Shri Appa Ganpati Jadhav vs Special Land Acquisition Officer ...
2004 Latest Caselaw 498 Bom

JUDGMENT

F.I. Rebello, J.

1. The petitioner by the present petition challenge the notification under Section 4 and declaration under Section 6 of the Land Acquisition Act under the provisions of the Maharashtra Project Affected Persons Rehabilitation Act, 1986 (hereinafter referred to as "the Rehabilitation Act") for resettlement of displaced persons of Urmodi Project in village Atil, Taluka and District Satara. It is the case of the petitioner that after receipt of notice under Section 4(1), objections were raised by filing reply and documents were also relied upon. The respondent after considering the objections raised and documentary evidence produced by the petitioner was pleased to observe that out of Gat No. 1243 only H 1 R 23 land be acquired and H 2 R 11 be dropped from acquisition. The case of the petitioner is that he came to know about the declaration dated 20th March, 1998 as it was published in Daily Aikya on 6th April, 1998. The said declaration also specified that the respondent-State has decided to invoke the urgency clause under Section 17 of the Land Acquisition Act. The case of the petitioner further is that the emergency clause could not be invoked without first issuing notice under Section 9 of the Land Acquisition Act. Apart from that it. is contended that there is no urgency.

2. The challenge to the notice under Section 4(1) and declaration under Section 6 of the Act is on the ground that the respondents, prior to issuance of the same, have not complied with the mandatory provisions of Sections 13 to 15 of the Rehabilitation Act. The respondents without specifying which slab of Part II of the Schedule of the Rehabilitation Act is made applicable in the benefited and affected zone in respect of Urmodi project, could not initiate the acquisition proceedings under the Land Acquisition Act. It is pointed out that the compulsory acquisition of land as provided under Section 14(2) of the Rehabilitation Act is for the benefit of the rehabilitated persons to be displaced by the project. The respondents cannot without compliance with the procedure as laid down under Section 13 of the Act initiate any acquisition proceedings under the Land Acquisition Act. The notification and declaration under the Land Acquisition Act have been issued without complying with the provisions of Section 13 of the Rehabilitation Act and the same deserves to be quashed and set aside.

It is further contended that no public notice was given by the respondents as required under Section 13(1) of the Rehabilitation Act specifying the areas of affected and benefited areas and also not specifying which slab of Part II of the Schedule is made applicable. The respondent No. 1, it is contended, must assess firstly as to which land is available for the purpose of acquisition under Section 13 of the Rehabilitation Act. and until that is done proceedings under the Land Acquisition Act cannot be initiated. The acquisition of land for operation of the Rehabilitation Scheme are applicable as soon as notification is issued under Section 11 of the Act. It is also pointed out that the Resettlement Act, 1976 has been repealed after coming into force of the Rehabilitation Act, 1986. Reference is made to Section 26 of the Rehabilitation Act. The effect of non compliance of the procedure contemplated under Section 13 of the Rehabilitation Act, it is pointed out, goes to the root of the matter and consequently the notification under Section 4 and declaration under Section 6 are liable to be set aside.

3. It is also contended that no opportunity was given to the petitioner to challenge the declaration made in respect of village Alit more so when the petitioner and other villagers of the village have spent substantial amounts by taking loans on their lands for implementation of various irrigation schemes and at present the entire village Atit is well irrigated and does not require water from Urmodi project after its completion. Reference is then made to several dates which may be set out as under :

The notification under Section 11 of the Project Displaced Persons Act, 1976 was issued on 2.7.1981. The notification under Section 4 of the Land Acquisition Act was issued on 14.7.97. Notice to the petitioner was issued on 10.10.97. The declaration under Section 6 was made on 25.3.98 and published on 6th April, 1998 in Daily Aikya.

