Pimpri Chinchwad Municipal Corporation Throug Its Commissioner and Ors. v. Laxman Gopal Gosavi and Ors.

Bombay HC2 May 2014CAW/67/2014

Case brief

AI extract

What is this about?

This interim order allows the Municipal Corporation to take possession of land after depositing compensation calculated under the 2013 Land Acquisition Act (100% solatium + market value), as the 1894 Act had no award made prior to its repeal.

What did the court decide?

Direction to deposit compensation as per 2013 Act (100% solatium + market value) to take possession.

Pimpri Chinchwad Municipal Corporation Throug… — Public Procurement and Tenders | Bombay HC (2014)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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CIVIL APPLICATION NO.67 OF 2014 IN WRIT PETITION NO.9195 OF 2009

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Pimpri Chinchwad Municipal Corporation and anr.

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...Applicant

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v/s.

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Laxman Gopal Gosavi and ors. ...Respondents

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Mr.A.A.Kumbhakoni, Sr.Advocate with Mr.G.H.Keluskar for the applicant. Mr.Madhav Jamdar for original petitioner. Mr.Vinod Jadhav i/b Mr.V.D.Patil for respondent No.7.

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CORAM: MOHIT S. SHAH, C.J. & M.S.SANKLECHA, J. DATE : 2 MAY 2014

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P.C.:

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By this application, the applicants seek to vacate the ad-interim/interim order passed by this Court on 5 October 2010. This Court by order dated 5 October 2010 has directed the applicants not to take any further steps for acquisition of S.No.28 and 29, Mauje Pimple-Nilakh, Taluka Haveli, District Pune and not to take possession of the said land and houses thereon.

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In our order dated 25 April 2014 we had indicated that order dated 5 October 2010 was passed in view of the impression created that there were possible alternatives for connecting village Pimple-Nilakh with Bombay Pune Road, as indicated in Exh.A (page 54).

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The land in question covers the distance of only about 350 meters out of a road with a total length of 8 kilometers. The applicant has already constructed the road on both sides of this patch of 350 meters. This construction of 8 kilometers road is World Bank Project of Rs.250.86 crores and is required to be completed at the earliest. It is submitted that investment made so far cannot be utilized only on account of this small patch of land occupied by structures put up by the petitioners before the Development Plan was prepared.

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Mr.Kumbhakoni, learned senior counsel for the applicant-Municipal Corporation states, under instructions, that the Municipal Corporation is prepared to offer the following package to the land owners in order to get immediate possession of the land in question so that the entire road can be constructed:-

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(i) The Municipal Corporation will pay compensation at the rate indicated in the ready-reckoner for Pimpri Chinchwad Municipal Corporation area for the land being acquired;

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(ii) For the structures on the said land, the Municipal Corporation will offer compensation at per the ready-reckoner price, without prejudice to the contention of the Municipal Corporation that structures are not authorized;

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(iii) The Municipal Corporation will pay Solatium at the rate of 30% on the above price in accordance with the provisions of Section 30 of the Land Acquisition Act, 1894;

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Mr.Jamdar, learned counsel for the respondents herein i.e. original petitioners, on the other hand, submits that with the enactment of “The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013” (hereinafter referred to as “new Act”) , which has come into force from 1 January 2014, the Land Acquisition Act, 1894 has been repealed and provisions of the new Act have to be applied. Learned counsel, therefore, submits that compensation ought to be paid to the petitioner on the basis of provisions of the new Act.

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Learned counsel for the petitioners further states that the constructions on the land in question are authorized and that the very fact that structures have been standing on the land for more than 30 years and no action was taken by the Municipal Corporation so far treating the same as unauthorized is itself indicative of the fact that structures were authorized. Structures were constructed before 1982 when the area was included within the municipal limits of the Pimpri Chinchwad Municipal Corporation.

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We find that sub-section (1) of Section 114 of the new Act repeals the Land Acquisition Act, 1894. While sub-section (2) provides save as otherwise provided in this Act the repeal under sub-section (1) shall not be held to prejudice or affect the general application of section 6 of the General Clauses Act, 1897 with regard to the effect of repeals.

