Bombay High Court
Agricultural Produce Market ... vs The State Of Maharashtra And ... on 6 May, 2016
Bench: A.V. Nirgude
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 9175 OF 2014
WITH
CIVIL APPLICATION NO. 5436 OF 2016
(for amendment)
WITH
CIVIL APPLICATION NO. 10513 OF 2014
WITH
CIVIL APPLICATION NO. 15098 OF 2015
(for intervention)
Agricultural Produce Market Committee .. Petitioner
Jadhavwadi, Aurangabad,
Through its Secretary,
Nana s/o. Asaram Adhane,
Age. 57 years, Occ. Service,
R/o. Vishnu Nagar, Behind Akashwani,
Aurangabad, Tal. & Dist. Aurangabad.
Versus
1. The State of Maharashtra .. Respondents
Through its Secretary,
Revenue Department, Mantralaya,
Mumbai.
2. The Hon'ble Minister,
Revenue Department,
Maharashtra State, Mantralaya,
Mumbai.
3. The Special Land Acquisition Officer,
Jayakwadi Project, Aurangabad.
4. The District Collector, Aurangabad.
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5. The District Deputy Registrar,
Co-operative Societies, Aurangabad.
6. Shrinivas s/o. Ramnath Khatod,
Age. Major, Occ. Business,
R/o. Shantiniketan Colony,
Samartha Nagar, Aurangabad,
Tal. & Dist. Aurangabad.
7. Laxman s/o. Khemchand Daylani
Age. Major, Occ. Business,
R/o. Behind Kandharkar Hospital,
Balaji Nagar, Aurangabad,ig
Tal. & Dist. Aurangabad.
8. Subhashchandra s/o. Bansidhar Lahoti
Age. Major, Occ. Business,
R/o. Mahesh Nagar, Jalna Road,
Aurangabad, Tal. & Dist. Aurangabad.
9. Kantilal s/o. Hiralal Kasliwal,
Age. Major, Occ. Business,
R/o. Behind Satish Motors,
Chintamani Colony, Samarth Nagar,
Aurangabd, Tal. & Dist. Aurangabad.
10. Vallabh s/o. Nandlal Bagla
Age. Major, Occ. Business,
R/o. Behind Bagla Provisions,
Gulmandi, Aurangabad,
Tal. & Dist. Aurangabad.
11. Premraj s/o. Fakirchand Mantri,
Age. 68 years, Occ. Business & Agri.,
R/o. 90, Shreya Nagar, Aurangabad,
Tal. & Dist. Aurangabad.
12. Arvind s/o. Nilkanth Bhale,
Age. Major, Occ. Business,
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R/o. Sharda Colony, Paithan Gate,
Near Union Bank, Aurangabad,
Tal. & Dist. Aurangabad.
(Since deceased through
his legal heirs)
12A. Vrushali w/o. Arvind Bhale,
Age. 55 years, Occ. Housewife,
R/o. Plot No.14, Shardaashram Colony,
Aurangabad, Dist. Aurangabad.
12B. Pushkar s/o. Arvind Bhale,
Age. 26 years, Occ. Service,
R/o. As above.
12C. Jai w/o. Ajeet Pathak,
Age. 30 years, Occ. Housewife,
R/o. Soham, Plot No.9/3,
Kuldeep Housing Society,
Sector P-3, N-8, CIDCO,
Aurangabad, Dist. Aurangabad.
13. Nagesh Shenoy,
Age. Major, Occ. Business,
R/o. Near Hotel Supriya,
Aarth Complex, Samarth Nagar,
Aurangabad, Tal. & Dist. Aurangabad.
(Since deceased through
his legal heirs)
13A. Usha w/o. Nagesh Shenoy,
Age. 60 years, Occ. Housewife,
R/o. Revati Housing Society,
Itkheda, Aurangabad,
Tal. & Dist. Aurangabad.
13B. Prasad s/o. Nagesh Shenoy,
Age. 30 years, Occ. Service,
R/o. As above.
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Mr. S.S. Thombre, Advocate for the petitioner.
Mr. P.S. Patil, A.G.P. for respondent/State.
Mr.P.M. Shah, Sr. Counsel with Mr. L.D. Vakil and Mr.
S.P. Shah, Advocate for Respondent Nos.7,8,9 & 10.
