Bombay High Court
Byramjee Jeejeebhoy Pvt. Ltd. And ... vs The State Of Maharashtra And 2 Others on 30 September, 2023
Author: G. S. Kulkarni
Bench: G. S. Kulkarni
Tauseef 23-WP.2468.2017-modified.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.2468 OF 2017
Byramjee Jeejeebhoy Pvt. Ltd. & Anr. ...Petitioners
Versus
The State of Maharashtra & Ors. ...Respondents
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Mr. Vineet Naik, Senior Advocate a/w. Mr. Darshik K. Jain i/by Ms. Divya Jain for the Petitioners.
Mr. Abhay L. Patki, Addl. G. P. for Respondent Nos.1 and 2 (State). Mr. Joaquim Reis, Senior Advocate a/w. Ms. Shilpa Redkar i/by Mr. Sunil Sonawane for Respondent No.3 (MCGM).
Mr. Shrey Fatterpekar a/w. Mr. Ameet Mehta, Mr. Nirav Marjadi, Mr. Vinay Shingada, Ms. Nikita Deora i/by M/s. Solicis Lex for Respondent No.4.
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CORAM : G. S. KULKARNI,
JITENDRA JAIN, J.J.
DATE : 30th AUGUST, 2023.
P.C.
1. In our opinion, this case is a peculiar case wherein the Petitioners' land was acquired by following due procedure under the Land Acquisition Act, 1894, for a public purpose for construction of a "Rail Over Bridge" (ROB), by a legitimate land acquisition procedure being followed, namely, by issuance of notifications under Sections 4 and 6 of the Land Acquisition Act 1894 (for short "L.A. Act"), culminating into an award dated 15th January 2009. The land acquisition award determined compensation of Rs.72,77,905/- to be paid to the petitioners which has till date not been paid to the Petitioners is the primary 1 of 9 Tauseef 23-WP.2468.2017-modified.doc grievance of the petitioners.
2. It is not in dispute that the land belonging to the Petitioners CTS No.192 part admeasuring 747 sq. mtrs. situated at Bandivali, Jogeshwari was subject matter of acquisition. This is clear even from the notifications as also the award. It prima facie appears that on totally untenable reasons and completely contrary to the Land Acquisition Act, such amount of compensation as payable to the Petitioners was in fact returned by the Special Land Acquisition Officer to the acquiring body which is Respondent No.3-Municipal Corporation for Greater Mumbai (for short "MCGM"). Such return of the compensation amount to the MCGM appears to be on the basis that prior to the declaration of the award, the Petitioners had taken a position, that they be permitted to opt for Transferable Development Right (TDR) in lieu of monetary compensation. However such plea was subsequently given up as discussed hereafter.
3. In our opinion, what is most vital in the context of the petitioners grievance on non-payment of the award compensation, is the immediate communication of the Petitioners to the Special Land Acquisition Officer, after award was published, being the Petitioners' letter dated 18 th April 2009, which was to the effect that the amount of Rs.72,77,905/- be paid to the Petitioners in cash and for which an advance receipt was also forwarded. We note the said communication which reads thus:-
"On 29th January 2009, we have received from you your Notice u/s. 12(2) dated 15th January 2009.
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As per page 89, Item 10 of your Award dated 15 th January 2009 we are shown as the only claimants to whom you have declared the amount of Rs.72,77,905/- as payable.
We are enclosing true copy of the Conveyance dated 24 th July 1951, executed in our favour by Mr. Nanabhoy Byramjee Jeejeebhoy. The said Conveyance has been registered under Serial No.4208 of 1951.
We are enclosing advance receipt for the payment of the said compensation of Rs.72,77,905/-. The payment is accepted by us without prejudice and under protest to make a claim for reference u/s. 18 for enhancement of compensation. As per the provisions of Section 34, we are entitled to interest upto the date of payment.
