/B standing in the name of
Vipinbhai Chokhawala.
38. As per joint measurement reports dated 24.06.2016 and
12.05.2017, submitted by the Respondent No.3-Dy. SLR, the area of land ad-
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measuring 350 and 750 sq.mtrs total 1100 sq.mtrs have been shown from Gut
No.93/B. The acquisition proceeding for acquisition of 350 and 750 sq.mtrs.,
land has been completed under notification dated 28.10.2016, 24.05.2018.
Thereafter, a notification under Section 3A was published on 23.08.2018 and a
notification u/s 3D of the Act,1956 was published on 21.12.2018 for balance
area of 715 sq.mtrs. As per Award dated 04.09.2019, the compensation paid to
Vipinbhai Chokhawala. After confirmation of boundaries of land by the
Petitioner (Niranjan Omprakash Agrawal), Smt. Jenabai Budya Mavachi and
Vipinbhai Chokhawala, a report dated 12.05.2017 has been submitted which
shows the land ad-measuring 8556 sq.mtrs., affected from Gut No.93/1/A/2,
an area ad-measuring 750 sq.mtrs., land affected from Gut No.93/2 (93/B)
total 9306 sq.mtrs.
39. It is not in dispute that, Shri Vipinbhai Chokhawala, the vendor of
the Petitioner had filed RCS No.27/2017 against Smt. Jenabai Budya Mavachi
and sought for compensation. The Petitioner intervened in the said suit, which
was ultimately compromised before the Lok Adalat on 13.07.2019. Thereafter,
additional award came to be passed on 15.12.2018 to the extent of land ad-
measuring 3476 sq.mtrs out of Gut No.93/1/A/2 in the name of Petitioner and
for area of 350 sq.mtrs from Gut 93/B/1 in respect of Vipinbhai Chokhawala.
However, again Smt. Jenabai Budya Mavachi raised an objection before the
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Competent Authority under the Land Acquisition Act and claimed that the
Petitioner forcibly purchased the land and cheated her.
40. On perusal of joint measurement report, it shows that the NHAI
acquired 9656 sq.mtrs from Gut No.93. The Petitioner contended that though
the Respondent No.2 acquired more land than notified under notification u/s
3A and 3D of the Act but said fact was disputed by the Respondents.
Therefore, it appears that there are disputed questions of facts in respect of
measurement carried out while acquiring Gut No.93 which has been considered
while passing the additional awards. Needless to say that, the Competent
Authority considered the joint measurement report submitted by the
Respondent No.3 and held that no additional land out of Gut No.93 is required.
41. In City and Industrial Development Corporation V/s. Dosu
Aardeshir Bhiwandiwala and Ors.; (2009) 1 SCC 168, the Hon'ble Supreme
Court has held that the High Court while exercising its jurisdiction under
Article 226, is duty-bound to consider whether;
(a) adjudication of Writ Petition involves any complex and disputed
question of facts and whether they can be satisfactorily resolved;
(b) the petition reveals all material facts;
(c) the Petitioner has any alternative or effective remedy for the
resolution of the dispute;
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(d) person invoking the jurisdiction is guilty of unexplained delay and
laches;
(e) Ex facie barred by the law of limitation;
(f) grant of relief is against public policy or barred by any valid law;
and host of other factors.
42. Since it clearly appears that this Petition involves disputed and
complex questions of facts, which do not warrant an adjudication while
exercising jurisdiction under Article 226 of the Constitution as per ratio laid in
case of City And Industrial Development Corporation, (supra), present Petition
is liable to be dismissed.
43. In so far as prayer clause-F is concerned, the Writ jurisdiction
under Article 226 of the Constitution of India cannot be exercised for taking
action against the Contemnor for willful disobedience of order passed by this
Court. So also, prayer clause-G is hit by Section 20-A of the Specific Relief Act.
Therefore, this prayer also cannot be considered by this Court.
44. In view of the above discussion, this Writ Petition is dismissed.
Rule is discharged.
[Y.G. KHOBRAGADE, J.] [RAVINDRA V. GHUGE, J.]
mub
