Bombay High Court
Mrs. Bhagyashri Rajesh Kulkarni vs Union Of India And Ors on 1 September, 2021
Bench: S.S. Jadhav, S. V. Kotwal
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.83 OF 2018
Mrs.Bhagyashri Rajesh Kulkarni
Adult, Occ. Business and Household
R/at : Vivekanand Colony,
Ichalkaranji, Taluka Hathkanangale
District Kolhapur .... Petitioner
versus
1. Union of India
[Summons to be served on the Learned
Government Pleader appearing for
Union of India under Order XXVII,
Rule 4, of the Code of Civil
Procedure, 1908]
2. State of Maharashtra
[Summons to be served on the Learned
Government Pleader appearing for
Union of India under Order XXVII,
Rule 4, of the Code of Civil
Procedure, 1908]
3. The Sub-Divisional Officer,
Ichalkaranji,
Taluka Hathkadangale
MANUSHREE District Kolhapur
V
NESARIKAR
Digitally signed by [Summons to be served on the Learned
Government Pleader appearing for
MANUSHREE V
NESARIKAR
Union of India under Order XXVII,
Date: 2021.09.02
11:58:16 +0530
Rule 4, of the Code of Civil
Nesarikar
2 / 14 01-WP-83-18.odt
Procedure, 1908]
4. Maharashtra Krishna Valley
Development Corporation, through,
its Executive Engineer,
Dudhganga Left Canal, Division No.1,
Kolhapur, having its office at :
Warana Bhavan, Tarabai Park,
Kolhapur ... Respondents
.......
• Mr.Abhay Anturkar i/b.Mr.Tanaji Mhatugade, Advocate for
Petitioner.
• Mr.Y.G. Mishra, a/w Mr.Shailendra Mishra, Advocate for
Respondent No.1.
• Mr.P. G. Sawant, AGP for State/Respondent Nos.2 and 3.
• Mr.Nitin P. Deshpande, Advocate for Respondent No.4.
CORAM : SMT. SADHANA S. JADHAV &
SARANG V. KOTWAL, JJ.
RESERVED ON : 25th AUGUST, 2021
PRONOUNCED ON : 01st SEPTEMBER, 2021
JUDGMENT : (Per : Sarang V. Kotwal, J.)
1. Rule.
2. Rule made returnable forthwith.
3. By this Petition, the Petitioner has challenged the
award dated 17/10/2016 passed by the Respondent No.3, Sub-
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Divisional Officer, Ichalkaranji, Taluka Hatkanangale, District
Kolhapur and also the notice given u/s 31(1) of The Right to
Fair Compensation and Transparency in Land Acquisition,
Rehabilitation and Resettlement Act, 2013 (hereinafter referred
to as 'the 2013 Act'). The Petitioner was concerned with the land
bearing Gat No.483 (part) admeasuring 0.66.00 HR situated at
village Shivnakwadi, Taluka Shirol, District Kolhapur
(hereinafter referred to as 'the said property'). The notification
u/s 4 of the Land Acquisition Act, 1894 (hereafter referred to as
'the 1894 Act) was issued on 18/12/2012 in respect of the said
land. Before the declaration u/s 6 of the 1894 Act was issued,
the 2013 Act was brought into force from 01/01/2014. After
that, the declaration u/s 6 of the 1894 Act was issued on
13/02/2014. The award came to be passed on 17/10/2016. The
award mentioned that it was passed u/s 11 of the 1894 Act and
u/s 26, 27 and 30 of the 2013 Act. Pursuant to that award the
notice u/s 31(1) of 2013 Act and u/s 12 of 1894 Act was issued
in the name of the Petitioner on 22/05/2017 in respect of the
said property. The amount payable to the Petitioner under that
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award was Rs.1,99,14,561/-. The Petitioner has stated in the
Petition that she had received that amount without prejudice to
her right to challenge the award. As mentioned earlier, the
Petitioner has challenged the said award and notice by way of
the present Petition.
4. In the Petition, Union of India is the Respondent No.1,
State of Maharashtra is the Respondent No.2, the Sub-Divisional
Officer, Ichalkaranji is the Respondent No.3 and Maharashtra
Krishna Valley Development Corporation is the Respondent
No.4. The said land was acquired for the project of Dudhganga
Left Canal and in particular for Kurundwad branch of the canal.
5. Respondent Nos.2 and 3 filed their affidavits-in-reply,
on two occasions, i.e. on 27/02/2017 and 05/01/2021,
opposing this Petition. Respondent No.4 also filed their affidavit-
in-reply dated 10/07/2018.
