Bombay High Court
Shubhaschandra Vigyanchandra ... vs The State Of Maharashtra ... on 21 November, 2016
Bench: B.R. Gavai
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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,
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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,
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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.
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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.]:
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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
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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.
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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
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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
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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
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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
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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
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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.
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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
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