Bombay High Court
Punja Ramkrushna Dighe And Ors vs District Resettlement ... on 30 May, 2017
Bench: R.M. Borde
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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 4382 OF 1998
1. Punja s/o Ramkrushna Dighe
age major.
2. Rakhma Ramkrushna Dighe
age major
3. Bhika s/o Ramkrushna Dighe
age major.
4. Bhiva s/o Ramkrushna dighe
age major
all agriculturist, r/o Jorve
Tq. Sangamner, Dist. Ahmednagar. Petitioners
Versus
1. District Re-settlement Officer
Ahmednagar District, Ahmednagar.
2. Sub Divisional Officer
Sangamner Sub Division,
Sangamner
Dist. Ahmednagar
3. Tahsildar, Sangamner
Dist. Ahmednagar
4. District Collector,
Ahmednagar District,
Ahmednagar.
5. Special Land Acquisition Officer,
No. 19, Ahmednagar
6. State of Maharashtra Respondents
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Mr. Sushant V. Dixit with Mr. V.J. Dixit, Senior Counsel, for the
petitioners.
Mr. S.P. Sonpawale, A.G.P. for Respondent no. 6.
WITH
WRIT PETITION NO. 4385 OF 1998
1. Digambar Yashwant Joshi
age 68 years,
2. Uttam Yashwant Joshi
age 64 years
3. Charudatt Digambar Joshi
age 42 years,
4. Balkrushna Digambar Joshi
age 39 years
5. Govind Digambar Joshi
age 36 years
6. Vinayak Digambar Joshi
age 34 years
7. Mukund Digambar Joshi
age 32 years
8. Moreshwar Uttam Joshi
age 41 years
9. Shantaram Uttam Joshi
age 38 years
10. Vijay Uttam Joshi
age 35 years Petitioners
Versus
1. District Re-settlement Officer
Ahmednagar District, Ahmednagar.
2. Sub Divisional Officer
Sangamner Sub Division,
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Sangamner
Dist. Ahmednagar
3. Tahsildar, Sangamner
Dist. Ahmednagar
4. District Collector,
Ahmednagar District,
Ahmednagar.
5. Special Land Acquisition Officer,
No. 19, Ahmednagar
6. State of Maharashtra Respondents
Mr. Sushant V. Dixit with Mr. V.J. Dixit, Senior Counsel, for the
petitioners.
Mr. S.P. Sonpawale, A.G.P. for Respondent no. 6.
WITH
WRIT PETITION NO. 4384 OF 1998
1. Raosaheb s/o Revaji Kakad
age major
2. Baburao s/o Revaji Kakad
age major
3. Karbhari s/o Revaji Kakad
age major
All agriculturists, r/o Jorve
Tq. Sangamner, Dist. Ahmednagar Petitioners
Versus
1. District Re-settlement Officer
Ahmednagar District, Ahmednagar.
2. Sub Divisional Officer
Sangamner Sub Division,
Sangamner
Dist. Ahmednagar
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3. Tahsildar, Sangamner
Dist. Ahmednagar
4. District Collector,
Ahmednagar District,
Ahmednagar.
5. Special Land Acquisition Officer,
No. 19, Ahmednagar
6. State of Maharashtra Respondents
Mr. Sushant V. Dixit with Mr. V.J. Dixit, Senior Counsel, for the
petitioners.
Mr. S.P. Sonpawale, A.G.P. for Respondent no. 6.
WITH
WRIT PETITION NO. 4386 OF 1998
1. Dattu s/o Sakharam Dighe
2. Murlidhar s/o Sakharam Dighe
3. Keshav s/o Sakharam Dighe
All age major, r/o Jorve
Tq. Sangamner, Dist. Ahmednagar Petitioners
Versus
1. District Re-settlement Officer
Ahmednagar District, Ahmednagar.
2. Sub Divisional Officer
Sangamner Sub Division,
Sangamner
Dist. Ahmednagar
3. Tahsildar, Sangamner
Dist. Ahmednagar
4. District Collector,
Ahmednagar District,
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Ahmednagar.
5. Special Land Acquisition Officer,
No. 19, Ahmednagar
6. State of Maharashtra Respondents
Mr. Sushant V. Dixit with Mr. V.J. Dixit, Senior Counsel, for the
petitioners.