Mr. S.B. Vavre, Advocate for respondent Nos. 11, 12A to
12C & 13A to 13B
WITH
WRIT PETITION NO. 8552 OF 2015
WITH
CIVIL APPLICATION NO. 5435 OF 2016
(for amendment)
Agriculture Produce Market Committee .. Petitioner
Aurangabad, Through its Secretary,
Vijay s/o. Ashruba Sirsath,
Age. 40 years, Occ. Service as
Secretary, R/o. As above.
Versus
1. The District Collector, Aurangabad. .. Respondents
2. The Special Land Acquisition Officer,
Jayakwadi Project, Aurangabad.
3. Gulab Khan Man Khan
Age. 55 years, Occ. Business,
R/o. Survey No.10, Jadhavwadi,
Aurangabad.
4. Shaikh Abdul Habib Amin
Age. 40 years, Occ. Business,
R/o. Survey No.10, Jadhavwadi,
Aurangabad.
5. Sachin s/o. Bhausing Bainade,
Age. 35 years, Occ. Business,
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R/o. Survey No.10, Jadhavwadi,
Aurangabad.
6. Pratap s/o. Malhari Jonwal,
Age. 34 years, Occ. Business,
R/o. Survey No.10, Jadhavwadi,
Aurangabad.
Mr. S.S. Thombre, Advocate for the petitioner.
Mr. P.S. Patil, AGP for respondent No.1
Mr. Mukul Kulkarni, Advocate for respondent No.3.
Mr. M.R. Sonawane, Advocate for respondent Nos. 3 to 6.
ig WITH
WRIT PETITION NO. 8554 OF 2015
WITH
CIVIL APPLICATION NO. 5437 OF 2016
(for amendment)
CIVIL APPLICATION NO. 3323 OF 2016
(for amendment)
Agricultural Produce Market Committee .. Petitioner
Aurangabad, Through its Secretary,
Vijay s/o. Ashruba Sirsath,
Age. 40 years, Occ. Service as
Secretary, R/o. As above.
Versus
1. The District Collector, Aurangabad. .. Respondents
2. The Special Land Acquisition Officer,
Jayakwadi Project, Aurangabad.
3. Satyaprakash Ramanand Arya
Through GPA holder,
Chiranjivlal Nanakram Bajaj,
Age. 55 years, Occ. Business,
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R/o. Sindhi Colony, Jalna Road,
Aurangabad.
4. Parshvnath Realtors Pvt. Ltd.,
Through its Director,
Chiranjivlal Nanakram Bajaj,
Age. 55 years, Occ. Business,
R/o. Sindhi Colony, Jalna Road,
Aurangabad.
Mr. S.S. Thombre, Advocate for the petitioner.
Mr. P.S. Patil, AGP for respondent No.1.
Mr. V.J. Dixit, Sr. Counsel with Mr. L.D. Vakil, Advocate
for respondent Nos. 3 & 4.
CORAM : A.V.NIRGUDE &
V.L. ACHLIYA,JJ.
RESERVED ON : 22.04.2016
PRONOUNCED ON : 06.05.2016
COMMON JUDGMENT : [PER : A.V. NIRGUDE,J.] :-
1. Rule. Rule made returnable forthwith and heard
finally with the consent of learned Counsel appearing for
the parties.
2. In all these three petitions, the facts are
almost similar. The respondents/owners of the land and
the lands involved in these petitions are different but
subject matter of same acquisition proceeding.
Therefore, three different petitions are before this
Court.
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3. All these writ petitions are filed in respect of
lapsing of land acquisition proceedings of certain lands
of village Jadhavwadi, Tq. & Dist. Aurangabad. On 20 th
April, 1983, Notification under section 4 of the Land
Acquisition Act was published proposing acquisition of 96
Hectares land in Jadhavwadi and adjoining area. All the
lands which are subject matter of all these writ
petitions were proposed to be acquired. Most of the
owners of the land made representation to the State
Government on 24th October, 1985, seeking deletion of
their lands from acquisition. In respect of land of
petition No. 9175 of 2014 on 18th Feburary, 1986, Hon'ble
Revenue Minister granted stay to further proceedings of
the land acquisition and prevented dispossession of most
of the owners from the petition lands. Despite stay, the
Land Acquisition Officer continued with acquisition
proceedings and pronounced Award on 26.06.1987. On 29 th
February, 1988, the Hon'ble Minister passed an order
deleting petition land from the acquisition. Being
aggrieved by the said decision, the petitioner APMC filed
writ petition on 29th March, 1988. The owners of the
land also filed writ petition seeking issuance of
notification deleting the petition lands from
acquisition. On 14th August, 2001, the APMC's petition
was allowed and the owners' petitions were dismissed.