6. The stand taken by the Respondent No.4 in their
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affidavit is that since the State Government has constituted a
tribunal to entertain proceedings u/s 31 of 2013 Act, it was
open for the Petitioner to approach the said tribunal.
7. The Respondent Nos.2 and 3 have stated in their
affidavits-in-reply that the declaration u/s 6 of the 1894 Act,
was published in the Gazette for the period 06/03/2014 to
12/03/2014. It was published in daily newspapers on
02/03/2014 and 03/03/2014. It was also published on the
notice board of the Gav Chawadi on 25/06/2014 and on the
notice board of Tahasildar on 07/07/2014. It is stated in the
affidavit-in-reply dated 27/02/2017 that while determining the
compensation amount, provisions of section 26 to 30 of the
2013 Act were followed and based on these provisions the
award was passed. The award was passed on 17/10/2016. It
was within two years from the date of the publication. Therefore
the award was legal and proper as it was passed within the
period stipulated u/s 11A of the 1894 Act. The Respondent
Nos.2 and 3 had taken a stand in their affidavit that section 4
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notification under the 1894 Act was made before coming into
force of 2013 Act and therefore provisions of section 24(1) of
the 2013 Act will be applicable. The provisions of the 2013 Act
relating to the determination of compensation would apply.
8. We have heard Mr.Abhay Anturkar, learned counsel for
the Petitioner, Mr.Y.G. Mishra a/w Mr.Shailendra Mishra, learned
counsel for Respondent No.1, Mr.P. G. Sawant, AGP for
State/Respondent Nos.2 and 3 and Mr.Nitin P. Deshpande,
learned counsel for Respondent No.4.
9. Mr.Anturkar referred to section 24(1)(a) of 2013 Act.
He submitted that since award u/s 11 of the 1894 Act was not
passed as on 01/01/2014, provisions of the 2013 Act would be
applicable. He submitted that the Respondent Nos.2 and 3 have
not followed the provisions under the 2013 Act, as is clear from
the award itself. Mr.Anturkar further submitted that, in any case,
it cannot be said that the land acquisition proceedings were
initiated under the 1894 Act, before 01/01/2014 when the 2013
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Act was brought into force. He submitted that the declaration u/
s 6 of the 1894 Act was itself not tenable in the eyes of law
because by that time, the 1894 Act had already lapsed. The
authorities, could not have taken steps pursuant to the
declaration issued on 13/02/2014 u/s 6 of the 1894 Act. In
support of his contention Mr.Anturkar relied on the judgment
dated 15/02/2018 passed by this Court (Coram : Ranjit More
And Prakash D. Naik, JJ.) in Writ Petition No.10852 of 2014, in
the case of Sheetalkumar Sadashiv Zambare Vs. State of
Maharashtra & others. He submitted that even otherwise the
award was passed after the period of two years mentioned u/s
11A of 1894 Act from publication of the declaration. On all
these counts, the award and the subsequent notice are required
to be set aside. He made a categorical statement that the
Petitioner had accepted the amount of Rs.1,99,14,561/- as the
compensation amount without prejudice to her rights and that if
the award is set aside, the Petitioner is willing to return that
amount to the authorities.
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10. Learned AGP representing the Respondent Nos.2 and 3
opposed these submissions by relying on the affidavits-in-reply
filed on behalf of these Respondents. He submitted that the
compensation was fixed by following the procedure laid down
u/s 26 to 30 of the 2013 Act and therefore there was nothing
illegal about it. He submitted that the Petitioner has already
accepted the compensation amount and therefore no relief
should be granted to her.
11. Learned counsel Mr.Deshpande for Respondent No.4
also opposed this Petition and submitted that the Petitioner has
an option of approaching the tribunal u/s 31 of 2013 Act for
redressal of his grievance.
12. We have considered these submissions.
. Section 24(1)(a) and (b) of 2013 Act read thus;
"24. Land acquisition process under Act No.1 of
1894 shall be deemed to have lapsed in certain cases -
(1) Notwithstanding anything contained in this Act,
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in any case of land acquisition proceedings
initiated under the Land Acquisition Act, 1894 (1
of 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.
Therefore it is clear that the proceedings which were
already initiated under the 1894 Act, were protected and
continued under the new 2013 Act, where no award u/s 11 of
the 1894 Act was passed. The main consideration in this regard
is about initiation of the land acquisition proceedings prior to
coming into force of 2013 Act. In the present case, admittedly,
the declaration u/s 6 of the 1894 Act was issued on
13/02/2014, i.e. after 01/01/2014 when the 2013 Act was
brought into force.
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13. Learned counsel Mr.Anturkar rightly relied on the
judgment of this Court in Writ Petition No.10852 of 2014.
