Bombay High Court
Shri. Murlidhar Raghu Jagtap And ... vs Special Land Acquisition Officer ... on 8 March, 2017
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
Writ Petition NO. 9849 OF 2014
1.Shri. Murlidhar Raghu Jagtap )
2.Shri.Datta Baburao Jagtap )
3.Shri.Dilip Baburao Jagtap )
4.Indubai Baban Rakshe )
5.Shantaram Shripati Jagtap )
6.Laxman Shripati Jagtap )
7.Bhagwat Shripati Jagtap )
8.Sou.Malan Suresh Ovhal )
9.Sou.Shalan Kaluram Ovhal )
10.Smt.Krushnabai Shripati Jagtap )
all residing at Thergaon Gaonthan, Thergaon )
Pune-411033 )...Petitioners
Versus
1.Special Land Acquisition Officer No. 22 )
Collectorate Compound, Dist.Pune )
2.The Collector, Pune )
3.The Commissioner, Pune )
4.The PimpriChinchwad, New Township )
Development Authority, Nigdi, Pune )
5.State of Maharashtra. ) ...Respondents
----
Mr.P.K.Dhakephalkar, Senior Advocate with Mr.Shriram Kulkarni i/b.
Mr.Chaitanya Nikte, for the Petitioners.
Mr.S.G.Aney, Senior Advocate with Mr.Vijay Patil, for Respondent No.4.
Mr.N.P.Deshpande, Addl.Govt. Pleader, for the State-Respondents.
---
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CORAM :- DR. MANJULA CHELLUR, C.J., &
G. S. KULKARNI, J.
Reserved on :- JANUARY 23, 2017
Pronounced on :- MARCH 8, 2017.
---
ORAL JUDGMENT: (Per G.S.Kulkarni,J.)
1. The Petitioners have invoked the jurisdiction of this Court
under Article 226 of the Constitution of India contending that the land
acquisition has lapsed in view of the provisions of Section 24(2) of the
Right to Fair Compensation And Transparency In Land Acquisition,
Rehabilitation And Resettlement Act,2013 (for short "2013 Act"). The
Petitioners have prayed for the following reliefs:-
"a) That this Hon'ble Court be pleased issue appropriate
order or direction calling for the record and proceedings
pertaining to the impugned award dated 23-09-1986 and all
the acquisition proceedings pertaining to the suit land and
after examine the same be pleased to declare that the said
proceedings and the award dated 23-09-1986 has been lapsed
in respect of the suit land;
b) That this Hon'ble Court be pleased quash and set aside
that the acquisition proceedings initiated vide award dated
28.09.1986 (annexed at Exh-A") and the award itself in
respect of the suit land;
c) Pending hearing and final disposal of the abovesaid
Petition the effe4cts and consequences award dated 23-09-
1986 kindly be stayed.
d) Pending hearing and final disposal of the above said
Petition the respondents, their agents, their representatives,
their servants or anybody claiming through them be
restrained by an order of temporary injunction to from taking
any steps in respect of the suit property.
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e) Interim and ad-interim relief in terms of prayer clause
(b) and (c) above may kindly be granted;
f) Such other and further relief as this Hon'ble Court
deems fit in the facts and circumstances of the case;"
In nutshell the facts are:-
2. The Petitioners case is that they were the owners of piece
and parcel of land being 2/3 rd share in Survey No.4/12 and Survey
No.4/8 situated at Thergaon, Taluka Mulshi, District Pune (for short
'the said land').
3. A notification dated 9 March 1970 under Section 4 of the
Land Acquisition Act,1894 (for short 'the Land Acquisition Act') came
to be issued by the Commissioner, Pune Division. On 12 September
1972 a corrigendum was issued to the Section 4 Notification. On 12
September 1972 a notification under Section 6 of the Land Acquisition
Act came to be issued. By a further notification dated 13 December
1984 certain lands came to be excluded from the acquisition. On 28
September 1986 an award came to be passed under Section 11 of the
Land Acquisition Act determining the compensation payable in respect
of the said land.
