Suresh Mahadeorao Deshmukh vs State Of Maharashtra Through Its ...
2017 Latest Caselaw 5827 Bom

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                                       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                                 NAGPUR BENCH : NAGPUR


                                                       WRIT PETITION NO.2541/2015

Suresh Mahadeorao Deshmukh, 
aged about Major, Occu. Agriculturist, 
R/o Plot No.3, Pitru Chaya, Bhakti Nagar, 
Arjun Nagar, Morshi Road, Amravati, 
Taluka and District Amravati.                                                                                                                                   ..Petitioner.

              ..Vs..

1.            State of Maharashtra, 
              through its Secretary Mantralaya, 
              Mumbai - 3. 

2.            Collector / Dy. Collector, 
              (Rehabilitation) Yavatmal.

3.            Jayant Dattatraya Sathe, 
              aged about 49 Yrs., Occu. Agriculturist, 
              R/o Savitribai Fule Society, Jay Vijay
              Chowk, Waghapur, Yavatmal, 
              Tah. and Distt. Yavatmal.                                                                                                            ..Respondents.
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              Shri V.K. Barlinge, Advocate for the petitioner. 
              Shri A.A. Madiwale, A.G.P. for respondent Nos.1 and 2. 
              Shri V.N. Patre, Advocate for respondent No.3.
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                                                                 CORAM :  S.C. GUPTE, J.

                                                                 DATE  :     10.8.2017.



ORAL JUDGMENT

1. Heard learned counsel for the parties and the learned A.G.P. for the

State.

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2. Rule. Taken up for hearing forthwith by consent of counsel.

3. The petitioner challenges an order passed by the District Rehabilitation

Officer ("D.R.O.") purportedly under Section 16(1)(a) of the Maharashtra

Project Affected Persons Rehabilitation Act, 1999 ("PPA Act"). The application

before the D.R.O. was for grant of land to respondent No.3, who was a project

affected person, whilst the petitioner herein, who was a land-owner in the

benefited zone, was an objector before the D.R.O. The impugned order rejects

his objections and proceeds in the matter of deciding the price at which the

land is to be compulsorily purchased. This order was followed by an order

passed on 25th July, 2014, by which the price of the land to be allotted to the

eligible affected person was fixed at Rs.5,75,716/-. The challenge is mainly on

the ground that the D.R.O. has proceeded to reject the petitioner's objections

and determine the price of the land to be allotted to respondent No.3 (the

eligible affected person) without there being any acquisition under Section 14

of the PPA Act read with the provisions of Land Acquisition Act ("LA Act").

4. Shortly stated, the facts of the case are as follows:

The petitioner claims to be the owner and in possession of Field

Survey No.581/4 admeasuring 2 Hectors 61 R of Mouje Ralegaon Part 2,

Taluka Ralegaon, District Yavatmal. This field along with the other field held

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by the petitioner admeasures a total area of about 4 Hectors 1 R. (The two

fields originally had a total area of 6 Hectors 42 R, out of which 1 Hector 27 R

was sold by the petitioner.) These fields come under the benefited zone of the

Bembla Project. It is the grievance of the petitioner that the D.R.O. by

publishing a notice dated 8th May, 2014 declared that the land admeasuring 2

Hectors and 61 R forming part of the petitioner's fields, required for the

purpose of rehabilitation under the provisions of Section 14(1) and (2) of the

PAP Act, was to be allotted to respondent No.3, who is an affected person in

the same project. The notice indicated that respondent No.3 had offered to

purchase the said land at its market value, stated to be Rs.4,36,000/-. The

petitioner submitted his objections to this declaration. The petitioner was

thereafter called for a hearing and heard by the D.R.O. One of the main

contentions of the petitioner before the D.R.O. was that the land was yet to be

acquired or purchased by the Collector under Section 14 of the PAP Act and

accordingly, there was no question of grant of this land to any affected person

under Section 16(1)(a) of the PAP Act. By his order 15 th July, 2014, the D.R.O.

rejected all objections of the petitioner. The D.R.O. accepted the fact that the

land was yet to be acquired or purchased under Section 14 of the PAP Act.

The D.R.O., however, treated this defect as merely cosmetic in nature and a

matter of oversight. The D.R.O., thereafter, proceeded by a separate order

passed on 25th July, 2014 to fix the market price of the subject land at

Rs.5,75,716/-, requiring respondent No.3 as eligible affected person to deposit

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that amount. These orders are challenged in the present petition.

