Bombay High Court
Shri. Sarjerao Khashaba Thorat ... vs The State Of Maharashtra Through ... on 17 April, 2017
17-WP-9744-11.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 9744 OF 2011
1] Shri. Sarjerao Khashaba Thorat
2] Shri. Shamrao Dnyanu Thorat,
3] Shri. Bhagwan Dagdu Pol,
4] Bhagwan Dattatray Thorat,
5] Balkrishna Ananda Thorat,
All aged Adult, Occupation
Agriculture, R/o OND,
Taluka Karad, District Satara. ...Petitioners
Versus
1] The State of Maharashtra,
through the Secretary,
Revenue Department,
Mantralaya, Mumbai - 400 032.
2] The Deputy Collector & Spl.
Land Acquisition Officer No. 7,
Satara.
3] The Divisional Commissioner,
Pune Revenue Division, Pune. ...Respondents
----------
Mr. Sagar Mane, a/w Mr. N.V. Bandiwadekar, for the
Petitioners.
Mr. P.P. Kakade, for the Respondents.
----------
CORAM : DR. MANJULA CHELLUR, C.J., &
G.S. KULKARNI, J.
DATE : 17 April 2017
JUDGMENT : (Per G.S. Kulkarni, J.)
1. Rule returnable forthwith, respondents waive
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service. By consent of the parties, heard finally.
2. Petitioners, who claim to be the owners of land
bearing Gat No. 538, admeasuring 0.67 Ares situated at Village
Ond, Taluka Karad, District Satara, which was acquired by the
respondents under the Land Acquisition Act, 1894 Act (for short
"the 1894 Act"), have filed this petition contending that the
land acquisition proceedings have lapsed in view of provisions of
Subsection 2 of Section 24 of the Right to Fair Compensation
and Transparency in Land Acquisition, Rehabilitation and
Resettlement Act, 2013 (in short "the 2013 Act").
3. The case of the petitioners is that the land of the
petitioners was subject matter of acquisition for a public purpose
namely, for construction of a Government Rest House. In regard
to the acquisition in question, notification under Section 4 of
the 1894 Act dated 6 July 1992 came to be published in the
Government Gazette dated 6 August 1992. It was published in
the daily newspaper on 14 July 1992. A notice on the notice
board of the village Chawadi was put up on 21 November 1992
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and lastly, displayed on the notice board of Tahasildar's office
on 23 November 1992. The petitioners have stated that an
enquiry under Section 5-A of the 1894 Act was held by the
Special Land Acquisition Officer. Objections as raised by the
petitioners were not accepted and a notification under Section 6
of the 1894 Act was issued on 16 February 1994 and published
in the Government Gazette on 3 March 1994. Lastly, the said
notification was displayed on the notice board of the village
Chawadi and the notice board of the village Panchayat on 23
March 1994. The petitioners aver that thereafter a notice dated
28 March 1994 under Sub-sections (3) and (4) of Section 9 of
the 1894 Act was served on the 40 land owners as also an
enquiry was held on 7 June 1994. An award under Section 11
was made on 31 January 1996. Pursuant to the award, a notice
under Section 12(2) of the 1894 Act came to be issued on 7
June 1996 and land acquisition compensation of Rs. 6,02,171/-
was awarded to the petitioners.
4. In paragraph 6 of the petition, the petitioners have
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averred that despite the award made on 31 January 1996,
physical possession of the land was not taken over from the
petitioners. It is stated that the petitioners had not received any
notice calling upon the petitioners to remain present on the land
to handover the possession. The case of the petitioners is that
they have residential premises on the part of the land which
they continue to occupy along with their family members. The
petitioners have stated that they are also paying the
grampanchayat taxes and the revenue levy to the village Talathi.
The assessment receipts are placed on record of the petition.
5. The case of the petitioners is that the acquisition
proceedings are rendered illegal on two fold grounds. Firstly, for
the reason that notification under Section 6 is not declared
within a period of one year from the date of publication of the
notification under Section 4(1) of the 1894 Act as Section 6 sub-
para (ii) of the first proviso would provide. It is thus, contended
that Section 6 notification itself is rendered illegal, as the
notification made under Section 4(1) was lastly published on 23
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November 1992 and the declaration under Section 6 came to be
issued on 16 February 1994 (published in the Government
Gazette on 3 March 1994) and lastly, published on the notice
board of Tahasildar's office on 23 March 1994 which is clearly
after a lapse of about 13 months. Secondly the land acquisition
would lapse by operation of law in view of the provisions of
Section 24(2) of the 2013 Act, as neither the physical possession
of the land has been taken over by the respondents nor the
amount of the land acquisition compensation, as determined
under the award is paid to the petitioners, when the award is
admittedly passed, more than five years prior to coming into
force of the 2013 Act.