4. After the award was passed, one Shivaji Kisan Jagtap had
approached the Commissioner, Pune Division, by making an
application under Section 48(1) of the Land Acquisition Act seeking
withdrawal of the land from acquisition. This application ultimately
came to be rejected by the Commissioner by an order dated 3 October
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2006. Being aggrieved by this decision, Shivaji Kisan Jagtap
approached this Court by filing Writ Petition No.110 of 2007 interalia
praying for a direction that the application filed under Section 48(1)
be decided afresh. There is no dispute that the prayer clause in the
said petition also included the Petitioners' land. By an ad-interim
order dated 8 January 2007 a Division Bench of this Court directed
that the parties to maintain 'status quo', in respect of the petition
lands. Thereafter, by an order dated 3 December 2007 the said Writ
Petition was admitted and the ad-interim order of status quo was
continued during the pendency of the Petition. The Writ Petition is
pending final hearing and as such the status quo order is in operation
as on date. The Petitioners' have also filed some interim applications
in the said Writ Petition seeking intervention and have also prayed for
deleting the Petitioners' land from the said petition as also a prayer is
made for allotment of 12.5% returnable land. The Petitioners have
averred that in the said application, the Petitioners inadvertently
pleaded that the possession has been delivered by letter dated 2 July
1999. The Petitioners also referred to a letter dated 7 August 2001
wherein the Petitioners have stated that the possession is taken on 12
July 1999 and clarified that in fact on 12 July 1999 the Petitioners'
statement is recorded that the Petitioners are ready and willing to
hand over the possession. The case of the Petitioners is that the
statement made in that application was in the light of allotment of
12.5% land and in fact the possession was never delivered. It is
averred that in any case because of the status quo orders passed in
Writ Petition No.110 of 2007, the possession of the land could not
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have been taken by the Respondents unless the said orders were to be
vacated. The Petitioners therefore have averred that in view of the
orders of status-quo, the possession of the land has continued with the
Petitioners.
5. The Petitioners refer to two letters dated 1 October 2014
addressed by Respondent No.1-the Special Land Acquisition Officer. In
one of the letters, Respondent No.1 states that due to certain
encroachments and on account of the pending writ petition, the
possession of the land was not taken by the Respondent. In the
second letter Respondent No.1 clarified that the compensation payable
in respect of survey No.4/12 (Petitioners' land) of Rs.51,243.30 ps has
been deposited in the treasury.
6. It is thus the case of the Petitioners that neither the
possession of the land is taken under the said Award nor the amount
of compensation has been paid to the Petitioners. The Petitioners
therefore contend that Section 24(2) of the 2013 Act has become
applicable, and by operation of law as both the ingredients namely of
possession being not taken and the amount of compensation being not
paid, and the fact that the Award under Section 11 of the Land
Acquisition Act was made five years or more, prior to the
commencement of the 2013 Act, has resulted into the land acquisition,
being deemed to have lapsed, by virtue of the said provisions. The
Petitioners in support of this submission have relied on the decision of
the Supreme Court in the case Pune Municipal Corporation & Anr.
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Vs.Harakchand Misirimal Solanki & Ors. 1.
7. We may observe that this petition though filed on 14
October 2014, Respondent Nos.1 to 3 and 5, though have entered
appearance, have chosen not to file any reply affidavit. However,
Respondent No.4-Pimpri Chinchwad New Township Development
Authority which is the beneficiary of the acquisition, has filed an
affidavit of opposition. The affidavit inter alia justifies the land
acquisition to be in public interest. Relying on the order of status-quo
dated 8 January 2007 passed by this court in Writ Petition No.110 of
2007 which is continued by the subsequent orders, the contention is
that the possession of the acquired land could not be taken by the
Land Acquisition Officer and handed over to Respondent No.4, for the
purposes of the new township of Pimpri Chinchwad. It is therefore
submitted that Section 24(2) of the 2013 Act would have no
application, as the physical possession of the land could not be taken,
though the Awards have been passed much prior to commencement of
the 2013 Act, only on account of the status-quo orders passed by this
Court.
8. As regards the second issue about payment of
compensation, it is submitted that the compensation was deposited on
5 December 1985 by Respondent No.4 with the Special Land
Acquisition Officer in respect of the lands covered under the subject
Award dated 23 September 1986. It is, therefore, contended that as
1 2014(3) SCC 183
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Respondent No.4 has deposited the said amount with the Special Land
Acquisition Officer, Section 24(2) of the 2013 Act would not be
applicable. In support of the submissions, learned Counsel for
Respondent No.4 has placed reliance on an order dated 12 January
2016 passed by the Supreme Court in the case of "Yogesh Neema &
Ors. Vs. State of M.P. & Ors." in Special Leave Petition (C)
No.10742 of 2008 to contend that as regards the counting of period
covered by the interim orders, for the purpose of application of
Section 24(2) of the 2013 Act, the issue has been referred for
consideration of the larger bench.
9. We have heard the learned Senior Counsel for the parties.
We have also perused the pleadings as filed by the respective parties
who are before us. There is no dispute that on 3 September 1970 a
notification under Section 4 of the Land Acquisition Act came to be
issued and thereafter, on 12 September 1972 a notification under
Section 6 of the Land Acquisition Act came to be issued. There is also
no dispute that the award in question, under which the land of the
petitioners was acquired, was passed on 28 September 1986. The
Petitioners contend that the land acquisition proceedings have lapsed
on both the counts as provided under Section 24(2) of the 2013 Act
namely on the possession of the land being not taken by the
Respondents as also the compensation having been not paid to the
Petitioners under the Award, which admittedly came to be passed five
or more years prior to coming into force the 2013 Act.
