Hatim Fidaali Rajkotwala and Anr. v. Land Acquisition Officer, The Collector and District Magistrate, Mumbai City & Anr.

1. Rule. The learned AGP waives service for Respondent No.1 and learned counsel for Respondent No.2 also waives service. JUNE 19, 2023 Rule made returnable forthwith. Taken up for final disposal by consent of the parties.

2. These two Petitions arise out of land acquisition under The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, (for short “the 2013 Act”), between the same parties but in respect of two different properties. The contentions in both the Petitions are the same and therefore, they are being conveniently disposed of by a common Judgment.

3. The subject matter property in Writ Petition No. 2965 of 2021 is Rajkotwala Building, standing on land bearing City Survey No. 4337 of Bhuleshwar Division, at 16, Ibrahim Rehmatullah Road, J.J. Hospital, Mumbai-40003 and the subject matter property in Writ Petition No. 2966 of 2021 is Rukaiya Mansion, standing on land bearing City Survey No. 4338 of Bhuleshwar Division at 14, Ibrahim Rehmatullah Road, Bhendi Bazar, Mumbai-400003. The Petitioners are owners of 25% undivided share in the property which is the subject matter of Writ Petition No. 2965 of 2021 (Rajkotwala Building) and full owners of the subject matter property of Writ Petition No. 2966 of 2021 (Rukaiya Mansion.

4. By these Petitions, filed under Article 226 of the Constitution of India, the Petitioners are seeking a direction to Respondent No. 1 (Land Acquisition Officer) to release the amount of compensation awarded in respect of the subject matter properties and also seeking a direction to pay interest on the awarded amount as provided under the 2013 Act. The matters are arising out of LAQ Nos. 18/2019 and 19/2019, both dated 30th December 2019.

5. At the outset, the learned Counsel for the Petitioners in both the matters, has fairly submitted that so far as prayer clause (I) is concerned in both matters [which seeks a direction to release the amount of compensation under the Award], the same does not survive because the amount of compensation under the Award is already received by the Petitioners during pendency of these Petitions. He however submitted that the second prayer regarding payment of interest on the awarded amount, is being seriously pressed.

6. Shorn of unnecessary details, following are the facts and circumstances, from which both the Petitions arise. By the aforesaid two land acquisition Awards dated 30th December 2019, the said subject matter properties were acquired and the compensation amount was determined. It is common ground before us that panchnamas and possession receipts are drawn on 3rd February 2020 in respect of both subject matter properties. Even before the possession receipts were executed, Respondent No. 2 (The Acquiring body) has deposited the amount of the Awards with Respondent NO. 1, on 6th January 2020. On the same date, when the amount was deposited by Respondent No. 2, letters were issued to the original owners / Awardees, calling upon them to submit their identity documents and bank details for payment of compensation. It appears, and is not disputed, that these letters dated 6th January 2020 were issued by Respondent No. 1 in the name of the original owners/ Awardees who were no more at the relevant time. It appears from the record that the present Petitioners, claiming to be legal heirs of the original owners, contacted Respondent No. 1 and by a common letter dated 27th January 2020, issued through their lawyer, informed Respondent No. 1 that the copies of the Awards have not been received by them and further made it amply clear that they intend to challenge the said Awards. The record further shows that thereafter, till 19th November 2020, no communication took place from Respondent No. 1. On 19th November 2020, Respondent No. 1 issued letters, again in the name of original owners/ Awardees calling upon them to submit documents, including copies of bank pass-book, canceled cheque, Pan Card, Aadhar Card, documents of witnesses, Indemnity Bond and ‘documents of heir-ship’ if the person/s in whose favour Award is passed, is dead. The Petitioners, again thereafter, through their lawyer’s letter dated 16th December 2020 informed Respondent No. 1 that the Petitioners are the legal heirs of the original owners. They gave details about the Documents such as the Release Deed and Letters of Administration submitted earlier, and pointed out that they will claim the amount of compensation under sec. 77 of the 2013 Act without prejudice to their rights to apply for a Reference under Section 64 of the 2013 Act.

7. Inviting our attention to Section 77 of the 2013 Act, learned Counsel for the Petitioners has contended that on making an Award, the Collector was duty bound to tender payment of compensation to the persons interested who are entitled to the Award. He further submitted that under Section 77(2), it is specifically provided that if there being any dispute as to the title to receive the compensation or as to the apportionment of it, then the Collector was duty bound to deposit the amount of compensation with the authority to which a Reference under Section 64 of the Act lies. It is submitted on behalf of the Petitioners that if the chronology of the events is considered carefully, it can be seen that under letter dated 12/07/2019 itself, the Petitioners had produced copies of letters of administration issued by the High Court and the death certificate of deceased son of deceased Rukaiyabai. Copy of this letter dated 12/07/2019 is also produced on record. It is also clear that on 27th January 2020 itself, they clarified through their lawyer’s letter that they intend to challenge the Award. It is further submitted that from the letter dated 19th November 2020 issued by the Land Acquisition Officer/ Respondent No. 2- Deputy Collector Mumbai, it is clear that the authorities were waiting for documents of heir-ship or proof of succession so far as the title of the subject matter properties are is concerned. Therefore, the matter squarely falls under Section 77 (2) of the 2013 Act. It is therefore submitted that Respondent No. 1 ought to have deposited the compensation amount with the authority to whom the reference lies. He submitted that admittedly this was not done and the amount kept lying with Respondent No. 1.

