Bombay High Court
Shri. Aadgonda Bandu Patil vs The State Of Maharashtra, Through ... on 17 April, 2017
WP-306-14(2).doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 306 OF 2014
Shri. Aadgonda Bandu Patil
Age:___ Occu: Agriculture
R/o. Chinchwad, Tal.Karvir,
Dist.Kolhapur. ...Petitioner
Versus
1.The State of Maharashtra
Through its Revenue and Rehabilitation
Department.
2.The Collector,
Kolhapur, Dist.Kolhapur
3.The Sub-Divisional Officer,
Kolhapur Division, Kolhapur and
Special Land Acquisition officer,
Kolhapur-12, Kolhapur. ...Respondents
----------
Mr. Vishwanath S. Talkute, for the Petitioner.
Mr. P.P. Kakade, AGP for the Respondent-State.
----------
CORAM : DR. MANJULA CHELLUR, C.J., &
G.S. KULKARNI, J.
DATE : 17 April 2017
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JUDGMENT : (Per G.S.Kulkarni, J.)
1. Rule returnable forthwith. Heard finally by consent
of the parties.
2. This Petition under Article 226 of the Constitution of
India challenges the land acquisition proceeding pertaining to
Gat No. 481 admeasuring 0 H 81 R situates at Village
Chinchwad, Taluka Karvir, District Kolhapur, being the land
belonging to the Petitioner. The contention of the Petitioner is
that the land acquisition has 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 (in short "the 2013 Act").
3. In brief the facts are :-
The case of the petitioner is that the State
Government by a notification declared an intention to acquire
the lands for the purpose of Dudhganga Irrigation Project in
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which village Chinchwad was shown within the benefited Zone
of Dudhganga Irrigation Project. This included the petitioner's
land. The relevant date for applying the slab limit under the
Maharashtra Resettlement of Project Displaced Persons Act,
1976, was 2 November 1978.
4. To initiate the process of land acquisition on 7 July
1983 a notification under section 4 of the Land Acquisition Act,
1894 (for short "the 1894 Act") was issued this notification
included the Petitioner's land. On 25 October 1983 objections
were filed by the Petitioner under Section 5A of the 1894 Act
inter alia stating that holding of the Petitioner was less than the
slab limit as prescribed. The objections as taken by the petitioner
did not bear any fruits and a notification under Section 6 of
1894 Act came to issued on 2 July 1986. Thereafter an award
came to be declared on 24 November 1988.
5. In paragraph (i) page 9 of the petition, the
petitioner has averred that the issue that the land acquisition in
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regard to Village Chinchwad be deleted was under active
consideration of the State Government. This was in view of the
agitation undertaken by the Villagers that Village Chinchwad
does not fall within the benefited zone of Dudhganga Irrigation
Project. It is averred that in paragraph (j), the Petitioner was
under the bona fide impression that acquisition has been
withdrawn and therefore, the Petitioner did not challenge the
same. It is also averred that the Respondent authorities also did
not take possession of the acquired lands from Village
Chinchwad. However, on 3 May 1987 Mutation Entry No. 1009
was recorded showing symbolic possession of the Petitioner's
land being taken over to an extent of 0.49.3 Ares out of Gat No.
481. It is stated that further the petitioner has not accepted
compensation. As regards possession of the acquired land the
petitioner has stated, though the respondents allege that the
same is taken over, by making entries in the revenue record, the
actual physical possession of land Gat No. 481 to the extent of
81 Ares continues to be with the Petitioner. This fact was also
pointed out by the Petitioner's letter dated 31 January 2013
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addressed to Respondent No. 3, whereby the petitioner
requested for deletion of the name of the Collector from the
revenue record.
6. The challenge as initially raised in the petition was
that the slab to acquire the Petitioner's land was wrongly applied
and therefore the acquisition is rendered illegal applying
the provisions of the Maharashtra Resettlement of Project
Displaced Persons Act, 1976. However, by an amendment to the
Petition which was permitted under the order dated 16 January
2014, the Petitioner has raised a challenge that the land
acquisition has lapsed by operation of law in view of the
provisions of Section 24(2) of the 2013 Act in as much as the
physical possession of the land being not taken over by the
Respondents despite the award being declared on 24 November
1988, as also on account of non payment of the amount of
compensation. The Petitioner has thus contended that both the
essential requirements of Sub-section 2 of Section 24 of the
2013 Act namely the possession of the Petitioner's land not
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being taken over by the Respondents as also the amount of
compensation not paid to the Petitioner stand satisfied for the
acquisition to lapse.