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10. As regards the first issue namely possession having been
not taken by the Respondents and on that count the acquisition would
lapse under sub-section (2) of Section 24 of the 2013 Act, the case of
the Respondents is that they were prevented from taking possession in
view of the status quo order dated 8 January 2007 passed by this
Court in Writ Petition No.110 of 2007 preferred by Shivaji Kisan
Jagtap and others. There is no dispute that the order of status quo as
passed by this Court was applicable to the Petitioners' land. As noted
above, the said Writ Petition was preferred by some of the land
owners whose lands were also subject matter of the same acquisition
proceedings and who had challenged an order whereby their
applications under Section 48(1) of the Land Acquisition Act, for
withdrawal of these lands from acquisition was rejected. Even
assuming that the Respondents are correct in contending that after the
status-quo order dated 8 January 2007 and which was continued till
date, they could not take possession of the land, however, the fact
remains that the Award itself is of the year 1985 and the status-quo
order came to be passed in the year 2007 which is almost after 22
years from the date of the Award. There is nothing placed on record
to show that any attempt was made on the part of the Respondents to
take possession. Be that as it may, the issue of possession need not
detain us any further inasmuch as the alternate issue as envisaged
under Section 24(2) of the 2013 Act is also raised by the Petitioners to
contend that the acquisition has lapsed which we consider below.
11. In regard to the second issue of non-payment of
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compensation, we find that the Petitioners had made a representation
to the authorities demanding payment of compensation as noted
above. There is nothing on record as placed on behalf of the State to
show that the compensation has been paid to the Petitioners.
Moreover, Respondent No.4 in the affidavit has stated that the amount
of compensation has been deposited by Respondent No.4 with
S.L.A.O. in respect of the lands covered under the award in question
on 5 December 1985. If this be the position then in view of the
decision of the Supreme Court in Pune Municipal Corporation &
Anr. Vs.Harakchand Misirimal Solanki & Ors., as also as held by
the Division Bench of this Court in "Shri. Bapuso Narayan Kulkarni
(deceased) through Lrs and Ors. Vs. The State of Maharashtra and
Ors."2 and as held by this Bench in "Santosh Dnyaneshwar Aher Vs.
State Of Maharashtra Through Its Secretary And Ors." (Writ
Petition No.3238 of 2015 decided on 17 January 2017) it can be
taken to be a clear position in law that mere deposit of amount in the
account of Special Land Acquisition Officer would not amount to
payment of compensation to the Petitioners. This Petition therefore
would succeed on the ground of non payment of compensation to the
Petitioner being one of the requirements for lapse of the acquisition
proceedings as sub-section 2 of Section 24 would provide.
12. As regards the contention as urged on behalf of
Respondent No.4 that the order dated 12 January 2016 passed by the
Supreme Court in Special Leave Petition(C) No.10742 of 2008
2 2016(3) Mh.L.J. 384
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(Yogesh Neema & Ors. Vs. State of M.P. & Ors.), would not only be
relevant in the context of the issue of possession but also in the
context of payment of compensation. We do not agree. The said
order of the Supreme Court in paragraph (1) records about the issue
which fell for consideration of the Supreme Court, which is in the
context of possession having been not taken over despite the Award
being passed prior to five years from 1 January 2014 and the effect of
the interim order of the High Court, on account of which possession of
the acquired land could not be taken over by the State. The
observations in that regard are clear and can be found in paragraph
(1) of the order which read thus:-
"1. In the present Special Leave Petition apart from
several other issues urged by the petitioners to challenge the
order of the High Court upholding the acquisition under the
provisions of the Land Acquisition Act,1894, a question has
been raised with regard to the applicability of Section 24(2)
of the Right to Fair Compensation and Transparency in Land
Acquisition, Rehabilitation and Resettlement Act,2013
(hereinafter referred to as "the 2013 Act") and whether in
view of the fact that the possession had not been taken over
despite the award being passed five years prior to 1 st
January,2014 the land acquisition proceedings have lapsed.
It may be taken note of at this stage that the petitioners had
been the beneficiaries of the interim order of the High Court
as well as this Court on account of which possession of the
acquired land could not be taken over by the State. It has
also to be noted that the order of the High Court had upheld
the acquisition in question and the writ petition(s) was
dismissed."
