Bombay High Court
Khandu Dhanaji Raees & Ors vs State Of Maha & Ors on 12 July, 2017
Bench: T.V. Nalawade
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 1692 OF 2004
1. Smt. Mainabai Shivsing Pardeshi,
age : Major, Occu.: Household/
Agriculturist,
R/o.: Padampura, Aurangabad
2. Bhaulal Govardhandas Gumaldu
Age : 51 years, Occu.: Business,
R/o. H.No.5/10/84, Padampura,
Aurangabad PETITIONERS
VERSUS
1. The State of Maharashtra,
through Secretary, Department
of Revenue and Forest,
Mantralaya, Mumbai
2. The Divisional Commissioner
(Revenue), Aurangabad,
Aurangabad Division,
Aurangabad
3. The Special Land Acquisition
Officer, Special Unit,
Aurangabad
4. The Collector,
Aurangabad,
District Aurangabad RESPONDENTS
WITH
CONTEMPT PETITION NO. 197 OF 2014
IN
WRIT PETITION NO. 1692 OF 2004
Jagjiwanram Co-operative Housing
Society Ltd., Aurangabad,
through its Secretary,
Narayan s/o Gulabchand Banswal PETITIONER
(ORI.RESP.NO.7)
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VERSUS
1. Mainabai w/o Shivsing Pardeshi,
age : Major, Occu.: Business,
R/o.: Opp. Hanumand Mandir,
RTO Officer Road, Padampura,
Aurangabad
2. Sham s/o Udhavsing Pardeshi,
Age : 35 years, Occu.:
Legal Practitioner,
R/o.: Opp. Hanumand Mandir,
RTO Officer Road, Padampura,
Aurangabad
3. P.D. Kulkarni,
Project Coordinator, MSRDC,
Aurangabad
4. Shri Uday Bharade,
Deputy Engineer,
MSRDC, Aurangabad
5. Shri Suradkar,
Site Engineer,
MSRDC, Aurangabad CONTEMNORS
6. The State of Maharashtra,
Through Secretary,
Department of Revenue and Forest,
Mantralaya, Mumbai
7. Divisional Commissioner,
(Revenue), Aurangabad
8. The Special Land Acquisition
Officer, Special Unit,
Aurangabad
9. The Collector,
Aurangabad
10. The District Deputy Registrar,
Co-operative Societies,
Aurangabad RESPONDENTS
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CIVIL APPLICATION NO. 4045 OF 2014
IN
CONTEMPT PETITION (ST.) NO.9618 OF 2014
IN
WRIT PETITION NO.1692 OF 2004
Jagjiwanram co-operative
Housing Society Ltd., APPLICANT
Aurangabad (ORI.RESP.NO.7)
VERSUS
Mainabai w/o Shivsing Pardeshi CONTEMPNORS/
and others RESPONDENTS
WITH
WRIT PETITION NO.6433 OF 2005
Uddhavsing s/o Shivsing Pardeshi,
Age : 52 years, Occu.: Agri.,
Business, resident of Padampura,
Aurangabad,
District Aurangabad PETITIONER
VERSUS
1. The State of Maharashtra,
through Secretary, Department
of Revenue and Forest,
Mantralaya, Mumbai
2. The Divisional Commissioner
(Revenue), Aurangabad,
Aurangabad Divn.,
Aurangabad
3. The Special Land Acquisition
Officer, Special Unit,
Aurangabad
4. The Collector, Aurangabad,
District Aurangabad
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5. The District Deputy Registrar,
