Bombay High Court
Shri. Vilas Damu Shinde And Ors vs Special Land Acquisition Officer No.22 ... on 2 January, 2024
Author: B. P. Colabawalla
Bench: B. P. Colabawalla
2024:BHC-AS:44-DB
WP.8115 (CORRECTED).14.DOC
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 8115 OF 2014
1) Vilas Damu Shinde,
Age 55 years, Occu- Agriculturist,
2) Dattu Bhau Shinde,
Age 72 years, Occu- Agriculturist,
3) Maruti Vitthal Shinde,
Age 68 years, Occu- Agriculturist
All Resident of Village Nere,
Taluka Mulshi, Dist. Pune. ....Petitioners
Versus
1) Special Land Acquisition Officer
No.22, Collector Office Compound,
Pune 411 001.
2) District Resettlement Officer,
District Pune
3) Divisional Commissioner,
Revenue Division Pune, Pune
4) State of Maharashtra,
Respondent Nos. 1 to 4 be served through
Government Pleader, High Court, Mumbai.
5) Shri Damu Bapu Jadhav,
Since deceased through heirs and
legal representatives :
5A) Shri Pandurang Damu Jadhav,
Age Adult, Occu. : Agriculturist,
5B) Shri Maruti Damu Jadhav,
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Age : Adult, Occu.: Agriculturist,
Both 5A and 5B residents of Village
Nere, Taluka Mulshi, Dist. : Pune
6) Shri Soma Jaywant Yewale,
Since deceased through heirs and
legal representatives :
6A) Shri Narayan Soma @ Somaji Yewale,
Age 63 years, Occu.: Agriculturist,
6B) Shri Ganpat Soma @ Somaji Yewale,
Age 57 years, Occu.: Agriculturist,
6C) Shri Namdeo Soma @ Somaji Yewale,
Age Adult, Occu.: Agriculturist,
6D) Shri Dnyaneshwar Soma @ Somaji Yewale,
Age 50 years, Occu.: Agriculturist,
6E) Smt. Chabubai Soma @ Somaji Yewale,
Age Adult, Occu.: Agriculturist,
Respondent Nos. 6A to 6E all resident of
Village Pachane, Taluka - Maval, Dist. Pune
7) Atul Dilip Dhawale
Age 31 years, Occu.: Agriculturist,
Residing at Punawale, Taluka Mushi,
Dist. Pune.
8) Rayba Dhanaji Buchade
Age 34 years, Occu. : Agriculturist and Business,
Residing at Marunji, Taluka Mushi,
District Pune.
9) Dnyaneshwar Kisan Ghagare
Age 41 years, Occu. : Agriculturist & Business,
Residing at Pawarnagar, Thergaon, Dist. Pune ....Respondents
Mr. Anil Anturkar, Senior Advocate with Mr. Atharva Date
i/b Mr.Akshay Pawar, Advocates for the Petitioners.
Mr.A.I. Patel, Addl. G.P. and Ms. M.S. Bane, AGP for
Respondent Nos.1 to 4-State.
Mr.D.R. Shinde, i/b Mr.S.N. Biradar, Advocate for
Respondent Nos.7 to 9.
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CORAM : B. P. COLABAWALLA &
SOMASEKHAR SUNDARESAN, JJ.
Reserved on: DECEMBER 5, 2023
Pronounced on :JANUARY 2, 2024.
JUDGMENT :
[Per: Somasekhar Sundaresan, J.]
1. Rule. Respondents waive service. With the consent of
parties, Rule made returnable forthwith and heard finally.
2. The core issue that falls for consideration in the captioned
Writ Petition is whether the Petitioners had been given due notice
under the Land Acquisition Act, 1894 ("1894 Act") in respect of a
piece of land co-owned by them when it was acquired in 1989 in
connection with the Kasarsai Irrigation Project.
