High Court
Legal Reasoning
W.P. No.13072/2018- 6 -2013, 1/1/2014 as has been clarified by the Government ofIndia in its notification/ Demi Official letter dated26/10/2015. In such a situation, in our opinion, relegatingthe Petitioners to take recourse to remedy under Section 64of the Act of 2013 will not be appropriate. Accordingly,remedy under Article 226 of the Constitution of India beingdiscretionary in nature, we proceed to decide the matter onmerits.10.We have entertained this Writ Petition also keepingin view a Division Bench judgment of this Court in a batch ofWrit Petitions, leading Petition being Writ PetitionNo.6598/2023 (Namdeo Apparao Chate & Others Vs. TheState of Maharashtra & Others etc. etc.), wherein exactly thesame issue was involved and the objection of the Writ Petitionnot being maintainable on account of availability of remedyunder the Act of 2013 was repelled by the Court.11.Coming to the merits of the matter, what we find isthat it is not in dispute that the award in the instant casecould not be declared before the Act of 2013 came into beingi.e. before 1/1/2014, though the Notification under Section4(1) and 6(1) of the Act of 1894 were issued on 4/7/2007 W.P. No.13072/2018- 7 -and 6/5/2010 respectively. Section 24(1)(a) of the Act of2013 clearly mandates that, where no award under Section11 of the Act of 1894 has been made, the provisions of theAct of 2013 relating to determination of compensation shallapply. Accordingly, there is no doubt in our mind that sincein the instant case, the award could not be made prior tocommencement of the Act of 2013, hence, for the purpose ofamount of compensation to be calculated, the provisions ofthe new Act will be applicable. Section 26 of the Act of 2013provides the procedure for determination of market value ofthe land acquired. The market value is one of the criteria tobe considered by the Collector while assessing anddetermining the compensation.12.The question is, thus, as to what should be thereference date for the purpose of determining the marketvalue of the land in terms of Section 26 of the Act of 2013.13.On account of some ambiguity, the StateGovernment sought a clarification in this regard, which wasduly replied with by the Central Government by Demi Officialletter dated 26/10/2015. The relevant query and theclarification given finds mentioned at Sr.No.3 of the letter W.P. No.13072/2018- 8 -dated 26/10/2015, which is extracted hereinbelow :Issue raised bythe Governmentof MaharashtraOpinion of the DoLRFor calculation of market value, under Section 24(1)(a), reference date should be 01/01/2014 (commencement of RFCTLARR Act, 2013) or date of issuing preliminarynotification under Land Acquisition Act, 1894 ?The reference date for calculation of market value, under Section 24(1)(a) should be 01/01/2014 (commencement of RFCTLARR Act, 2013), as the Section reads “in any case of land acquisition proceedings initiated under the Land Acquisition Act, 1894, where no award under Section 11 of the said Land Acquisition Act has been made, then, all provisions of this Act relating to the determination of compensation shall apply. Under Section 26 reference date is date of preliminary notification, but Section 24 is a special case of application of the Act in retrospective cases, and a later date of determination of market value is suggested (i.e. 01/01/2014) with a view to ensure that the land owners/ farmers/ affected families get enhanced compensation under the provisions of the RFCTLARR Act, 2013 (as also recommended by Standing Committee in its 31st report)14.It is also not in dispute in this case that whilepassing the award dated 26/3/2016, the reference date forthe purpose of calculation of compensation in terms ofSection 26 of the Act of 2013 has been taken to be the dateon which the Notification under Section 4(1) was issued,namely 2/7/2009 and not 1/1/2014 which is the date ofcommencement of the Act of 2013. Such a course adoptedby the authority which made the award dated 22/3/2016, in W.P. No.13072/2018- 9 -our opinion, cannot be sustained in law. Our view in thisregard is supported by Division Bench judgment of this Courtin Namdeo Apparao Chate & Others (supra). Similar view hasbeen taken by a Division Bench of Hon’ble Allahabad HighCourt in its judgment dated 7/4/2022, passed in Writ PetitionNo.30088/2022 (Smt. Sabita Sharma And 2 Others Vs. Stateof U.P. And 2 Others).15.In view of the aforesaid, the Writ Petition is partlyallowed. The award dated 22/3/2016, so far as it relates tothe Petitioners, is hereby quashed. The CompetentAuthority/ Special Land Acquisition Officer is directed toreconsider the matter and declare the award afresh, andwhile doing so, he shall calculate the amount of compensationto be paid to the Petitioners by treating the reference date forcalculation of market value as 1/1/2014. The compensationin terms of the fresh award to be made as per observationsmade in this order shall be paid to the Petitioners forthwith. 16.The Competent Authority/ Special Land AcquisitionOfficer is directed to pass the award afresh having regard tothe observations made above within a period of three monthsfrom the date the certified copy of this order is made
Arguments
