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2012 DIGILAW 1080 (BOM)

Annapurna v. State of Maharashtra

2012-06-19

A.B.CHAUDHARI, VASANTI A.NAIK

body2012
Judgment : (Smt Vasanti A. Naik, J.) The issue involved in this writ petition is, whether the State Government would be entitled to recover the amount paid to the claimant as per the Award passed by the Land Acquisition Officer under Section 11 of the Land Acquisition Act on the ground that it was paid by mistake, specially when the Award is not corrected in terms of the provisions of Section 13A of the Act. 2. The brief facts which give rise to the petition are stated thus. The petitioner No.1 was the owner of Plot No.33 in village Shivangaon with the house standing thereon. Similarly, the petitioner No.2 was the owner of adjacent Plot No.34 with the house standing thereon. The said plots of the petitioner Nos.1 and 2 along with the constructions were acquired by the State of Maharashtra for the construction of International Air Cargo Passenger Terminus and Multimodal Hub. The Notification under Section 4 of the Land Acquisition Act was published on 29.1.2005 and the Land Acquisition Officer passed the Award on 29.1.2008. The petitioner Nos.1 and 2 were respectively awarded compensation of Rs. 6,39,661/-and Rs. 6,95,273/-for the land and the constructed portion. On 17.10.2008, more than nine months after the award was passed, the Special Land Acquisition Officer issued a communication to the petitioners to return an amount of Rs. 5,63,212/-to the Government on the ground that the said amount was wrongfully paid to the petitioners though the same was payable to one Arun Vinayak Dakhane. Since the petitioners did not refund the said amount, yet another communication was issued by the Special Land Acquisition Officer to the petitioners on 2.1.2009 asking them to return the said amount or else the said amount would be recovered from the petitioners with interest. The petitioners were warned that criminal action would also be initiated against them if the amount was not returned. The petitioners have impugned the communication dated 2.1.2009 and have sought a declaration that the respondents are not entitled to recover the amount of Rs. 5,63,212/-from the petitioners. 3. Shri Gaikwad, the learned counsel for the petitioners submitted, by taking this Court through the copy of the Award passed by the Land Acquisition Officer on 29.1.2008, that in terms of the Award, the petitioners were rightly granted compensation of Rs. 6,39,661/-and Rs. 6,95,273/-for their acquired properties. 5,63,212/-from the petitioners. 3. Shri Gaikwad, the learned counsel for the petitioners submitted, by taking this Court through the copy of the Award passed by the Land Acquisition Officer on 29.1.2008, that in terms of the Award, the petitioners were rightly granted compensation of Rs. 6,39,661/-and Rs. 6,95,273/-for their acquired properties. According to the petitioners, once compensation was determined under Section 23 of the Land Acquisition Act and the Award was passed by the Land Acquisition Officer under Section 11 thereof, the Collector was bound to pay the compensation to the claimants in terms of the Award. It is submitted on behalf of the petitioners that it is only under Section 13-A of the Land Acquisition Act that the Collector is empowered to correct any clerical or arithmetical mistake in the Award. It is submitted that the State cannot recover an amount of Rs. 5,63,212/-from the petitioners without correcting the Award under Section 13-A of the Land Acquisition Act. It is submitted that the alleged error in this case cannot be said to be a clerical or arithmetical error and in any case, the time to correct the Award, if any, in accordance with the provisions of Section 13-A of the Land Acquisition Act, has expired inasmuch as the Collector had not modified or corrected the Award under Section 13A within a period of six months from the date of the Award or before making the Reference under Section 18 of the Land Acquisition Act to the Civil Court. It is submitted that the State Government has no power to recall the Reference made by the Special Land Acquisition Officer to the Civil Court and duly registered by the Court. According to the counsel for the petitioners, the Award passed by the Land Acquisition Officer on 29.1.2008 was never corrected or modified and in such circumstances, the respondents were not justified in asking the petitioners to refund an amount of Rs. 5,63,212/-and also warning the petitioners of criminal action for no fault of theirs. 4. Smt. Bharti Dangre, the learned Additional Government Pleader appearing on behalf of the respondents submitted that an amount of Rs. 5,63,212/-was wrongly paid to the petitioners on an assumption that there was a permanent structure on Plot No.34. 5,63,212/-and also warning the petitioners of criminal action for no fault of theirs. 