3. The land in question is situated at Survey No. 19/2
[admeasuring 2 Hectares and 63 Are] at Village Nere, Taluka
Maval, District Pune, out of which, land admeasuring 1 Hectare
and 60 Are was the subject matter of acquisition under the 1894
Act [for short the "19/2 Land"]. The Petitioners were also owners
of other parcels of land being Gat No. 26A, Gat No. 26B and Gat
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No.26C [admeasuring 3 Hectares and 20 Are] [collectively,
referred to as the "26ABC Land"]. The acquisition in question,
right from the Section 4 notification to the Award passed in the
matter, covered both, the 19/2 Land and the 26ABC Land.
4. According to the Petitioners, they had no notice of the
proposed acquisition in terms of Section 4(1). As a result, they
would contend, they had no opportunity of raising objections
under Section 5A, being unaware that their land was being
acquired. Consequently, they contend, the acquisition is vitiated
because due process under law is not complied with. For the
reasons articulated below, and after giving our anxious
consideration to the material on record, we are unable to agree
with the Petitioners.
ARRAY OF PARTIES
5. The Petitioners, namely, Mr. Vilas Damu Shinde-Petitioner
No.1, Mr. Dattu Bhau Shinde-Petitioner No. 2 and Mr. Maruti
Vitthal Shinde-Petitioner No. 3 are all residents of Village Nere.
The Petitioners had purchased the 19/2 Land from Respondent
No. 5 viz. Mr. Damu Bapu Jadhav vide a registered deed dated
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July 26, 1979.
6. Respondent No. 1 is the Special Land Acquisition Officer;
Respondent No. 2 is the District Resettlement Officer, Pune;
Respondent No. 3 is the Divisional Commissioner, Revenue, Pune;
and Respondent No. 4 is the State of Maharashtra.
7. In the course of the proceedings, Respondent No 5 passed
away and has since been replaced by his heirs and legal
representatives.
8. Respondent No.6 viz. Mr. Soma Jaywant Yewale is a
project affected person to whom the 19/2 Land is said to have been
allotted. Since Respondent No 6 had passed away at the time of
filing of the above Writ Petition [in 2014], his heirs and legal
representatives were also made Respondent Nos.6A to 6E
[collectively, "Respondent No 6"].
9. Meanwhile, the land in question (19/2 Land) is purported
to have been sold by the various legal representatives of Mr.
Yewale to Respondents No. 7 to 9 vide a registered sale deed dated
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July 5, 2013. These Respondents, in turn, purport to have
developed the land so acquired, and purport to have sold sub-plots
to multiple other parties between 2013 and 2016, with
consequential mutation entries being made.
FACTUAL MATRIX
10. On February 6, 1981, the Kasarsai Irrigation Project was
declared a public purpose project for which land was to be
acquired. By this date, the Petitioners' names had not been
entered as the owners in the State's land and revenue records.
Therefore, on December 1, 1986, the Petitioners applied to the
Collector, Pune and to Respondent No. 2, viz. the District
Resettlement Officer, Pune to record the sale deed dated July 26,
1979, looking to the fact that the sale deed had been executed well
prior to February 6, 1981. The Petitioners were directed by these
authorities to approach the village Talathi, which led to an
application being made on December 2, 1986, who on the same
date, by Mutation Entry No. 1602, recorded the names of the
Petitioners as the owners of the 19/2 Land.
11. Thereafter, in relation to the 19/2 Land as well as the
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26ABC Land, a notification under Section 4 was published on
October 12, 1989. A declaration that the said lands were required
for a public purpose was also issued under Section 6 on October
27, 1990. The last of the publications of the declaration under
Section 6 was made on December 12, 1990. After this, a public
notice under Section 9 was issued on December 13, 1990 while the
Award under Section 11 was made on October 31, 1992. It is
common ground among the parties that the notice of the Award
under Section 12(2) was issued on November 16, 1992 and
possession of the land, in exercise of powers under Section 16, was
taken on December 4, 1992.
CONTENTIONS OF THE PARTIES
12. At the outset, Mr. Anil Anturkar, the learned Senior
Counsel representing the Petitioners, submitted that the
Petitioners are not seeking to unscramble the egg and disrupt the
interests of the project affected persons who were allotted the 19/2
Land or any other person who has acquired any interest therein.
