Bombay High Court
M/S Moti Ratan Estate Thr. Its ... vs The State Of Mah And Ors on 24 March, 2017
Bench: T.V. Nalawade
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 7867 OF 2012
M/s Moti Ratan Estate,
through its Partner
Mr. Vijay Nemichand Kasliwal,
Age : 45 years, Occu. Business,
having its office at Kasliwal Niwas,
Near Old Mondha, Nanded,
District Nanded PETITIONER
VERSUS
1. State of Maharashtra,
through Secretary,
Revenue & Forest Department,
Mantralaya, Mumbai - 32
2. The Secretary,
Department of Urban Development,
Mantralaya, Mumbai - 32
3. The Ditrict Collector,
Nanded
4. The Deputy Collector,
Land Acquisition Percolation Tank,
Minor Irrigation Division No. 2,
Nanded-Waghala, Nanded
5. The Executive Engineer,
Public Works Division,
Nanded, Tq. & Dist. Nanded
6. Nanded-Waghala Municipal Corporation,
through its Commissioner,
Nanded, Tq. and Dist. Nanded RESPONDENTS
----
Mr. V.J. Dixit, Senior Advocate instructed by and
with Mr. P.S. Agrawal, Advocate for the Petitioner
Mr. A.R. Kale, A.G.P. for respondent Nos. 1 to 5
Mr. M.D. Narwadkar, Advocate holding for Mr. Murar V.
Deshpande, Advocate for respondent No. 6
----
::: Uploaded on - 27/03/2017 ::: Downloaded on - 28/03/2017 00:58:30 :::
2 wp7867-2012
CORAM : T.V. NALAWADE AND
SANGITRAO S. PATIL, JJ.
JUDGMENT RESERVED ON : 3rd MARCH, 2017
JUDGMENT PRONOUNCED ON : 24th MARCH, 2017
JUDGMENT (PER : SANGITRAO S. PATIL, J.) :
Rule, returnable forthwith. With the consent
of the learned counsel for the contesting parties, heard
finally.
2. The petitioner, a partnership firm duly
registered under the Indian Partnership Act, has
challenged the acquisition proceedings culminated into
two awards dated 8th May, 2015 in respect of 1.60 hectare
of land out of block No. 119 and 1.21 hectare of land
out of block No. 18 (hereinafter referred to as
"acquired lands") respectively, situate within the local
limits of village Asarjan, Taluka and District Nanded.
3. The learned counsel for the petitioner submits
that the petitioner purchased the acquired lands in the
year 2003. Respondent No. 3 - Collector, Nanded granted
permission to the petitioner for making use of the
acquired lands for non-agricultural use on 30 th August,
3 wp7867-2012
2003. Respondent No. 6 - Commissioner, Nanded-Waghala
Municipal Corporation approved layout of the acquired
lands on 18th November, 2003. Respondent No. 6 published
a declaration, expressing its intention to prepare a
draft Development Plan for Nanded-Waghala Municipal
Corporation in the year 2006 wherein the acquired lands
were allocated for residential use. In the year 2009,
respondent No. 1 proposed to establish the office of the
Divisional Commissioner at Nanded and for that purpose,
reserved the lands block Nos. 111, 113, 114, 116 and 120
having total area of 31 Hectares 40 Ares. The acquired
lands were not included in the lands proposed to be
acquired for the office of the Divisional Commissioner.
Subsequently, the acquired lands also were proposed to
be acquired for the said purpose which was challenged by
the petitioner by filing Writ Petition No. 5090/2009,
but it came to be disposed of with liberty to approach
the appropriate forum. Accordingly, the petitioner
challenged the draft Development Plan before the
Minister, Urban Development on 13th April, 2010 and the
same is pending. Thereafter, respondent No. 4 - Deputy
Collector and Special Land Acquisition Officer published
a notification under section 4 of the Land Acquisition
4 wp7867-2012
Act, 1894 ("the Act of 1894", for short) on 27 th March,
2012. However, without extending the petitioner an
opportunity of raising objection under section 5A of the
said Act, recommended to respondent No. 1 for
acquisition of the acquired lands. The declaration
under section 6 came to be made on 21st March, 2013 and
ultimately, the awards came to be passed on 8 th May,
2015.
