Bombay High Court
Shri. Krishna Bhagwan Kotak And ... vs State Of Maharashtra And Ors on 3 May, 2017
WP-969-15.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 969 OF 2015
1 Shri. Krishna Bagwan Kotak
2 Mrs. Vidya Bagwan Kotak ...Petitioners
Versus
1 State of Maharashtra
2 The Secretary
3 The Special Land Acquisition Officer
No. 2.
4 Divisional Commissioner, Pune
5 Collector, Pune. ...Respondents
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Mr. Sugandh B. Deshmukh, for the Petitioners.
Mr. P.P. Kakade, AGP for the Respondents No. 1 to 5.
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CORAM : DR. MANJULA CHELLUR, C.J., &
G.S. KULKARNI, J.
DATE : 3 May 2017
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JUDGMENT : (Per G.S.Kulkarni, J.)
1. Rule returnable forthwith. Heard finally by consent
of the parties.
2. The petitioners claim to be owners of the land
bearing Gat No. 258 admeasuring 18 Hectors 90 Ares situate at
Village Kurwande, Taluka Maval, District Pune (for short, "the
said land"). This land was subjected to acquisition for a public
purposes namely, dumping of soil, murum (minor, mineral) for
proposed Mumbai Pune Express way (for short "the
expressway"), as according to the petitioners, the land of the
petitioners was adjacent to the proposed expressway as per its
alignment.
3. A notification under Section 4(1) of the Land
Acquisition Act, 1894 (for short "the 1894 Act") was issued on 1
April 1997 and thereafter, a notification under Section 6 was
issued on 19 September 1997. An award came to be passed on
17 March 1998.
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4. The case of the petitioners is that as there was a
change in the alignment of the expressway, therefore the
petitioners' land and the other lands, which were subject matter
of acquisition were not affected. However, land of the
petitioners was acquired, leaving the other lands of the
adjoining owners.
5. Consequent to the award, name of the government
came to be entered in the 7/12 extracts of the land in question.
Petitioners say that only paper possession was taken as the case
of the petitioners is that the physical possession of the land
remains with the petitioners. Apart from the issue of possession,
the petitioners urge that the land acquisition compensation has
also not been paid to the petitioner No. 1 and/or the
predecessor-in-title Shri. Bhagwan Kotak, nor the same has been
deposited in the Court. The petitioners thus, contend that by
operation of law, namely by virtue of the provisions of Section
24(2) of the Right to Fair Compensation and Transparency in
Land Acquisition, Rehabilitation and Resettlement Act, 2013 (in
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short "the 2013 Act"), the acquisition of the petitioners' land in
question has lapsed.
6. A reply affidavit has been filed on behalf of the
respondents of Smt. Harshlata Dhanraj Gedam, Special Land
Acquisition Officer No. 1, Pune. The reply affidavit justifies the
action of taking possession by referring to the various formalities
undertaken, which however, would only show that the paper
possession of the land was taken under a Panchnama. The
affidavit does not say that the physical possession of the
petitioners' land was taken over. Further on the issue of payment
of compensation to the petitioners or their predecessor-in-title,
in paragraph 12 of the reply, the deponent has clearly stated
that the compensation is deposited in the PLA account of the
SLAO and the same is not paid to the petitioners, the reason
being the petitioners never came forward to demand the
compensation amount. It would be appropriate to extract the
relevant averments as made by the deponent in paragraphs 10
to 12 of the reply affidavit, which read thus:-
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"10. I say that, the acquisition proceeding is completed by
this Respondent. Panchnama has been done and the
possession has been handed over to the acquiring body
on 31.03.1998. Hereto annexed and marked as
Exhibit-6 is the copy of panchnama dated 31.03.1998.
11. I say that, As stated above the possession was handed
over to the acquiring body. No record available in this
office in respect of the alignment of the Mumbai-Pune
Express way was changed.
12. I say that, the award has been passed in the year 1998.
The Petitioner has to apply to the acquiring body for
the status of his land. This Respondent is not concerned
with this fact. The compensation is deposited in the PLA
Account of SLAO and is not been given to the Petitioner
since Petitioner never come for demand the
compensation. So the compensation amount Rs.
24,01,035/- deposited in the District Court Pune. Here
to annexed and marked as Exhibit-7 is the copy of the
received dated 27.04.2017."
(emphasis supplied.)