He submitted that if he is correct in his submission that the State
failed to follow due process stipulated in the 1894 Act, and with
particular regard to Section 4, then the Petitioners were only
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seeking compensation as per the provisions of the Right to Fair
Compensation and Transparency in Land Acquisition,
Rehabilitation and Resettlement Act, 2013 [for short the " 2013
Act"]. Mr. Anturkar submitted that while notices under Section 9
also had not been served on or received by the Petitioners, he was
not pressing that point since it is now well settled that failure to
issue notices under Section 9 was not fatal to the acquisition.
However, he would assert that failure to comply of serving
individual notices on the Petitioners under Section 4(1), was
indeed fatal to the acquisition of the 19/2 Land.
13. The crux of the argument canvassed by Mr. Anturkar is
that no individual notices under Section 4(1) were served on the
Petitioners despite their names having been recorded by Mutation
Entry No. 1602 on December 2, 1986 evidencing that the 19/2
Land had been purchased by the Petitioners from Respondent No.
5 way back in 1979. While the Award was passed on October 31,
1992, the records would show that no compensation had been paid
to the Petitioners, as the same was refused. Mr. Anturkar would
submit that although the Petitioners had, in fact, filed an
application under Section 48, since the facts of the case would not
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fall within the ambit of that provision, such application can at
worst be treated as misconceived or wrongly advised, and in any
case, would have no bearing on the merits of the case.
14. Mr. Anturkar laid emphasis on a letter dated February 13,
2007 from Respondent No. 2 to Respondent No. 1 to argue that
the Petitioners had been consistently following up the matter with
the authorities. Therefore, they could not be said to have been
indolent for the assertion of their rights in this petition to be
vitiated by delays and laches.
15. Mr. Anturkar pointed to the affidavits of Respondent No 1,
which have annexed a copy of the notice issued under Section 4(1)
and also a copy of the register that recorded the persons to whom
such notices had been issued. He would contend from Entry No.
7 in the said register that although notices were purported to have
been issued to Petitioner No 1, Petitioner No 2 and Petitioner No.3
in respect of the 19/2 Land, the acknowledgment of service of the
said notices is only signed by Petitioner No. 2 viz. Mr. Dattu Bhau
Shinde, who appears to have signed on behalf of all the
Petitioners. Since there is nothing to show that either Petitioner
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No. 1 or Petitioner No. 3 had authorized Petitioner No. 2 to accept
notice on their behalf, he would contend that even on a demurrer,
Respondent No 1 would only be able to claim that individual
notice had been issued to Petitioner No. 2 alone, who had no
authority to accept notice on behalf of Petitioner No. 1 and
Petitioner No. 3. On this premise, Mr. Anturkar would submit
that insofar as the 19/2 Land is concerned, there is an evident
failure of issuance of notice under Section 4(1), which would make
the entire acquisition process bad in law.
16. Referring to the principles under the law governing
partnerships, Mr. Anturkar for the Petitioners would draw upon
Section 18 of the Indian Partnership Act, 1932 and Section 26 of
the Limited Liability Partnership Act, 2008. The former explicitly
stipulates that a partner of a partnership firm is the agent of the
firm for purposes of the business of the firm. The latter provides
that every partner of a Limited Liability Partnership is an agent of
the partnership but not of the other partners. Invoking these
principles, the submission made was that neither was any such
stipulation contained in the 1894 Act nor could it be said that
Petitioner No. 2, as a co-owner, could be regarded in the eyes of
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law, as an agent of Petitioner No. 1 or Petitioner No. 3 for purposes
of accepting notice under Section 4(1).
17. In support of the above proposition, Mr. Anturkar sought
to rely upon a decision of the Hon'ble Supreme Court in the case of
Champaran Cane Concern (Dissolved) (In all the Appeals) vs.