4. In answer to the contentions as raised on behalf of the petitioner Shri Umakant S. Kharat, holding additional charge of the Land Acquisition Officer No. 4, had filed affidavit on 20th July. 1998. It is set out therein that the Government of Maharashtra had sanctioned the Urmodi project which is irrigation project to construct dam near village Parali on the river named Urmodi. The decision was approved by the Government of Maharashtra on 15th June, 1981. By the said project Tahsil Khatav and Tahsil Man of Dist. Satara will be benefited. For the project the lands admeasuring 1528 hectare and 39.68 A. of 23 villages are coming in the affected zone. In 1994 the capacity of the said project was increased to 9 new villages of which land admeasuring 579 hectares and 58.67 R came under the affected zone. Tahsil Satara Khatav and Man of Dist. Satara are in the benefit zone of the said project. There are about 83 villages of which the land admeasuring 43439 hectare and 24 R would be benefited by this project. As lands belonging to 3898 families (Khatedars) is coming in the affected zone of the said project, the land admeasuring 3364 hectares 86R is necessary to be acquired from the benefited zone for the rehabilitation of the said project affected persons from 83 villages situated in the benefited zone. Land admeasuring about 4457 hectare 59 Ris available for proposed acquisition. Out of that lands admeasuring 1433 hectares 74 R was voluntarily surrendered by the villages from Taluka Man and Taluka Khatav and proceedings for acquisition of rest of the land has been initiated.

5. The petitioner is resident of village Atit Taluka Satara and his land is under the proposed acquisition for the purpose of resettlement of project affected persons of the said Urmodi project. The provisions of Section 11 of the Maharashtra Resettlement of Project Displaced Persons Act,-1976 (hereinafter referred to as "the Resettlement Act") was made applicable to the said village on 2.7.81, Notification under Section 11(1) of the Act was published in the Government Gazette on 2.7.81. Village Atit is in the benefited zone of the project. After publication of the notification an enquiry was made for the purpose of assessment of the existing land from which persons have been displaced and the extent of land available for resettlement. The necessary notification was also issued by the District Resettlement Officer. The notification under Section 15(1) of the said Act declaring the affected zone and benefited zone of the said project were finally published.

On 28.8.1997 notification under Section 4 of the Land Acquisition Act was published. Objections under Section 5(A) were invited and the objections considered. The objections raised by the petitioner was that Gat Nos. 977 and 1163 are not held by him and the said land should be deducted from his total holding. If these lands are deducted his total holding comes below 8 acres and as such slab is not applicable. It is then set out that the District Resettlement Officer by his report found that the Mutation Entry No. 1435 was effected on 11.2.1981. By the said mutation entry Gat Nos. 1163 and 977 were transferred in the name of his sons. On the basis of that report the Land Acquisition Officer recommended the acquisition of 1 hectare and 21R from Gat No. 1243 belonging to the petitioner. These were submitted before the learned Commissioner for his consideration. The Commissioner discarded the objections considering that it was required to rehabilitate near about 3898 families who were project affected persons and that on 21.12.1997 actual construction work of the project was started and about 35% of the total work of the project is over. It is after this that the declaration under Section 6 was issued.

6. An additional affidavit came to be filed by Subhash Borkar, Special Land Acquisition Officer on 7th August, 2003. It is therein set out that on 27th July, 1995 and 24.11.1995 the Collector, Satara invited objections and suggestion in respect of the lands falling under the affected zones and benefited zones under Urmodi Project as provided under Section 13(2) of the Rehabilitation Act in the manner specified under Section 11(2) of the 1976 Act. No objections or suggestions were received by the Collector. Thereafter the Government published notification under Section 13(1) of the Maharashtra Project Affected Persons Rehabilitation Act, 1986 declaring the extent of area of affected zones and the extent of area of benefited zones under the Urmodi project. In the notification dated 13th March, 1996 it is mentioned that Slab II mentioned in Part II of the Schedule appended to 1986 Act shall apply to the Urmodi Major Irrigation Project for the purpose of acquisition of land in the benefited zone. It is, therefore, submitted that the Government has power to acquire the land in excess of 2 H and 42 Rs from the individual holding from the benefited zones for rehabilitation of Urmodi project affected persons. It is then set out that the holding of the petitioner is 8 H. 17 Rs out of which the Government has acquired 3 H 32 Rs from Gat No. 1243. It is then pointed out that the notification under Section 14 of 1976 Act was published in village Atit, Collector Office, Tahsil Office and Panchayat Office on 12th March, 1986. The notification under Section 15(1) of the Resettlement Act was published in the Government Gazette on 20th February, 1987.