From the Award we find that you have calculated interest only upto 15 th January 2009. We reserve our right to claim interest from 15 th January 2009 till the date of payment.
We authorize per bearer Shri V. G. Pednekar to collect the payment covered by the Advance receipt."
(emphasis supplied)
4. Further, it is quite significant that being aggrieved by the quantum of the compensation of Rs.72,77,905/-, the Petitioners also invoked the provisions of Section 18 of the LA Act praying that they are entitled to an enhanced compensation, which was Petitioners' application dated 6th April 2009. The entitlement of the petitioners to make such application undoubtedly was their statutory right, as conferred by law, having suffered their land being acquired for a public purpose for a Rail Over Bridge. Surprisingly the Special Land Acquisition Officer has failed to make a reference till date.
5. Prima facie what appears to be quite astonishing is that the Special Land Acquisition Officer, forgetting the clear communication of the Petitioners dated 6th April 2009 (supra) demanding payment of monetary compensation 3 of 9 Tauseef 23-WP.2468.2017-modified.doc which was the petitioners response to the award notice issued under Section 12(2), appears to have taken a position that the Petitioners were only interested in availing the TDR. On such erroneous belief the Special Land Acquisition Officer by his letter dated 17th March 2015, addressed to the acquiring body, namely the MCGM, returned the amount of compensation as payable to the Petitioners. Mr. Patki the learned Assistant Government Pleader is unable to support such action of the Special Land Acquisition Officer, considering the scheme of the LA Act, more particularly Section 31 thereof. Be that as it may, the factual position is that the compensation amount which was deposited by the acquiring body-MCGM, with the Special Land Acquisition Officer, as on day stands returned and lies in hands of the acquiring body - MCGM.
6. It is quite clear that the award has quantified the amount of compensation to be paid to the Petitioners. Undoubtedly the Petitioners land being acquired their valuable rights of ownership of the land have stood extinguished and/or are taken away in passing of the award and the possession of the land having being taken over, this under the Scheme of the legislation would take place only on payment of compensation as mandated by law i.e. as per the provisions of the Land Acquisition Act, 1894, under which the present land acquisition proceedings have taken place.
7. There can be no two opinions that the mandate of law is that once the Petitioners land stood acquired, the Petitioners had become entitled to 4 of 9 Tauseef 23-WP.2468.2017-modified.doc the land acquisition compensation as declared by the 'Award' made by the Special Land Acquisition Officer, which has been quantified at an amount of Rs.72,77,905/-. Prima facie, neither the Special Land Acquisition Officer nor the acquiring body can insist, that too in the teeth of the position taken by the Petitioners by their letter dated 18th February 2009 (supra), that the petitioners be foisted/compelled, not to take the monetary compensation and /or avail only the TDR.
8. It appears that under no warrant in law the Petitioners can be dragged by the MCGM, and the Special Land Acquisition Officer yielding to such stand of the MCGM, that the petitioners be granted TDR in lieu of the monetary compensation under the award in question. Considering the provisions of the LA Act, it cannot be accepted that the acquiring body can have any choice to dictate to the Special Land Acquisition Officer, as to in what manner the person whose land has been acquired can be compensated.
9. It appears that the petitioners had taken an informed decision not to accept the land acquisition compensation in the form of TDR, for the reason that in respect of the land of the Petitioners there appeared to be a dispute on TDR with a private party namely Respondent No.4 to whom some part of the Petitioners' larger land, decades before the land acquisition, was sold by the Petitioners.
10. In our, prima facie, opinion even assuming that a person whose land has been acquired is to be compensated by grant of a TDR or FSI, of an amount 5 of 9 Tauseef 23-WP.2468.2017-modified.doc equivalent to the amount as awarded under the land acquisition award. A fortiori, it would be wholly irrelevant and misconceived to connect the compensation as awarded to the land to ascertain whether the land as acquired generates a TDR/FSI equivalent to the compensation as awarded. Any grant of TDR/ FSI in lieu of the monetary compensation determined under the award, would be award of TDR/FSI of the value of such compensation under the award, and not by exploring ascertainment of the TDR from the land as acquired.