State of Bihar and Another (In all the Appeals) - AIR 1963 SC
1737 ("Champaran") to submit that while in a partnership each
partner acts for all, in a co-ownership, one co-owner is not the
agent, real or implied, of the others. Thereafter, reliance was also
placed on Sardar Ajitsingh Santoksingh vs. State of Maharashtra -
AIR 1972 Bom 177 ("Sardar Ajitsingh") to submit that issuance of
individual notices under Section 4(1) is a must in cases where the
power to take over urgent possession under Section 17 is not
invoked, for the statutory right to raise objections under Section
5A to be meaningfully available.
18. Addressing the objections to the Writ Petition on the
premise that it was vitiated by delay and laches, Mr. Anturkar
relied on the Hon'ble Supreme Court's judgment in Tukaram
Kana Joshi vs. MIDC - (2013) 1 SCC 353 ("Tukaram") to submit
that the constitutional right to property of illiterate farmers could
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not be defeated on technical grounds citing delay, particularly
when citizens in rural areas have a greater degree of implicit faith
and trust in government agencies being just and fair. He would
also rely on a more recent judgement of the Hon'ble Supreme
Court in Sukh Dutt Ratna and Another vs. State of Himachal
Pradesh and Others - (2022) 7 SCC 508 ("Sukh Dutt") to buttress
the point that the State cannot, merely on the ground of delay and
laches, evade its responsibility towards those from whom private
property has been expropriated. In both these cases (they
involved a gap of decades between the initial acquisition
notification and the resort to a Writ Petition), the principle laid
down is that the right to property, although not a fundamental
right is a constitutional right under Article 300-A and Mr.
Anturkar submitted that on mere technical grounds of delay, the
rights of land-owners must not be permitted to be trampled upon.
For all the aforesaid reasons, Mr. Anturkar submitted that the
reliefs in the above Writ Petition be moulded and the State be
directed to calculate the compensation payable to the Petitioners
[for the 19/2 Land] as per the provisions of the 2013 Act.
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19. On the other hand, Mr. A.I. Patel, the Learned Addl. GP
representing Respondent Nos. 1 to 4 pointed out that the land
acquisition in question covered both, the 19/2 Land and the
26ABC Land. All these parcels of land were co-owned by the
Petitioners by their own showing and the register of issuance of
individual notices under Section 4(1) shows that in respect of all
the lands in question, it was Petitioner No. 2 who had accepted
notice on behalf of all the Petitioners. The Petitioners have,
without any grievance, participated in the very same land
acquisition process and have accepted the compensation in respect
of the 26ABC Land. However, only in relation to the 19/2 Land
they now seek to contend that Petitioner No. 2 had no authority to
accept notice on behalf of Petitioner No. 1 and Petitioner No. 3.
20. The Learned Addl. GP would submit that the Petitioners
are banking on the potential inability of the State to come up with
acute precision, on the basis of records to be pulled out after over
three decades, to argue that an infirmity in the first notice would
vitiate the entire acquisition process in relation to the 19/2 Land,
and thereby claim compensation under the 2013 Act.
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21. The Learned Addl. GP would also submit that the
provisions of Section 24(2) of the 2013 Act are not at all attracted
for the acquisition to be considered to have lapsed. Admittedly the
19/2 Land is now in possession of various other parties after the
State took possession of it under the Award. Indeed, compensation
was not paid to the Petitioners, but only because the Petitioners
refused to accept the compensation. The panchnama and the
possession receipt for the 19/2 Land (also covering the 26ABC
Land) are part of the record, which the Ld. Additional GP relied
upon to show that it would not lie in the mouth of the Petitioners
to claim absence of notice or knowledge that the 19/2 Land was
being acquired.
22. The Learned Addl. GP would argue that by their conduct,
the Petitioners have also forfeited the equities in favour of grant of
interest to them since it is their conduct that led to the delay in
receipt of compensation. His argument was that the Petitioners
could not seek to benefit from their own wrong. Asserting that the
petition is woefully delayed, reliance was placed on a decision of a
five-judge bench of the Hon'ble Supreme Court disposing of a
bunch of 31 Civil Appeals filed by the State of Madhya Pradesh and
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reported in AIR 1964 SC 1006 ("MP Appeals") to argue that while
there is no stipulation of limitation period for pursuit of
enforcement of rights under Article 226 of the Constitution of
India, the period of limitation under the general law of limitation
would be a reasonable standard to adopt.