W.P. No.13072/2018- 1 -IN THE HIGH COURT OF JUDICATURE OF BOMBAYBENCH AT AURANGABADWRIT PETITION NO.13072 OF 2018Bhagwat Tukaram Shelke & Others,Died through L.Rs.Dhondubai w/o Bhagwat Shelke & Others… PetitionersVERSUSThe State of Maharashtra & Others… Respondents.......Mr. S.V. Natu, Advocate for PetitionersMr. M.M. Nerlikar, A.G.P. for respondent – StateMr. S.G. Sangle, Advocate for respondent No.4 Mr. A.B. Dhongade, Advocate for respondent No.5....…CORAM: DEVENDRA KUMAR UPADHYAYA, CJ. & KISHORE C. SANT, J.DATE: 26th JULY, 2024.P.C. :1. Heard learned counsel for the Petitioners andlearned counsel representing the respondent No.4.2. At the outset, learned counsel for the Petitioners,without there being any ambiguity in his mind has confinedhis prayer for issuing a direction to the authorities concerned W.P. No.13072/2018- 2 -for calculation of payment of the amount of compensation foracquisition of land belonging to the Petitioners, in terms ofthe provisions contained in the Right to Fair Compensationand Transparency in Land Acquisition, Rehabilitation andResettlement Act, 2013 (hereinafter referred to as the Act of2013).3.Certain lands belonging to the petitioners came tobe acquired. A notification under Section 4(1) of the LandAcquisition Act, 1894 was issued on 2/7/2009 in respect ofcertain lands owned by the Petitioners. The Petitioner No.1was owner in possession of land comprised in Gat Nos.15 and17, situated at village Choundi, Taluka Udgir, District Latur.The Petitioner No.2 was the owner in possession of landcomprised in Gat No.18, situated in the same village andPetitioner No.3 was the owner in possession of land GatNo.11, situated at the same village.4.The notification under Section 6(1) of the Act of1894 was issued on 6/5/2010, however, it is contended bythe petitioners that as per requirement and mandate ofSection 11-A of the Act of 1894, the award in respect of the W.P. No.13072/2018- 3 -said acquisition could not be made within the time prescribedtherein and ultimately, the award was made on 22/3/2016.The submission of the learned counsel for the Petitioners isthat, after enforcement of the Act of 2013 w.e.f. 1/1/2014,the acquisitions made under the old Act can be saved underSection 24 of the Act of 2013 where no award under Section11 of the old Act was made, only by applying the provisionsof the Act of 2013 so far as determination of compensation isconcerned. It is his submission that though award in respectof the lands in question was made on 22/3/2016, however,while determining the compensation as per the market valueof land under Section 26, the reference date taken by theSpecial Land Acquisition Officer is the date of publication ofnotification under Section 4(1) of the Act of 1894 i.e.2/7/2009 and not 1/1/2014 which is the date of enforcementof the Act of 2013.5.Our attention has been drawn by learned counselfor the Petitioners to a D.O. letter dated 26/10/2015, issuedby the Government of India, whereby certain clarificationswere made by the Government of India on query made bythe State of Maharashtra. One such query made was, “For W.P. No.13072/2018- 4 -calculation of market value, under Section 24(1)(a),reference date should be 1/1/2014 i.e. (commencement ofthe Act of 2013) or the date of issuing preliminary notificationunder Land Acquisition Act, 1894?”. Answering the saidquery, the Government of India, in the Department of LandResources, Ministry of Rural Development, vide Notification/Demi Official letter dated 26/10/2015, clearly stated that,“The reference date for calculation of market value, underSection 24(1)(a) should be 1/1/2014.” It is, thus, thesubmission of learned counsel for the Petitioners that, whilecalculating the compensation, in the instant case, the date ofreference has been taken to be 2/7/2009 i.e. the date whenSection 24(1)(a) of the Act of 1894 was issued and not1/1/2014, which is the date of commencement of the Act of2013 and such calculation of quantum of compensation ismanifestly illegal being completely arbitrary. 6.On the other hand, the learned A.G.P. representingthe Respondent State as also learned counsel representingthe respondent No.4 have stated that all these aspects can belooked into in a reference to be made by the petitionersunder Section 64 of the Act of 2013 before the Land W.P. No.13072/2018- 5 -Acquisition, Rehabilitation and Resettlement Authority createdunder Section 54.7.It has thus been argued that the instant Petitionmay not be entertained on account of availability of alternateremedy under the Act of 2013.8.We have considered the rival submissions made bylearned counsel for the parties and have also perused therecord available before us on this Writ Petition.9.It is not denied by the respondents that whilemaking the award on 22/3/2016, the Special Land AcquisitionOfficer has taken into account the reference date forcalculation of the compensation as the date of Notificationunder Section 4(1) of the Act of 1894 and not 1/1/2014,which is the date of commencement of the Act of 2013. Theillegality in calculating the quantum of compensation is thuspalpably apparent. As a matter of fact, there is no ambiguitythat where land acquisition proceedings were initiated underthe Act of 1894, however, the award could not be madebefore commencement of the Act of 2013, the compensationis to be awarded in terms of the provisions of the Act of
Decision
W.P. No.13072/2018- 10 -available to him.17.We further direct that the compensation whichmay be awarded, shall also be paid to the petitioners withinnext three months from the date of the fresh award.18.The Writ Petition is thus disposed of in aboveterms. There will be no order as to costs. (KISHORE C. SANT, J.) (CHIEF JUSTICE)fmp/-