Bombay High Court
Yasminbegum Bakshulla Khan And Others vs The State Of Maharashtra And Others on 8 November, 2019
Equivalent citations: AIRONLINE 2019 BOM 1195, 2020 (1) ABR 376
Author: S. V. Gangapurwala
Bench: S. V. Gangapurwala, Anil S. Kilor
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 1883 OF 2018
1. Yasminbegum W/o Bakshulla Khan,
Age: Major, Occupation: Household,
2. Gulabrao S/o Tukaram Thete,
Age: 63 Years, Occupation: Agriculture,
3. Aslam Khan S/o Vajir Khan,
Age: Major, Occupation: Agriculture,
4. Laikh Khan S/o Vajir Khan,
Age: Major, Occupation: Agriculture,
5. Rajiyabegum W/o Abdul Samad,
Age: Major, Occupation: Household,
6. Zakiyabegum W/o Rafiq Khan,
Age: Major, Occupation: Household,
7. Sherkhan S/o Mehboob Khan,
Age: Major, Occupation: Agriculture,
All petitioners R/o: At Post Relnawadi,
Tal-Kannad, Dist-Aurangabad .. Petitioners
Versus
1. The State of Maharashtra,
Through its Secretary,
Department of Revenue and Forests,
Mantralaya, Mumbai
2. The Collector,
Aurangabad
3. The Competent Authority and
Sub-Divisional Officer, Land Acquisition,
Kannad, Tal: Kanad,
Dist: Aurangabad
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4. The Project Director,
National Highway Authority of India,
Aurangabad Division,
Aurangabad .. Respondents
...
WRIT PETITION NO. 1884 OF 2018
1. Gausiyabi W/o Fiyaz Khan Patel,
Age: Major, Occupation: Household,
2. Taslinbi W/o Ghaiyaz Khan Patel,
Age: Major, Occupation: Household,
3. Dnyaneshwar S/o Dattu Nangre,
Age: Major, Occupation: Agriculture,
4. Vijay S/o Dattu Nangre,
Age: Major, Occupation: Agriculture,
5. Babasaheb S/o Dattu Nangre,
Age: Major, Occupation: Agriculture,
6. Gausiyabi Begam W/o Abdul Asad,
Age: Major, Occupation: Household,
7. Abdul Taufik S/o Abdul Asad,
Age: Major, Occupation: Agriculture,
8. Abdul Wahab S/o Abdul Asad,
Age: Major, Occupation: Agriculture,
9. Abdul Tausif S/o Abdul Asad,
Age: Major, Occupation: Agriculture,
10. Shamsundar Hiralal Pirthani,
Age: 72, Occupation: Agriculture,
11. Anitaben Shambhulal,
Age: Major, Occupation: Agriculture,
All petitioners R/o: At Post Makranpur,
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Tal-Kannad, Dist-Aurangabad .. Petitioners
Versus
1. The State of Maharashtra,
Through its Secretary,
Department of Revenue and Forests,
Mantralaya, Mumbai
2. The Collector,
Aurangabad
3. The Competent Authority and
Sub-Divisional Officer, Land Acquisition,
Kannad, Tal: Kanad,
Dist: Aurangabad
4. The Project Director,
National Highway Authority of India,
Aurangabad Division,
Aurangabad .. Respondents
...