23. In rejoinder, Mr. Akshay Pawar, the learned Counsel for
the Petitioners, would submit that the Award on the record is only
a draft award and not a finally signed one. He also argued that
there is material to show that the notice under Section 4(1)
appears to have been intended for issuance to Respondent No. 5
and not to the Petitioners. As an alternative to the reliefs sought,
he would submit that if compensation is not to be computed and
paid under the 2013 Act, the Petitioners may be provided with
land commensurate with the 19/2 Land in the vicinity instead of
the compensation amount.
24. Mr. D.R. Shinde, the Learned Counsel appearing on behalf
of Respondents 7 to 9 reiterated the contents of his clients'
affidavit and underlined that he makes no submissions on merits
since the Petitioners have given up any claim to reclaiming the
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land that had been acquired by the State, and which has been dealt
with subsequently by his clients.
CONSIDERATION OF THE RECORD
25. We note that this Writ Petition has had a chequered
history. However, in view of the specific, structured, and moulded
pursuit of the Petitioners' rights, the scope of the controversy now
falls within a narrow compass, rendering it unnecessary to go into
the history of the matter.
26. At the heart of the matter is a determination as to whether
notice under Section 4(1) was validly served on the Petitioners and
whether non-service of the said notice would lead us to the
conclusion that the acquisition of the 19/2 Land was contrary to
law.
27. We have given our anxious consideration to the rival
contentions and have also perused the record. We have also called
for and examined the original register of service of individual
notices under Section 4(1) and the possession certificate. After
carefully going through the record, we are unable to persuade
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ourselves to believe that the Petitioners had no notice whatsoever
under Section 4(1) about the proposed acquisition of the 19/2
Land. We say this because:-
a. Firstly, the proposed acquisition of 19/2 Land was the
subject matter of every notice, notification, publication
and declaration throughout the journey of the wider area
of land involved in the acquisition and which also
included the 26ABC Land that belonged to the
Petitioners. The Petitioners were admittedly valid
recipients of notice with full knowledge of the acquisition
process through these very notices, notifications,
publications and declarations in respect of the 26ABC
Land. These instruments also contained explicit
references to the 19/2 Land. Therefore, the foundational
premise that the Petitioners had no knowledge and no
notice of the acquisition does not inspire confidence.
b. Secondly, the Petitioners have themselves set out in the
List of Dates [appended to the Synopsis in the Petition]
that Village Nere, having been declared on February 6,
1981 as land that would be involved in the acquisition for
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the Kasarsai Irrigation Project, they applied on
December 1, 1986, to the Collector, Pune and the District
Resettlement Officer seeking mutation of the land
records in relation to the 19/2 Land. They secured the
Mutation Entry No. 1602 as a consequence of their
vigilance of their ownership interest in the 19/2 Land
and that too in the context of the proposed land
acquisition, which eventually commenced in 1989.
Having been vigilant to ensure that their name was
entered in the land records [as their purchase of the 19/2
Land had preceded the notification of the Kasarsai
Irrigation Project], and having participated in the land
acquisition process in respect of the 26ABC Land, it
would stand to reason that the Petitioners were fully
aware that the 19/2 Land was an integral part of the
acquisition that had been initiated and was underway
since 1989.
c. Thirdly, the Petitioners claim that they had no
opportunity to raise objections under Section 5A due to
non-receipt of notice under Section 4(1), but they
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evidently had notice of the opportunity to raise
objections to the land acquisition process in 1989-90,
during which period they were well aware of what they
owned (both the 26ABC Land and the 19/2 Land).
d. Fourthly, it is not the case of the Petitioners that one of
them i.e. Petitioner No. 2 had not received the notice.
The Petitioners acknowledge that Petitioner No. 2
appears to have received the notice, but their claim is
that he had no authority, real or implied, to receive
notices on behalf of Petitioner No. 1 and Petitioner No. 3.