Paragraph Nos.7 and 8 of the said judgment are relevant in the
facts of the present case. Those paragraphs read as under:
"7. Similar issue fell for consideration of another
Division Bench of this Court in Nilima Bhole
(supra). The Division Bench after considering the
provisions of relevant enactments and the
decision of Hon'ble Supreme Court in case of
Babu Barkya Thakur Vs. State of Bombay (AIR-
1960-SC-1203) and Patel Gandalal Somnath Vs.
State of Gujarat (AIR-1963-GuJ.-51) concluded
that publication of notification under Section 4 or
notice under Section 4(1) of the Old Land
Acquisition Act would not tantamount to initiation
of the acquisition proceedings. It was further held
that the land acquisition proceedings can be said
to have been commenced after declaration under
Section 6 of the Old Land Acquisition Act is
issued. This ratio of the judgment of co-ordinate
Bench is perfectly applicable to the present case.
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Mr.Gokhale, learned `B' panel counsel for State,
could not cite any other decision in support of his
contention that the acquisition proceedings can be
said to have been initiated after issuance of
notification under Section 4 of Old Land
Acquisition Act.
8. As stated above, admittedly Section 6 declaration
was published on 8th May 2014 i.e. subsequent to
the coming into force of the New Land Acquisition
Act. Though the award makes reference to New
Land Acquisition Act, the same is passed under
Section 11 of the Old Land Acquisition Act. In
above circumstances, we have no alternative but
to quash and set aside the impugned award qua
the petitioner. The petition is accordingly allowed
in terms of prayer clauses (b) and (f1) of the
petition. No order as to costs."
14. From the ratio of this judgment it is clear that this
Court has held that the land acquisition proceedings can be said
to have commenced after declaration u/s 6 of the 1894 Act was
issued. In the present case, that declaration was issued as
mentioned earlier on 13/02/2014. Therefore the land
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acquisition proceedings were not initiated under the 1894 Act
before 01/01/2014 when the 2013 Act was brought into force.
Therefore these proceedings cannot be saved u/s 24(1)(a) of the
2013 Act. We also agree with Mr.Anturkar that declaration u/s 6
of the 1894 Act itself was illegal because on 13/02/2014, the
1894 Act had already lapsed. The impugned award makes a
specific reference to the declaration dated 13/02/2014 issued
u/s 6 of the 1894 Act.
15. The stand taken by the Respondent Nos.2 and 3 that
the award was passed within stipulated period of two years, as
mentioned u/s 11A of the 1894 Act from the date of declaration,
is not factually correct. The affidavit of Respondent Nos.2 and 3
itself mentions that the declaration u/s 6 of the 1894 Act was
published in the Gazette for 06/03/2014 to 12/03/2014. It was
published in daily newspapers on 02/03/2014 and 03/03/2014.
It was also published on the notice board of the Gav Chawadi on
25/06/2014 and on the notice board of Tahasildar on
07/07/2014. The award was passed on 17/10/2016, which is
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passed after more than 2 years from publication of declaration
u/s 6 of the 1894 Act. However, this issue is not necessary to be
dealt with in view of the discussion in the earlier paragraphs
hereinabove.
16. Considering the above discussion, the Petition must
succeed. However, directions are also required to be issued in
respect of the compensation amount, which is already accepted
by the Petitioner, though it was accepted without prejudice to
her rights. Hence, the order:
ORDER
1. Rule is made absolute in terms of prayer clauses A
and B qua the Petitioner which read as under;
(A) That this Honourable Court be pleased to issue
a writ mandamus or writ in the nature of
mandamus or any other appropriate writ
direction and order under Article 226 of the
Constitution of India, 1950, quashing and
setting aside the award dated 17th October
2016 issued by the Respondent no.3 in respect
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of the suit property of the Petitioners herein as
violative of the provision of Right to Fair
Compensation and Transparency in Land
Acquisition, Rehabilitation and Resettlement
Act, 2013 [Act No.30 of 2013].
(B) That this Honourable Court be pleased to issue
a writ mandamus or writ in the nature of
mandamus or any other appropriate writ
direction and order under Article 226 of the
Constitution of India, 1950, quashing and
setting aside the notice dated 22nd May 2017
purporting to be the notice under section
31[1] of The Right to Fair Compensation and
Transparency in Land Acquisition,
Rehabilitation and Resettlement Act, 2013,
issued by the Sub-Divisional Officer Ichalkaranji."
2. The Petitioner shall return the amount of
Rs.1,99,14,561/- to the authorities within a period
of 12 weeks from the date of this order.
3. The Petition is disposed of in the aforesaid terms.
(SARANG V. KOTWAL, J.) (SMT. SADHANA S. JADHAV, J.)
