Bombay High Court
Shri. Krishna Hari Hake (Since ... vs State Of Maharashtra And Ors on 24 April, 2017
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 1472 OF 2016
Shri. Krishna Hari Hake,
Since deceased through his legal heir
Shri. Dhondiram Krishna Hake,
Age 64 years, Occ:- Nil
Through its Power of Attorney
Mr. Ajit Dhondiram Hake,
Age 41 years, Occ : Agriculturist,
Residing of Karandwadi [Ashta],
Taluka Walva, Dist - Sangli. ...Petitioner
Versus
1. State of Maharashtra
[Summons to be served on the
Learned Government Pleader
appearing for State of
Maharashtra under Order XXVII,
Rule 4, of the Code of Civil
Procedure, 1908].
2. District Collector and
Resettlement Officer, Sangli.
Sangli.
[Summons to be served on the
Learned Government Pleader
appearing for State of
Maharashtra under Order XXVII,
Rule 4, of the Code of Civil
Procedure, 1908].
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3. Special Land Acquisition Officer
No. 9,
Sangli Mahasul Bhawan,
Miraj, Dist - Sangli.
[Summons to be served on the
Learned Government Pleader
appearing for State of
Maharashtra under Order XXVII,
Rule 4, of the Code of Civil
Procedure, 1908].
4. Nivrutti Ramchandra More,
Age - Major,
Occ : Nil.
5. Mr. Pandurang Dhondiba Sawant,
Age - Major,
Occ : Nil.
6. Mr. Vishnu Kondiba Sawant,
Age Major,
Occ : Nil.
7. Mr. Suresh Maruti Patil,
Since deceased through
His legal heirs
[7a] Smt. Vaijayanti Suresh Patil
[Sawant]
Age Major,
Occ : Nil.
[7b] Mr. Ramesh Suresh Patil [Sawant]
Age Major,
Occ : Nil.
[7c] Mr. Hari Suresh Patil [Sawant],
Age Major,
Occ : Nil.
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[7d] Smt Dhondibai Maruti Patil,
Age Major,
Occ : Nil.
[7e] Mr. Amar Maruti Patil,
Age Minor,
Occ : Nil.
[7f] Mr. Vishwas Maruti Patil
Age Minor,
Occ : Nil.
Through the Resp.No.(7d)
Smt Dhondibai Maruti Patil
guardian for respondent no. - 73
& 7f
All the above private Respondents
Residing at : Vitthalainagar,
Tung Wasahat,
Taluka Miraj,
District Sangli. ...Respondents
----------
Mr. Amol Gatne, for the Petitioner.
Mr. P.G. Sawant, AGP for the State.
----------
CORAM : DR. MANJULA CHELLUR, C.J., &
G.S. KULKARNI, J.
DATE : 24 April 2017
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JUDGMENT : (Per G.S. Kulkarni, J.)
1. Rule returnable forthwith, by consent of the parties,
heard finally.
2. The petitioner has approached this Court to seek a
relief that the acquisition proceedings pertaining to the
petitioner's land have lapsed by operation of law, in view of
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"). The petitioner
has prayed for the following reliefs :-
"[A] That this Honourable Court be pleased to issue
a Writ of Mandamus or Writ in the nature of
Mandamus or any other appropriate Writ or
direction and order under Article 226 of the
Constitution of India, 1950, holding that the
Award and the entire land Acquisition
proceeding culminating into an Award dated
24th February 1989, bearing SR No. 273 of
1989, in respect of the Suit property bearing
Old Gat No. 1606/3 i.e. (New Gat No. 82/3
and 82/3K), Old Gat No. 1647 i.e. New Gat
No. 74, Old Gat No. 1686/5, i.e. New Gat No.
301/5, Old Gat No. 1705 i.e. New Gat No.
290. Old Gat No. 1648/5 i.e. New Gat No.
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75/5/2 totally admeasuring 4 H 55 R
belonging to the Petitioner herein have lapsed
under the provisions of Section 24(2) of the
Right to the Fair Compensation and
Transparency in Land Acquisition,
Rehabilitation and Resettlement Act, 2013 and
be please to direct the Respondent No. 1 to 2 to
correct the revenue record in respect of the suit
properties within such time as the Honourable
Court may deem fit.
[B] That this Honourable Court be pleased to issue
a writ mandamus or writ in the nature of
mandamus or any other appropriate writ
direction and order under Article 226 of the
Constitution of India, 1950, directing the
Respondent No. 1 to 3 to hand over the
possession of the suit properties mentioned
above by the Petitioner herein since the land
Acquisition proceeding have lapsed in the light
of the provision of Right to the Fair
Compensation and Transparency in Land
Acquisition, Rehabilitation and Resettlement
Act, 2013.
[C] Considering the controversy being covered by
the Judgment of the Honourable Apex Court, in
the case of PMC Versus Harakchandra Misrilal
Solanki reported in 2014(3) SCC 183 and in
the light of the admitted position, so admitted
by the letter dated 27th June 2015 by the
Special Land Acquisition Officer. It is submitted
that the Petition may be disposed off at the
admission stage itself."
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3. In brief the facts are : The lands in question
belonging to the petitioner were subject matter of acquisition for
the Banganga Irrigation Project namely for resettlement and
rehabilitation of the persons affected by the said project. Land in
question admeasuring 4 Hectors 55 Ares belonging to the
petitioner came to be acquired under the land acquisition award
dated 24 February 1989. In paragraph 8 of the petition, the
petitioner has stated that the possession of the land has already
been taken over by the respondents. In paragraph 9 and 10 of
the petition, the petitioner has made averments in regard to
prior litigation initiated in the year 1989 challenging the
acquisition which failed up to the Supreme Court in the Special
Leave Petition No. 6692 of 1995 of the petitioner being rejected.