4. According to the learned counsel for the
petitioner, without making any modification in the
Development Plan of 2006 in respect of the earlier
allocation of the acquired lands for residential use,
they have been acquired for the construction of Central
Administrative Building, other Government buildings and
staff quarters, which is against the provisions of
section 23 of the Maharashtra Regional and Town Planning
Act, 1966 ("the MRTP Act", for short). He further
submits that the declaration under section 6 of the Act
of 1894 was made on 21 st March, 2013. However, the
impugned awards came to be passed on 8 th May, 2015.
According to him, as per section 11A of the Act of 1894,
it was incumbent on the part of respondent No. 4 to pass
5 wp7867-2012
award within a period of two years from the date of
publication of the declaration under section 6. He
submits that Writ Petition Nos. 3051/2013 and 3159/2013
were filed by some other persons whose lands were
proposed to be acquired for the above mentioned purpose.
In those writ petitions, stay was granted by this Court
against declaration of the awards during the period from
20th November, 2013 to 8th January, 2014. The petitioner
was not a party to said writ petitions. No stay was
operating against the acquired lands and respondent
No.4 could have passed awards in respect of the acquired
lands without any legal impediment. He, therefore,
submits that the delay of more than two years from the
date of publication of declaration under section 6, in
passing the awards in respect of the acquired lands
would entail in lapsing of the impugned awards so far as
the acquired lands are concerned.
5. The learned counsel for the petitioner further
submits that the Right to Fair Compensation and
Transparency in Land Acquisition, Rehabilitation and
Resettlement Act, 2013 ("the Act of 2013", for short)
came into force on 1st January, 2014. As per section 114
6 wp7867-2012
of the said Act, the Act of 1894 stood repealed. Since
no awards were passed in respect of the acquired lands
prior to 1st January, 2014, the impugned awards passed
under section 11 of the repealed Act of 1894 are liable
to be quashed and set aside. In support of this
contention, he cited certain judgments of the Hon'ble
the Supreme Court and that of the Bombay High Court,
which would be considered in the later part of this
judgment.
6. The learned counsel for the petitioner submits
that the lands of the petitioner have been acquired at
the instance of the then Chief Minister with a view to
harass the petitioner. In the circumstances, he prays
that the impugned awards, so far as they relate to the
acquired lands, may be quashed and set aside.
7. The learned A.G.P. and the learned counsel
appearing for respondent No. 6 support the impugned
awards. According to them, since the awards were not
passed on or before 1st January, 2014 i.e. prior to
coming into force of the Act of 2013, the present awards
would fall under section 24 (1) (a) of the Act of 2013
and all the provisions of the Act of 1894 would be
7 wp7867-2012
applicable to the said awards excepting the provisions
of the Act of 2013 relating to the determination of
compensation. Neither the learned A.G.P. nor the learned
counsel appearing for respondent No. 6 controverted the
ground of objection raised on behalf of the petitioner
about non-compliance of the provisions of section 23 of
the MRTP Act relating to declaration of an intention to
prepare the Development Plan incorporating the acquired
lands in the area meant for construction of Government
buildings or staff quarters instead of for the use of
residential purpose as was previously notified.
However, they submit that respondent No. 4 was quite
competent to acquire the acquired lands for the purpose
of construction of Central Administrative Building, the
buildings for other offices and staff quarters.
Accordingly, after following the due procedure laid down
in the Act of 1894, respondent No. 4 issued notification
under section 4, conducted inquiry under section 5A and
issued declaration under section 6 of the Act of 1894.
They submit that the petitioner was extended an
opportunity of hearing and after considering the
objection raised on behalf of the petitioner,
recommendations were made for acquisition of the
8 wp7867-2012
acquired lands. The learned A.G.P. submits that there
was stay granted by this Court in Writ Petition Nos.
3051/2013 and 3159/2013 for declaration of the awards
which was in force from 20th November, 2013 to the period
twelve weeks after 8th January, 2014 (i.e. the date of
passing final order). According to him, the said period
is liable to be excluded from the period of two years
prescribed for passing of award under section 11A after
publication of declaration under section 6 in view of
the Explanation given under section 11A of the Act of
1894. Therefore, according to him, the awards passed on
8th May, 2015 would be well within limitation and would
not get lapsed. He further submits that the provisions
of section 24 (2) of the Act of 2013 would not be
applicable to the impugned awards since they have not
been passed prior to five years of the date of
enforcement of the Act of 2013. The learned A.G.P.
relying on the judgment in the case of Smt. Sakharbai
Haribhau Shelke, Since deceaed through her L.Rs. Vs. Sub
Divisional Officer, Shrirampur and others 2014 (4)
Mh.L.J. 794, submits that since no award was passed
under section 11 of the Act of 1894, prior to
commencement of the Act of 2013, the notification under
9 wp7867-2012
sections 4 and 6 as well as the further proceedings
conducted under the Act of 1894 would not be vitiated.
