Bombay High Court
Vishnu Janaji Bhalerao vs The Union Of India Thr. Secretary ... on 9 January, 2024
Author: M.M. Sathaye
Bench: B. P. Colabawalla, M.M. Sathaye
2024:BHC-AS:898-DB
WP-1897-2022(J).doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 1897 OF 2022
Vishnu J. Bhalerao )
Age 75 years Occ: Agriculture )
Resident of Village Kalamb, )
Tal. Ambegaon, District - Pune ) ... Petitioner
Versus
1. The Union of India through the )
Secretary, Ministry of Road )
Transport & Highways, )
(Land Acquisition Division), )
Transport Bhavan, 1, Parliament )
Street, New Delhi-110 001 )
2. The National Highways Authority )
of India (NHAI), G-5 & 6, )
Sector 10, Dwarka, )
New Delhi-110 075 )
3. The National Highways Authority )
of India, Pune, Survey No. 134/1A, )
BAIF Bhavan, Dr. Manibhai Desai )
Nagar, Warje, Pune - 411 058 )
through its Project Director )
4. The Competent Authority for )
NHAI & Special Land Acquisition )
Officer No. 13 (CALA), New )
Administrative Building, 2 Floor, )
nd
Opp. Vidhan Bhavan, )
Pune - 411 001 ) .... Respondents
Mr. Ramdas Sabban a/w. Pravin Sabban, Shrikant Kompelli,
Arundhati Sabban, for Petitioner.
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Mr. A.I. Patel, Addl. G.P. a/w. Ms. M.S. Bane, AGP, for
Respondent No.4 /State.
Mr. Ashutosh Misra, for Respondent No. 1/UOI.
Mr. Sandeep Ladda, for Respondent Nos. 2 & 3/ NHAI.
CORAM : B. P. COLABAWALLA &
M.M. SATHAYE, JJ.
RESERVED ON : OCTOBER 30, 2023
PRONOUNCED ON : JANUARY 09 2024
JUDGMENT (Per M.M. SATHAYE, J.)
1. Rule. Learned AGP waives service for Respondent No. 4.
Learned counsel for Union of India and National Highways Authority
waives service for Respondent Nos. 1 to 3. Rule made returnable
forthwith. Taken up for final disposal with consent.
2. By this Petition under Article 226 of the Constitution of
India, the Petitioner is challenging the impugned Order dated
10/01/2022 passed by the Deputy Collector, Special Land Acquisition
Officer No. 13 Pune (Respondent No. 4) in Petitioner's case No.
20/2021. The Petitioner is also seeking a direction to the Respondents
to pass a Rehabilitation and Resettlement (R&R) Order/Award u/s. 31
of the Right to Fair Compensation and Transparency in Land
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Acquisition, Rehabilitation and Resettlement Act, 2013 (for short, "the
2013 Act"), as per Government of India guidelines dated 28/12/2017
read with Ordinances dated 31/12/2014, 03/04/2015, 30/05/2015 &
Order dated 28/08/2015 issued by the Ministry of Rural Development.
The Petitioner further seeks a direction to the Respondents to actually
grant a Rehabilitation & Resettlement benefit amount along with
statutory benefits such as solatium under section 30 and interest under
sections 72 and 80 of the 2013 Act or 12 % equitable interest from the
date of Award.
3. From the nature of prayers as set out above, it can be seen
that the Petitioner is seeking comprehensive reliefs in respect of his
claim under section 31 of the 2013 Act on merits.
4. Few facts that are necessary to be noted, for final disposal of this
Petition, are this. A Notification under section 3-A of the National
Highways Act, 1956 (for short "the NH Act") was published on
07/11/2014. After following the procedure under section 3 of the NH
Act, an Award under section 3-G was passed on 28/03/2016 in LAQ
case No. SR/25/2014 by the Special Land Acquisition Officer No. 13,
Pune. The land of the Petitioner, being 7715 square meters situated at
Survey No. 192 (Part), Village Kalamb, Taluka Ambegaon, District Pune
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(for short "the said land") jointly owned by the Petitioner along with
others, and the Petitioner's house thereon, was acquired for
construction of NH-50 Pune-Nashik Highway. It is the case of the
Petitioner that the Petitioner along with others, as recorded in Schedule
6 of the Award (copy annexed to the Petition) have been affected, in as
much as their livelihood and that of their families which was dependent
on the said land, has been taken away and therefore, they are entitled to
a Rehabilitation and Resettlement Award (R & R Award) under section
31 of the 2013 Act read with Schedule II thereof, over and above the
award of compensation already awarded on 28/03/2016.
