Bombay High Court
Jairam Gangaram Burke And Others vs The State Of Maharashtra And ... on 2 March, 2017
Bench: S.V. Gangapurwala
1 WP 1722/2017
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 1722 OF 2017
1 Jairam Gangaram Burke, Aged 80 Petitioners
years, Occupation Agriculture,
2 Usha Sakharam Burke, Aged 60 years,
Occupation Agriculture,
3 Madhukar Savleram Waghmare, Aged 69
years, Occupation Agriculture,
4 Dadasaheb Nathu Gite, Aged 50 years,
Occupation Agriculture,
5 Karbhari Nathu Gite, Aged 50 years,
Occupation Agriculture,
6 Balasaheb Pandharinath Dongare, Aged
53 years, Occupation Agriculture,
7 Murlidhar Gangaram Burke, Aged 80
years, Occupation Agriculture,
8 Gorakshanath Jairam Burke, Aged 37
years, Occupation Agriculture,
9 Sandip Valiba Burke, Aged 35 years,
Occupation Agriculture,
10 Sachin Valiba Burke, Aged 35 years,
Occupation Agriculture,
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11 Raghunath Pandharinath Dongare, Aged
67 years, Occupation Agriculture,
12 Subhash Ravsaheb Dongare, Aged 25
years, Occupation Agriculture,
13 Surekha Ramesh Navale, Aged 26
years, Occupation Agriculture,
14 Seema Sainath Navale, Aged 24 years,
Occupation Agriculture,
15 Bebi Ravsaheb Dongare, Aged 55
years, Occupation Agriculture,
16 Ramnath Pandharinath Dongare, Aged
62 years, Occupation Agriculture,
17 Prabhu Pandharinath Dongare, Aged 60
years, Occupation Agriculture,
18 Annasaheb Savleram Waghmare, Aged 52
years, Occupation Agriculture,
19 Ayubkhan Eliyas Khan Pathan, Aged 52
years, Occupation Agriculture,
20 Firozkhan Eliyas Khan Pathan, Aged
50 years, Occupation Agriculture,
21 Valiba Gangaram Burke, Aged 75
years, Occupation Agriculture,
22 Murlidhar Gangaram Burke, Aged 80
years, Occupation Agriculture,
23 Khandu Bhagwat Waghmare, Aged 48
years, Occupation Agriculture,
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24 Ramdas Bhagwat Waghmare, Aged 40
years, Occupation Agriculture,
25 Laxmibai Bhagwat Waghmare, Aged 65
years, Occupation Agriculture,
26 Vitthal Savleram Waghmare, Aged 75
years, Occupation Agriculture,
27 Laxman Hari Waghmare, Aged 75 years,
Occupation Agriculture,
28 Ramchandra Bhimaji Gite, Aged 60
years, Occupation Agriculture,
29 Shakuntala Ramchandra Waghmare, Aged
40 years, Occupation Agriculture,
30 Raghunath Sitaram Thatar, Aged 48
years, Occupation Agriculture,
31 Dinesh Rajaram Thatar, Aged 40
years, Occupation Agriculture,
32 Sanjay Tarachand Gaikar, Aged 42
years, Occupation Agriculture,
33 Santosh Vishnu Gaikar, Aged 41
years, Occupation Agriculture,
34 Kacharu Govind Thatar, Aged 40
years, Occupation Agriculture,
35 Sanjivani Pani Purvatha Sanstha,
Mogras through its Chairman
Bhausaheb Baburao Thatar, Aged 49
years, Occupation Agriculture,
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36 Ravsaheb Bhimaji Gite, Aged 50
years, Occupation Agriculture,
37 Damodhar Bhimaji Gite, Aged 82
years, Occupation Agriculture,
38 Yogesh Ravsaheb Gite, Aged 24 years,
Occupation Agriculture,
39 Janabai Ravsaheb Gite, Aged 58
years, Occupation Agriculture,
40 Narayan Shankarrav Naikwadi, Aged 53
years, Occupation Agriculture,
41 Habibkhan Ahmedkhan Pathan, Aged 60
years, Occupation Agriculture,
42 Gaurjaha Amamulla Khan Pathan, Aged
55 years, Occupation Agriculture,
43 Shahid Amamulla Khan Pathan, Aged 35
years, Occupation Agriculture,
44 Nilofar Riyaz Shaikh, Aged 28 years,