Mr. S.P. Sonpawale, A.G.P. for Respondent no. 6.
CORAM : R.M.BORDE, J.
DATE : 30th MAY, 2017
ORAL JUDGMENT :
Petitioners are praying for issuance of writ, direction or order
seeking quashment of the proceeding of land acquisition initiated
by respondents and consequential award declared on 08.03.1996
under the provisions of Land Acquisition Act, 1894.
2. Agricultural lands belonging to petitioners situate at village
Jorve, Tq. Sangamner, Dist. Ahmednagar, are subject matter of
acquisition proceeding initiated by respondents. The lands are
proposed to be acquired for resettlement of project affected persons
of Upper Pravara project. Although there are several grounds
raised questioning the proceedings of acquisition as well as award
declared by respondent - Land Acquisition Officer, the award is
liable to be set aside on two counts.
3. It is not a matter of dispute that notifications under section 4
of the Land Acquisition Act, 1894 were issued in two stages. The
lands belonging to petitioners in the instant petition are infact
covered by earlier notification issued under section 4 of the Land
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Acquisition Act in the year 1992. It was noticed by the land
acquisition authority that an area to the extent of .81 hector has
been left from the acquisition proceedings and as such, a separate
notification under section 4 as well as subsequent declaration
under section 6 came to be issued at a later stage. As has been
recorded, petitioners' landed property is covered by the notification
issued under section 4 of the Land Acquisition Act by respondents,
published in official gazette on 03.12.1992 and a separate
notification under section 4 of the Land Acquisition Act in respect
of the additional area came to be published in the official gazette
on 28.04.1994. Newspaper publication regarding section 4
notification in respect of landed property belonging to petitioners
was made in the months of November and December 1992
whereas, in respect of the additional area, such publication was
made in the local newspaper on 26th and 28th May, 1994. Local
publication in respect of section 4 notification in respect of the
lands belonging to the petitioner is stated to be made on
06.11.1992 whereas, in respect of additional area, such local
publication was stated to have been made on 19.04.1994. So far as
publication of declaration under section 6 is concerned, it is
pointed out that publication in respect of the landed property
belonging to petitioners was made on 03.12.1992 whereas, as a
result of certain errors, corrigendum came to be issued on
10.05.1994. Gazette publication of the declaration under section 6
is stated to be made on 04.12.1993, corrigendum was published on
02.06.1994 and, in respect of the additional area, such declaration
is stated to have been published in official gazette on 27.04.1995.
It is also revealed that the declaration under section 6 has been
published in the local newspaper on 31.12.1993 and 28.12.1994
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respectively whereas such declaration in respect of additional area
has been published on 02.06.1994 and 01.06.1995. Corrigendum
in relation to declaration under section 6 was published in the
local newspaper on 09.07.1994 and 12.07.1994 respectively.
4. Petitioners contend that the proceedings in respect of
acquisition of land shall be deemed to have lapsed in view of
section 6 proviso II as well as in view of section 11A of the Land
Acquisition Act, 1894. Petitioners point out that the land
belonging to them have been notified under section 4 on
05.04.1994 whereas local publication of the notification under
section 4 is stated to be on 06.11.1994. Declaration under section
6 has been issued on 03.12.1993 and local publication of
declaration is stated to be on 10.03.1994. If the date of
publication of notification under section 4 of the Land Acquisition
Act and the date of local publication in relation to the lands
belonging to petitioner is taken into account, which is stated to be
published on 06.11.1992, declaration under section 6 stated to
have been made for the first time by the land acquisition authority
on 03.12.1993 is beyond the period of one year and as such, there
is violation of mandate of section 6 proviso ii of the Land
Acquisition Act. It is mandated under section 6 that no
declaration in respect of any particular land covered by notification
under section 4(1) to be published after commencement of Land
Acquisition Amendment Act 1894 shall be made after expiry of one
year from the date of publication of notification.