However, while passing of the awards, the compensation
will have to be determined under the provisions of Act
of 2013.
8. It is the case of the petitioner that
immediately after issuance of notification under
section 4, the petitioner lodged objections to the
proposed acquisition. However, respondent No.4 did not
hear the petitioner and did not make inquiry as
contemplated under section 5A of the Act of 1894.
Therefore, the acquisition proceedings in respect of the
acquired lands of the petitioner are liable to be
quashed and set aside. The learned counsel for the
petitioner, relying on the judgment in the case of Union
of India (UOI) and others Vs. Shiv Raj and others (2014)
6 SCC 564, submits that the inquiry under Section 5A of
the Act of 1894 is not an empty formality. The
petitioner had a substantive right of audience before
respondent no.4. Respondent no.4 did not hear the
petitioner. Respondent no. 4 was under an obligation to
positively consider the arguments advanced by or on
10 wp7867-2012
behalf of the petitioner and make recommendations, duly
supported by brief reasons as to why the acquired lands
of the petitioner should or should not be acquired. No
such exercise has been done by respondent no.4 in the
present matter. Therefore, according to him, the
acquisition proceedings in respect of the acquired lands
are liable to be vitiated.
9. The learned A.G.P. submits that the Advocate of
the petitioner appeared before respondent no.4 on 19th
October, 2012. After hearing the Advocate for the
petitioner, respondent no.4 made recommendations for
acquisition of the acquired lands of the petitioner. He
submits that respondent No.4 has duly complied with
provisions of section 5A of the Act of 1894.
10. In para 21 of the reply, filed on behalf of
respondent No.4, it is specifically denied that the
inquiry under Section 5A of the Act of 1894 was not
conducted. It is stated that the date of hearing
objections of the persons interested in the lands
proposed to be acquired was published in daily
newspapers "Prajawani" and "Lok-Patra". The persons
interested or their authorised representatives were
11 wp7867-2012
called upon to appear before respondent No.4.
Accordingly, Advocate Shri Patni, appeared before
respondent No.4 on 19th October, 2012. He was heard by
respondent No.4. It is stated that after hearing
Advocate of the petitioner, respondent No.4 sent the
proposal under Section 6 of the Act of 1894 to the
Commissioner, Aurangabad and ultimately the declaration
under Section 6 was made.
11. Respondent No.4 has produced copies of the
public notices published in the above-named daily
newspapers at Exh.R-6 (Colly.). The contents of the
notices published in these newspapers clearly show that
respondent No.4 had called upon the persons interested
in the lands proposed to be acquired either to appear
before him personally or through their Advocates on 22 nd
October, 2012. Respondent No.4 specifically stated that
Advocate Shri Patni appeared before him on 19 th October,
2012. Respondent No.4 has produced the attendance sheet
(Exh.R-7) showing that Advocate Shri Patni appeared
before respondent No.4 on 19th October, 2012 and he was
heard by respondent No.4. With this positive evidence on
record, the contention of the petitioner that the
opportunity of hearing was not given by respondent No.4,
12 wp7867-2012
as contemplated under Section 5A of the Act of 1894,
cannot accepted. As far as the recommendations made by
respondent No.4 to the Government after hearing the
learned Advocate for the petitioner are concerned, the
petitioner, though had various ways and means either
producing them or getting them produced before the
Court, did not take any steps in this regard. In the
circumstances, we are not inclined to accept the
contentions of the learned counsel for the petitioner
that the acquisition proceedings would get vitiated for
non-compliance of Section 5A of the Act of 1894.