7. On behalf of the Respondents' Reply Affidavit of
Tahasildar (Resettlement) dated 15 June 2015 is placed on
record. In paragraph 3 of this affidavit, the deponent has
admitted that on 5 October 1989 the State Government had
taken a decision to delete Village Chinchwad from the benefited
Zone of Dudhganga Irrigation Project, however, a notification to
that effect was not issued by the State Government. It is further
stated that the Collector, Kolhapur by his letters dated 9
November 1989 and 31 August 2000 addressed to the
Government had requested that such notification should not be
issued, to delete the acquisition of these lands, situated at
Village Chinchwad. It is stated that accordingly the Government
took a decision, not to delete the acquisition of these lands, and
that possession be taken. This was informed by the Government
to the Collector by a letter dated 21 June 2001. In paragraph 4
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of the reply though it is stated that the possession of the land
was obtained by the Government on 3 May 1997 and a mutation
entry to that effect was made in the revenue record, however a
perusal of the possession receipt as annexed to the affidavit,
does not indicate that the physical possession was handed over
by the Petitioner to the Respondents. Also the possession receipt
does not have the signature of the Petitioner. Further in
paragraph 6 of the Reply affidavit, the deponent has stated that
the Petitioner has not come forward to accept the compensation.
The specific averment of the Petitioner that the possession of the
land has remained with the Petitioner and the compensation is
not paid by the Petitioner, has not been denied on behalf of the
Respondents in the reply affidavit.
8. We have heard the learned Counsel for the parties.
We have perused the contents of the writ petition and the reply
Affidavit, as also the documents placed on record. It is not in
dispute that the land of the Petitioner was subject matter of the
acquisition for the purpose of rehabilitation of the persons
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displaced by the Dudhganga Irrigation Project. It is also not in
dispute that for a substantial time, as noted above, the State
Government was considering the deletion of the land from
acquisition situated at Village Chinchwad and subject matter of
acquisition. The initial contention of the Petitioner that the
acquisition is rendered illegal in view of the Respondents
applying a wrong slab has become secondary in view of the
subsequent challenge as raised by the petitioner that the
acquisition would lapse under the provisions of Section 24(2) of
the 2013 Act for the reason that neither the amount of
compensation has been paid to the Petitioner nor the physical
possession of the land was taken over by the Respondents. The
Petitioner has made specific averments in this regard in the writ
petition .
9. We find much substance in the contention as urged
by the Petitioner on both the grounds as regards non-payment of
compensation as also the physical possession being not taken
over. It is quite apparent that the amount of compensation is
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not paid to the Petitioner much less in the manner known to
law, as also there is nothing on record as placed by the
Respondents to show that the physical possession of the land
has been taken over by the Respondents. In the Reply Affidavit,
the Respondents have stated that as a mutation entry is made
and a possession receipt dated 3 May 1997 is prepared the
possession of the petitioner's land is taken over. However in our
opinion this is not sufficient to come to a conclusion that the
physical possession of the land is taken over in a manner known
to law. We say so, as perusal of the possession receipt does not
in any manner show that the Petitioner has handed over the
possession of the land. The possession receipt also does not bear
the Signature of the Petitioner or of any representative
authorized by him. There is no prior notice of the purported
panchanama or any material to show that the physical
possession would be taken over of the petitioner's land at the
specified time and the date. The specific averments of the
Petitioner that he continues in to be in physical possession of the
land is also not denied by the Respondents. On the other issue,
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as regards payment of compensation, in paragraph 6 of the reply
affidavit, there is a clear statement that the Petitioner has not
come forward to accept the compensation. This clearly goes to
show that the amount of compensation has not been paid to the
Petitioner. On these facts, we are of the clear opinion that sub-
section 2 of Section 24 of the 2013 Act, has clearly become
applicable and the acquisition of the Petitioner's land is required
to be held to have lapsed on account of the non-payment of
compensation to the Petitioner as also the physical possession of
the land being not taken over by the Respondents.
10. The law in the above context is well settled which
we have considered in our decision dated 17 January 2017 in
Writ Petition No. 3238 of 2015 in case of Santosh
Dnyaneshwar Aher Vs. State of Maharashtra Through Its
Secretary And Ors., referring to the enunciation of law in the
decision of the Supreme Court in Pune Municipal Corporation
& Anr. Vs. Harakchand Misirimal Solanki & Ors.1. The
following observations in our decision are relevant in the
1 2014(3) SCC 183
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context of non payment of compensation so as to conclude that
the acquisition has lapsed under the provisions of the Section
24(2) of the 2013 Act.
8. Thus, a perusal of Section 24(2) of the 2013 Act
makes it clear that when an Award under the
Land Acquisition Act was made five years or more
prior to the commencement of the 2013 Act and
compensation has not been paid, the land
acquisition proceedings as initiated under the
Land Acquisition Act are deemed to have lapsed
by virtue of the application of Section 24(2) of
the 2013 Act. The words used in sub-section (2)
namely "compensation has not been paid" are
relevant in the context of what Section 31 of the
Land Acquisition Act would provide. Section 31
provides for payment of compensation or deposit
of the same in the Court. Section 31 reads thus:-
"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
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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
whose 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
pe4rson interested in the land and competent to contract
in respect thereof."
