Bombay High Court: In a writ petition seeking a declaration that the impugned Amendment viz. Section 3 of the Fair compensation (Maharashtra amendment) Act, 2018 is repugnant to and does not prevail over the provisions of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (‘Fair Compensation Act’) and is ultra vires Article 14, 254(1) and 300-A of the Constitution of India and is void ab initio., the bench of R.D. Dhanuka* and M.M. Sathaye, JJ. dismissed the same refusing to interfere with the proceedings of land acquisition for Bullet Train Project.

Understanding the background, the petitioner owns the subject plot measuring 39,570 sq. metres. Several notices were issued for intended acquisition of different pieces of land from the subject plot in furtherance of the Bullet Train Project between Mumbai and Ahmedabad. While private negotiations were ongoing, National High-Speed Rail Corporation. Ltd. (‘NHSRCL’) offered to pay compensation for the subject plot based on a determination made by a District Level Valuation Committee, but the negotiations failed.

First writ petition filed by the petitioner was disposed of for one plot under Godrej & Boyce Manufacturing Co. Ltd. v. State of Maharashtra, 2018 SCC OnLine Bom 7353 for land acquisition and valuation. During its pendency, the petitioner had offered an alternate plot which was initially accepted but ended with disagreement related to compensation. Meanwhile, the authorities notified the exemption of Bullet Train Project from applicability of provisions of Chapter II and Chapter III of the Fair Compensation Act. The petitioner approached the Court with various claims through the present Writ Petition.

The Court analysed relevant provisions applicable to the instant case under Articles 162 and 254 of the Constitution of India, Sections 10-A, 15, 23, 23-A, 25, 26, 33, 64 and Rules 18(1) to 18(4) of the Fair Compensation Act, . Deciding upon the locus for challenging the land acquisition proceedings through the present writ petition, the Court held that the petitioner is estopped from challenging the acquisition of plot on the grounds set out in the petition or otherwise or on any other grounds since he has ample remedy available under Fair Compensation Act, particularly under Section 64 of the Act. The Court framed several issues to decide the present matter.

Issue 1 – Whether first proviso to Section 25 shall be struck down as unconstitutional?

Considering the first proviso to Section 25 of Fair Compensation Act for multiple extensions of statutory period of 12 months in violation of Articles 14 and 300-A of the Constitution of India, the Court upheld the State Government’s extension of compensation of award. The Court pointed out that in order to challenge any provision as unconstitutional, the petitioner must plead with cogent reason. The Court relied on the principles of law laid down by the Court in Sushil Kumar Sharma v. Union of India, (2005) 6 SCC 281 wherein it was held that “if a statutory provision is otherwise intra-vires, constitutional and valid, mere possibility of abuse of power in a given case would not make it objectionable, ultra-vires or unconstitutional.” The Court also relied on May George v. Tahsildar, (2010) 13 SCC 98 wherein, the Court held the provision mandatory if it is passed for enabling the doing of something and prescribes the formalities for doing certain things.

Issue 2 – Whether the State Government has acted beyond the scope of entrustment under Article 258(1) of the Constitution of India while inserting Section 10A by way of amendment to Section 10 of Fair Compensation Act or not?

The Court noted that Section 10A of the Fair Compensation Act was inserted by Fair compensation (Maharashtra amendment) Act, 2018 empowering the State Government to exempt any of the projects from the application of the provisions of Chapter II and Chapter III, in the public interest, prescribed under Section 10-A(a) to 10-A(f) of Fair Compensation Act. Since the constitutionality of the said powers of the State Government have not been disputed by the Petitioner, the Court referred to Molar Mal v. Kay Iron Works (P) Ltd., (2000) 4 SCC 285 wherein, it was held that “when there is no challenge to the constitutional validity of the proviso before the Court, the Court will have to proceed on the footing that the proviso, as it stands, is intra vires and interpret the same as such.” The Court in the instant matter held that the petitioner cannot be allowed to raise a plea that the State Government could not have granted exemption since Chapter II and III of Fair Compensation Act were not applicable to the writ property due to its nature and surroundings and the petitioner’s interest were not at all affected.