12. So far as the ground of objection raised by the
learned counsel for the petitioner in respect of change
of user of the acquired lands from residential to
Government and other public buildings as well as staff
quarters is concerned, we are not inclined to attach
much importance thereto. As seen from the awards, there
are many other lands which have been acquired for
construction of the Central Administrative Building,
other Government buildings and staff quarters. Thus, the
purpose of acquisition of the lands, including the
acquired lands of the petitioner, covers the residential
13 wp7867-2012
purpose also. Since residence also is one of the
purposes of acquisition, the contention of the learned
counsel for the petitioner that unless the allocation of
the acquired lands for residential purpose is changed
into Government buildings in the Development Plan, the
acquired lands of the petitioner could not have been
acquired, cannot be accepted.
13. So far as the ground of objection about the
delay of more than two years in passing the awards from
the date of declaration under section 6 of the Act of
1894 is concerned, we find substance therein.
Indisputably, the declaration under section 6 was made
on 21st March, 2013. As per the provisions of section
11A of the Act of 1894, the Collector shall make an
award under section 11 within a period of two years from
the date of publication of the declaration and if no
award is made within that period, the entire proceedings
for acquisition of the lands shall lapse. As per the
Explanation given under section 11A, 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 said declaration is stayed by an order
of a Court shall be excluded.
14 wp7867-2012
14. The learned A.G.P. produced the common order
dated 8th January, 2014 passed in Writ Petition Nos.
3051/2013 and 3159/2013, instituted by one Pandurang
Sadashiv Patil (Lute) and Gangadhar Parasram Jadhav,
respectively. The initial order dated 20th November, 2013
passed in those writ petitions has been re-produced in
the said order. Clause (3) of that order which is
material for the purpose of deciding this writ petition,
reads as under :-
"3. This Court directs that till next date,
final award should not be declared. Needless
to observe that in the event award is ready,
the State shall make an application before
this Court for leave to declare it, which will
help prevention from lapsing as well as
computation of the period spent in the
proceedings by virtue of stay."
15. This Court disposed of the said writ petitions
with the following order:-
"Both Writ Petitions stand disposed of with the
above directions. The order dated 20th
November, 2013 to continue for a period of 12
weeks from today but without prejudice to the
rights and conditions of parties."
16. As seen from the above order, the stay granted
15 wp7867-2012
by the Court on 20th November, 2013 against declaration
of final award in respect of the lands of the
petitioners therein was continued for a period of twelve
weeks from the date of that order i.e. 8th January, 2014.
As such, the stay was in operation for a total period of
four months and fourteen days. The declaration under
section 6 was made on 21st March, 2013. In the ordinary
course, the award should have been passed on or before
20th March, 2015. The learned A.G.P. submits that in
view of the stay granted by the Court, there would be
extension of the period of four months and fourteen days
for passing of the award vide Explanation under section
11A of the Act of 1894. Accordingly, the awards should
have been passed on or before 3rd August, 2015. The
awards have been passed on 8th May, 2015 and as such,
they have been passed within the prescribed period.
17. The claim made by respondent No.4 for extension
of period during which stay was in operation for passing
awards in respect of the acquired lands of the
petitioner is not at all sustainable. Indisputably, the
petitioner was not a party to Writ Petition Nos.
3051/2013 and 3159/2013. The lands of the petitioner
16 wp7867-2012
were not the subject matter of the said writ petitions.
As seen from clause (4) of the impugned awards, the
lands of the present petitioner and that of the
petitioners in Writ Petition Nos. 3051/2013 and
3159/2013 are different. Respondent No. 4 could have
conveniently passed awards in respect of the acquired
lands of the petitioner, despite the stay granted by the
Court in the above numbered writ petitions. It can be
seen from clause No. (8) of the impugned awards that the
lands of the petitioners in Writ Petition Nos. 3051/2013
and 3159/2013 have been excluded from the impugned
awards, in view of the directions given by the Court to
consider the claims of the petitioners therein under
section 15A of the Act of 1894. When respondent No. 4
could pass the impugned awards excluding the lands of
the petitioners in Writ Petition Nos. 3051/2013 and
3159/2013, it can not be said that respondent No. 4
could not have passed the awards in respect of the
acquired lands of the petitioner even during the period
when the stay was in force in respect of the lands
subject-matter of Writ Petition Nos. 3051/2013 and
3159/2013. The stay granted by the Court was not in
respect of all the lands proposed to be acquired by
17 wp7867-2012
respondent No. 4. Even as per clause (3) of the order
dated 20th November, 2013 passed by this Court,
respondent No. 4 was given liberty to apply before the
Court for declaration of the award in case it was ready.
