wp4514.07
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
Writ Petition No. 4514 of 2007
1. Shubhaschandra Vigyanchandra
Jain,
2. Vigyachand Gulabchand Jain,
since dead, through his
legal heirs:-
2-A Vikas Vigyachand Jain [son],
aged about 56 years,
occupation - Agriculturist,
2-B Chandrashekhar Vigyanchand
Jain [son],
aged about 48 years,
occupation - Agriculturist,
2-C Pragati Bansilalji Jain [daughter],
aged about 54 years,
occupation - household,
all residents of Wali Saheb Ward,
Arvi, Tq. Arvi, Distt. Wardha.
3. Sau. Mainabai Vigyachand Jain,
4. Sau. Gulmalabai Subhashchandra
Jain,
all residents of Valisaheb Ward,
Arvi, Distt. Wardha.
5. Keshaorao Ganpatrao Wange,
6. Shankarrao Motiram Wange,
::: Uploaded on - 24/11/2016 ::: Downloaded on - 25/11/2016 00:34:21 :::
wp4514.07
2
petitioners 5 and 6 both residents
of Maroti Ward, Arvi,
Distt. Wardha.
7. Sunil Mangalprasad Tiwari,
Shivaji Ward, Deowdwarda
Road, Arvi, Distt. Wardha.
Namdeorao Jaisinghpure
[since deceased] through
legal heirs:-
8. Zyaneshwar Namdeorao
Jaisinghpure,
9. Shavantabai Namderao
Jaisinghpure,
both residents of Mahadeo
Ward, Arvi,
Distt. Wardha.
10. Ramchandra Namdeorao Hande,
resident of Maroti Ward,
Arvi, Distt. Wardha.
11. Kisanrao Tukaramji Jaisinghpure,
Sahebrao Tukaramji Jaisinghpure
[since deceased] through
legal heir
12. Mahesh Sahebrao Jaisinghpure,
13. Uttam Tukaramji Jaisinghpure,
Petitioners 11,12 and 13 all
residents of Mahadeo Ward,
::: Uploaded on - 24/11/2016 ::: Downloaded on - 25/11/2016 00:34:21 :::
wp4514.07
3
Arvi, Distt. Wardha.
14. Arun Narayanrao Lokhande,
15. Sheelabai Ashokrao Lokhande,
16. Haribhau Narayanrao Lokhande,
17. Sanjay Narayanrao Lokhande,
18. Kusum Ramraoji Gulhane,
19. Chanda Dilip Shirbhate,
20. Nirmala Narayanrao Lokhande,
21. Kausalyabai Narayanrao Lokhande,
22. Jayashree Ashokrao Lokhande,
23. Rajeshree Ashokrao Lokhande,
24. Sunita Ashokrao Lokhande,
25. Punam Ashokrao Lokhande,
petitioner nos. 14 to 25 all
residents of Guruji Ward,
Arvi, Distt. Wardha. ..... Petitioners.
Versus
1. The State of Maharashtra,
through its Secretary,
Revenue & Forest Department,
Mantralaya,
Mumbai-32.
::: Uploaded on - 24/11/2016 ::: Downloaded on - 25/11/2016 00:34:21 :::
wp4514.07
4
2. Special Land Acquisition Officer,
Vidarbha Irrigation Development
Corporation, Wardha.
3. The Collector, Wardha.
4. The Commissioner,
Nagpur Division, Nagpur.
5. Vidarbha Irrigation Development
Corporation,
Nagpur, through Executive
Engineer, Lower Wardha
Project Division, Wardha,
Tq. & Distt. Wardha.
6. District Rehabilitation
Officer, Wardha. ..... Respondents.
*****
Mr. Anand Parchure, Adv., for petitioners.
Mr. Rao, Asstt. Govt. Pleader for respondent nos. 1,3, 4 and 6.
Mr. Vivek Palshikar, Adv., for respondent no.5.
*****
CORAM : B. R. GAVAI AND
V.M. DESHPANDE, JJ.
Date : 21st November, 2016
ORAL JUDGMENT [Per B.R. Gavai, J.]:
::: Uploaded on - 24/11/2016 ::: Downloaded on - 25/11/2016 00:34:21 :::
wp4514.07
5
01. The petitioners have approached this Court being aggrieved by the [a] Order dated 12th March, 2001 [Annex.IX], [b] Notification dated 25th January, 2006 [Annex.I], [c] Notification dated 27th April, 2006 [Annex.II], [d] Notification dated 19th/21st June, 2006 [Annex.V] [e] Declaration dated 28th June, 2007 [Annex.X] under Section 6 of the Land Acquisition Act, all issued by the respondent no. 2 - Special Land Acquisition Officer, and [f] the Award dated 10th June, 2009 [Annex.XI-
A].
02. The lands of the petitioners, which are situated at Mouza -
Daulatpur, Tq. Arvi, Distt. Wardha, are acquired for rehabilitation of Project-affected Persons on account of construction of Lower Wardha Project. The challenge is raised on the following grounds:-
[a] That, the Notification under Section 6 of the Land Acquisition Act, 1894, is not within a period of one year from the date on which Notification under Section 4 came to be issued.