Occupation Agriculture,
45 Ayesha Shahrukh Shaikh, Aged 26
years, Occupation Agriculture,
46 Bhausaheb Maruti Kshirsagar, Aged 58
years, Occupation Agriculture,
47 Mohansingh Sardarsingh Pardesi, Aged
70 years, Occupation Agriculture,
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48 Ashoksingh Chattarsingh Pardesi,
Aged 58 years, Occupation
Agriculture,
49 Ramansingh Chalarsingh Pardeshi,
Aged 58 years, Occupation
Agriculture,
50 Baburao @ Babu Maruti Waghmare, Aged
75 years, Occupation Agriculture,
51 Bharatsingh Shankarsingh Pardesi,
Aged 70 years, Occupation
Agriculture,
52 Kashinath Namdev Burake, Aged 71
years, Occupation Agriculture,
53 Sitaram Bhimaji Gite, Aged 56 years,
Occupation Agriculture,
54 Bhanudas Ravsaheb Jadhav, Aged 55
years, Occupation Agriculture,
55 Shivaji Ravsaheb Jadhav, Aged 40
years, Occupation Agriculture,
56 Tanaji Ravsaheb Jadhav, Aged 45
years, Occupation Agriculture,
57 Ganpat Bhagwanta Jadhav, Aged 56
years, Occupation Agriculture,
58 Chandrabhaga Ravsaheb Jadhav, Aged
70 years, Occupation Agriculture,
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Petitioner Nos.1 to 26, 40 to 46, 52
are resident of Pangari
Petitioner Nos.27 to 39, 47 to 51
and 53 are resident of Mogras, and
Petitioner Nos.54 to 58 are resident
of Bholewadi, Taluka Akole, District
Ahmednagar
V E R S U S
1 The State of Maharashtra, Through Respondents
its Secretary, Revernue & Foresh
Department, Mantralaya, Mumbai - 32
2 The Land Acquisition Officer and the
Suib Divisional Officer, Sangamner
Division, Sangamner, Taluka
Sangamner, District Ahmednagar
Mr. S.K. Shinde, Advocate for the petitioners
Smt. Vaishali H. Patil, A.G.P. for the respondents/State
CORAM : S.V.GANGAPURWALA AND
K.L. WADANE, JJ.
DATE : 2nd MARCH, 2017
ORAL JUDGMENT (PER : S.V. GANGAPURWALA, J.) :
1. Rule. Rule made returnable forthwith. With
the consent of the parties, this petition is taken up
for final hearing.
2. In the present Writ Petition, the Award in
favour of the petitioners is passed on 8th February,
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2016 and 8th March, 2016 i.e. after coming into force
the Right to Fair Compensation & Transparency in Land
Acquisition, Rehabilitation & Resettlement Act, 2013
(hereinafter referred as 'Act of 2013'). The
petitioners filed a reference petition before the
competent authority under Section 64 of the said Act,
2013. The same is returned back on the ground that
the Award is passed under the old Act.
3. The Act of 2013 came into force on 1st
January, 2014. Upon enforcement of the Act of 2013,
the Land Acquisition Act, 1894 stood repealed.
Section 114 (1) of the Act of 2013 specifically
repeals the Land Acquisition Act, 1894. Sub-Section
(2) of Section 114 of the Act of 2013 suggests that
the repeal under Sub-Section (1) shall not be held to
prejudice or affect general application of Section 6
of the General Clauses Act, 1897 with regard to the
effect of repeals. The mandate of Section 6 of the
General Clauses Act is simply to leave the pending
proceeding unaffected which commenced under the
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unrepealed provisions unless contrary intention is
expressed.
4. Section 24 of the Act of 2013 takes various
contingencies within its ambit. Sub-Section (1) of
Section 24 of the Act of 2013 would be beneficial for
arriving at a conclusion about passing of the Award.
