Bombay High Court

Babasaheb Eknath Wakchaure And ... vs The State Of Maharashtra And ... on 27 September, 2016

Bench: R.M. Borde

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              IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                         BENCH AT AURANGABAD               




                                                           
                                                  
                               WRIT PETITION NO.9800/2014

                              1]        Babasaheb Eknath Wakchaure,




                                                          
                                        age 55 yrs., occu.agri.,

                              2]        Sunil Namdeo Wakchaure,
                                        age 42 yrs., occu.agri.,




                                               
                              3]        Balasaheb Gangadhar Wakchaure,
                                    ig  age 60 yrs., occu.agri.,

                      r/o Virgaon Tq.Akole, 
                      Dist.Ahmednagar.        
                                  
                                        ...Petitioner..
                             Versus

                              1]        The State of Maharashtra,
                                        through the Principal Secretary,
      


                                        Revenue (Land Acquisition),
                                        Mantralaya, Mumbai - 400 032.
   



                              2]        The Collector (Land Acquisition),
                                        Ahmednagar.





                              3]        The Special Land Acquisition 
                                        Officer No.1, Jayakwadi Project,
                                        Ahmednagar.

                              4]        The Deputy Director of





                                        Rehabilitation (Lands), Ahmednagar.

                              5]
                      The Tahsildar, Akole.
                      Dist.Ahmednagar. 
                                        ...Respondents... 
                                                         
                              .....
    Shri S.T. Shelke, Advocate for petitioners.
    Shri S.S. Dande, AGP for respondent nos.1 to 5. 
                              .....
      



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                                                 CORAM: R.M. BORDE &




                                                                                   
                                                         K.L. WADANE, JJ. 
                                                   
                                        JUDGMENT RESERVED ON 19.7.2016




                                                           
                                        JUDGMENT PRONOUNCED ON:  27.09.2016

    JUDGMENT (Per Wadane, J.) :

1] Heard learned counsel for the parties. Rule.

Rule made returnable forthwith and with the consent of

learned counsel for the parties, the petition is taken

for final hearing at the stage of admission.

2] The petitioners have challenged the award dated

10.3.1977 passed by the Land Acquisition Officer -

respondent no.3 by which the land of the petitioners

bearing Survey No.112/3 (Gut No.463) admeasuring 5 Acres

4 Gunthas has been acquired for the purpose of

rehabilitation of project affected persons. The

petitioners have challenged the award mainly on the two

grounds that the physical possession of the land has not

been taken from the petitioners and no compensation of

the acquired land has been paid to them.

3] Initially the above mentioned properties were

recorded in the name of grandfather of the petitioners

and after his death, the properties are succeeded by the

petitioners and name of one Haribhau, eldest cousin

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brother of the petitioners, has been recorded as per the

mutation entry No.1048.

4] On 10.3.1977, the respondent no.3 notified the

above land for acquisition for resettlement of project

affected persons. The petitioners and their family

members have opposed the said land acquisition

proceedings stating that the lands of the petitioners are

not liable for acquisition. The actual physical

possession of the land was not taken by the respondents

and the same is with the petitioners, which is evident

from the 7/12 extracts right from the year 1978 onwards.

After the acquisition of the aforesaid land, the mutation

entry No.4418 came to be recorded in the name of

respondent no.5, but it is merely a paper entry. There

was civil litigation regarding the aforesaid properties

and the same is decreed and as per the order of the

Tahsildar, partition came to be effected and further, as

per the mutation entry No.4665, the land was further

partitioned and allotted to the petitioners and their

brother.

5] On 25.9.2006, the respondent no.5 - Tahsildar,

Akole, issued a notice alleging encroachment upon the

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acquired land and directing to remove the same. The

petitioners have submitted their say and it seems that

the authority was satisfied with the explanation and,

therefore, did not proceed further. The petitioners have

lastly prayed that the acquisition proceedings and the

award are deemed to be lapsed in view of the provisions

of Section 24(2) of the Right to Fair Compensation and

Transparency in Land Acquisition, Rehabilitation and

Resettlement Act, 2013.