5. Accordingly, the Petitioner and 17 other persons applied to
Respondent Nos. 3 and 4 on 29/10/2020 for grant of rehabilitation and
resettlement benefits under section 31 of the 2013 Act. It appears that
the Petitioner's said application was not being decided, and therefore,
the Petitioner filed Writ Petition No. 2638 of 2021. In this writ petition,
this Court, by its Order dated 16/09/2021, directed the Competent
Authority (Respondent No. 4) to decide the Petitioner's
application/representation in a time bound manner.
6. Pursuant to the aforesaid direction of this Court,
Respondent No. 4 (Competent Authority) heard and rejected the
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Petitioner's application on 10/01/2022 on merits, and which is
impugned in this Petition.
7. In this factual backdrop, we have heard the learned counsel
for the Petitioner and the learned AGP for the Respondent No. 4
(Competent Authority). We have also also heard the learned counsel
appearing for the National Highways Authority of India and the Union
of India.
8. The learned counsel for the Petitioner assailed the
impugned Order mainly on the ground that the Petitioner's application
has been rejected by applying the erroneous guideline viz. paragraph
5.4 of the Government of India guidelines dated 28/12/2017, and which
is referred to in the impugned Order. He submitted that the said
guideline No. 5.4 is primarily applicable to applications for grant of
compensation under Schedule I with reference to sections 26 to 30 of
the 2013 Act and not in respect of Petitioner's case which is essentially
under section 31 of the 2013 Act. He submitted that the impugned Order
has been passed on irrelevant considerations and suffered from a
complete non application of mind. He submitted that a bare reading of
the impugned Order shows that it is passed in a casual and a mechanical
manner. He therefore submitted that this impugned order deserves to
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be set aside and the Petitioner be granted reliefs as more particularly set
out by us earlier.
9. On the other hand, the learned counsel for the
Respondents, relying on the affidavit-in-reply filed by the concerned
Project Director of the National Highways Authority of India, contended
that the guidelines dated 28/12/2017 do not apply in a blanket manner
to all the cases of acquisitions under the National Highways Act. It is
contended that the provisions of Schedules II and III of the 2013 Act
are made applicable only to the affected families and not all who are
granted compensation under the NH Act read with the 2013 Act. It is
contended that the Petitioner or other Applicants do not fall under the
category of displaced or affected families and hence, they cannot seek
any benefits under Schedules II and III of the 2013 Act. It is further
contended that the Arbitrator is empowered to Award relocation
amount to the displaced families under section 3-G (7) and the
Petitioner has a remedy to approach the learned Arbitrator. It is further
contended that the Petitioner has already been awarded the amount of
compensation under Schedule I of the 2013 Act which is compensation
towards the land and the structure standing thereon. It is submitted that
the provisions of Schedule II are not applicable as the Petitioner has
been sufficiently compensated under Schedule I. It is further contended
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that the guidelines are applicable based on facts and circumstances of
each case and in the present case, the Petitioner does not fall under the
displaced persons category. Consequently, there is no merit in the
Petition, is the submission.
10. We have carefully considered the impugned Order. The only
reason given in the impugned Order can be found at paragraph nos. 4(i)
to 4(iii). It states that the guidelines in paragraph 5.4 specifically
mention only sections 26, 29 and 30 of the 2013 Act, while calculating
the impugned compensation, and therefore, the prayer of the Petitioner
for compensation under section 31 of the 2013 Act is not applicable as
per the guidelines. The other reason given is that under the 2013 Act,
the Competent Authority cannot review its own Award and the party
aggrieved by the Award can approach the Arbitrator.
