Rangrao Bajirao Deshmukh And Ors. vs State Of Maharashtra And Ors.
2002 Latest Caselaw 486 Bom

JUDGMENT

J.P. Devadhar, J.

1. In this petition, the petitioners have sought writ for quashing Notification dated 18th July, 1992 issued by the Land Acquisition Officer under Section 4 of the land Acquisition Act and Notification dated 7th July, 1993 issued by the Additional Commissioner under Section 6 of the sajd Act.

2. On 22nd October, 1993 this petition was admitted and status quo order was passed and the same has been continued.

3. The facts having bearing on the subject-matter of the present petition are as follows.

4. It is the case of petitioners that on the basis of proposal submitted by Talathi of village Bordi, respondent No. 3 Land Acquisition Officer had initiated the above acquisitions proceedings for the acquisition of the lands of the petitioners admeasuring OH 80R from Gat No. 3 (old survey No. 1/3) situated at mouza Bordi, Tahsil Akot, District Akola for the purpose of extension of Gaothan due to increase in population. It is submitted that on 17th September, 1992 the petitioners has submitted their objections under Section 5A of the Land Acquisition Act challenging the acquisition of their land inter alia stating therein that similar notification was issued under on 17th January, 1980 seeking to acquire the very same land of the petitioner for the very same purpose and on being objected to by the petitioners, the said acquisition proceedings were dropped vide Notification dated 12-10-1982 as alternative land at village Wasali-Nalapur which is at a walking distance of seven minutes from village Bordi was available.

5. It is further contended by the petitioners that in spite of the objections raised by petitioners, the respondent No. 3, without hearing the petitioners, rejected the objections and Notification under Section 6 of the Land Acquisition Act has been issued. It is submitted that the list of needy persons submitted by talathi is bogus and petitioners have placed on record material to show that the persons named in the list of needy persons are either having their own houses or previously they have been granted land on which they have constructed their own houses. It is submitted that under Chapter-II of Manual of Land Acquisition for the State of Maharashtra, before issuing notification for extension of Gaothan, the following steps are required to be taken :--

"I. .........

(a) If extension is necessary, village Panchayat have to pass a resolution to that effect and transmit it to the Tahsildar who should then ascertain the survey number which ought to be acquired for the purpose;

(b) Request for extension of gaothans should not be considered, unless they are received from at least 15 adult residents of concerned villages, in each case having population upto 2000, and at least 25 adult residents of village having population exceeding 2000 souls.

(c)(i)...........to (vii).........

(viii) The final selection of site should be made in consultation with the villagers concerned."

6. It is submitted that no such resolution has been passed and the final selection of the site has not been made in consultation with the villagers concerned. It is submitted that the petitioner No. 3 is Police Patil and in view of political rivalry and groupism, the Talathi has submitted the lands of petitioners and mechanically and without application of mind, the acquisition proceedings have been initiated in respect of the land belonging to the petitioners.

7. Even though the respondents were served with the notice several years ago, respondents have not filed affidavit in reply to the petition. On 30th April, 2002 when this petition was taken up for final hearing, learned AGP sought time till 2nd May, 2002. At the hearing of the writ petition on 2nd May, 2002 learned AGP produced before us files pertaining to the acquisition proceedings pertaining to the lands belonging to the petitioners. On perusal of the File it is seen that on 10th September, 1988, Talathi had submitted list of needy persons and on 8th January, 1989 the Sub-Divisional Officer/Land Acquisition Officer (SDO/LAO), Akot inspected the plot of Gat No. 3 and by an order dated 11th June, 1992, the SDO/LAO held that the extension of Gaothan at village Bordi due to population was necessary and that there is no suitable Government land available and the petitioners' land is suitable and is selected for extension of Gaothan. From the file it is also seen that on 15th March, 1993 the SDO/LAO had made spot inspection and reported that there is no vacant land at village Wasali-Nalapur and moreover, during rainy season road to village Wasali-Nalapur gets flooded and hence the said land is not suitable. From the File it is seen that the objections raised by the petitioners were considered by the Competent Authority and the same were rejected on 28th April, 1993. As regards the list of needy persons submitted by Talathi, it is recorded that the same has been verified and found that out of 35 persons, 23 persons were found eligible. In addition to the above, 23 more persons were found as needy persons having no residential plot owned by them.