6] The respondent nos.2,3,4 and 5 have filed their

affidavit in reply. The respondent nos.2,3 and 4 have

contended that the possession of the acquired land was

already taken by the authorities. However, the

respondent no.5 in his affidavit in paragraph no.9 has

contended that as per the report dated 3.7.2014 submitted

by the Sub Divisional Officer, Sangamner Division, to the

Collector, Ahmednagar, that an enquiry was conducted by

the Tahsildar about the land Gut No.463 and one Popat

Nivrutti Darade has requested to give him this land.

Vide order dated 14.4.1980, the District Collector and

Deputy Director, Land Records, Ahmednagar, has allotted

the said land to one Popat Nivrutti Darade. He was also

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informed to deposit the amount of Rs.7741=80 towards

occupancy price of this land. Accordingly, he has

deposited the first installment to the tune of Rs.1548=36

and the fees required for the measurement of land by

challan. However, it is brought to the notice that till

this date, the possession of the land was not given to

the project affected persons because one Mr.Balasaheb

Gangadhar Wakchaure (petitioner no.1) is in possession of

the said land as an encroacher.

7] So, looking to the rival contentions of both the

parties, there is dispute between the parties as regards

the possession. On perusal of the contents of the award,

it reveals that the possession of the land has not been

taken u/s 17 of the Land Acquisition Act, 1894, so also

no advance compensation is paid to the interested persons

and further, it is mentioned in the award that the

possession of the land under acquisition should be handed

over to the acquiring body. So, one thing is very much

clear that till passing of the award, no possession of

the acquired land was taken by the authorities from the

respective land holders.

8] True copy of the possession receipt is placed on

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record. It is dated 27.8.1983 in which the date of taking

over the possession is left blank and it is recorded as

"___-7-83". The 7/12 extract of the land is placed on

record and from the contents of the 7/12 extract, it

reveals that the names of the petitioners are

consistently appearing in the column of cultivation since

1979 onwards. Furthermore, from the report submitted by

the Deputy Collector dated 3.7.2014, it reveals that when

the Circle Inspector inspected the land and drawn

panchanama, at that time the petitioner no.1 is found in

possession and has grown pomegranate trees in the land

to the extent of 0.80 Aares. However, it was further

stated that the petitioners have encroached on such a

land. At the time of preparing the panchanama, panch

witnesses have stated that the possession of the disputed

properties is with the petitioners since beginning.

9] Though the respondents have disputed the factum

of possession, but the documents on record demonstrate

that the possession of the disputed property is with the

petitioners. It is material to refer to the notice

issued by the Tahsildar - respondent no.5 to the father,

brothers and uncle of the petitioners dated 25.9.2006,

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from which it appears that as per this notice, a

direction was given to the persons to remove the

encroachment at their own costs. The language employed

in this notice presupposes the factum of possession with

the petitioners.

10] Though the respondents have disputed the factum

of possession with the petitioners, the other documents

demonstrate that the petitioners are still in physical

possession over the suit property. The petitioners have

claimed the relief u/s 24(2) of the Right to Fair

Compensation and Transparency in Land Acquisition,

Rehabilitation and Resettlement Act, 2013, the provisions

of which read as follows:-

"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

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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 subsection (1), in case of land

acquisition proceedings initiated under the Land Acquisition Act, 1894 (1 of

1984),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 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

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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.

10 In view of subsection (2) of

Section 24, though award in the instant matter has been made five years or more prior to the commencement of the Act and

that the compensation has not been paid

to the petitioner, proceedings in respect of acquisition shall be deemed

to have lapsed and the appropriate Government, if it so chooses, shall initiate proceedings in respect of land

acquisition afresh in accordance with

provisions of the Act of 2013."