5. In the instant case, declaration under section 6 of the Land
Acquisition Act in relation to the landed property belonging to
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petitioners is beyond prescribed period of one year. The date of
award is admittedly 08.03.1996. It is not a matter of dispute that
section 4 notification in respect of the landed property belonging to
petitioners is published in the year 1992 and last of such
publication of notification in the local area is stated to be on
06.11.1992. Even if the date of local publication in relation to the
additional area is taken into account to be 19.04.1994 and a
declaration under section 6 published in the local area dated
10.03.1994 is taken into account, the award declared on
08.03.1996 is also liable to be set aside. The date of local
publication of declaration under section 6 is clearly a manipulation
made by the land acquisition authority. In the affidavit-in-reply
presented on behalf of the State, it is stated that notice under
section 9 of the Land Acquisition Act has been issued to the
petitioners on 07.03.1994 whereas hearing was prescribed in
pursuance to the notice under section 9 on 23.03.1994. In any
case, notice under section 9 cannot precede declaration under
section 6 of the Land Acquisition Act. Various steps prescribed
under the Land Acquisition Act, 1894, are required to be observed
in chronological manner. Hearing in relation to the acquisition of
property can never precede declaration under section 6 of the Land
Acquisition Act. In this context, decision of this court in the
matter of Ramrao s/o Pralhadrao Deshmukh Vs. Godavari w/o
Ramrao Deshmukh and others, 2008(2) Mh.L.J. 534, needs to be
recorded. It is observed by the Division Bench in the judgment
thus :
"19. On consideration of the scheme of the
Land Acquisition Act, it would be seen that in
the matters concerning compulsory acquisition
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of the property, after completing the preliminary
survey, the State authorities are expected to
publish a preliminary notification for
acquisition of the land under section 4(1) of the
Act. Publication of the notification under
section 4(1) is an expression of intention of the
State to acquire the property. A further stage
is provided in view of section 5A of the Act,
whereby a person interested in the land can
raise objections in respect of proposed
acquisition which are required to be considered
by the Collector. On consideration of such of
the objections, a stage in respect of a
declaration of intended acquisition is prescribed
under section 6 of the Act. A declaration is
required to be made to that effect by the State
Government by issuing a necessary order and
which declaration is required to be published in
view of sub-section (2) of section 6 of the act.
Section 7 of the Act provides that after
publication of a declaration as contemplated
under section 6, the appropriate Government,
or some officer authorized by the appropriate
Government, in this behalf or, as the case may
be, the Commissioner shall direct the Collector
to take order for acquisition of the land. The
Collector then proceeds to cause the land to be
marked out and measured and if no plan has
been made thereof, a plan is to be made of the
same in view of provisions of section 8 of the
Land Acquisition Act. Then comes the stage of
calling upon the persons interested in land to
lodge the claim in respect of the compensation
with the Collector. Whereas section 11 of the
Act lays down the procedure in respect of the
inquiry and award by the Collector. The stages
enumerated by various provisions of the Act are
required to be followed chronologically.
20. In the instant case, we find that the
publication of a declaration under sub-section
(2) of section 6 is stated to be according to the
Government, on a date which follows after a
notice issued to the claimant calling upon him
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to submit his claim in respect of valuation of
the land. Considering the state of affairs of the
record that has been maintained by the office of
the Land Acquisition Officer, we find that the
mode of the publication of a notification under
section 6(2) of the Act at village Chawadi is not
worthy to be accepted and cannot be relied
upon. As observed above, the panchanamas
which are drawn in respect of publication of a
notification at Chawadi under section 6(2) of the
Act, being not worthy of acceptance, we find
that whole proceedings of acquisition are
vitiated as the award does not seem to have
been published within the time frame
prescribed under section 11A of the Act.
Apart from this, the petitioners have placed on record extract
of register of declaration made by the village officers. It is recorded
in the register that declaration in the locality in respect of section 4
notification has been made on 06.11.1992. So far as declaration in
respect of section 6 notification is concerned, the Tahsildar has
certified that no record is available in respect of local publication of
declaration on 19.04.1994 and 10.03.1994. In any case so far as
the landed property belonging to petitioners is concerned, the
award declared by respondent on 08.03.1996 pursuant to the
notification issued under section 4 of the Land Acquisition Act
cannot be sustained.