Co-operative Societies,
Aurangabad
6. The Assistant Registrar,
Co-operative Societies,
Aurangabad
7. Jagjivanram Co-operative
Housing Society Limited,
Aurangabad, through its
Secretary Shri Narayan
s/o. Gulabchand Banswal,
age : 57 years, Occu.: Service,
resident of Padampura,
District Aurangabad RESPONDENTS
WITH
CIVIL APPLICATION NO. 4042 OF 2015
IN
WRIT PETITION NO. 6433 OF 2005
Smt. Rekha s/o Ramesh Banswal
and others APPLICANTS
VERSUS
Uddhavsing s/o Shivsing Pardeshi
and others RESPONDENTS
WITH
WRIT PETITION NO.5596 OF 2007
Jagjivanram Co-operative Housing
Society Ltd., Kesharsingpura,
Aurangabad,
through it's Secretary PETITIONER
VERSUS
1. The State of Maharashtra,
through Ministry of Social
Welfare Department, Mantralaya,
Mumbai-32
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2. The Secretary,
Department of Social Welfare,
Mantralaya, Mumbai-32
3. The Divisional Social Welfare,
Officer, Aurangabad
4. The District Social Welfare,
Officer, Aurangabad
5. The Secretary,
Ministry of Finacne,
Mantralaya, Mumbai-32
6. The Collector,
Aurangabad
7. Special Land Acquisition Officer,
(Special Unit), Aurangabad RESPONDENTS
WITH
WRIT PETITION NO.7001 OF 2004
1. Khandu s/o Dhanaji Raees,
age : 38 years, Occu.: Nil,
2. Shrinivas Narayan Gaudashamar,
age : 46 years, Occu.: Worker,
3. Nawab Wali Mah. Noor Moh.
age : 49 years,
Occu.: Auto Works,
4. Suresh Shivsingh Jaiswal,
age : 45 years,
Occu.: Business,
5. Shankar Rajaram Lonkalkar,
age : 44 years,
Occu.: Pan Shop,
6. Hanif Ahamed Nazir Ahmed,
age : 41 years,
Occu.: Auto Work,
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7. Modh. Naimoddin Mehbvoob Sharik,
age : 39 years,
Occu.: Business,
8. Ramdas Damodhar Badak,
age : 28 years,
Occu.: Washing Center
9. Ravindra Jagannath Udawant,
age : 40 years,
Occu.: Auto Work,
10. Xevier Das Devidas,
age : 40 years,
Occu.: Auto work,
11. Mohood Khan,
age : 28 years,
Occu.: Auto work,
All R/o. Padampura,
Aurangabad PETITIONERS
VERSUS
1. The State of Maharashtra
through its Secretary,
Revenue and Forest Department,
Maharashtra State Mantralaya,
Mumbai - 32
2. The Commissioner,
Aurangabad Division, Aurangabad
3. The Special Land Acquisition
Officer, Aurangabad District,
Aurangabad
4. The Collector,
Aurangabad
5. Jagjivanram Co-operative Housing
Society Limited, Aurangabad
through its Secretary
Shri Narayan s/o. Gulabchand Banswal,
age : 56 years, Occu.:
Government Service,
R/o. Padampura, Aurangabad RESPONDENTS
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----
Mr. B.L. Sagar-Killarikar, Advocate for the Petitioner
in W.P.No.1692/2004
Mr. N.R. Solunke, Advocate for the Petitioner in
C.P.No.197/2004, W.P.No.5596/2004 and for respondent
No.5 in W.P.No.7001/2004
Mr. M.Y. Deshmukh, Advocate for the Petitioner in
W.P.No.7001/2004
Mr. P.K. Joshi, Advocate for the Petitioner in
W.P.No.6433/2005
Mr. B.N. Patil, Advocate for the applicants-
interveners in C.A. No. 4042/2015 in W.P. No.6433/2005
Mrs. V.N. Patil-Jadhav, A.G.P. for respondent/State in
all the Writ Petitions
----
CORAM : T.V. NALAWADE AND
SANGITRAO S. PATIL, JJ.
RESERVED ON : 15th JUNE, 2017
PRONOUNCED ON : 12th JULY, 2017
COMMON JUDGMENT (PER : SANGITRAO S. PATIL, J.):
Writ Petition No. 1692 of 2004, 7001 of 2004
and 6433 of 2005 have been filed by the owners/persons
interested in respect of the land Survey No.12,
situate within the local limits of Municipal
Corporation, Aurangabad for setting aside the Award
dated 25th June, 2003 passed under Section 11 of the
Land Acquisition Act, 1894 ("the Act of 1894", for
short).
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2. Contempt Petition No.197 of 2004 has been
filed by Jagjivan Ram Co-operative Housing Society
Ltd. ("the Society", for short), seeking enforcement
of the Award dated 25th June, 2003, while Writ Petition
No.5596 of 2004 has been filed by the said society,
seeking direction against the respondent-Government
Authorities to make the funds available for
acquisition of the land Survey No.12, admeasuring 52
Are in pursuance of the Award dated 25th June, 2003.
3. Common questions of law and facts are
involved in these Writ Petitions, hence they are being
decided by this common judgments.
4. The learned counsel for the petitioners
sought the reliefs of setting aside of the Award
mainly on two grounds. According to them, as per
Section 11A of the Act of 1894, if no Award is made by
the Collector within a period of two years from the
date of publication of the declaration under Section
6, the entire acquisition proceedings in respect of
the land are liable to be lapsed. They submit that in
the present case, the declaration under Section 6 was
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published in the Gazette on 1st June, 1989. There was
stay to the acquisition proceedings during the period
from 28th August, 1989 to 20th September, 2001. The stay
was vacated on 21st September, 2001. Even if the period
during which the stay was in operation is excluded
from consideration, the Award passed on 25 th June, 2003
would be beyond the period of two years as
contemplated under Section 11A.