In paragraphs 10 to 13 reference is made to the proceedings
under Section 48(1) of the Land Acquisition Act, 1894 (for short
"the 1894 Act") which also did not succeed. In paragraph 14 of
the petition, a reference has been made to the proceedings
initiated under Section 18 of the 1894 Act which came to be
partly allowed by the Civil Judge, Senior Division, Islampur by
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an order dated 24 April 2013. It is however, stated that despite
these orders, the respondents have not paid/deposited the
compensation amount in the Court as per the said Award of the
Civil Court. In paragraph 15 of the petition, a reference is made
to the Regular Civil Suit No. 25 of 1999 filed before the Civil
Court for declaration of petitioner's possession and injunction
against the dispossession of the petitioner which is stated to be
dismissed on 19 June 2015. In paragraph 16, the petitioner has
stated that though the details of the previous litigation have
been set out by the petitioner, but the same may not be relevant
for the issue as raised in the present petition, namely, the
acquisition proceedings to have lapsed in view of the provisions
of Section 24(2) of 2013 Act.
4. In paragraph 22 of the writ petition, the petitioner
has made a specific averment that though the award was passed
on 25 February 1989, till filing of the petition, the respondents
have not deposited in the Civil Court the compensation amount
as payable to the petitioner under the award. It is thus
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contended that on account of non payment of compensation, the
acquisition proceedings have lapsed in view of the provisions of
Section 24(2) of the 2013 Act. The petitioners make a reference
to the letter dated 27 June 2015 of Respondent No. 3 addressed
to the advocate for the petitioners to confirm that neither the
compensation amount has being deposited with the Civil Court,
nor it is paid to the petitioner. In support of the contention that
the acquisition proceedings have lapsed, the petitioner has
placed reliance on the Pune Municipal Corporation & Anr. Vs.
Harakchand Misirimal Solanki & Ors1.
5. On behalf of the respondents, reply affidavit of
Shankar Bhagawan Bhosale, the Deputy Collector Land
Acquisition No. 9, Sangli dated 30 November 2016 has been
filed. As regards the petitioners' contention on non payment of
compensation, the same has been dealt by the respondents in
paragraph 4 of the reply, which reads thus :-
"4. As per provision Of Sec. 24 Of The Right to Fair
Compensation and Transparency in Land
Acquisition Rehabilitation and Resettlement Act,
1 2014(3) SCC 183
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2013. The proceeding shall be deemed to have
lapsed; if the physical possession of the land has
not been taken. But in this case admittedly the
physical possession is taken as per the award dt.
24/2/1989 bearing S.R. No. 273 and previous
Act the petitioner is entitled to claim the interest
on awarded amount. Already the award is passed
and the respondent No. 3 have informed to the
petitioner to receive the amount of compensation
but the petitioner have not deliberately taken the
amount and other agricultural persons have
withdrawn the amount in this award."
6. Having noted the contents of paragraph 4 and the
clear statement on behalf of the respondents that it is the
petitioner who has not taken the amount though called upon to
receive the amount there cannot be any doubt that the amount
of compensation has not been paid to the petitioner.
7. There is no dispute that the award in question is
dated 24 February 1989 and which is admittedly five years prior
to coming into force of the 2013 Act. A perusal of Section 24(2)
of the 2013 Act makes it clear that when an Award under the
Land Acquisition Act is made five years or more prior to the
commencement of the 2013 Act and compensation has not been
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paid, the land acquisition proceedings as initiated under the
Land Acquisition Act would be deemed to have lapsed by virtue
of the application of Section 24(2) of the 2013 Act. The law in
this regard is well settled as considered in our decision dated 17
January 2017 in Writ Petition No. 3238 of 2015 in the case of
Santosh Dnyaneshwar Aher Vs. State of Maharashtra
Through Its Secretary And Ors., in which, considering the
decisions of the Supreme Court in Pune Municipal Corporation
& Anr. Vs. Harakchand Misirimal Solanki & Ors.2 and Delhi
Development Authority Vs. Sukhbir Singh & Ors.3, we have
held that unless the amount of compensation is deposited in the
Civil Court as per provisions of Section 31 of the 1894 Act, it
cannot be held that the compensation is paid to the person
whose land is acquired under land acquisition. This position in
law has clearly become applicable to the facts in hand.
8. Resultantly, the petition is required to be allowed
and it is allowed by the following order.
2 2014(3) SCC 183
3 AIR 2016 SC 4275
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ORDER
(i) The acquisition proceedings in relation to the
lands of the petitioner bearing Old Gat No.
1606/3 i.e. (New Gat No. 82/3 and 82/3K), Old
Gat No. 1647 i.e. New Gat No. 74, Old Gat No.
1686/5, i.e. New Gat No. 301/5, Old Gat No.
1705 i.e. New Gat No. 290. Old Gat No. 1648/5
i.e. New Gat No. 75/5/2 totally admeasuring 4
Hectors 55 Ares situate at village Karandwadi,
Taluka Walwa, District Sangli being the subject
matter of acquisition, under notification dated
1st February 1984 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 direct the State Government to restore the
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possession of the acquired land to the Petitioner
on or before 31 October 2017.
(iii) 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,
which may form subject matter of the Award.
(iv) We make it clear that if the State Government
requires the land in question for any public
purpose, it would be permissible for the State
Government to initiate fresh acquisition
proceedings as per the provisions of the 2013
Act.
(v) Rule is made absolute accordingly in the above
terms. No costs.
[G.S. KULKARNI] [CHIEF JUSTICE]
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