7. From the said pleadings and contentions on behalf of the petitioner the learned Counsel has made the following submissions. Placing reliance on Sections 26 and 27 of the Rehabilitation Act it is pointed out that under the Resettlement Act Schedule A Part II the land could be acquired if the holding was not more than 8 acres. It is further pointed out that in respect of land in excess of 8 acres it could be acquired but so as not to reduce the land remaining with the person less than 8 acres. It is, therefore, contended that considering that the notification under Section 11 was issued under the Resettlement Act of 1976, the respondents could not, considering Sections 26 and 27 of the Rehabilitation Act, acquire the lands by giving effect to Part II of the Schedule to the Rehabilitation Act. It is then contended that notification under Section 4 and declaration under Section 6 could have only been issued after complying with the provisions under Sections 13 to 15 of the Rehabilitation Act. Placing reliance on the judgment in the case of Gulab v. Special Land Acquisition Officer, it is contended that though that judgment was under the Resettlement Act the same principle also must be applied in so far as Rehabilitation Act is concerned as the respondents had failed to comply with the mandatory requirements of Sections 13 to 15. Thus the notification under Section 4 and the declaration under Section 6 of the Land Acquisition Act could not have been issued and consequently is liable to be struck down. Lastly it is contended that on perusal of the report of the Land Acquisition Officer it is clear that from the petitioner's holding in Gat No. 1243 the land to be acquired was, considering Section 14 of the Rehabilitation Act, 1 H. 21R. Consequently the declaration of area of 2 H. 11R of the said gat number could not have been included in the declaration being barred by Section 14 and consequently the declaration to that extent, so far as the petitioner's land is concerned, is liable to be quashed and set aside.

8. We have heard the learned Counsel for the parties. The first question that has to be considered is whether reliance placed on Section 26 of the Rehabilitation Act, 1986 as also Section 27 of the said Act can enure to the benefit of the petitioner herein. At the outset it may be pointed out that under Section 27 it is the power conferred on the State Government to remove any difficulty to give effect to the provisions of this Act. This power cannot be exercised after the expiry of two years from coming into force of the Act. The Act came into force on 1.1.1989. This section, in our opinion, would be of no assistance to the petitioner's case. This is the power conferred on the State Government by way of delegated legislation to enable it to remove any difficulties in the operation of the Act. Instead of the Legislature itself removing the difficulties, by virtue of Section 27 the power has been delegated to the State Government to remove difficulties. Such provisions are often resorted to remove the difficulties to give effect to various Acts which are brought into force from time to time. That section, therefore, is of no assistance.

We then come to Section 26 which is relied on by the learned Counsel for the petitioner. At the outset we may mention here that the notification under the section was issued on 2.7.81 under the Resettlement Act. The effect of issuance of the said notification is that restrictions are imposed on transfer, sub-division or partition of lands in benefited zone except with the permission in writing of the State Government. Thereafter under Section 13, the State Government must assess the extent of land from which persons will have to be displaced and the extent of land available for resettlement and the collection of certain information. Under Section 14 provisional declaration of assessment under Section 13 has to be made in the manner provided therein and the final declaration has to be published under Section 15. It is only after that is done power is conferred on the State Government under Section 16 to acquire the land by invoking the provisions of the Land Acquisition Act.