(emphasis supplied)
The application of Section 31 of the Land
Acquisition Act qua the consequence of section
24(2) of the 2013 Act fell for consideration of
the Supreme Court in the case of "Pune
Municipal Corporation & Anr.
Vs.Harakchand Misirimal Solanki & Ors"
(supra). The Supreme Court held that Section
31 makes a provision for payment of
compensation or deposit of the same in the
Court. The provision requires that the Collector
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should tender payment of compensation as
awarded by him to the persons interested who
are entitled to compensation, and if due to
happening of any contingency as contemplated
under Section 31(2) of the Land Acquisition Act,
if the compensation was not paid, the Collector
was under an obligation to deposit the amount of
compensation in the Court, to which a reference
can be made under Section 18 of the Land
Acquisition Act. It was held that the mandatory
nature of Section 31(2) with regard to deposit of
compensation in the Court was further fortified
by the provisions under Section 32, 33 and 34 of
the Land Acquisition Act. In the context of a
lapse of the land acquisition proceedings under
sub-section 2 of Section 24 of the 2013 Act, their
Lordships in paragraphs 17 and 18 held thus:-
"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, 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
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the contingencies contemplated under Section
31(2) of the 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.
18. 1894 Act being an expropriatory
legislation has to be strictly followed. The
procedure, mode and manner for payment of
compensation are prescribed in Part V (Sections
31-34) of the 1894 Act. The Collector, with
regard to the payment of compensation, can only
act in the manner so provided. It is settled
proposition of law (classic statement of Lord
Roche in Nazir Ahmad[1]) that where a power is
given to do a certain thing in a certain way, the
thing must be done in that way or not at all.
Other methods of performance are necessarily
forbidden."
9. In a recent decision of the Supreme
Court in "Delhi Development Authority Vs.
Sukhbir Singh & Ors." (supra) dealing with the
case where the Respondent had contended that
the amount of compensation was not paid and,
therefore, acquisition has lapsed under Section
24(2) of the 2013 Act, their Lordships
considering the earlier decision in Pune
Municipal Corporation & Anr.
Vs.Harakchand Misirimal Solanki & Ors.
(supra) in paragraph 14 held as under:-
"14. The picture that therefore emerges on a
reading of Section 24(2) is that the State has no
business to expropriate from a citizen his property
if an award has been made and the necessary
steps to complete acquisition have not been taken
for a period of five years or more. These steps
include the taking of physical possession of land
and payment of compensation. What the
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legislature is in effect telling the executive is that
they ought to have put their house in order and
completed the acquisition proceedings within a
reasonable time after pronouncement of award.
Not having done so even after a leeway of five
years is given, would cross the limits of legislative
tolerance, after which the whole proceeding would
be deemed to have lapsed. It is important to notice
that the Section gets attracted if the acquisition
proceeding is not completed within five years after
pronouncement of the award. This may happen
either because physical possession of the land has
not been taken or because compensation has not
been paid, within the said period of five years. A
faint submission to the effect that 'or' should be
read as 'and' must be turned down for two
reasons. The plain natural meaning of the sub-
section does not lead to any absurdity for us to
replace language advisedly used by the
Legislature. Secondly, the object of the Act, and
Section 24 in particular, is that in case an award
has been made for five years or more, possession
ought to have been taken within this period, or
else it is statutorily presumed that the balance
between the citizen's right to retain his own
property and the right of the State to expropriate
it for a public purpose gets so disturbed as to
make the acquisition proceedings lapse.
Alternatively, if compensation has not been paid
within this period, it is also statutorily presumed
that the aforesaid balance gets disturbed so as to
free such property from acquisition."
11. In view of the above discussion and the clear
position in law, we have no hesitation to conclude that the
petition deserves to succeed. We accordingly pass the following
order :-
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ORDER
(i) The acquisition proceedings pertaining to the
admeasuring 0 H 81 Ares situated at Village
Chinchwad, Taluka Karvir, District Kolhapur
being the subject matter of acquisition under
notification dated 7 July 1983 issued under
Section 4 of the Land Acquisition Act, 1894,
stand lapsed in view 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 the acquisition would
stand lapsed only in relation 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,
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which may form subject matter of the Award.
(iii) This judgment and order will not preclude the
Respondents from initiating fresh acquisition
proceedings in respect of the acquired lands
under the Right to Fair Compensation and
Transparency in Land Acquisition,
Rehabilitation and Resettlement Act, 2013 if the
same is required in public interest.
(iv) Rule is made absolute in the above terms. No
costs.
[G.S. KULKARNI] [CHIEF JUSTICE]
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