5. Secondly, it is the contention of the learned
counsel for the said petitioners that possession of
the land proposed to be acquired is still with them.
Moreover, the amount of compensation has not been paid
to them. Therefore, 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 ("the Act of
2013", for short), the acquisition proceedings shall
be deemed to have lapsed.
6. As against this, the learned counsel for the
Society submits that the notification under Section 6
of the Act of 1894 was published on Chawdi on 17 th
June, 1989. As per sub-section (2) of Section 6 of the
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Act of 1894, the last date of the date of publication
of the declaration would be the date of publication
thereof. As per the Explanation given under Section
11A of the Act of 1894, in computing the period of two
years, referred to in this section, the period during
which any action or proceeding to be taken in
pursuance of the said declaration, is stayed by an
order of a Court shall be excluded. In support of this
contention, he relied on the judgment in the case of
Government of Tamil Nadu and another Vs. Vasantha Bai
AIR 1995 SC 1778. Therefore, according to him, the
Award passed on 25th June, 2003 is well within the
period of two years from the date of publication of
the declaration under Section 6 of the Act of 1894.
7. The learned counsel for the Society further
submits that since there was stay for taking
possession of the land proposed to be acquired, the
possession thereof could not be taken. Therefore, in
view of the amendment under sub-section (2) of the
Section 24 of the Act of 2013, promulgated as per the
Amendment Ordinance dated 31st December, 2014, the
period during which the stay to the acquisition
proceedings was in operation would be liable to be
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excluded in computing the period of five years
referred to in sub-section (2) of Section 24. He
further submits that the amount of compensation was
required to be paid by the Government Authorities.
However, for the fault of the Government Authorities
in paying the amount of compensation to the
petitioners, the Society, which is constituted for
safeguarding the interests of the weaker section,
cannot be made to suffer.
8. So far as the first contention raised by the
learned counsel for the petitioners that the
acquisition proceedings would stand lapsed on the
ground that the Award was not passed within a period
of two years from the date of publication of the
declaration under Section 6 of the Act of 1894 is
concerned, the learned counsel for the petitioners
themselves have fairly conceded that the Award has
been passed within a period of two years from the last
date of publication of the declaration on 17 th June,
1989 and the period from 21st September, 2001 to 25th
June, 2003, during which there was stay granted by
this Court to the acquisition proceedings in
operation, is liable to be excluded in computing the
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period of two years. We also calculated the period of
passing the Award from 17th June, 1989, excluded the
period of stay from 21st September, 2001 to 24th June,
2003 and found that the Award has been passed within a
period of one year, eight months and fifteen days. As
such, the first objection against the Award does not
sustain.
9. In order to appreciate the second contention,
it would be necessary to reproduce here the provisions
of Section 24 of the Act of 2013, which came into
force with effect from 1st January, 2014. Section 24
reads thus:-
of 1894 shall be deemed to have lapsed in
certain cases.-
(1) Notwithstanding anything contained in
this Act, in any case of land acquisition
proceedings initiated under the Land
Acquisition Act, 1894, (1 of 1894),-
(a) where no award under section 11 of
the said Land Acquisition Act has been
made, then, all provisions of this Act
relating to the determination of
compensation shall apply; or
(b) where an award under said section 11
has been made, then such proceedings
shall continue under the provisions of
the said Land Acquisition Act, as if the
said Act has not been repealed.
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(2) Notwithstanding anything contained in
sub-section (1), in case of land acquisition
proceedings initiated under the Land
Acquisition Act, 1894 (1 of 1894), where an
award under the said section 11 has been made
five years or more prior to the commencement
of this Act but the physical possession of
the land has not been taken or the
compensation has not been paid the said
proceedings shall be deemed to have lapsed
and the appropriate Government, if it so
chooses, shall initiate the proceedings of
such land acquisition afresh in accordance
with the provisions of this Act:
Provided that where an award has been made
and compensation in respect of a majority of
land holdings has not been deposited in the
account of the beneficiaries, then, all
beneficiaries specified in the notification
for acquisition under section 4 of the said
Land Acquisition Act, shall be entitled to
compensation in accordance with the
provisions of this Act."