4. Smt. Bharti Dangre, the learned Additional Government Pleader appearing on behalf of the respondents submitted that an amount of Rs. 5,63,212/-was wrongly paid to the petitioners on an assumption that there was a permanent structure on Plot No.34. It is submitted that an inspection was carried out by the officers of the respondents after the Award was passed to find that only a temporary construction existed on Plot No.34. It is in this background, according to the Additional Government Pleader, that the valuation report from the Government authorities was called and after making enquiry, the respondents became aware that the petitioners were wrongly paid a sum of Rs. 5,63,212/-though the said amount was payable to one Shri Arun Dakhane. It is, however, admitted on behalf of the respondents that the Award passed by the Land Acquisition Officer on 29.1.2008 was not corrected in accordance with the provisions of Section 13-A of the Land Acquisition Act before issuance of the communications to the petitioners for return of the amount. It is admitted that the Award is not corrected at all, till this date. It is also admitted that a Reference Application was filed by the petitioners for enhancement of compensation under Section 18 of the Land Acquisition Act and the Collector had made a reference of the same to the Civil Court and the Land Acquisition Case was registered. The Additional Government Pleader submitted that the petitioners are unjustly enriched and Shri Arun Dakhane is deprived of the compensation to which he is legally entitled. The learned Additional Government Pleader sought for the dismissal of the writ petition. 5. The learned counsel for the intervener advanced submissions on lines similar to those advanced on behalf of the respondents and sought for the dismissal of the writ petition. 6. On hearing the learned counsel for the parties and on perusal of the relevant provisions of the Land Acquisition Act, 1894, it appears that the petitioners are entitled to the relief sought. It is not in dispute that Plot Nos.33 and 34 belonging to the petitioners and having some construction were acquired by the State of Maharashtra and an Award was passed by the Special Land Acquisition Officer on 29.1.2008. The Land Acquisition Officer awarded compensation of Rs. 6,39,661/-and Rs. 6,95,273/-for Plot Nos.33 and 34 and the construction thereon. It is not in dispute that Plot Nos.33 and 34 belonging to the petitioners and having some construction were acquired by the State of Maharashtra and an Award was passed by the Special Land Acquisition Officer on 29.1.2008. The Land Acquisition Officer awarded compensation of Rs. 6,39,661/-and Rs. 6,95,273/-for Plot Nos.33 and 34 and the construction thereon. 7. On perusal of the provisions of the Land Acquisition Act, it appears that the Act is a complete Code in itself. Under Section 11 of thereof, the Collector is empowered to make an Award. Section 12 of the Land Acquisition Act specifically provides that the Award passed by the Collector under Section 11 of the Act shall be final and conclusive evidence as between the Collector and the persons interested. Section 13-A of the Land Acquisition Act carves out an exception to the provisions of Section 12 of the Act. The said section provides that the Collector may, within a period of six months from the date of the Award or in a case where he is required to make a Reference under Section 18, before the making of such reference, by an order, correct any clerical or arithmetical mistake in the Award. In the instant case, it appears that after hearing the objections and determining the compensation, the Land Acquisition Officer passed the award under Section 11 of the Act. It is not the case of the respondents that there was a clerical or arithmetical mistake in the Award. So also, the period within which the Collector was empowered to correct the clerical or arithmetical errors in the Award, had also expired in this case inasmuch as the Award was never corrected within a period of six months from the date of the Award i.e. 29.1.2008 or before a Reference was made by the Collector to the Civil Court under Section 18 of the Land Acquisition Act. The Special Land Acquisition Officer, as we see from the original record, had made a Reference of the application made by the petitioner for enhancement of compensation to the Civil Court and has recalled the said proceedings by a subsequent communication. The Special Land Acquisition Officer, as we see from the original record, had made a Reference of the application made by the petitioner for enhancement of compensation to the Civil Court and has recalled the said proceedings by a subsequent communication. It is thus clear that till the time the Reference was made by the Land Acquisition Officer on an application filed by the petitioners under Section 18 of the Land Acquisition Act to the Civil Court, the Award was not corrected under Section 13-A of the Act. The Award is not corrected till this date. In this background, the respondents had no authority whatsoever to ask the petitioners to return an amount of Rs. 5,63,212/-on the ground that the amount was wrongfully paid to them. The respondents were also not entitled to hold a fresh enquiry in the matter of determination of the market price of the plots and the houses standing thereon after the award was passed. The action initiated by the respondents, in pursuance of a fresh enquiry after the declaration of the Award dated 29.1.2008, on the basis of the objection raised by the intervener, Shri Arun Dakhane about the error on the part of the State Government to pay appropriate compensation for his house property, is illegal and cannot be sustained. Also, the action of the Special Land Acquisition Officer of recalling the proceedings referred to the Civil Court under Section 18 of the Land Acquisition Act is also dehors the provisions of the Act. We are of the firm view that the Special Land Acquisition Officer having once made the Reference to the Civil Court, could not have recalled the same. 8. For the reasons aforesaid, the writ petition is allowed. It is hereby declared that the respondents have no authority to direct the petitioners to return the amount of Rs. 5,63,212/-received by them under the Award passed by the Special Land Acquisition Officer on 29.1.2008. Rule is made absolute in the aforesaid terms with no order as to costs.