6. A reply affidavit has been filed by the Deputy
Collector Land Acquisition, Satara. We feel it appropriate to
extract the relevant paragraphs of the reply affidavit, whereby
the respondents admit that the possession of the land is not
taken over from the petitioners, as also that the notification
under Section 6 of the 1894 Act was not issued within a period
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of one year from the issuance of Section 4 notification as Section
6 sub para (ii) of the first proviso would provide. Paragraphs 9,
11 and 13 of the reply affidavit state as under :-
"9. With reference to para no. 8, I say that
award is passed for acquisition of the said land in
the year 1996, that till today the said acquisition
has not been actually effected, in as much as the
actual and physical possession of the acquired
land has not been taken from the Petitioners and
other land holders, and even the revenue records
is not mutated to record the name of the
Acquiring Body therein.
11. With reference to para no. 10, I say that it
is the contention of the Petitioner that,
notification under Section 4 was issued on
6/7/1992 and it was published in Maharashtra
Government Gazette on 6/8/1992. It was lastly
published on the Notice Board of the office of
Tahsil on 23/11/1992. The declaration under
Section 6 came to be made on 16/2/1994 and
was published in Government Gazette on
3/3/1994. It was lastly published on the Notice
Board of Tahsil office on 23/3/1994, as required
under Section 6 of the said Act. The Petitioners
state that therefore the said publication of Section
6 declaration is not within the period of one year
from the date of publication of the notification
under Section 4 of the said Act. Therefore the
declaration under Section 6 is illegal, bad in law
and in breach of the provisions of Section 6 of the
said Act. Hence, the said declaration under
Section 6 is liable to be quashed and set aside is
admitable.
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13. ..............
In this case, award made under Section 11
on 31/1/1996 thereafter no any step have been
taken till today as per Land Acquisition Act 1894
till today, therefore proposal is lapsed and Land
acquisition process under Act No. 1 of 1894 shall
be deemed to have lapsed."
7. We have heard the learned Counsel for the parties.
On perusal of the pleadings as placed on record, it is clear that
the provisions of Subsection (2) of Section 24 of the 2013 Act
have become squarely applicable. Indisputably, the award in
question was passed on 31 January 1996, which is more than
five years prior to coming into force of the 2013 Act, as brought
into effect on 1 January 2014. Further the respondents have
clearly admitted in the reply affidavit that the possession of the
land in question has remained with the petitioners. The
respondents also do not deny that the amount of compensation
is not paid to the petitioners. What is significant, is that even the
case of the petitioners as initially pleaded that the Section 6
notification would be rendered illegal in view of the same being
issued after a lapse of one year, contrary to the provision of
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Section 6 sub-para (ii) of the first proviso, has also been
admitted by the respondents. It is therefore, crystal clear that on
the grounds of challenge as urged on behalf of the petitioners
and as noted above, the land acquisition proceedings qua the
petitioners' land would be required to be held as invalid and
nonest.
8. Resultantly, the petition is required to be allowed.
We accordingly, pass the following order.
(i) The acquisition proceedings qua the petitioners'
land bearing Gat No. 538, admeasuring 0.67
Ares situated at Village Ond, Taluka Karad,
District Satara being the subject matter of
acquisition under notification dated 16 February
1994 issued under Section 6 of the Land
Acquisition Act, 1894 are illegal being violation
of sub-para (ii) of the first proviso to Section 6
of the Land Acquisition Act, 1894 as also the
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acquisition proceedings stand lapsed in view of
the provisions of sub-section 2 of Section 24 of
the Right to Fair Compensation And
Transparency In Land Acquisition,
Rehabilitation And Resettlement Act, 2013.
(ii) We make it clear that our orders pertain only to
the lands which are subject matter of this
petition and no adjudication is made as regards
the legality and validity of acquisition of other
lands if any, which may have formed subject
matter of acquisition under Section 6
notification and the award.
(iii) This Judgment and Order will not preclude the
respondents from initiating fresh acquisition
proceedings qua the lands in question if the
same are acquired for a public purpose as per
the provisions of the Right to Fair Compensation
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and Transparency in Land Acquisition,
Rehabilitation and Resettlement Act, 2013.
(iv) Rule is made absolute accordingly in the above
terms. No costs.
[G.S. KULKARNI] [CHIEF JUSTICE]
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