WRIT PETITION NO. 1885 OF 2018
1. Shaikh Ashfaq S/o Shaikh Yasin,
Age: Major, Occupation: Agriculture,
2. Shaikh Farukh S/o Shaikh Yasin,
Age: Major, Occupation: Agriculture,
3. Shaikh Sadikh S/o Shaikh Yasin,
Age: Major, Occupation: Agriculture,
4. Shaikh Asif S/o Shaikh Mohammad,
Age: Major, Occupation: Agriculture,
5. Shaikh Shermohammad S/o Shaikh Ghulam,
Age: Major, Occupation: Agriculture,
6. Shaikh Bilal S/o Noormohammad,
Age: Major, Occupation: Agriculture,
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7. Shaikh Hilal S/o Noormohammad,
Age: Major, Occupation: Agriculture,
8. Karimabi w/o Yusuf Ali,
Age: Major, Occupation: Household,
9. Fakira Lakshman Jadhav,
Age: 67, Occupation: Agriculture,
10. Sominath S/o Kashinath Jadhav,
Age: Major, Occupation: Agriculture,
11. Valhabai W/o Fakira Jadhav,
Age: Major, Occupation: Household,
12. Asadbi Sayyad,
Age: Major, Occupation: Household,
All petitioners R/o: At Post Kannad,
Tal-Kannad, Dist-Aurangabad .. Petitioners
Versus
1. The State of Maharashtra,
Through its Secretary,
Department of Revenue and Forests,
Mantralaya, Mumbai
2. The Collector,
Aurangabad
3. The Competent Authority and
Sub-Divisional Officer, Land Acquisition,
Kannad, Tal: Kanad,
Dist: Aurangabad
4. The Project Director,
National Highway Authority of India,
Aurangabad Division,
Aurangabad .. Respondents
...
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WRIT PETITION NO. 6481 OF 2018
1. Dr. Ulhas S/o Dattatray Shiurkar,
Age: Major, Occupation: Service,
R/o: Shambhu Mahadeo Nagar,
New Osmanpura, Aurangabad,
Tal&Dist: Aurangabad
2. Prakash S/o Sheshrao Chavhan,
Age: 45 Years, Occupation: Agriculture,
R/o: Gat No. 291 / 1, Satara Tanda,
Tal&Dist: Aurangabad
3. Amardeep S/o Pandharinath Ghuge,
Age: 42 years, Occupation: Agriculture,
R/o.: 56, Surana Nagar, Jalna Road,
Aurangabad, Tal&Dist: Aurangabad
4. Jaydeep S/o Pandharinath Ghuge,
Age: 44 Years, Occupation: Agriculture,
R/o: 57, "Raj Sadar", Surana Nagar,
Jalna Road, Aurangabad,
Tal&Dist: Aurangabad
5. Yashodeep S/o Pandharinath Ghuge,
Age: Major, Occupation: Agriculture,
R/o:47, Surana Nagar, Jalna Road,
Aurangabad,
Tal&Dist: Aurangabad .. Petitioners
Versus
1. The State of Maharashtra,
Through its Secretary,
Department of Revenue and Forests,
Mantralaya, Mumbai
2. The Collector,
Aurangabad
3. The Competent Authority and
Sub-Divisional Officer, Land Acquisition,
Satara, Tal: Kanad,
Dist: Aurangabad
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4. The Project Director,
National Highway Authority of India,
Aurangabad Division,
Aurangabad .. Respondents
...
Advocate for Petitioners:
Mr. V. D. Sapkal i/b. Mr. N. E. Deshmukh
Addl.GP for Respondents No. 1 & 2: Mr. P. S. Patil
ASG for Respondent No. 3:
Mr. S. B. Deshpande a/w. Ms. Sudha Kulthe,Advocate
Advocate for Respondent No. 4:
M/s. M. V. Kini and Co. and Mr. D. S. Manorkar
...
CORAM: S. V. GANGAPURWALA &
ANIL S. KILOR, JJ.
RESERVED FOR JUDGMENT ON : 18.09.2019
JUDGMENT PRONOUNCED ON : 08.11.2019
JUDGMENT (Per S. V. Gangapurwala, J.):
1. Rule. Rule made returnable forthwith. With the consent of learned counsel for respective parties, matters are taken up for final hearing.
2. The petitioners challenge the second award passed by respondent no.3 / competent authority and Sub Divisional Officer, Land Acquisition.
3. All these writ petitions are based on similar set of facts and involve common question of law. ::: Uploaded on - 13/11/2019 ::: Downloaded on - 23/04/2020 09:21:07 :::
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4. In all these petitions, the petitioners are challenging the second award passed by the competent authority and Sub Divisional Officer, Land Acquisition. For the sake of convenience the facts are taken from Writ Petition No. 1883 of 2018.
5. Initially, the first award was passed U/Sec. 3(G) of the National Highways Act, 1956 on or about 05.07.2017 and subsequently, the second award modifying / substitutting the first award is passed on 01.08.2017.