In the instant case the notification under Section 4 and/or declaration under Section 6 was issued not under Resettlement Act but after the Rehabilitation Act was brought into force. The question is what is the effect of the notification issued under Section 11 of the Resettlement Act. The learned Counsel for the petitioners wants us to hold that the effect would be that the provisions of Part II of Schedule A to the Resettlement Act would continue to apply to the petitioner's land in spite of repeal by the Rehabilitation Act, 1986 and consequently the provisions of Part II of Schedule of the Rehabilitation Act would not apply considering Section 26 of the Rehabilitation Act. Under Part: II of Schedule to the Rehabilitation Act the size of the holding has been reduced. Under the Resettlement Act it was 8 acres whereas under the Rehabilitation Act it is four acres. The learned Counsel, therefore, wants to contend that under Section 26(1)(b) any right, privilege or obligation that existed in their favour is protected and consequently once the petitioner's land did not fall in the slab provided for in Part II of Schedule of the Resettlement Act, the provisions of the Land Acquisition Act could not have been applied to the petitioner's land. We are afraid we cannot subscribe to this argument. The purpose of Section 26, which is the repeal and saving provision, is to protect the previous operation of the law so repealed or anything duly done or suffered thereunder or any right, privilege, obligation or liability acquired, accrued or incurred under the law so repealed. The only effect of this provision, therefore, is that the notification issued under Section 11 of the Resettlement Act would continue to hold good. In other words after the Rehabilitation Act came into force, it was not necessary for the Government to once again issue fresh notification under the provisions of the Rehabilitation Act, but the notification issued under Section 11 would continue until such time further steps were taken for final declaration and acquisition of the land. By the earlier legislation under the Resettlement Act it was thought that ceiling of 8 acres ceiling would be reasonable. The Legislature in its wisdom has reduced the ceiling limit for acquisition to four acres and provided slabs. It cannot be said that this is arbitrary. To what extent the land is required or not is best left to the Legislature and in the instant case it has thought it fit to reduce the slab for acquisition. Unless it was shown to us that this itself was violative of Part III or any other statutory right which the petitioner has, it would not be possible for us to interfere with the fixing of the ceiling for acquisition. In the instant case nothing has been shown. We, therefore, are of the opinion that Section 26 is of no avail to the petitioner. On the contrary the notification issued under Section 11 of the Resettlement Act is protected by virtue of Section 26 of the Rehabilitation Act. The first contention, therefore, must be disposed of accordingly.

9. We can now deal with the next contention, that the scheme of the Rehabilitation Act requires that there must be compliance with the provisions of Sections 13, 14 and 15 and that in the instant case there has been non-compliance and consequently the provisions of Sections 4 and 6 of the Land Acquisition Act could not have been invoked. As noted earlier the notification under Section 11 of the Resettlement Act was issued on 2nd July, 1981. This included village Atit, Under the Resettlement Act if the State Government was of the opinion that it is necessary or expedient in the public interest to provide for the resettlement of displaced persons, it could by notification in the Official Gazette declare that the provisions of the Act shall apply in relation to the projects specified in notification and thereupon the provisions of the Act shall apply to such project. The declaration has to be published in the villages or areas which are likely to be affected and in the benefited zone by beat of drums or otherwise and by affixing copy of the notification at some prominent place or places and in the village chavdi, office of the panchayat and also in the office of the resettlement officer and the notification has to be published in the Official Gazette. This was done by publication in the Official Gazette on July 2, 1981. To the affidavit of Subhash S. Borkar are annexed the reports from Talathi dated 12th March, 1986 of publication by beat of drum, report dated 15th March, 1986 on the notice board of panchayat samiti, report dated 18th March, 1986 on the notice board of the Collector office and Resettlement Officer and on 15th March, 1986 on the notice board of the Tahsildar office. In other words there has been a total compliance of the requirement of Section 11.