[b] That, an opportunity of hearing as required under Section 5-A of the said Act was not given.
[c] That, the Award under Section 11 was not within a period of two years from the last of the dates ::: Uploaded on - 24/11/2016 ::: Downloaded on - 25/11/2016 00:34:21 ::: wp4514.07 6 as provided under Section 6 of the said Act.
[d] That, the date of last publication under Section 6 (2) of the Act shown to be 28th June, 2007 is a fabrication of the record so as to bring the Award under Section 11 within the period of limitation.
[e] That, in view of Section 24 of the Right to Fair
Compensation & Transparency
Acquisition, Rehabilitation & Resettlement Act, in Land 2013 [hereinafter referred to as "2013 Act"], since the possession of the lands is not taken and since compensation is deposited only in the year 2016, the land acquisition proceedings stand automatically lapsed.
03. Shri Parchure, the learned counsel for the petitioners, submits that on all the aforesaid grounds, the acquisition proceedings are liable to be set aside. The learned counsel further submits that in the alternative, the respondents would be required to pay the compensation as per the 2013 Act and as such this Court should either quash and set aside the entire acquisition proceedings, or, in the alternative, direct the respondents to make the payment of compensation as per the 2013 Act.
::: Uploaded on - 24/11/2016 ::: Downloaded on - 25/11/2016 00:34:21 :::wp4514.07 7
04. Shri Rao, the learned Asstt. Govt. Pleader as well as Shri Vivek Palshikar, learned counsel for respondent no.5, on the contrary, submit that the petition is without substance. They submit that the chart of the dates would reveal that Section 6 Declaration is within the prescribed limitation, so also the Award under Section 11 is within the prescribed limitation from the date of Declaration under Sub-section (2) of Section 6 of the said Act. The learned counsel further submit that since the 2013 Act has come into effect on 1st January, 2013, the Award, which is passed on 10th June, 2009, is not beyond the period of five years as contemplated under Section 24 of the Act and as such the said provision of the new Act would not be applicable to the facts of the present case. The learned counsel further submit that in any case, the possession of the lands has already been taken by the State from the petitioners and given to the respondent no.5 and as such the contention in that behalf would be without substance.
05. We will deal with each of the submissions of the petitioners.
The first submission is with regard to Section 6 Declaration being not within a period of one year from the publication of Notification under Section 4. By now, the issue is no more res in tegra. Their Lordships of the Apex Court have held that for computing the limitation as ::: Uploaded on - 24/11/2016 ::: Downloaded on - 25/11/2016 00:34:21 ::: wp4514.07 8 provided under Section 6, the last of the dates of the publication of Notification under Section 4 of the said Act will have to be taken into consideration. Equally, it has also been held that the first of such dates of making a Declaration under Section 6 will be the date which should be relevant for computing the period of limitation.
06. The perusal of the chart would reveal that the Section 4 Notification has been issued on 25th January, 2006, it has been published in the Official Gazette on 9th February, 2006, it has been published in the daily newspaper "Shramik Sangharsha" on 4th February, 2006, it has been published in the office of Gram Panchayat and Talathi Office on 12th May, 2006 and it has been published in the daily newspaper "Rashtronnati" on 5th June, 2006. It could, thus, be seen that the last of the dates of publication of Section 4 Notification would be 5th June, 2006. The perusal of the affidavit would reveal that a Declaration under Section 6 has been, for the first time, made by the Additional Commissioner on 9th May, 2007. The Gazette Notification is made on 17th May, 2007 and the publications in the newspapers are on 11th and 12th May, 2007, and the publication in the Gram Panchayat Office has been made on 27/28th June, 2007. It could, thus, be seen that the date of Declaration under Section 6 made by the ::: Uploaded on - 24/11/2016 ::: Downloaded on - 25/11/2016 00:34:21 ::: wp4514.07 9 Additional Commissioner, so also the Gazette publication and the similar publications in the newspapers, all would fall within a period of one year from 5th June, 2006. As such, the contention with regard to the first ground is liable to be rejected.
07. In so far as the second ground regarding enquiry not being conducted by the Land Acquisition Officer is concerned, a specific statement is made on affidavit by the Land Acquisition Officer that an opportunity of hearing was given to the petitioners. It would be relevant to refer to the affidavit of Shri Arun Punjabrao Gawande dated 1st December, 2007, who, at the relevant time, was working as a Special Land Acquisition Officer. The relevant portion contained in para 6 of the said affidavit to that effect is quoted below for ready reference:-
"6. .......................................................................... .............The petitioners were present before Land Acquisition Officer and they duly signed on note sheet. Thus, the land holders were heard on 28.7.2006. Therefore, the contention of the petitioner that during enquiry under Section 5 (A) of the Land Acquisition Act, the land holders were not heard is incorrect and therefore denied. The office of the Land Acquisition Officer also received objections by post on 8.6.2006 which is also part of record."