6. Mr. Sapkal, learned counsel for the petitioners strenuously contends that respondent no. 3 / competent authority and Sub Divisional Officer, Land Acqusition has no jurisdiction and authority to pass subsequent award by modifying the first award. The provisions of the National Highways Act, 1956 do not permit the competent authority to pass subsequent award after the first ::: Uploaded on - 13/11/2019 ::: Downloaded on - 23/04/2020 09:21:07 ::: 8 wp 1883.18+ award is passed. First award is passed U/Sec. 3(G) of the National Highways Act, 1956 and the same is approved by the respondents. Subsequently, the competent authority does not have the jurisdiction to pass the subsequent award ruducing the compensation amount. Initially, as per the first award the compensation was granted at Rs.600/- per Sq.Mtrs. The same is reduced to Rs.47.20 per Sq.Mtrs. The learned counsel further submits that reference to Section 33 of the Right to Fair Compensation and Transparency in Land Acqusition, Rehabilitation and Resettlement Act, 2013 (hereinafter referred to Act-2013) cannot be resorted to by the respondents. The provisions of Section 33 of the Act-2013 are inapplicable. The provisions relating to the determination of compensation under the Act-2013 are only made applicable to the acquisitions under the National Highways Act, 1956.
7. The learned counsel on factual matrix submits that to others the compensation has been granted at Rs.600 per Sq.Mtrs. and it is only in respect ::: Uploaded on - 13/11/2019 ::: Downloaded on - 23/04/2020 09:21:07 ::: 9 wp 1883.18+ of the petitioners the compensation has been reduced, though the acquisition is for the same project and same purpose and the lands are also situated adjacent to each other.
8. Mr. Deshpande, learned Assistant Solicitor General for respondent no. 3 submits that the second award was passed U/Sec.33 of the Act-2013. The lands acquired are not adjacent to the National Highway. The acquired lands are acquired first time for bypass National Highway. The rates of such lands which are acquired first time for National Highway bypass are different and cannot be similarly recommended. The preliminary award dated 05.07.2017 was passed. The mistake was committed in valuing the present writ lands. These lands are not adjacent to the Highways or near the highways. After realising this mistake and error, it was necessary to revise the proposal and accordingly the proposal is revised as per the available record. If the petitioners are aggrieved by the quantum of compensation determined by respondent no. 3, then the petitioners have an ::: Uploaded on - 13/11/2019 ::: Downloaded on - 23/04/2020 09:21:07 ::: 10 wp 1883.18+ alternate remedy U/Sec.3, 7(g)(5) of the National Highways Act, 1956 by approaching the Arbitrator.
9. The learned Assistant Solicitor General further submits that as there was an error and miscalculation, therefore revised award was again submitted for sanction and approval. The explanation and reasons were given for revision of the award giving the details how the rates and valuation are changed.
10. The learned Assistant Solicitor General further submits that it is a matter of a public exchequer. In view of that, this Court may not entertain the petitions under Article 226 of the Constitution of India.
11. The learned Assistant Solicitor General further submits that while computing the compensation and reading the provisions of the Act-2013 harmoniously it is abundantly clear that Section 33 of the Act-2013 is made applicable and respondent no. 3 / competent authority has all the powers U/Sec. 33 of the Act-2013. Provisions of ::: Uploaded on - 13/11/2019 ::: Downloaded on - 23/04/2020 09:21:07 ::: 11 wp 1883.18+ Section 26 and 33 of the Act-2013 will have to be read harmoniously. The similar provisions are U/Sec. 152 of the Code of Civil Procedure and U/Sec. 13-A of the Land Acquisition Act, 1894. The provision U/Sec.13A of the Land Acqusition Act, 1894 is pari materia with Section 33 of the Act- 2013. The principle made applicable to Section 152 of the Code of Civil Procedure is also made applicable to the National Highways Act, 1956 and Act-2013. The power to declare compensation implicitly and impliedly bestows upon the concerned authority the power to correct the errors so that they represent the correct state of affairs and as such the arithmatic and clerical mistakes can be corrected.