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The owners thereupon approached the Supreme Court and for
some time an interim order passed by the Supreme Court
prevented their dispossession. While such order was in
force, land in Writ Petition No. 9175 of 2014 was sold to
respondent Nos.6 to 13 in Writ Petition No. 9175 of 2014.
The Supreme Court, further dismissed the owners' appeal
but granted them liberty to seek appropriate order under
section 24 (2) of the Right to Fair Compensation and
Transparency in Land Acquisition, Rehabilitation and
Resettlement Act, 2013 (henceforth referred to as the
"New Act"). On or about 25th September, 2014, the
respondents in all the petitions filed applications to
the Collector seeking declaration that earlier
acquisition award in respect of their lands stood lapsed.
Upon hearing all the parties, including APMC, the
Collector allowed their applications and passed the
impugned order. Against this order, the petitioner-APMC
filed these three petitions.
4. The question that is involved in this case is -
whether previous land acquisition award of 21 st April,
1989 stood lapsed, on account of provisions of Section 24
of the New Act?
5. We have narrated the facts of the case, which
are not in dispute. Although the award was passed in
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1989, the Land Acquisition Officer did not take
possession of the petition land. He was prevented to do
so due to orders passed by the Government or the Courts.
The New Act came into force on 1st January, 2014.
Section 114 of the New Act repealed the Land Acquisition
Act, 1894, under which the earlier proceedings were
taken. Section 24 of the New Act reads as under :
"24. Land acquisition process under Act No.1 of 1894
shall be deemed to have lapsed in certain cases -
(1) Notwithstanding anything contained in this Act, in
any case of land acquisition proceedings initiated under
the Land Acquisition Act, 1894 (1 of 1894),-
(a) where no award under section 11 of the said
Land Acquisition act has been made, then, all provisions
of this Act relating to the determination of
compensation shall apply; or
(b) where an award under said section 11 has been
made, then such proceedings shall continue under the
provisions of the said Land Acquisition Act, as if the
said Act has not been repealed.
(2) Notwithstanding anything contained in sub-section
(1), in case of land acquisition proceedings initiated
under the Land Acquisition Act, 1894 (1 of 1894), where
an award under the said section 11 has been made five
years or more prior to the commencement of this Act but
the physical possession of the land has not been taken
or the compensation has not been paid by the said
proceedings shall be deemed to have lapsed and the
appropriate Government, if it so chooses, shall initiate
the proceedings of such land acquisition afresh in
accordance with the provisions of this Act:
Provided that where an award has been made and
compensation in respect of a majority of land holdings
has not been deposited in the account of the
beneficiaries, then, all beneficiaries specified in the
notification for acquisition under section 4 of the said
Land Acquisition Act, shall be entitled to compensation
in accordance with the provisions of this Act."
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6. The provisions of Section 24 is now required to
be applied to the facts of this case. This section
provides that despite repeal of provisions of the Land
Acquisition Act would save some of the proceedings that
were initiated prior to 1st January, 2014 under the Land
Acquisition Act. Sub-section (2) provides that under
certain circumstances, proceedings under the Land
Acquisition Act should be deemed to have lapsed. What
are such circumstances which would cause lapsing of the
land Acquisition Proceedings? Firstly, if no award under
section 11 of the Land Acquisition Act is made; secondly,
if an award under section 11 has been made, five years or
more earlier from 1st January, 2014 and the physical
possession of the land has not been taken or compensation
has not been paid, in such situations provisions of the
New Act would apply for determination of the compensation
amount. In this case, neither compensation was paid nor
the possession was taken. In view of the facts of this
case, the Collector recorded his finding that the earlier
proceedings should be deemed to have lapsed.
7. Learned Counsel for APMC strenuously argued that
in the facts and circumstances of the case, it cannot be
said that Special Land Acquisition Officer did not obtain
physical possession of the land. He said that the SLAO
was prevented from taking possession. He pointed out
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that first preventive order was passed on 7th July, 1989.