Section 24 (1) of the Act, 2013, reads as under :-
"(1) Notwithstanding anything contained in
this Act in any case of land acquisition
proceedings initiated under the Land
Acquisition Act, 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."
5. Section 24(1)(a)&(b) of the Act of 2013 deals
with two eventualities, first; no award under section
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11 of the Land Acquisition Act, 1894 has been made,
then all provisions of the Act of 2013 relating to
determination of compensation shall apply, and second;
Award under section 11 has been made, then such
proceeding shall continue under the provisions of the
Land Acquisition Act, 1894 as if the said Act has not
been repealed.
6. Reading Section 24(1)(a)&(b) of Act of 2013,
it is abundantly clear that it is only in those cases
where Award under Section 11 of the Land Acquisition
Act, 1894 is passed then the proceedings would
continue under the Act of 1894 as if the said Act has
not been repealed. It thereby suggests that in case
the Award has not been passed under Section 11 of the
Act of 1894, then all provisions of the Act of 2013
relating to determination of compensation and passing
of Award shall apply. The applicability of provisions
of the Act of 1894 would continue to apply only if the
Award under Section 11 of the Act of 1894 is passed
and not otherwise. If prior to the repeal of Act of
1894, the Award is not passed, then the proceedings
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completed till the stage of repeal of the Act of 1894
are saved. However, further proceeding i.e.
determination of compensation and passing of Award
will have to be under the Act of 2013. The said
interpretation would be in consonance and in tune with
reading Sections 24 and 114 of the Act of 2013
harmoniously. The legislative intent under Clauses (a)
and (b) of Sub-Section (1) of Section 24 of the Act of
2013 is abundantly clear. Any other interpretation
would be doing violence to the provisions as engrafted
under Sections 24 and 114 of the Act of 2013.
6. The Apex Court in the case of Aligarh
Development Authority Versus Megh Singh and others,
reported in (2016) 12 Suypreme Court Cases 504 has
observed that as the Award has not been passed under
1894 Act, the land acquisition proceedings would
continue but with rider that the Award will have to be
passed and compensation determined under the
provisions of the 2013 Act.
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7. In the said case, before the Apex Court
Notification under Section 4 (1) of the Land
Acquisition Act, 1894 was issued on 09.08.2004.
Emergency clause was also invoked under the provisions
of Section 17 followed by Section 6 declaration dated
03.08.2005. The Court observed that the Award was not
passed. The Land Acquisition proceedings would
continue, but with the rider, the Award will have to
be passed and compensation determined under the
provisions of the Act of 2013.
8. In the instant case, the title of the Award
itself says that the Award is under Section 24 of the
Act of 2013. As observed supra, on passing of the Act
of 2013, the Land Acquisition Act, 1894 stands
repealed. If the proceeding for acquisition is
commenced under the Act, 1894, the acquisition may not
necessarily lapse, however, if Award is passed after
the introduction of the Act of 2013, the Award will
have to be passed under the new Act.
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9. Once we conclude that after enforcement of
Act, 2013, the Award has to be passed under Act, 2013
though proceedings may have commenced earlier, then
the proceedings for enhancement of compensation will
have to be taken up under Section 64 of the Act of
2013. It appears that the compensation is computed
under the Act of 2013 while passing the Award. As the
Award is passed after the introduction and enforcement
of the Act of 2013, the Award necessarily has to be
passed under Act of 2013. The reference for
enhancement of compensation shall have to be filed and
entertained in accordance with the provisions of Act
of 2013.
10. The impunged order is accordingly quashed and
set aside. In case there is no other impediment, the
respondent-authority shall accept the reference filed
by the petitioners under Section 64 of the Right to
Fair Compensation & Transparency in Land Acquisition,
Rehabilitation & Resettlement Act, 2013, and refer it
to the Arbitrator as required under Act, 2013.
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11. Rule made absolute in above terms. No costs.
( K.L. WADANE, J.) ( S.V. GANGAPURWALA, J. )
SRM/2/3/17