11. On going through the impugned order, it is clear that the
Competent Authority has not at all considered whether the Petitioner
and other Applicants are factually entitled to the benefits under section
31 of the 2013 Act. Guideline No. 4.4 indeed refers to the Order dated
28/08/2015 issued by Ministry of Rural Development called 'The Right
to Fair Compensation and Transparency in Land Acquisition,
Rehabilitation and Resettlement (Removal of Difficulties) Order, 2015'
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(for short 'Removal of Difficulties Order of 2015') and shows that
Rehabilitation and Resettlement benefits under Schedule II can be
considered w.e.f. 01/01/2015.
12. The Competent Authority has obviously not understood the basic
difference between a claim under Schedule I of the 2013 Act which is
compensation for land and structure under sections 26 to 30 of the 2013
Act AND a claim under Schedule II read with section 31 of the 2013 Act
which is basically a rehabilitation and resettlement award, over and
above the compensation payable under Schedule I.
13. Perusal of the provisions of sections 26 to 30 of the 2013 Act
shows that it falls under Chapter IV which deals with Notification and
acquisition procedure whereas the provisions regarding Rehabilitation
and Resettlement under section 31, as claimed by the Petitioner, fall
under a different chapter, namely, Chapter V. This Chapter is inter alia
for the purpose of rehabilitation and resettlement of such families which
are affected and whose livelihood is primarily dependent on the land
that is acquired. The benefits under section 31 and which refers to
Schedule II, is in addition to the compensation payable for the acquired
land and the structure standing thereon determined under sections 26
to 30 read with Schedule I. The Competent Authority has failed to
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understand that the Petitioner is not claiming any benefit or
compensation again, but is claiming an independent rehabilitation and
resettlement compensation.
14. Perusal of the Removal of Difficulties Order of 2015 shows
that indeed the provisions of the 2013 Act relating to rehabilitation and
resettlement benefit in accordance with Schedule II is made applicable
to all cases of land acquisition under enactments specified in Schedule
IV of the 2013 Act, including the National Highways Act, 1956, which is
entry No. 7 in the said Schedule. Therefore, there is merit in the
contention of the Petitioner that the impugned order requires
interference under Article 226 of the Constitution of India.
15. In view of the aforesaid circumstances, in the considered
opinion of this Court, the impugned Order, qua the Petitioner only,
deserves to be quashed and set aside and the Competent Authority
needs to be directed to reconsider the Petitioner's case on merits and
pass an Award, if entitled, as contemplated under section 31 read with
Schedule II of the 2013 Act.
16. The claim of the Petitioner for actual grant of rehabilitation
and resettlement benefit at this stage, cannot be entertained for the first
time in writ jurisdiction under Article 226 of the Constitution of India
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because the same is required to be decided on merits under section 31
by the Collector or the Competent Authority appointed for the said
purpose. Even claim of the Petitioner about payment under section 30
and claim of interest under sections 72 & 80 of the 2013 Act shall be
decided by the Competent Authority in accordance with law and grant
the same if Petitioner is found entitled.
17. In view of the forgoing discussion, the following Order is passed.
(a) The Petition is partly allowed and the impugned Order
dated 10/01/2022 passed by Respondent No. 4 is quashed
and set aside.
(b) Respondent No. 4 is directed to re-consider the Petitioner's
claim on merits and arrive at a conclusion whether the
Petitioner is entitled to any compensation as an affected
person as contemplated under section 31 read with
Schedule II of the 2013 Act or otherwise and pass necessary
orders within a period of 3 months from today.
(c) This Court has not expressed any opinion on the merits of
the matter and the application dated 29/10/2020 filed by
the Petitioner shall be decided on its own merits and in
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accordance with law.
18. Rule is made absolute and writ petition is disposed of in
above terms. No order as to costs.
19. All concerned to act on authenticated or digitally signed
copy of this order.
[ M.M. SATHAYE, J.] [ B. P. COLABAWALLA, J.]
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