8. After hearing both the counsel and after perusing the File and records, we are of the opinion that the acquisition proceedings cannot be sustained for the following reasons.

9. Although the land acquisition proceedings once dropped can be commenced once again with change in the situation or with the development of new contingencies or the crystallization of newer or additional needs, but no such contingencies are to be seen in the instant case. The order of Sub-Divisional Officer dated 11-6-1992 holding that no suitable Government land is available, appears to be incorrect because spot inspection of village Wasali-Nalapur was done only on 15-3-1993. Moreover, the said spot inspection report dated 15th March, 1993 states that the Government land at village Wasali-Nalapur is not available and not suitable as road to that village gets flooded during rainy season. In our opinion, the above observations are mutually contradictory and appears to be made by way of after-thought. The said report does not specifically state that the Government land at village Wasali-Nalapur is fully utilized and no vacant land is available there. If the Government land at Wasali is fully occupied, then second part of the report that on account of water-logging the land is not suitable, would be incorrect. If the land is not occupied on account of water-logging, then the first part of the report that the land is not available, would be incorrect. It is significant to note that the very same land belonging to the petitioner was sought to be acquired for the very same purpose by Notification dated 17th January, 1980 and the said acquisition proceedings were dropped on account of the availability of the Government land at village Wasali-Nalapur. Therefore, the inspection report of the Sub-Divisional Officer dated 15-3-1993 holding that the land is not suitable, is incorrect and cannot be accepted.

9-A. Moreover, the very fact that the spot inspection of the Government land at village Wasali was done on 15th March, 1993 i.e. after issuance of Notification under Section 4 of the Land Acquisition Act on 18th July, 1992, clearly shows that there is inherent defect which substantially affects the proceedings and render the Notification issued thereunder being vitiated.

10. The contention of the petitioner that in the instant case the acquisition proceedings have been initiated in contravention of Chapter-II of the Manual of Land Acquisition for State of Maharashtra deserves acceptance. From the File, it is seen that on 30th January, 1989 the SDO/LAO had called for resolution from the Gram Panchayat to the effect that extension of Gaothan, lands of petitioners are suitable. Therefore, it appears that the Authorities were more interested in acquiring the land than in the extension of Gaothan and, therefore, acquisition proceedings were initiated first and thereafter the necessary formalities were sought to be complied with. In any event, as per the Manual, the requests for extension of Gaothan could not be considered unless they were received at least from 25 adult residents of village Bordi as, admittedly, the population of village Bordi was exceeding 2000. Apart from that there is nothing to show that the final selection of the site was made in consultation with the villagers concerned. The counsel for petitioners relied upon judgment of this Court in the case of Namdeo v. State of Maharashtra in Special Civil Application No. 1920 of 76 dated 15th March, 1976 (1976 Mh.L.J. Note 65) wherein it is held that the instructions incorporated in the Manual of Land Acquisition meant for the purpose of extension of existing Gaothan clearly contemplate that before making any proposal for acquiring private lands, the suitability of vacant Government plots should be considered by the Authorities. In the instant case, suitability of the Government lands was considered after initiation of the acquisition proceedings and, therefore, the entire acquisition proceedings are vitiated. Inspection report dated 15th March, 1993 does not even refer to the earlier acquisition proceedings wherein the earlier acquisition proceedings were dropped on account of the Government land being available and the same being suitable. In our opinion, the objections filed by the petitioners have not been properly disposed of and hence the satisfaction under Section 6 of the Land Acquisition Act must be held to be vitiated.

11. With these reasons we are of the opinion that the acquisition proceedings initiated against the land of the petitioners cannot be sustained. Accordingly, the Notification dated 18-7-1992 under Section 4 of the Land Acquisition Act and Notification dated 7-7-1993 under Section 6 of the Land Acquisition Act are quashed and set aside. Rule is made absolute in terms of prayer (b) of the petition. However, in the facts and circumstances of the case, there will be no order as to costs. R & P be sent back to the Sub-Divisional Officer/Land Acquisition Officer, Akot.