Yet, all three of them, including Petitioner No. 2, have
jointly filed the Writ Petition impugning the acquisition
process, on the premise that they had no notice. It is
upon the production of the register of service of notice
that they have moved on to arguing about the legal
authority of one Petitioner to receive notices on behalf of
the other Petitioners. Conscious of this facet, Mr.
Anturkar, fairly stated that the conduct of Petitioner No.
2 may be regarded as unreasonable but that such
conduct of Petitioner No. 2 cannot infect the interests of
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the other Petitioners who are entitled to individual
notices.
e. Fifthly, in a related facet, the notice relating to the
26ABC Land is also accepted by Petitioner No. 2 on
behalf of all Petitioners and the compensation computed
has been accepted by all Petitioners, without raising any
argument of any absence of authority, real or implied.
Both the 26ABC Land and the 19/2 Land being the
subject matter of the same acquisition process, it is
difficult for us to digest that Petitioner No. 2 had
authority to receive notices in respect of the 26ABC Land
but no authority to do so in respect of the 19/2 Land.
28. As mentioned earlier, faced with all this material, the
Learned Counsel for the Petitioners, in rejoinder, sought to
contend that the notice under Section 4(1) may have been
intended to be issued to Respondent No. 5 and not to the
Petitioners. However, assuming that such notice had indeed been
addressed to Respondent No. 5 in relation to the 19/2 Land, it
would still remain uncontroverted that such notice was even
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received by Petitioner No. 2. As a joint owner of the very same
parcel of land for which mutation had been consciously effected
(and that too triggered by the Kasarsai Irrigation Project having
been envisaged), it would stand to reason that receipt of such
notice would have alerted the Petitioners (demonstrably vigilant in
asserting their rights), to demand that the Section 4(1) notice
ought to be issued to them and not to Respondent No. 5.
29. It is in this context that the distance of time in the
Petitioners raising a narrow technical contention about the
infirmity in issuance of a notice under Section 4(1) has some
bearing even on merits. The Hon'ble Supreme Court in Sukh Dutt,
has ruled that the State cannot shield itself behind the ground of
delay and latches and that there can be no "limitation" to doing
justice. In this context, Sukh Dutt endorses the opinion expressed
in Maharashtra SRTC vs. Balwant Regulator Motor Service - AIR
1969 SC 329 quite aptly by stating that the validity of the defence
must be tried upon principles substantially equitable.
Specifically:-
"Two circumstances, always important in such cases,
are, the length of the delay and the nature of the acts
done during the interval, which might affect either
party and cause a balance of justice or injustice in
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taking the one course or the other, so far as relates to
the remedy."
[Emphasis Supplied]
30. In the instant case, (i) the evident acceptance of notices in
respect of the 26ABC Land by Petitioner No. 2 on behalf of all
Petitioners; and (ii) the acceptance of the acquisition process and
the consequent compensation being accepted in respect of the
26ABC Land, does not inspire confidence in the Petitioners' case
that in respect of the 19/2 Land, Petitioner No. 2 had no authority
to accept notice under Section 4(1) on behalf of Petitioner No. 1
and Petitioner No. 3. At the risk of repetition, we say this because
the acquisition of the 26ABC Land and of the 19/2 Land was the
subject matter of the same Section 4 notification.
31. On a review of the facts and documents on record, we are
unable to be persuaded that the Petitioners have made out a case
for holding that there is an infirmity in the issuance of the
individual notice under Section 4(1). It is the Petitioners' case that
commends itself to being regarded as so technical that it tips the
balance of justice in favour of adopting the course of dismissing
the petition.
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32. In view of the forgoing discussion, we are not required to
examine the argument of the Learned Addl. GP that there is an
inordinate delay in filing the Writ Petition and that such delay is
fatal to the challenge mounted by the Petitioners. Ultimately, in
our opinion, it is the standard of "preponderance of probability"
that must inform a finding in civil matters of this nature, and not
the standard of "beyond reasonable doubt" that would apply to
criminal matters. To accept the Petitioners' arguments in relation
to having no notice under Section 4(1) for the 19/2 Land, and
thereby being handicapped in enjoying the right to raise objections
under Section 5A, would inexorably require adopting the latter
standard. The test to be applied is what a reasonable mind acting
reasonably, is most likely to endorse as to the events that
transpired.
