Bombay High Court
Shri. Kondiba Shivram Date And Ors vs The District Collector, Pune And ... on 21 April, 2017
Bench: A.S. Oka
wp-6485.11.odt
pmw
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.6485 OF 2011
Shri Kondiba Shivram Date and Anr. ... Petitioners
Vs.
The District Collector, Pune and Ors. ... Respondents
Mr. T.D. Deshmukh for the Petitioners.
Ms. Aparna D. Vhatkar, AGP for the Respondent Nos. 1 to 6.
Mr. Prabhakar M. Jadhav for the Respondent No.7.
CORAM : A.S. OKA &
A.K. MENON, JJ.
DATE : 21st APRIL, 2017
ORAL JUDGMENT (Per A.S. Oka)
1 This Petition was on final hearing board. When the Petition
was called out for final hearing, time was granted to the respondents to
take instructions. Today, the learned counsel appearing for the seventh
respondent has tendered a reply. The learned AGP has not received any
instructions. Rule was issued on 14th November, 2011.
2 According to the case of the petitioners their lands situated
at village Kahu, Taluka Khed, District Pune totally admeasuring 4
Hectares and 69 Ares were acquired by the State Government for
Chaskaman Irrigation Project. The petitioners are relying upon an order
of allotment dated 24th November, 1997 issued by the Deputy Director
1 of 6
::: Uploaded on - 12/05/2017 ::: Downloaded on - 28/08/2017 00:09:15 :::
wp-6485.11.odt
of Rehabilitation and District Collector. By the said order, lands bearing
Gat No.1431 admeasuring 1 Hectare 20 Ares and Gat No.2009
admeasuring 1 Hectare 20 Ares situated at village Shikrapur, Taluka
Shirur, Distict Pune were allotted to the petitioners and their father.
According to the case of the petitioners, out of the said two lands, they
were placed in possession of the land bearing Gat No.1431 admeasuring
1 Hectare 20 Ares and the possession of the land bearing Gat No.2009
was not handed over.
3 The seventh respondent made an application dated 22 nd
May, 2008 to the Divisional Commissioner, Pune. The seventh
respondent claimed that he was the owner of the land bearing Gat
No.1431. The application was made by him to the Divisional
Commissioner for releasing the said land from acquisition. By the
impugned order dated 13th June, 2011 the Divisional Commissioner
passed an order of releasing the land bearing Gat No.1431 admeasuring
1 Hectare 20 Ares at village Shikrapur from acquisition. The allotment
of the said land to the petitioners was cancelled and he directed that an
action be immediately taken for allotment of some other land to the
petitioners.
4 One of the main challenges in this Petition under Article
2 of 6
::: Uploaded on - 12/05/2017 ::: Downloaded on - 28/08/2017 00:09:15 :::
wp-6485.11.odt
226 to the impugned order is on the ground that the petitioners were
never given an opportunity of contesting the application made by the
seventh respondent and that the impugned order was passed without
giving an opportunity of being heard to the seventh respondent. The
State Government has not filed affidavit in reply though the Petition
was admitted on 14th November, 2011. By the order passed on that day,
while issuing Rule, the operation of the impugned order was stayed by
way of interim relief.
5 By the order dated 5th April, 2017 the State Government
was called upon to make a statement whether an opportunity of being
heard was granted to the petitioners. The learned AGP states that she
has not received any instructions.
6 There is a reply filed by the seventh respondent. In the said
reply, it is not the case made out that the petitioners were heard. We
have carefully perused the impugned order. The impugned order is
passed on the application made by the seventh respondent for release of
the said land from acquisition. There is no reference in the impugned
order to any notice issued by the petitioners. The impugned order does
not record that an opportunity of being heard was granted to the
petitioners. As noted earlier, by the impugned order, the allotment made
to the petitioners has been cancelled.
3 of 6
::: Uploaded on - 12/05/2017 ::: Downloaded on - 28/08/2017 00:09:15 :::
wp-6485.11.odt
7 Therefore, the averments made in the Petition regarding
failure of the Divisional Commissioner to give an opportunity of being
heard to the petitioners will have to be accepted.
8 The submissions made by the learned counsel appearing for
the seventh respondent are on merits of the application made by him on
22nd May, 2008. The said application was made more than 10 years
after the said land bearing Gat No.1431 was allotted to the petitioners.
Therefore, the application made by the seventh respondent could not
have been decided without giving an opportunity of being heard to the
petitioners as there rights were likely to be affected. Therefore, it is not
necessary for us to deal with the contentions raised on merits by the
seventh respondent.
9 Accordingly, we pass the following order :-
ORDER
(i) The impugned order dated 13th June, 2011 is hereby
quashed and set aside and application dated 22 nd
May, 2008 made by the seventh respondent is
remanded to the Divisional Commissioner, Pune;
4 of 6
wp-6485.11.odt
(ii) We direct the Divisional Commissioner, Pune to
provide a copy of the application dated 22 nd May,
2008 to the petitioners within a period of two weeks
from the date on which an authenticated copy of this
order is produced in the office of the Divisional
Commissioner, Pune;
(iii) It will be open for the petitioners to file a reply to the
said application within a period of one month from
the date on which a copy of the application is
provided to them;
(iv) We direct the Divisional Commissioner to pass an
appropriate order on the application made by the
seventh respondent on 22 nd May, 2008 as
expeditiously as possible and in any event within a
period of six months from today;
(v) We make it clear that contentions of the petitioners
and the seventh respondent on merits of the
application dated 22nd May, 2008 are expressly kept
open;
(vi) Rule is made partly absolute on above terms;
(vii) All concerned to act upon an authenticated copy of
this judgment and order;
5 of 6
wp-6485.11.odt
(viii) It will be open for the parties to file documents before
the Divisional Commissioner.
(A.K. MENON, J) (A.S. OKA, J)
6 of 6