5. The scheme of the PAP Act makes it clear that in respect of a project

to which the PAP Act applies, the Commissioner of the revenue division, in

which entire or major part of the project lies, shall by notification specify the

village, or areas, if any, which are likely to be affected or benefited by the

project. After the village, or areas, as the case may be, are notified, there are

restrictions on their transfer. These restrictions are contained in Section 12 of

the PAP Act. The restrictions inter alia prohibit transfers of the lands in the

benefited zone in the particular village or area, as the case may be, except with

the permission of the Commissioner. Under Section 13 of the PAP Act, as soon

as may be practicable, the Collector is required to give a public notice inviting

objections or suggestions in respect of lands within his district falling within the

affected or benefited zones. The objections or suggestions submitted in

response are thereafter considered by the Collector. The Commissioner

thereafter has to declare the extent of areas which shall constitute the affected

zone and which shall constitute the area of the benefited zone under the

project, if the project is an irrigation project. This declaration must also

provide for the particular slab / slabs that ought to apply for determining the

excess land from out of the holding for the purpose of acquisition. (The

Schedule to the PPA Act provides for size-wise area to be acquired from out of

holdings in the benefited zone.) Once this is done, under Section 14 of the PAP

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Act, it is permissible to the Commissioner, or the Collector authorized by him,

to acquire land from any holding in the benefited zone of the project according

to the slab declared in the notification under Sub-section (1) of Section 13 of

the PAP Act. The land acquired under Section 14 through the various means

provided thereunder, namely, acquisition from the benefited zone, acquisition

of any land required for carrying out the purposes of the PAP Act, and

compulsory acquisition under the L.A. Act, form part of a land pool and the

Collector is then empowered under Section 16 of the PAP Act to grant any land

from this land pool to an eligible affected person, who is desirous of getting

such land. This scheme clearly implies that before any land, as part of the land

pool, is granted to any eligible affected person, it has to be acquired by the

Commissioner, or the Collector empowered by him in that behalf. Acquisition

of land under Section 14, thus, is a pre-requisite, which must necessarily

precede the grant of land under Section 16(1)(a).

6. It is seen from the record of the present case that the petitioner's

land comes within the benefited zone of the Bembla project and having been

declared as such, it is subject to the restrictions provided for under Section 12

of the PAP Act. The petitioner's application for permission to sell 4 Hectors and

4 R out of his total holding of 6 Hectors and 43 R to the Collector of Yavatmal,

which is termed by respondent No.3 as the former's admission of acquisition of

the remaining land under Section 14 of the PAP Act, is actually an application

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for permission for sale of the land within the slab under Section 12 of the PAP

Act. Whereas it does indicate that the balance part of the holding could be

acquired under Sub-Section (4) of Section 14 in accordance with slab declared

in the notification under Sub-section (1) of Section 13, it still does not imply

actual acquisition under Sub-section (4) of Section 14. In fact, it appears to be

an admitted position (even the State confirms this position at the hearing of

this petition) that the land being the subject matter of the present petition has

not stood acquired at any time under Sub-section (4) of Section 14. Even in his

impugned order the D.R.O., in terms, accepts this position, when he says that

"as is clear, the land is yet to be acquired or purchased". If the land is not

acquired or purchased as of date, as noticed above, there is no question of

allotting it to any eligible affected person. The D.R.O. appears to treat the

want of acquisition or purchase under Section 14 as a mere cosmetic defect.

That is clearly incorrect. It is a defect, which goes to the root of the matter,

and undermines the very power of the Collector to grant the land to any

affected person including respondent No.3. It is only that land, which is

acquired under Section 14, which can be granted to an eligible person under

Section 16(1)(a) and no other land.

7. The foregoing discussion leaves no manner of doubt that the entire

approach of the D.R.O. is vitiated by a serious error of law. The impugned

orders, accordingly, cannot be sustained and will have to be set aside.

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8. Before concluding the order, it bears a mention that this Court finds

it rather strange that despite the land being declared to be in the benefited

zone and despite the petitioner holding excess land, which is to be subjected to

levy in accordance with the slab determined by the State under Sub-Section (1)

of Section 14 of the PAP Act, the State has not taken any steps under Section

14 of the Act to either purchase or compulsorily acquire the land in terms of

Section 14 of the PAP Act. It is expected that the respondent - State will take

corrective measures and proceed under Section 14 for purchase / acquisition

of the subject land. In case the land is purchased / acquired by the State

under Section 14 of the PAP Act, such land shall be allotted to respondent

No.3, particularly in view of the fact that he has been misled into depositing

the entire value of the land, namely, Rs.5,75,716/- and has proceeded to do so.

9. Rule is accordingly made absolute and the petition is disposed in the

above terms. In the circumstances of the case, there shall be no order as to

costs.

JUDGE

Tambaskar.