11] On bare perusal of the aforesaid provisions, the

award lapses when it is made five years or more prior to

the commencement of the new Act of 2013 and the physical

possession of the land has not been taken or the

compensation has not been paid, the said proceedings

shall be deemed to have lapsed. Admittedly, the award in

the present case has been passed prior to five years i.e.

on 10.3.1977, before commencement of the new Act i.e. on

1.1.2014.

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12] Second aspect, which is to be taken into

consideration is that no compensation has been paid to

the petitioners. Nowhere it is contended by any of the

respondents in their affidavit that the compensation of

the acquired land has been either paid to the petitioners

or their father. On the contrary, from the copy of the

E-statement, it reveals that the compensation of

Rs.12,7876/- is granted in the name of Haribhau, elder

cousin brother of the petitioners, however, the same was

neither paid to him nor it was deposited in the Court.

13] Since it is clear from the record that the

amount of compensation though granted, but it has not

been paid to the petitioners, therefore, the present case

is governed by the decision of the Apex Court in the case

of Pune Municipal Corporation & another v. Harakchand

Misirimal Solanki [ 2014(4) Mh.L.J. (SC) 566 ]. The Apex

Court interpreted the Sub-section (2) of Section 24 while

dealing with the issue whether the offer of the

compensation to the owner / persons interested will be

covered by the word "paid" used in sub-section (2) of

Section 24. Paragraphs 15 to 17 of the said decision

read thus:

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"15. Simply put, Section 31 of the 1894

Act makes provision for payment of compensation or deposit of the same in

the court. This provision requires that the Collector should tender payment of compensation as awarded by him to the

persons interested who are entitled to compensation. If due to happening of any contingency as contemplated in

Section 31(2), the compensation has not

been paid, the Collector should deposit the amount of compensation in the court

to which reference can be made under Section 18.

16. The mandatory nature of the

provision in Section 31(2) with regard

to deposit of the compensation in the court is further fortified by the provisions contained in Sections 32, 33

and 34. As a matter of fact, Section 33 gives power to the court, on an application by a person interested or

claiming an interest in such money, to pass an order to invest the amount so deposited in such government or other approved securities and may direct the interest or other proceeds of any such investment to be accumulated and paid in such manner as it may consider

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proper so that the parties interested

therein may have the benefit therefrom as they might have had from the land in

respect whereof such money shall have been deposited or as near thereto as may be.

17. While enacting Section 24(2), Parliament definitely had in its view

Section 31 of the 1894 Act. From that one thing is clear that it did not

intend to equate the word "paid" to "offered" or "tendered". But at the

same time, we do not think that by use of the word "paid", Parliament intended receipt of compensation by the

landowners/persons interested. In our

view, it is not appropriate to give a literal construction to the expression "paid" used in this sub-section (sub-

section (2) of Section 24). If a literal construction were to be given, then it would amount to ignoring

procedure, mode and manner of deposit

provided in

Section 31(2) of the

1894 Act in the event of

happening of

any of the contingencies contemplated

therein which may prevent the Collector

from making actual payment of compensation. We are of the view,

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therefore,that for the purposes of

Section 24(2), the compensation shall

be regarded as "paid" if the

compensation has been offered to the

person

interested and such compensation

has been

deposited in the court where

reference under

Section

18 can be

made on happening of any of the contingencies contemplated under

Section 31(2) of

the ig 1894 Act. In

other words, the compensation may be said to have been "paid" within the

meaning of Section 24(2) when the

Collector (or for that

matter Land

Acquisition Officer) has discharged his

obligation and deposited the amount of

compensation in court and made that amount available to the interested person to be dealt with as provided in

Sections 32 and 33. (underline added)

4. Ultimately, in paragraph 20 the Apex Court held thus:

"20. From the above, it is clear that the award pertaining to the subject land has been made by the Special Land Acquisition Officer more than five years prior to the commencement of the 2013 Act. It is also admitted position that

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