33. Therefore, the rulings in Champaran, Sardar Ajitsingh,
Tukaram and Sukh Dutt, each an unexceptionable and binding
declaration of the law, are of no assistance to the Petitioners' case
that they received no notice of the acquisition of the 19/2 Land in
compliance with Section 4(1). We are inclined to accept that the
Petitioners, who have acted jointly in respect of the 26ABC Land
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in the very same acquisition proceedings, also had notice of the
acquisition of the 19/2 Land for purposes of Section 4(1). It would
be difficult to accept that they had no notice and therefore were
handicapped by such purported lack of knowledge that they could
not avail of their rights under Section 5A.
34. The principles of partnership law, in our opinion, have no
relevance to the facts of the case. Admittedly, the Petitioners are
co-owners and not partners. It is not the State's case that they
were partners to suggest any implied authority. The State has also
not relied on any statutorily implied authority for Petitioner No. 2
to accept notice on behalf of Petitioner No. 1 and Petitioner No. 3.
What is evident is that the pattern of conduct by the three
Petitioners in respect of another three pieces of land (the 26ABC
Land) in the very same area under acquisition, would suggest at
least on preponderance of probabilities, that Petitioner No. 2 had
the authority to receive notices under Section 4(1) on behalf of
Petitioner No. 1 and Petitioner No. 3 also in respect of the 19/2
Land.
35. While we have been persuaded to accept the version
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canvassed by the Ld. Additional GP on the merits of the issuance
of notice under Section 4(1), we are unable to accept his
submission that the Petitioners are not entitled to interest, and
that too on the premise that they are to blame for the delay.
Simply as a matter of equity, such an argument does not lend itself
to acceptance, since the State has not only acquired and taken
possession of the 19/2 Land but has also continued to enjoy the
funds equivalent to the compensation for the same without parting
with it for over three decades.
36. The 1894 Act inherently envisages a scheme of an
obligation to pay interest on compensation payable for acquisition.
Section 31 requires payment of compensation upon making of the
Award. Section 34 stipulates the outer time limit for payment of
compensation - it has to be paid at the time of, or prior to, taking
possession of the land. In the instant case, admittedly, possession
was taken on December 4, 1992. The State has neither paid over
the compensation nor deposited it in the Court where a reference
would lie under Section 18. Even on a demurrer, even if it were
the Petitioners who refused to accept payment, that situation is
clearly envisaged under Section 31(2). One of the contingencies
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Shraddha Talekar
WP.8115 (CORRECTED).14.DOC
upon which compensation is envisaged as being incapable of being
paid (leading to the obligation to make a reference to the
competent court and deposit the compensation) is the refusal of
consent to receive the compensation. In such a situation, the only
alternative available to the State in the law is to deposit the same
in court. Admittedly, no such deposit has been made. The
compensation amount has been enjoyed by the State even while
the land stood acquired and got deployed towards the State's
irrigation project. Section 34 explicitly stipulates that interest
shall be paid at the rate of 9% per annum for the first year from
the date of taking possession and at the rate of 15% per annum for
the period thereafter. We therefore direct the State to ensure that
interest on the compensation applicable to the 19/2 Land in the
Award must be calculated in compliance with Section 34, and be
paid over to the Petitioners within a period of four weeks from the
date of this judgment.
37. Rule is made absolute in the aforesaid terms and the Writ
Petition is disposed of in terms thereof. There shall be no order as
to costs. Though we have disposed of the Writ Petition, we place it
on Board for reporting compliance on 6th February, 2024.
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WP.8115 (CORRECTED).14.DOC
38. This judgment 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
judgment.
[SOMASEKHAR SUNDARESAN, J.] [ B. P. COLABAWALLA, J.]
JANUARY 2, 2024
Shraddha Talekar