11. Thus, in the present case even assuming that the compensation to be paid to the Petitioners was to be in the form of TDR (although it is not), the TDR can only be in respect of an amount equivalent to the compensation, which was determined at Rs.72,77,905/- and not dependent on whether the land which has already stood acquired had the potential to generate any TDR. This, in view of the fact, that when the award determines the compensation of Rs.72,77,905/- to be paid to the Petitioners, in a manner known to the Land Acquisition Act, which involved the Special Land Acquisition Officer, taking into consideration, all relevant factors for determination of the compensation, there cannot be a reopening / reconsideration of these factors which are integral to the compensation as awarded, till such time the award subsists as legal and valid. It is nobody's case that the award was assailed in any proceedings to the extent it awarded such compensation to the petitioners. Thus, the basic entitlement of the Petitioners to an amount of Rs.72,77,905/- could not have 6 of 9 Tauseef 23-WP.2468.2017-modified.doc been disregarded. It could be payable either in cash or in terms of equivalent TDR as on the date of the award. However the petitioners by their letter dated 18th April 2009 (supra) opted for payment of monetary compensation only.
12. Thus, the stand as taken by Mr. Reis, learned Senior Counsel for the MCGM that there is a dispute as to whether the Petitioners land, which has stood acquired, as also the possession of which was handed over way back on 28 December 2007 to the MCGM, would generate TDR equivalent to the monetary compensation is ex-facie untenable. Such contention if accepted would amount to the MCGM assailing the Land Acquisition Award, which has not been accepted by the MCGM and not assailed.
13. In the aforesaid circumstances, the position which emerges is that the petitioners have not been paid compensation as awarded by the Special Land Acquisition Officer and as categorically demanded by them, being their legitimate entitlement. Thus, what would stare at the Special Land Acquisition Officer as also at the acquiring body, is that the Petitioners ought to have been paid the compensation which has not been paid for so many years. Prima facie by virtue of the non-payment of the compensation, there is a clear violation of the Petitioners right guaranteed under Article 300A of the Constitution. It cannot be a situation that once the rule of law as envisaged by the Constitution, recognizes such rights to property, there cannot be an expropriation of the Petitioners' property, without payment of compensation.
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14. In the above circumstances, we are of the clear opinion that the amount of Rs.72,77,905/- along with interest as per the proviso to Section 34 which is a provision for payment of interest, is required to be deposited by the Respondent No. 1 to 3, in this Court and which shall be subject to further appropriate orders to be passed on the present proceedings.
15. As the amount was returned by the Special Land Acquisition Officer to the MCGM, the MCGM shall deposit the principal amount of the award of Rs.72,77,905/- along with interest @ 15% as per the provisions of Section 34 from the day the MCGM received the amounts from the Special Land Acquisition Officer. Such amounts be deposited in this Court within a period of two weeks from today.
16. Insofar as the interest prior to the compensation amount being returned by the Special Land Acquisition Officer is concerned, Respondent Nos.1 and 2, shall deposit the interest @ 15% from the date of the award till such date the same was returned to the MCGM. We, accordingly, direct Respondent Nos.1 and 2 to deposit the interest amount as per Section 34 in this Court within two weeks from today.
17. Ordered accordingly.
18. Stand over to 13th September 2023, High on Board.
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19. Needless to observe that the direction to the State Government to deposit the interest would be subject to the entitlement of the State Government to recover the interest from the acquiring body.
[JITENDRA JAIN, J.] [G. S. KULKARNI, J.] (The order is modified as per order dated 13 th September, 2023. The corrections are made in paragraph nos.2 and 5 of the order are shown in italics). Signed by: Tauseef Farooqui Designation: PA To Honourable Judge Date: 14/09/2023 11:09:42 9 of 9