Writ Petition No.1583 of 2014

19th January, 2015.

Petitioner Counsel: Mr. KEVIC SETALVAD, Sr. Adv. with Mr. R.A. MALANDKAR and Ms. SHOBHA AJITKUMAR
Respondent Counsel: Mr. S.U. KAMDAR, Sr. with Ms. MANISHA GAWDE, Ms. GEETA SHASTRI

Cases Cited:
U.P. Awas Evam Vikas Parishad Vs. Gyan Devi (dead) by L.Rs and Anr., AIR 1995 SC 724 [Para 7]

JUDGMENT

JUDGMENT :- By this Petition, the Petitioner-Corporation seeks a declaration that the award passed by the Special Land Acquisition Officer dated 28.09.1994 is void, ab-initio and is vitiated by fraud. The Petitioner also seeks a direction restraining the Respondents from implementing and executing the award dated 28.09.1994.

2. Few facts giving rise to the Petition are stated thus :

The Respondent No.4, the State of Maharashtra, had issued a notification under Sections 126 (2) and 126 (4) of the Maharashtra Regional and Town Planning Act, 1966 (hereinafter referred to as "the Act of 1966" for the sake of brevity) expressing the intention to acquire the land in question. The Respondent-The Tenant Welfare Association challenged the acquisition proceedings by filing Writ Petition No.649 of 1993. The High Court dismissed the writ petition. An award was passed by the Special Land Acquisition Officer on 28.09.1994. The Petitioner-Corporation filed an application under Section 48 of the Land Acquisition Act, 1894 (hereinafter referred to as "the Act of 1894") seeking permission for withdrawal from the acquisition. According to the Corporation, the land was encumbered with structures and the compensation determined by the Special Land Acquisition Officer was on the higher side. The State Government, however, refused to accede to the request of the Petitioner-Corporation and rejected the application. In the meanwhile, Writ Petition No.2676 of 1994 was filed by the Respondent Nos.1 and 2 seeking a direction to the State Government and the Corporation for payment of the compensation. Initially, this Court had prima facie observed by the order dated 28.10.2005 in Writ Petition No.2676/1994 that the compensation appeared to be on the higher side and the Petition be registered as a Public Interest Litigation to consider whether the Special Land Acquisition officer had played a fraud upon the public exchequer. The Petition then came up for hearing before this Court on 21.12.2010 and after hearing the parties, this Court directed the Corporation to make payment of the amount to which the Petitioner in Writ Petition No.2676/1994 was entitled under the award dated 28.09.1994 within a period of three months. The Corporation did not pay the compensation and challenged the judgment dated 21.12.2010 in Writ Petition No.2676/1994 before the Hon'ble Supreme Court. The Hon'ble Supreme Court was not inclined to interfere with the order passed by High Court by which the implementation of the award was directed in favour of the owners. However, while dismissing the Special Leave Petition, the Hon'ble Supreme Court observed that the Petitioner-Corporation could avail any other remedy as may be open to it under law against the award. After the Hon'ble Supreme Court dismissed the Special Leave Petition on 19.07.2013, the Petitioner-Corporation has filed the instant Writ Petition in May 2014 challenging the award dated 28.09.1994.

3. It is submitted on behalf of the Petitioner-Corporation by the learned senior counsel that the acquisition proceedings have lapsed in view of the provisions of Section 24(2) of the The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (hereinafter referred to as "the Act of 2013 for the sake of brevity). It is submitted that till date, the compensation is not paid to the owners and, therefore, the provisions of Section 24 (2) of the Act of 2013 would come into play. It is then submitted that a prima facie observation was made by this Court in the order dated 28.10.2005 in Writ Petition No.26576/1994 that there may have been an attempt on the part of the Special Land Acquisition Officer to play fraud on the public exchequer and hence the Petition should be treated a public interest litigation. It is stated that despite the order dated 28.10.2005, the writ petition was not registered as a Public Interest Litigation and the same was finally decided by the judgment dated 21.12.2010. It is stated that the issue in regard to the quantification of the compensation was not considered by this Court in the judgment dated 21.12.2010 and it was observed by this Court in the said judgment that there was no challenge by the Corporation to the award dated 28.09.1994. It is stated that in the facts of the case, specially when the land was encumbered, the Special Land Acquisition Officer could not have determined the compensation at Rs.14 crores, specially when the valuation report showed that the market value of the land was much less. It is stated that in the facts of the case, the award dated 28.09.1994 is liable to be set aside.