6. Section 11 of the Land Acquisition Act provides that the
Collector shall make award under section 11 of the Act 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 proceeding
for acquisition of land would lapse. In the instant matter,
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admittedly, declaration under section 6 in relation to the lands
belonging to petitioners is made in the year 1993 and, corrigendum
clarifying certain errors has been issued on 02.06.1994 in the
official gazette. Local publication of notification under section 6 is
also dated 31.12.1993 and 28.12.1994. Local publication of
notification under section 6 as has been stated above cannot be
believed since such date falls beyond the date of issuance of notice
under section 9 of the Act. The proceeding in relation to
acquisition of land belonging to petitioners shall be deemed to have
lapsed in view of provisions of section 11 of the Land Acquisition
Act, 1894.
7. Another argument advanced by petitioner is based on
interpretation of section 24(2) of Right to Fair Compensation and
Transparency in Land Acquisition, Rehabilitation and Resettlement
Act, 2013 (hereinafter referred to as the "Act of 2013"). Section 24
of the Act of 2013 provides thus :
24. (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.
(2) Notwithstanding anything contained in
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Sub-section (1), in case of land acquisition
proceedings initiated under the Land
Acquisition Act, 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.
In view of sub-section 2 of section 24, in case of land
acquisition proceedings initiated under the Land Acquisition Act,
1894, where an award under section 11 has been made five years
or more prior to the commencement of this Act of 2013 but the
physical possession of the land has not been taken, the proceeding
shall be deemed to have lapsed and the appropriate Government, if
it choses shall initiate the proceedings of land acquisition afresh in
accordance with the provisions of the Act of 2013.
In the instant matter, admittedly, award has been declared
five years or more prior to enforcement of the Act of 2013 and the
physical possession of the lands belonging to petitioners is
admittedly not taken over. This Court has directed the parties to
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maintain status quo. After entertaining the instant petition and in
view of orders of the Court, physical possession has not been taken
over. If at all physical possession has not been taken over due to
intervention of the Court, the consequences enumerated under
section 24(2) of the Act of 2013 do follow. In this context, reliance
can be placed on a judgment in the matter of Sree Balaji Nagar
Residential Association Vs. State of Tamil Nadu, 2013(6) All MR
414. In paragraphs 10 and 12 of the judgment, the Apex Court
has observed thus :
"10. Even in the Land Acquisition Act
of 1894, the Legislature had brought about
amendment in Section 6 through an
Amendment Act of 1984 to add Explanation
1 for the purpose of excluding the period
when the proceeding suffered stay by an
order of the court, in the context of
limitation provided for publishing the
declaration Under Section 6(1) of the Act.
To a similar effect was Explanation to
Section 11A which was added by
Amendment Act 68 of 1984. Clearly the
Legislature has, in its wisdom, made the
period of five years Under Section 24(2) of
the 2013 Act absolute and unaffected by
any delay in the proceedings on account of
any order of stay by a court. The plain
wordings used by the Legislature are clear
and do not create any ambiguity or conflict.
In such a situation, the court is not
required to depart from the literal rule of
interpretation.
12. The judgment of three Judges' Bench
in the case of Harakchand Misirimal (supra)
has been followed by another Bench of
three Judges in the case of Union of India
and Ors. etc. V. Shivraj and Ors. etc.
MANU/SC/0478/2014 : (2014) 6 SCC 564.
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In paragraphs 25 and 26 of that judgment,
this Court took notice of a clarification
issued by the Government of India, Ministry
of Urban Development, Delhi Division dated
14.03.2014. part of the circular extracted
in that case clearly shows that the period of
five years or more in Section 24(2) of the
2013 Act has been prescribed with a view to
benefit the land-losers and he period spent
in litigation due to challenge to the award or
the land acquisition proceedings cannot be
excluded.
As has been recorded above, though, in the instant matter,
award has been declared five years or more prior to enforcement of
the Act of 2013, possession has not been taken over by the State
Government and as such, in view of provisions of section 24(2) of
the Act of 2013, acquisition shall be deemed to have lapsed so far
as it relates to petitioners and, it would be open for the
respondents to take steps in accordance with the Act of 2013, if at
all, the lands are needed for public purpose.
8. For the reasons recorded above, the award declared by
respondents so far as it relates to petitioners shall stand quashed.
Rule is accordingly made absolute. In the facts and circumstances
of the case, there shall be no order as to costs.
( R.M.BORDE )
JUDGE
dyb