It remained in force due to pendency of litigation till
26th August, 1914. He, therefore, said that the case
would not fall within the mischief of sub-section (2).
We are not in agreement with this submission. Sub-
section (2) does not provide any exception to the rule.
It does not provide in what circumstances, this Rule will
not apply. Therefore, it would be enough to show that
despite passing of award five or more years, prior to 1 st
January, 2014, possession for whatever reason was not
taken from the owner. If this is proved, then section 24
of the New Act will apply and the land acquisition
proceedings initiated earlier would stand lapsed.
8. Learned Counsel for the respondent placed
reliance on this point on the judgment of the Supreme
Court in the case of Shree Balaji Nagar Residential
Association Vs. State of Tamil Nadu And Others, (2015) 3
SCC 353. Similar plea in the reported judgment is
recorded that possession could not be taken due to order
of stay or injunction was granted by the Court. It was
urged before the supreme Court that such period should be
excluded. The Supreme Court recorded that section 24
itself does not exclude any period during which the land
acquisition proceeding might have remained stayed on
account of the stay or injunction granted by any Court.
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In the same Act, the proviso to section 19(7) in the
context of litigation for publication of declaration,
such concession was given. However, section 24 does not
indicate exception to rule, therefore, such exceptions
based on facts and circumstances of the case cannot be
granted by by the Court. The relevant provision of the
judgment on this point can be quited as under :-
"10. There is no dispute that the writ petitions
were filed even before the making of award and interim
orders have operated against the State of Tamil Nadu
and, therefore, the State was not at fault in not taking
physical possession of the lands concerned under
acquisition. But the intention of the legislature in
enacting Section 24(2) of the 2013 Act will have to be
culled out from its wording and on the basis of other
relevant provisions of this Act and the relevant case
law for deciding whatever the period of stay/injunction
is required to be excluded in computing the five years'
period or not.
11. From the plain reading of Section 24 of the 2013
Act it is clear that Section 24(2) of the 2013 Act does
not exclude any period during which the land acquisition
proceeding might have remained stayed on account of stay
or injunction granted by any Court. In the same Act,
the priviso to Section 19(7) in the context of
limitation for publication of declaration under Section
19(1) and the Explanation to Section 69(2) for working
out the market value of the land in the context of delay
between preliminary notification under Section 11 and
the date of the award, specifically provide that the
period or period during which the acquisition
proceedings were held up on account of any stay or
injunction by the order of any Court be excluded in
computing the relevant period. In that view of the
matter it can be safely concluded that the legislature
has consciously omitted to extend the period of five
years indicated in Section 24(2) even if he proceedings
had been delayed on account of an order of stay or
injunction granted by a Court of law or for any reason.
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Such casus omissus cannot be supplied by the Court in
view of law on the subject elaborately discussed by this
Court in Padma Sundara Rao Vs. State of T.N."
9. Section 31 of the Land Acquisition Act provided
that:-
31. Payment of compensation or deposit of same in
Court- (1) On making an award under Section 11, the
Collector shall tender payment of the compensation
awarded by him to the persons interested entitled
thereto according to the award and shall pay it to them
unless prevented by some one or more of the
contingencies mentioned in the next sub-section.
(2) If they 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 Court to which a reference under Section 18 would
be submitted.
Provided that any person admitted to be interested
may receive such payment under protest as to the
sufficiency of the amount.
Provided also that no person who has received the
amount otherwise than under protest shall be entitled to
make any application under Section 18:
Provided also that nothing herein contained shall
affect the liability of any person, who may receive the
whole or any part of any compensation awarded under this
Act, to pay the same to the person lawfully entitled
thereto.
(3) Notwithstanding anything in this section, the
Collector may, with the sanction of the appropriate
Government instead of awarding a money compensation in
respect of any land, make any arrangement with a person
having a limited interest in such land, either by the
grant of other lands in exchange, the remission of land
revenue on other lands held under the same title, or in
such other way as may be equitable having regard to the
interests of the parties concerned.
(4) Nothing in the last foregoing sub-section shall be
construed to interfere with or limit the power of the
Collector to enter into any arrangement with any person
interested in the land and competent to contract in
respect thereof.