12. The learned Assistatn Solicitor General relies on the judgemnt of the Division Bench of this Court in case of Umesh Board Paper Mills Pvt. Ltd. Vs. The Union of India and others dated 16.03.2018 and submits that the correction can be made U/Sec. 33 of the Act-2013 to the awards passed under the National Highways Act, 1956. ::: Uploaded on - 13/11/2019 ::: Downloaded on - 23/04/2020 09:21:07 :::
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13. The learned Additional Government Pleader also echos the argument advanced by the learned Assistant Solicitor General.
14. Mr. Manorkar, learned counsel for respondent no. 4 submits that as per Ordinance dated 03.04.2015, the provisions of the Act-2013 to the extent of determination of compensation are made applicable. The same are dealt with from Section 26 to 30 and Shedule I, II, III and IV of the Act- 2013. The amount of compensation determined by respondent no. 3 was accepted by respondent no. 4 and the amount was also deposited for disbursement.
15. The first award dated 05.07.2017 is placed on record. The same is a final award. The award is in a regional language. The first page of the award reads as under-
राष्ीय महामारर अधधननयम - १९५६ ¼ ४८ चा १९५६ ½ चया कलम ३(G) अनवये नुकसान भरपाई रकमेचा ::: Uploaded on - 13/11/2019 ::: Downloaded on - 23/04/2020 09:21:07 ::: 13 wp 1883.18+ भूसंपादन अंधतम ननवाडा ekSts % jsyukoMh rk- dUuM ft- vkSjaxkckn iz;kstu & jk"Vªªh; egkekxZ dz- 211 ps pkSinjh@lgkinjh jLrk /kqGs&vkSjaxkckn fleklsD'ku ¼fd-eh- 328&600 rs 379&760 fd-eh-½ vkSjaxkckn ftYgk Hkqlaiknu izLrko dz- ,vkj&11@2016] ekSts- jsyukoMh rk- dUuM] ft- vkSjaxkckn-
Even the competent authority has observed that he is passing final award. The operative part of the award reads thus-
ojhy loZ ifjfLFkrhpk lkdY;kus fopkj d:u Hkqlaiknu izLrko dzeakd 11@2016 e/;s eh l{ke izkf/kdkjh ¼Hkqlaiknu½ jk"Vªh; egkekxZ dz- 211 rFkk mifoHkkxh; vf/kdkjh dUuM [kkyhyizek.ks fuokMk tkghj djhr vkgs-
vafrefuokMk eh l{ke izkf/kdkjh Hkwlaiknu jk"Vªh; egkekxZ dz- 211 rFkk mifoHkkxh; vf/kdkjh dUuM Hkkx dUuM ;k}kjs tkghj djrks dh] 1½ ekSts jsyukoMh rk- dUuM ft- vkSjaxkckn ;sFkhy jk"Vªªh; egkekxZ dz- 211 pkSinjhdj.kklkBh laiknu dsysys {ks= 7-18 gs- vkj vkgs- 2½ fgrlacaf/krakuk vnk djko;kph ,dw.k jDde :- 12]45]32]850@& ,o<h fuOoG ns; jkghy-
3½ vkLFkkiuk [kpZ :- 37]35]986@& ,o<h jDde pyukus 'kkldh; dks"kxkjkr tek djkoh-
4½ dk;kZy;hu [kpkZlkBhph jDde :- 37]35]986@& gh vkdkj.;kr ;sr vkgs-
5½ izLrkfor 'ksr tfeuhr ljdkjh tfeuhapk lekos'k vkgs- fBdk.k % dUuM l{ke izkf/kdkjh ¼Hkqlaiknu½ jk-e- dz- 211 fnuakd % 04@07@2017 rFkk mifoHkkxh; vf/kdkjh] dUuM ::: Uploaded on - 13/11/2019 ::: Downloaded on - 23/04/2020 09:21:07 ::: 14 wp 1883.18+ The Deputy Manager of the National Highway Authority of India communicated to the Project Director (respondent no. 4) under letter dated 27.07.2017 and granted approval for payment of compensation to the land owners based on the award declared. It appears that, thereafter, second award came to be passed on or about 01.08.2017, reducing the compensation amount for the same lands for which the earlier award was passed. The second award does not make reference to the first award passed. The second award was passed on the premise as if no award was earlier passed. The same is against the record. The record shows that the final award was passed, though in one of the affidavit respondent no. 3 refers to the award dated 04/05.07.2017 as the preliminary award, still in the additional affidavit filed by respondent no. 3 in paragraph no. 5 he avers that reasons were given for revision of award giving details how the rates and valuation changed. If first award is only a preliminary award then there is no necessity to pass the fresh award. The first ::: Uploaded on - 13/11/2019 ::: Downloaded on - 23/04/2020 09:21:07 ::: 15 wp 1883.18+ award dated 04.07.2017 clearly suggest that it is a final award.