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Section 6 of the General Clauses Act provides for saving of the Act, rights and privileges taken under the repealed Act.

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Though in the facts of the present case, it is the case of the Municipal Corporation that Section 6 notification under the Land Acquisition Act, 1894 was issued, admittedly no award has yet been made under Section 11 of the Land Acquisition Act, 1894.

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Section 24 of the new Act specifically provides that notwithstanding anything contained therein, where no award under Section 11 of the Land Acquisition Act, 1894 has been made in respect of acquisition proceedings till its repeal, then provisions of new Act relating to determination of compensation shall apply.

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In this view of the matter, the compensation payable for the land and structures in question will have to be determined on the basis of provisions of the new Act. Sections 26 & 30 of the new Act, in so far as relevant for the purposes of this petition, read as under:-

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“26. Determination of market value of land by Collector .- (1) The Collector shall adopt the following criteria in assessing and determining the market value of the land, namely:-

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(a) the market value, if any, specified in the Indian Stamp Act, 1899 (2 of 1899) for the registration of sale deeds or agreements to sell, as the case may be, in the area, where the land is situated; or

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(b) the average sale price for similar type of land situated in the nearest village or nearest vicinity area; or (c) consented amount of compensation as agreed upon under sub-section (2) of section 2 in case of acquisition of lands for private companies or for public private partnership projects, whichever is higher;”

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“30. Award of solatium .- (1) The Collector having determined the total compensation to be paid, shall, to arrive at the final award, impose a “Solatium” amount equivalent to one hundred per cent of the compensation amount.

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Explanation.- For the removal of doubts it is hereby declared that solatium amount shall be in addition to the compensation payable to any person whose land has been acquired.

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(2)

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(3) … … ...”

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In view of the above legal position, we are of the prima facie view that interests of justice would be served and particularly the public interest in completing for 8 kilometers road of which 7.650 kilometers is already constructed, if the Municipal Corporation is directed to take over possession of the land in question with structures thereon upon depositing the compensation as per the following directions :-

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(i) The market value specified in the ready-reckoner for 2014 under the Bombay Stamp Act shall be taken as the market value of land for the purpose of this acquisition.

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(ii) The land owners shall be paid solatium amount equivalent to 100% of the compensation amount as provided in Section 30 of the new Act.

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(iii) As far as structures are concerned, the compensation shall be determined on the basis of the market value as indicated in the ready-reckoner for 2014 by treating the structures as authorized.

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The amount shall be deposited with the concerned Land Acquisition Officer and the Land Acquisition Officer shall permit the land owners to withdraw the amount payable to them in accordance with this interim order.

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Within one month of the Municipal Corporation giving intimation to the petitioners about deposit of the amount with the concerned Land Acquisition Officer, the petitioners shall hand over peaceful and vacant possession of the land and structures thereon to the Municipal Corporation. In case the petitioners do not voluntarily hand over such possession within the said time limit, then it will be open to the Municipal Corporation to take over

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forcible possession of the land and structures thereon with assistance of the police force, if necessary, and also to demolish the structures.

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It is clarified that this interim order is passed in the peculiar facts of this case and particularly having regard to the fact that 8 kilometers of road is almost completely constructed, except the construction of 350 meters of road. This has resulted in the road not being capable of being utilized on account of the fact that the land with structures thereon still remains with the petitioners.

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Contentions of both parties are kept open. Liberty to apply in case of difficulty.

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CHIEF JUSTICE

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(M.S.SANKLECHA, J.)

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Pimpri Chinchwad Municipal Corporation Throug Its Commissioner and Ors. v. Laxman Gopal Gosavi and Ors.

Case brief

What is this about?

What did the court decide?

Pimpri Chinchwad Municipal Corporation Throug Its Commissioner and Ors. v. Laxman Gopal Gosavi and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

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Statutes considered

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