7. We have heard the learned Counsel for the parties
and with their assistance, we have gone through the documents
as placed on record and the pleadings of the parties. There is no
dispute that the land in question was subjected to acquisition
being required for the expressway project. The issue which falls
for out consideration, is as to whether the acquisition has lapsed
by operation of law in view of the provisions of Section 24(2) of
the 2013 Act, as it is the case of the petitioners that neither the
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amount of compensation is paid to the petitioners nor the
physical possession of the land has been taken over. There can
be no doubt that Section 24(2) would become applicable, as the
award came to be passed on 17 March 1998, which is surely five
years prior to the 2013 Act as brought into force on 1 January
2014, the provision stipulating is that the award should have
been passed five years prior to the coming into force of the 2013
Act. Thus, Section 24(2) would be applicable to the award in
question.
8. As clearly seen from the averments in the reply
affidavit, there is no manner of doubt that on both the above
counts the acquisition would lapse. On the petitioners'
contention that the amount of compensation is not paid, the
case of the respondents as seen in the reply affidavit is that the
same has been deposited in the PLA Account of the Special Land
Acquisition Officer. It is the settled principle of law that only
when there is a compliance of the requirement of Section 31 of
1894 Act that is when the amount of compensation is deposited
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in the Civil Court, it can be said that the amount of
compensation is considered to be paid to the person whose land
stands acquired. The law in this regard is well settled, which we
have considered in our decision dated 17 January 2017 in Writ
Petition No. 3238 of 2015 (Santosh Dnyaneshwar Aher Vs.
State of Maharashtra Through Its Secretary And Ors.),
adverting to the law laid down by the Supreme Court in Pune
Municipal Corporation & Anr. Vs. Harakchand Misirimal
Solanki & Ors.1. The following observations in our decision are
relevant in the context of non payment of compensation, so as
to conclude that in the present case the acquisition has lapsed
by virtue of the provisions of the Section 24(2) of the 2013 Act.
11. The application of Section 31 of the Land
Acquisition Act qua the consequence of section 24(2)
of the 2013 Act fell for consideration of the Supreme
Court in the case of "Pune Municipal Corporation
& Anr. Vs.Harakchand Misirimal Solanki & Ors"
(supra). The Supreme Court held that Section 31
makes a provision for payment of compensation or
1 2014(3) SCC 183
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deposit of the same in the Court. The provision
requires that the Collector should tender payment of
compensation as awarded by him to the persons
interested who are entitled to compensation, and if
due to happening of any contingency as contemplated
under Section 31(2) of the Land Acquisition Act, if
the compensation was not paid, the Collector was
under an obligation to deposit the amount of
compensation in the Court, to which a reference can
be made under Section 18 of the Land Acquisition
Act. It was held that the mandatory nature of Section
31(2) with regard to deposit of compensation in the
Court was further fortified by the provisions under
Section 32, 33 and 34 of the Land Acquisition Act."
9. As regards the issue of possession, as noted above,
the respondents have not denied the case of the petitioners that
the physical possession of the land continues to be with the
petitioners. A perusal of the panchanama also does not indicate
that the petitioners have handed over the physical possession of
the land. On this count also Section 24(2) would be applicable
to hold that the acquisition has lapsed.
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10. In the light of the above discussion, the Writ
Petition would succeed. We accordingly pass the following
order:-
ORDER
(i) The acquisition proceedings in relation to the
admeasuring 18 Hectors 90 Ares situate at
Village Kurwande, Taluka Maval, District Pune
being the subject matter of acquisition under
notification dated 19 September 1997 issued
under Section 6 of the Land Acquisition Act,
1894 stand lapsed in view of subsection 2 of
Section 24 of the Right to Fair Compensation
And Transparency In Land Acquisition,
Rehabilitation And Resettlement Act, 2013.
(ii) We make it clear that the acquisition would
stand lapsed only in relation to the lands which
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are subject matter of this petition and no
adjudication is made as regards the legality and
validity of acquisition of other lands if any,
which may form subject matter of the Award.
(iii) This Order will not preclude the respondents
from initiating fresh acquisition proceedings qua
the land in question under the Right to Fair
Compensation and Transparency in Land
Acquisition, Rehabilitation and Resettlement
Act, 2013.
(iv) Rule is made absolute accordingly in the above
terms. No costs.
[G.S. KULKARNI] [CHIEF JUSTICE]
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