Issue 3 – Whether principles of natural justice are violated through the award of compensation proposed?

The Court pointed out that the power of the Deputy Collector to grant approval to the draft award made by the Deputy Collector and the Deputy Collector accepting such recommendations has not been disputed by the petitioner. The Court ruled out the applicability of concept of hearing by one person and award by the same person in the instant case.

Issue 4 – What are the discretionary powers of High Court under Article 226 of the Constitution of India while dealing with the challenge to acquisition proceedings?

The Court referred to the case of Shayara Bano v. Union of India, (2017) 9 SCC 1 wherein the Court held that vires of a legislation may also be challenged on the ground of “manifest” arbitrariness under Article 14 of the Constitution and that the party challenging the constitutional validity on the ground of arbitrariness must provide cogent and sufficient reasons, which did not happen on part on the petitioner in the instant case. The Court held that the petitioner would be compensated as per Section 64 of the Act considering the claim for enhancement, and that such procedural difficulties may affect the quantum of compensation, but not the validity of acquisition. The Court also relied upon the Supreme Court’s explanation of steps for infrastructural progress vis-a-vis acquisition procedures in the case of Ramniklal N. Bhutta v. State of Maharashtra, (1997) 1 SCC 134, and National High-Speed Rail Corpn. Ltd. v. Montecarlo Ltd., (2022) 6 SCC 401. Thus, the Court refused to exercise its discretionary powers under Article 226 of Constitution against the advanced stage of Bullet Train Project being Infrastructural and Public Project of national importance for certain procedural irregularities.

Issue 5 – Whether corrections in the impugned award were beyond the scope of powers prescribed under Section 33 of the Fair Compensation Act?

The Court noted that during correction, changes have been made only to the period and not calculation of interest, and thus, there is no effect on the amount of interest falling within the powers prescribed under Section 33 of Fair Compensation Act.

Issue 6 – Whether there is any perversity and absurdity in the impugned award?

The petitioner claimed that the compensation fixed by the Committee chaired by Mumbai Collector during private negotiations was Rs 5,72,92,45,598, while the impugned award was declared for Rs 2,64,27,29,349. The Court held that “the compensation derived at the stage of private negotiation cannot be considered as final and binding since the said private negotiation had admittedly failed and the said amount was not accepted as conclusive by the petitioner”. The Court relied upon Special Land Acquisition Officer v. Bhavsar Construction Co. (P) Ltd., 1999 SCC OnLine Bom 581 holding the award as a mere offer and refused to consider the award as perverse and absurd on the ground of difference.

Hence, the Court dismissed the instant petition and interim application. While dealing with the Petitioner’s request for an order and direction against the respondents taking possession of the writ property for a period of two weeks, the Court rejected the same since the ad-interim relief was already rejected.

[Godrej & Boyce Manufacturing Co. Ltd. v. State of Maharashtra, 2023 SCC OnLine Bom 341, decided on 9-02-2023]

*Judgment by: Justice R.D. Dhanuka.

Advocates who appeared in this case :

For Petitioners: Senior Counsel Navroz Seervai, Advocate Arti Raghavan, Advocate Shanay Shah

For Respondents: Additional Solicitor General Anil Singh, Senior Advocate Ashutosh Kumbhakoni, Assistant Government Pleader Jyoti Chavan, Advocate Akshay Shinde, Advocate T.J. Pandian, Advocate Aditya Thakkar, Advocate D.P. Singh, Advocate Savita Ganoo, Advocate Abhishek Bhadang, Advocate Smita Thakur, Advocate Chaitanya Chavan, Advocate Pranav Thackur, Advocate Akshay Puthran, Advocate Sargam Agrawal, Advocate Abhiraj Rao, Advocate R.M. Hajare.

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