4. Shri Kamdar, the learned senior counsel appearing on behalf of the Respondent Nos. 1 and 2, submitted that instead of obeying the judgment and order dated 21.12.2010 in Writ Petition No.2676/1994, that has attained finality, the Petitioner-Corporation has filed this writ petition in the year 2014 seeking a declaration that the award passed in the year 1994 is null and void and is not binding on the Petitioner-Corporation. It is stated that the provisions of Section 24 of the Act of 2013 cannot be applied to the case in hand as, admittedly the Land Acquisition proceedings were initiated in this case under the Act of 1966 and not under the Act of 1894. According to the learned senior counsel, in view of the judgment dated 21.12.2010 in Writ Petition No.2676/1994 which has attained finality, it is necessary for the Corporation to pay the compensation to the Respondents and the other eligible persons. It is stated that the Corporation has committed a contempt of this Court by willfully disobeying the order dated 21.12.2010 in Writ Petition No.2676/1994. It is stated that the question in regard to the alleged fraud played by the Special Land Acquisition Officer while passing the award has been considered by this Court in the order dated 21.12.2010 in Writ Petition No.2676/1994 and the said order has attained finality. The learned senior counsel sought for the dismissal of the writ petition.

5. On hearing the learned counsel for the parties, it appears that the writ petition challenging the award dated 28.09.1994 is liable to be dismissed. Admittedly, the Petitioner-Corporation had never challenged the award before any Court or Authority on the ground of quantum. Though an application was made by the Corporation to the State Government seeking permission for withdrawal from the acquisition proceedings as according to the Corporation, the land was encumbered and the Corporation was not in a position to pay the compensation to the owners, the application was rejected by the State Government and the award dated 28.09.1994 attained finality.

6. In the meanwhile, the Respondent Nos. 1 and 2 had filed Writ Petition No.2676/1994. Initially, this Court was of the prima facie view that there may be some fraud played by the Special Land Acquisition Officer upon the public exchequer, but after hearing the learned counsel for the parties at length, the writ petition was allowed by the order dated 12.12.2010. This Court clearly noted in the said order that the validity of the award was not challenged by the occupants or by the Corporation and neither the State Government nor the Corporation had pointed out anything which could even indicate that there was any collusion or fraud involved in the making of the award. This Court, after holding so, directed the Corporation to pay the amount of compensation to the Respondent Nos. 1 and 2 within a period of three months. The amount of compensation has not been paid to the Respondent Nos. 1 and 2 till date. Much stress has been laid on the observations of the Hon'ble Supreme Court that the Petitioner-Corporation could avail any other remedy as may be open under the law against the award. By taking advantage of the said order, the Petitioner-Corporation could not have filed the present petition challenging the award dated 28.09.1994 after a lapse of more than 20 years. Indeed, an attempt was made by the Petitioner for seeking withdrawal from the acquisition proceedings after the award was passed, but the permission was rejected by the State Government and the said order has attained finality long back.

7. It is a well settled principle of law that the discretionary relief cannot be granted to a party who takes advantage of its own wrong. The Corporation is a public body and the same has failed to obey the solemn order of this Court dated 21.12.2010 in Writ Petition No.2676/1994. Every attempt is made by the Corporation to evade and bypass the order of the Division Bench of this Court dated 21.12.2010. A lame attempt has been made on behalf of the Petitioner-Corporation to take recourse to the provisions of Section 24(2) of the Act of 2013 to canvass that the land acquisition proceedings stand lapsed as the compensation has not been paid to the claimants. The issue whether the provisions of Section 24(2) of the Act of 2013 would apply to the present land acquisition proceedings or not is debatable. We would however not consider the said issue in this petition as we do not wish to permit the petitioner Corporation to take advantage of its own wrong. The judgment reported in AIR 1995 SC 724 (U.P. Awas Evam Vikas Parishad vs. Gyan Devi (dead) by L.Rs and anr.) also cannot come to the rescue of the petitioner in the facts of this case. The said judgment would not be applicable in the circumstances of the case. There is a solemn order of the Division Bench of this Court dated 21.12.2010 in Writ Petition No.2676/1994 that has attained finality. A party cannot be permitted to flout or disobey the solemn order of the Hon'ble High Court in regard to the payment of compensation within a stipulated time and then take recourse to the provisions of Section 24(2) of the Act of 2013. This would be permitting a party to take advantage of its own wrong.

8. We also do not find any merit in the submission made on behalf of the Petitioner that there is a fraud played by the Special Land Acquisition Officer while passing the award and hence the award is liable to be set aside. This aspect has been duly considered and dealt with, by this Court in the order dated 21.12.2010 in Writ Petition No.2676/1994 and this Court has, after recording the submissions made on behalf of the parties, observed that the Corporation has not pointed out any material which would even indicate that there is any collusion or fraud involved in the making of the award. With the order attaining finality, it would not be for any Court to now consider whether the award has been passed by the Special Land Acquisition Officer by playing fraud on the public exchequer. At least this aspect cannot be looked into in a writ petition filed under Article 226 of the Constitution, 20 years after the passing of the award and after this Court has recorded a finding in the order in Writ Petition No.2676 of 1994 that there was nothing to indicate fraud. There is an unexplained delay in filing the writ petition. The cause of action, if any, to challenge the award would not arise in the year 2013, only because the Hon'ble Supreme Court has expressed that the Petitioner-Corporation could take up appropriate proceedings as permissible in law.

9. In view of the aforesaid, the writ petition is dismissed with no order as to costs.

Petition dismissed.