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. Thus, section 31 of the said Act contemplates
that after making an award under section 11, the
Collector should tender payment of compensation to the
owner of the land and should pay it to him. If he does
not accept the amount, it is necessary for the Collector
to deposit the amount of compensation in the Court, to
which reference under section 18 would be submitted. In
this case, none of the contingencies contemplated here
had happened. The Collector did not offer the amount to
the persons interested. Assuming they refused to receive
it, the Collector admittedly did not deposit the amount
in the Court. So, even if APMC had deposited the entire
amount of compensation with Collector or SLAO, this would
not amount to compliance of section 31 of the Land
Acquisition Act.
10. The law in this context is elaborately discussed
by the Supreme Court in the case of Pune Municipal
Corporation & Ors. Vs. Karakchand Misirimal Solanki &
Ors., (2014) 3 SCC 183. The facts of this case were
almost similar. The amount of compensation was deposited
in the Government Treasury. After passage of more than
five years, as per the date of award, the Supreme Court
held that such deposit would not amount to payment of
compensation to the land owners/persons interested as
contemplated by section 31. The Supreme Court further
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held that the expression "paid" used in section 24(2)
should include deposit of compensation in the Court and
would not be limited to amount offered or tendered to
land owners. The ratio of this judgment would also apply
to the present case.
11. Learned Counsel for the petitioner thereafter
asserted that the impugned order was passed by the
Hon'ble Minister without having any jurisdiction. He
asserted that there is no provision in the New Act which
would allow the Hon'ble Minister to declare lapsing of
land acquisition under section 24 of the New Act. We are
not quite impressed with this submission. No doubt, the
matter before the Hon'ble Minister was pending for
deciding fate of the Land Acquisition Proceeding in terms
of Section 48 of the Land Acquisition Act. The persons
were interested in getting order from the
Collector/Government to withdraw acquisition of the
petition land, since the possession was not taken.
Nonetheless, the finding recorded by the Minister is not
erroneous. In the facts and circumstances of the case,
the dispute between the parties was connected to
provision of Section 24. The persons interested in the
land were trying to getting the finding from the
authority under Land Acquisition Act or under the New Act
that the proceedings initiated earlier had lapsed. The
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section which is quoted above creates a legal fiction
about lapsing of the proceedings initiated earlier under
the Land Acquisition Act in certain circumstances. It
does not provide that a declaration is required from the
competent authority. In other words, deeming fiction of
lapsing of acquisition would automatically become
effective. The circumstances on happening of events
required are mentioned in the provision. After such
fiction comes into effect, the land should automatically
be released from the acquisition without passing of any
order to that effect or without any specific Act, on the
part of the parties. On this point the judgment of our
Court in the case of Perfect Machine Tools Co. Ltd. Vs.
State of Maharashtra & ors., 2008(2) Mh.L.J.404 would be
applicable. This Court in respect of similar provision
of Section 127 of Maharashtra Regional and Town Planning
Act, held that situation beneficial to owners comes into
existence on its own and as a result of default or
inaction in compliance by appropriate authority of
statutory provision of certain provision to acquire such
benefit of the provisions resulting from a legal fiction,
it would be obligatory on the part of the beneficiary to
comply with the requirements of the provisions directly.
In other words, in this case all that is required to be
shown by the respondent beneficiary is that the
authorities failed to take over physical possession of
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the land within five years of the date of passing of the
award and effecting payment of compensation as
contemplated under Sec.31 of the Land Acquisition Act.
12. In view of above discussion, all the writ
petitions are dismissed. Rule discharged. No costs.
13. All the connected Civil Applications for
amendment and intervention stand disposed of. The
petitioner will be at liberty to file separate petition
to challenge the vires of Section 24 of the Right to Fair
Compensation and Transparency in Land Acquisition,
Rehabilitation and Resettlement Act, 2013.
[V.L. ACHLIYA,J.] [A.V.NIRGUDE,J.]
. At the request of Mr. S.S. Thombre, learned
Counsel for the petitioner, the effect of earlier
statement made by the respondents that they would not
start any development on the petition lands, is continued
for a period of 12 weeks from today.
[V.L. ACHLIYA,J.] [A.V.NIRGUDE,J.]
snk/2016/APR16/wp9175.14