10. The Ordinance of 2014, issued by the
Government of India on 31st December, 2014, has added
the following Proviso under the existing Proviso to
sub-section (2) of Section 24. It reads as under:-
"Provided further that in computing the
period referred to in this sub-section, any
period or periods during which the
proceedings for acquisition of the land were
held up on account of any stay or injunction
issued by any court or the period specified
in the award of a Tribunal for taking
possession or such period where possession
has been taken but the compensation lying
deposited in a court or in any account
maintained for this purpose shall be
excluded."
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11. The above-mentioned Ordinance was issued by
the Government of India since the Parliament was not
in Session when it was required to be issued.
12. As per Clause (2) of Article 123 of the
Constitution of India, the Ordinance promulgated under
the said Article is required to be laid before both
Houses of the Parliament and would stand ceased to
operate at the expiration of six weeks from the
reassembly of the Parliament and till then, it would
have the same force and effect as an Act of the
Parliament. The learned counsel for the Society did
not produce anything on record to show that the said
Ordinance was placed before both Houses of the
Parliament and any Amendment Act has been passed
during the period of last three years. Thus, after the
period mentioned above, the said Ordinance would cease
to have any binding force. Consequently, the amendment
contained in the said Ordinance would be of no help to
the Society to save the Award from operation of the
provisions of Section 24 of the Act of 2013.
13. The Award in respect of the land Survey No.12
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was passed on 25th June, 2003. The period of more than
eleven years had been elapsed prior to the date (i.e.
1st January, 2014) of enforcement of the Act of 2013.
Neither the possession of the said land was taken,
nor the amount of compensation was paid as
contemplated under sub-section (2) of Section 24 of
the Act of 2013. Consequently, the said Award would be
deemed to have lapsed.
14. The learned A.G.P., relied on the judgment in
the case of Rajaram s/o Dhondiram Hawale and others
Vs. State of Maharashtra and others in Writ Petition
No.1932 of 2014, decided by this Court on 16th
September, 2014, wherein the Award was declared on 31 st
December, 2013 (i.e. within a period of five years
prior to coming into force of the Act of 2013) and
therefore, the respondent - Land Acquisition Officer
was directed to determine the amount of compensation
in accordance with the provisions of the Act of 2013
since the amount of compensation was not already paid
to the land holders. This judgment would not be
applicable to the facts of the present case since the
Award herein has been passed prior to five years of
coming into force of the Act of 2013.
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15. The learned counsel for the Society submits
that the Government may be directed to initiate the
proceedings in respect of the land Survey No. 12
afresh in case the Award is deemed to have been
lapsed. The provision of sub-section (2) of Section
24 itself says that the Appropriate Government, if it
so chooses, shall initiate the proceedings of such
land acquisition afresh in accordance with the
provisions of this Act. Thus, a discretion is vested
in the Government to initiate the land acquisition
proceedings afresh. The Court cannot issue specific
directions against the Government to initiate the
proceedings for land acquisition afresh. However, we
extend the said liberty to the Government, if it so
chooses to initiate the land acquisition proceedings
afresh.
16. In the above circumstances, Writ Petition
Nos.1692 of 2004, 7001 of 2004 and 6433 of 2005
deserve to be allowed. The Award dated 25 th June, 2003
in respect of the land Survey No.12 shall be deemed to
have lapsed. If that be so, Contempt Petition No. 197
of 2004, filed for enforcement of the said Award and
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Writ Petition No.5596 of 2004, filed seeking direction
against the respondent-Government Authorities to
deposit the amount of compensation in pursuance of the
Award dated 25th June, 2003, would not survive. In the
result, we pass the following order:-
O R D E R
(i) Writ Petition Nos. 1692/2004, 7001/2004 and
6433/2005 are allowed.
(ii) The Award dated 25th June, 2003, passed in
respect of the land Survey No. 12, situate within the
local limits of Aurangabad Municipal Corporation,
Aurangabad is hereby declared as lapsed.
(iii) The respondent - Government Authorities may
initiate the acquisition proceedings in respect of the
aforesaid land afresh, if they choose to do so.
(iv) Rule is made absolute in the above terms.
(v) Writ Petition No. 5596 of 2004 is dismissed
and the Rule stands discharged accordingly.
(vi) Contempt Petition No. 197/2014 does not
survive and stands disposed of.
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(vii) All pending Civil Applications do not
survive in view of disposal of the Writ Petitions and
hence, stand disposed of.
(viii) The parties shall bear their own costs.
[SANGITRAO S. PATIL] [T.V. NALAWADE]
JUDGE JUDGE
npj/wp1692-2004+group