It is in this context that their Lordships considered the decision in the
case of "Sree Balaji Nagar Residential Association Vs. State of Tamil
Nadu & Ors."3 more particularly paragraphs 11 and 12 therein, and
3(2015) 3 SCC 353
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made the following observations in paragraphs 3 and 4 to referring
the questions as framed therein for consideration of the larger bench:-
"3. A consideration of the aforesaid paragraphs would go to
indicate that what had prevailed with the coordinate bench of
this Court to take the view in question is that the omission in
Section 24(2) to specifically exclude the period covered by an
interim order of this Court staying the acquisition proceeding
is a conscious omission of the legislature and the courts
cannot fill up such an omission. In paragraph 12 of the
aforesaid decision the fact that similar situations in the Land
Acquisition Act had been subsequently rectified by means of
appropriate amendments to Section 6 and 11-A by bringing in
Explanation thereto has also been noticed. The aforesaid
decision of the coordinate bench of this Court in Sree Balaji
Nagar Residential Association (supra) has been followed in
large number of cases details of which have been laid before
us. The decision of a three judge bench of this Court in Union
of India and others versus Shiv Raj and others [(2014) 6 SCC
564] has also been laid before us.
4. We have considered the views expressed in Sree Balaji
Nagar Residential Association (supra) and Union of India and
others versus Shiv Raj and others (supra). At the outset, we
clarify that upon reading the decision of the three judge bench
of this Court in Union of India and others versus Shiv Raj and
others, we do not find any view of the bench on the question
arising, namely, whether the period during which the award
had been remained stayed should be excluded for the
purposes of consideration of the provisions of Section 24(2) of
the 2013 Act. Insofar as the decision of the coordinate bench
of this Court in Sree Balaji Nagar Residential Association
(supra) is concerned, having read and considered paragraphs
11 and 12 thereof, as extracted above, it is our considered
view that the legal effect of the absence of any specific
exclusion of the period covered by an interim order in Section
24(2) of the 2013 Act requires serious reconsideration having
regard to the fact that it is an established principle of law that
the act of the court cannot be understood to cause prejudice
to any of the contesting parties in a litigation which is
expressed in the maxim "actus curiae neminem gravabit". We
accordingly take the view that the aforesaid question should
receive the attention and consideration of a larger bench of
this Court. The following two questions of law, according to
us, would specifically require an authoritative pronouncement
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for an appropriate adjudication on the factual controversy
arising in the present case and in a large number of connected
cases:
(i) Whether the conscious omission referred to in paragraph
11 of the judgment in Sree Balaji Nagar Residential
Association (supra) makes any substantial difference to the
legal position with regard to the exclusion or inclusion of the
period covered by an interim order of the Court for the
purpose of determination of the applicability of Section 24(2)
of the 2013 Act?
(ii) Whether the principle of "actus curiae neminem gravabit",
namely act of the court should not prejudice any parties
would be applicable in the present case to exclude the period
covered by an interim order for the purpose of determining
the question with regard to taking of possession as
contemplated in Section 24(2) of the 2013 Act?"
We are therefore of the clear opinion that the above order
of the Supreme Court would not assist Respondent No.4 to oppose the
Petitioners' contention that the land acquisition has lapsed for non
payment of compensation.
13. In any event the present case is not a case where the
award came to be stayed by the orders passed by this Court in Writ
Petition No.110 of 2007, but what is pressed into service on behalf of
Respondent No.4 is the order of status-quo passed in the year 2007
which is required to be considered only qua the possession of the land
as is clear from the prayers as made in the Writ Petition. The interim
relief prayer which fell for consideration of the Division Bench for
passing the order of status-quo was in terms of prayer clause (c),
(page 80 of the paper book) by which the Petitioners therein prayed
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that the Respondents be restrained by an order and injunction from
disturbing and/or from dispossessing the peaceful possession of the
Petitioners in respect of the land in question. Considering this specific
prayer, the status-quo order as passed by the Division Bench in Writ
Petition No.110 of 2007 is required to be read only qua the possession
of the land in question. There cannot be any other reading much less
to read the status-quo order qua the respondents being restrained
from depositing the compensation in the Civil Court, as law would
require.
14. In the light of the above discussion, the contention of the
Petitioners that the acquisition has lapsed under the provisions of sub-
section (2) of Section 24 of the 2013 Act on account of non payment
of compensation, is required to be accepted. We accordingly allow
this petition by the following order:-
ORDER
(i) We hold that the acquisition proceedings in relation to the lands
of the Petitioners described in paragraph 2 of the Writ Petition 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.
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(ii) We also make it clear that the acquisition would stand
lapsed only in relation to the lands subject matter of this Petition and
no adjudication is made as regards the legality and validity of the
acquisition of other lands which are subject matter of the aforesaid
two Awards;
(iii) This Judgment and Order will not preclude the
Respondents from initiating a fresh acquisition proceeding in respect
of the acquired lands under the provisions of the said Act of 2013.
(iv) Rule is made absolute in the above terms. No costs.
(G. S. KULKARNI, J.) (CHIEF JUSTICE)
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