It could, thus, be seen that a specific averment is made by the Land ::: Uploaded on - 24/11/2016 ::: Downloaded on - 25/11/2016 00:34:21 ::: wp4514.07 10 Acquisition Officer that the petitioners were present for hearing during the enquiry and they were heard. Since this fact was seriously disputed by the learned counsel for the petitioners, we have examined the original record. The perusal of the original record would reveal that as a matter of fact, the petitioners, who have sworn the affidavit, were very much present in the proceedings before the Land Acquisition Officer on 28th July, 2006. For that purpose, we have examined the signatures of the petitioners as are appearing on the Roznamas as well as signatures on the Vakalatnama and the Writ Petition. We are, therefore, of the considered view that an incorrect statement has been made by the petitioners in that regard.
08. Third objection is with regard to the Award under Section 11 being not made within the limitation as prescribed under Section 11A of the said Act. Again, in this respect, the issue is no more res in tegra. It has been held by Their Lordships of the Apex Court that while computing the period of limitation, the last of the dates on which a publication of a Declaration as required under Section 6 is made will be the date from which the period of limitation will have to be counted.
The perusal of the affidavit would reveal that the Declaration under Section 6 was lastly published in the Gram Panchayat and Talathi ::: Uploaded on - 24/11/2016 ::: Downloaded on - 25/11/2016 00:34:21 ::: wp4514.07 11 Offices on 27/28th June, 2007. It is the contention of the learned counsel for the petitioners that the record has been fabricated to bring the Award within limitation. We have scrutinized the original record.
Original record would reveal that the publication on the Village Chawadi is duly authenticated by the Sarpanch, Gram Sevak and the Talathi. it could, thus, be seen that the Award under Section 11, which is passed on 10th June, 2009 is within the period of limitation. In that view of the matter, the contention in that regard would also be without substance.
09. That leaves us with the last contention with regard to applicability of Section 24 of the 2013 Act. Though it is seriously argued on behalf of the petitioners that the possession has not been taken and with equal seriousness it is contended that the possession is already taken and reliance is sought to be placed on the documentary evidence in that regard, we do not find it necessary to go into that question considering the view taken by the Apex Court in the case of Pune Municipal Corporation & another Vs. Harakchand Misirimal Solanki & others [ (2014) 3 SCC 183 ]. It will be appropriate to quote para 11 of the said Judgment, which reads thus:-
"11. Section 24(2) also begins with non obstante clause. This provision has overriding effect over Section ::: Uploaded on - 24/11/2016 ::: Downloaded on - 25/11/2016 00:34:21 ::: wp4514.07 12 24(1). Section 24(2) enacts that in relation to the land acquisition proceedings initiated under 1894 Act, where an award has been made five years or more prior to the commencement of the 2013 Act and either of the two contingencies is satisfied, viz; (i) physical possession of the land has not been taken, or (ii) the compensation has not been paid, such acquisition proceedings shall be deemed to have lapsed. On the lapse of such acquisition proceedings, if the appropriate Government still chooses to acquire the land which was the subject-matter of acquisition under the 1894 Act then it has to initiate the proceedings afresh under the 2013 Act. The proviso appended to Section 24(2) deals with a situation where in respect of the acquisition initiated under the 1894 Act an award has been made and compensation in respect of a majority of landholdings has not been deposited in the account of the beneficiaries then all the beneficiaries specified in the Section 4 notification become entitled to compensation under the 2013 Act."
It could, thus, clearly be seen that the issue as to whether possession is taken or payment is made or not would arise only when an Award is passed prior to the period of five years or more from the date of commencement of the 2013 Act. The date on which the 2013 Act has come into effect is 1st January, 2013. As such, the provisions of Section 24 would be applicable only when an Award under the said Act is passed prior to 1st January, 2009. Admittedly, in the present case, the Award is passed in the month of June, 2009. As such, in our considered view, provisions of Section 24 would not be applicable to the present case.
::: Uploaded on - 24/11/2016 ::: Downloaded on - 25/11/2016 00:34:21 :::wp4514.07 13
10. In any case, the learned Asstt. Govt. Pleader submits that though initially an Award was passed by the Land Acquisition Officer granting the compensation in the range between Rs. 18,600/- and Rs.
1,21,000/- per hectare, now the State Govt. has enhanced the compensation between the range of Rs.39,55,503/- and Rs.1,30,29,106/- per hectare and an amount of Rs. 7,03,23,887/- has now been deposited by the State Govt in the Reference Court. It could, thus, be seen that though the State Govt., is not required to pay the compensation as per the new Act, the State Govt. has been generous enough to deposit the amount of compensation at much more rate than the rate at which the Award was passed. In that view of the matter, we do not find any merit in the petition. Petition is, therefore, dismissed. Rule is discharged.
Judge Judge
-0-0-0-0-
|hedau|
::: Uploaded on - 24/11/2016 ::: Downloaded on - 25/11/2016 00:34:21 :::
wp4514.07
14
::: Uploaded on - 24/11/2016 ::: Downloaded on - 25/11/2016 00:34:21 :::