Though it was not necessary, still it was not difficult
for respondent No. 4 to apply before the Court by way of
abundant precaution for permission to declare the awards
in respect of the lands of the present petitioner, when
the petitioner had not challenged the acquisition
proceeding in respect of his land. In any case,
respondent No. 4 cannot claim exclusion of the period
during the stay was in operation in respect of the lands
of other persons vide Explanation given under section
11A for justifying the delay in passing the awards in
respect of the acquired lands of the petitioner. The
awards in respect of the acquired lands of the
petitioner was required to be passed on or before 20 th
March, 2015 i.e. within a period of two years from the
date of publication of declaration under section 6.
Since the impugned awards have been passed on 8 th May,
2015 i.e. beyond the prescribed period of two years in
view of the provisions of section 11A of the Act of
1894, the said awards would stand lapsed so far as the
18 wp7867-2012
acquired lands of the petitioner are concerned.
18. The learned counsel for the petitioner pointed
to the provisions of section 25 of the Act of 2013,
wherein it is mandated that the Collector shall make an
award within a period of twelve months from the date of
publication of the declaration under section 19 and if
no award is made within that period, the entire
proceedings for the acquisition of the land shall stand
lapsed. He submits that under this provision, there is
no exclusion of the period during which stay was in
operation while calculating the period of twelve months
for passing of the awards.
19. In the present case, since the awards were not
passed when the Act of 2013 came into force, the
provisions of section 24 (1) (a) would be applicable to
the present case. Accordingly, the acquisition
proceedings initiated under the Act of 1894 would be
saved and continued and the provisions of the Act
relating to determination of compensation only would be
applicable thereto. Therefore, the provisions of section
25 of the Act of 2013 would not be applicable to the
facts of the present case.
19 wp7867-2012
20. The learned counsel for the petitioner cited
the judgments in the cases of Yogesh Neema and others
Vs. State of M.P. and others (2016) 6 SCC 387, Union of
India (UOI) and others Vs. Shiv Raj and others and Vinod
Kapur and others Vs. Union of India (UOI) and others
(2014) 6 SCC 564, Pune Municipal Corporation and another
Vs. Harakchand Misirimal Solanki and others (2014) 3 SCC
183 and Sree Balaji Nagar Residential Association V.
State of Tamil Nadu (2015) 3 SCC 353, to contend that
since the possession of the acquired lands has not been
taken and the compensation also has not been paid to the
petitioner, the awards would stand lapsed. As seen from
the facts of the above cited cases, the awards therein
were passed five years or more prior to the commencement
of the Act of 2013. Therefore, in view of the fact that
physical possession of the lands was not taken or the
compensation was not paid, the said acquisition
proceedings were declared as lapsed. Since the awards
were not passed in the present case prior to five years
of the commencement of the Act of 2013, these rulings
would be of no help to the petitioner to claim that the
impugned awards would be deemed to have lapsed in view
20 wp7867-2012
of sub-section (2) of section 24 of the Act of 2013.
21. The contention raised on behalf of the
petitioner that the acquired lands of the petitioner
were sought to be acquired at the instance of the then
Chief Minister with a view to harass the petitioner,
cannot be attached with any importance. Such
allegations cannot be entertained against a person who
is not a party to the proceedings.
22. To sum up, the impugned awards, so far as they
relate to the acquired lands of the petitioner, are
liable to be lapsed on the sole ground that they were
not passed by respondent No. 4 within a period of two
years from the date of declaration made under section 6
of the Act of 1894. The other grounds sought to be
agitated by the petitioner for getting the impugned
awards declared as lapsed do not contain any force. In
the result, we pass the following order :-
(i) The Writ Petition is allowed.
(ii) The impugned awards, so far as they relate to
the acquired lands of the petitioner, stood
lapsed.
21 wp7867-2012
(iii) The respondents are at liberty to initiate
acquisition proceedings afresh against the
acquired lands as permissible under the law, if
desired.
(iv) Rule is made absolute in the above terms.
(v) The Writ Petition is disposed of.
(vi) No costs.
[SANGITRAO S. PATIL] [T.V. NALAWADE]
JUDGE JUDGE
npj/wp7867-2012