The contention then urged is that the declaration under Section 13 of the Rehabilitation Act was not made in the manner required. We may advert to the notification dated 20th February, 1987 which is issued under Section 15 under which the area constituting the benefited zone has been notified and at serial No. 16 is village Atit. We then have the notifications issued under Section 13 of the Rehabilitation Act. The first notification is dated 13th March, 1996. This is made in exercise of power vested under Section 13(1). Various villages are set out therein and Slab-II (2 Hectares 42 Ares) mentioned in the Part II of the Schedule appended to the said Act is to apply to the Urmodi Major Irrigation Project for the purpose of acquisition of land in the benefited zone. It is contended that this does not apply to village Atit and, therefore, that would not be of any significance. However, the learned A.G.P. has drawn our attention to the second notification dated 1st December, 1998 published in the Official Gazette on 1st December, 1998 wherein under serial No. 14 village Atit is included and similar notification issued applying the slab under Part II of Schedule of 2 H 42 Rs. It also mentions that no objections have been received. We, therefore, have to examine whether the provisions of the Rehabilitation Act have been complied with. Under Section 13 the State Government shall by notification in the Official Gazette and also by publication of such notification in the mariner provided in Sub-section (2) of Section 11 declare the extent of area which shall constitute area of benefited zone under the project and the extent of the area which shall constitute benefited zone under the project and the slabs mentioned in Part II. All this has been done. The contention is that there has been no publication as required under Sub-section (2). We may point out that before publishing the notification under Sub-section (1) the Collector has to proceed in the manner provided under Section 11. In the instant case that step was not required as under the Rehabilitation Act the declaration under Section 11 had already been made under the Resettlement Act. Therefore, there has been compliance with the requirements of Section 13 of the Act. Section 14 is the power conferred on the Government where under if the lands are not taken by private agreement to apply the provisions of the Land Acquisition Act. This has been done by the Government by issuing notification under Section 4 and declaration under Section 6. We may note Sub-section (4) which reads as under :

(4) For the purpose of rehabilitating affected persons from the affected zone under an irrigation project, including those under any irrigation project who have remained to be rehabilitated, on land, the State Government may acquire land from holdings in the benefited zone of the project according to the slab declared in the notification under Sub-section (1) of Section 13 and may also acquire, where necessary, land from any other village or areas, as it may deem fit.

In other words the acquisition can only be done in terms of the slab declared and in terms of the notification issued under Sub-section (1) of Section 13. Section 15 is the provision for rehabilitation with which were are really not concerned. Therefore, basically what is to be complied with is the requirement of Section 13 of the Act. We have noted earlier that Section 13 has been invoked after complying with the due procedure of law. Once that be the case the ratio of the judgment in the case of Gulab v. Special Land Acquisition Officer (supra) would not apply to the facts of this case. The declaration under Section 13(2) will have to be upheld even otherwise.

In the petition, though additional affidavit was filed as far back as 7th August, 2003, the petition has not been amended to include any challenge to the declaration under Section 13(2) of the Rehabilitation Act, 1986. The second contention, therefore, must be rejected.

10. We now come to the third contention. From the first affidavit filed on behalf of the respondents it is admitted that the S.L.O. has recommended acquisition only of 1 H and 21 Rs from Gat No. 1243 instead of 3 H 32 Rs. The Commissioner has rejected the same on grounds which to our mind are alien to the provisions of Section 14 of the Rehabilitation Act. Even in the additional affidavit filed by Subhash S. Borkar it is mentioned that slab (2 H 42 Rs) mentioned in Part II of the Schedule shall apply to Urmodi Major Irrigation Project. If that be the case then the acquisition has to be based on actual holding of the petitioner herein. The respondents have proceeded on the assumption that the total holding of the petitioner is 8 H 17 Rs which includes Gat Nos. 977 and 1163. It was brought to the notice of the authorities that Gat Nos. 977 and 1163 had been transferred in favour of the sons, much before the notification was issued under Section 11 of the Resettlement Act and mutation also effected thereof on 11.8.1980 under No. 1434. It was certified on 11.2.81. This is also reflected in Exh. "D" to the petition which is Form D and under Column No. 5 are the remarks passed by the Dist. Rehabilitation Officer.

11. Considering the above, the petition to that extent will have to be partly allowed. In the light of the above. Exhibit "E" i.e. the declaration under Section 6 dated 25th March, 1998 published on 6th April, 1998 in Daily Aikya is quashed and set aside. The time taken during these proceedings will be excluded. It would be open to the respondents to issue fresh declaration considering the land holding now with the petitioner which are Gat No. 1243 admeasuring H 4 62 Rs and Gat No. 1/16 admeasuring 0.01 R. Rule made absolute accordingly with no order as to costs.