16. The acquisition is under the National Highways Act, 1956. The award is purportedly passed U/Sec. 3(G) of the National Highways Act, 1956. The provisions to the extent of determination of compensation embodied under the Act-2013 are only made applicable to the awards passed under the National Highways Act, 1956 since 01.01.2015. The Notification does not specifically say that the provisions of Section 33 of the Act- 2013 shall also be made applicable to the awards passed under the National Highways Act, 1956.
17. We cannot import the provisions of the Act- 2013 to the acquisitions under the National Highways Act, 1956 unless they are specifically made applicable. No notification is placed on record to suggest that Section 33 of the Act-2013 is made applicable to the acquisitions under the National Highways Act, 1956.
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18. The reliance placed on the judgment in case of Umesh Board Paper Mills Pvt. Ltd. Vs. The Union of India and others (supra) would not be of any assistance to the respondent. In the said case, we had observed that the National Highways Act, 1956 does not contain any provision which permits correction of the award. Section 33 of the Act- 2013 permits correction of the award and only clerical and arithmatic correction in the award are permissible. In the said judgment to which one of us (S. V. Gangapurwala, J.) was a party has never held that Section 33 of the Act-2013 is applicable for the acquisitions under the National Highways Act, 1956. The same was only referred to.
19. Much emphasis was laid by the learned Assistant Solicitor General that the public amount is involved and if this Court entertains the petitions it will amount to loss of public money.
20. It is trite that if any statute requires a particular thing to be done in a particular manner it has to be done in that manner only otherwise ::: Uploaded on - 13/11/2019 ::: Downloaded on - 23/04/2020 09:21:07 ::: 17 wp 1883.18+ not to be done at all. Respondent no. 3, while preparing the second award has not only corrected the first award but has passed a different award altogether. It was also not a case of clerical or arithmatical corrections but the market value has been reduced by respondent no. 3 while passing the second award. Respondent no. 3 assumed the authority not vested with him.
21. One thing that needs to be considered is that the award passed by respondent no. 3 can be challenged before the Arbitrator by any party, even by the acquiring body. But under the Act-2013 that right is not given to the acquiring body or the State. That is the marked difference in both the statutes. In view of that, if there is some mistake committed in the award, the acquiring body or any such person has a right to challenge the said award and probably for the said reasons the provision for correction of award is not incorporated under the National Highways Act, 1956.
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22. The second award passed by the authority was without any statutory base, the same cannot be sustained.
23. In normal course, we would certainly not have entertained the petitions and would have relegated the petitioners to the remedy availabe under the provisions of the National Highways Act, 1956. However, in the present matter, after the final award was passed respondent no. 3 ventured to pass the second award in respect of the same lands and reduced the valuation of the lands and that too after respondent no. 4 had accepted the final award and also deposited the amount of compensation. No material is placed on record to suggest as to what prevailed upon respondent no. 3 to reduce the valuation and pass second award after the final award was passed. The act of respondent no. 3 in passing the second award without the first award being rescinded is arbitrary, illegal and does not stand to reason. ::: Uploaded on - 13/11/2019 ::: Downloaded on - 23/04/2020 09:21:07 :::
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24. In view of the above, the second award stands quashed and set aside.
25. Rule is made absolute in terms of prayer clasue "A".
26. Writ Petitions stand disposed of accordingly. No costs.
[ANIL S. KILOR, J.] [S. V. GANGAPURWALA, J.] marathe ::: Uploaded on - 13/11/2019 ::: Downloaded on - 23/04/2020 09:21:07 :::