8. Inviting our attention to Section 80 of the 2013 Act, the learned counsel for the Petitioners urged that if the amount of the compensation is neither paid nor deposited on or before taking possession, then there is a mandate to pay interest @ 9% p.a. from the date of taking possession until it has been so paid or deposited and if the compensation is not paid or deposited within a period of one year from taking possession, then interest @ 15% p.a. shall be payable from the expiry of first year till the amount is either paid or deposited.

9. On the other hand, the learned AGP appearing on behalf of Respondent No. 1 has pointed out the common affidavit in reply filed by Respondent No.1, affirmed on 16th February 2023. The AGPs in both the matters submitted on behalf of Respondent No.1 that the provisions of Section 80 of the 2013 Act will not apply in the present case because there is an inordinate delay in complying with the requisitions which were raised by Respondent No.1 for the purpose of disbursing the compensation amount. It is submitted that by letter dated 6th January 2020, Respondent No. 1 had called upon the original owners to provide bank details and identity proof for the purpose of disbursement. It is contended that instead of complying with the requirements, the Petitioners (who are not the original owners) raised petty objections about non service of the Award. It is contended that by the letter dated 19th November 2020, Respondent No.1 again called upon the Petitioners to comply with the requisitions including the heir-ship documents, to which Petitioners sought an extension of 4 weeks’ time. It is contended that by letter dated 11th April 2022, Respondent No.1 once again called upon the Petitioners to submit the required documents. It is further contended that the Petitioners, vide letter dated 26th April 2022 again forwarded certain documents but the documents establishing their heir-ship were not still submitted. It is contended that ultimately vide letter dated 19th October 2022, the Petitioners complied with submission of all documents including documents of heir-ship and proof of title and thereafter compensation amount has been paid on 20th October

2022. Based on this chronology, it is urged that Respondent No. 1 cannot be saddled with any interest amount when compensation has been already paid.

10. The learned counsel for Respondent No. 2 (Acquiring Body) has pointed out that undisputedly Respondent No. 2 has deposited the original Award amounts with Respondent No. 1 on 6th January 2020 itself, which is even prior to drawing possession receipts and therefore Respondent No. 2 cannot be held responsible under any circumstances, for payment of any interest to the Petitioners.

11. We have carefully considered the submissions. It is not disputed that after the Awards were made on 30th December 2019, Respondent No. 2 deposited the amounts under the Awards with Respondent No. 1 on 6th January 2020. The first communication was made by Respondent No. 1 vide its letters dated 6th January 2020, calling upon the original owners (who were no more) for submissions of identity documents and bank details. It is also not disputed that by immediate letters dated 27th January 2020, the Petitioners, vide their Advocate, contacted Respondent No. 1 and demanded copy of the Awards and clarified that they intend to challenge the Awards. It is clear from the letters of Respondent No. 1 dated 19th November 2020 issued in respect of both the subject matter properties, that documents of heir-ship or documents proving title to subject matters properties were called for, for the first time. Therefore, from 27th January 2020 till 19th November 2020, no demand about documents of heir-ship or documents of title was raised and as such no fault can be found on the part of the Petitioners, who had continued their follow up.

12. It is important to note that in the letter dated 16th December 2020, written by the Petitioners’ lawyer in respect of Rajkotwala Building (subject matter of Writ Petition No. 2965 of 2021), it is specifically contended that vide earlier letter dated 12th July 2019 itself, the Petitioners have submitted an Affidavit alongwith copy of the Letters of Administration. So far as the Petitioners’ letter dated 16th December 2020, written through their lawyer in respect of other property i.e. Rukaiya Mansion, (subject matter of Writ Petition No. 2966 of 2021) is concerned, it is mentioned therein the Petitioners are legal heirs and descendants in title as the exclusive owners of Rukaiya Mansion through a Release Deed, which is already put on record vide letter dated 12th August

2003.

13. It is therefore clear that according to Respondent No. 1, due to lack of documents of title or heir-ship, the 1st Respondent withheld the amounts of compensation payable under the two Awards. Considering these facts, we are of the opinion that this matter is squarely covered by a situation contemplated under Section 77 (2) of the 2013 Act, which is quoted below for ready reference: “77(2): If the person entitled to compensation shall not consent to receive it, or if there be no person competent to alienate the land, or if there be any dispute as to the title to receive the compensation or as to the apportionment of it, the Collector shall deposit the amount of the compensation in the Authority to which a reference under section 64 would be submitted.” (Emphasis supplied)