Bombay High Court
Sanjay S/O Tukaram Shegokar And ... vs State Of Maha. Thr. Principal ... on 28 April, 2023
Bench: A.S. Chandurkar, Vrushali V. Joshi
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 2127 of 2020
with
WRIT PETITION NO.1292 of 2021
with
WRIT PETITION NO.1349 of 2021
with
WRIT PETITION NO.733 OF 2023
..............................
WRIT PETITION NO.2127 OF 2020
1. Pramod s/o Vasantrao Ganesh,
Aged about 38 years, Occ. Business,
R/o Sainagar, Near Murarka College,
Shegaon, District Buldana.
2. Gopal s/o Maroti Vibhute,
Aged 69 years, Occ. Business,
R/o. Yogiraj Gest House,
Near Gajanaj(Gajanan) Mandir, Shegaon, Dist. Buldana.
3. Shrikrishna s/o Pralhad Patil,
Aged about 52 years, Occ. Business,
R/o. Krishna Mithai Kendra,
Near Gajanaj(Gajanan) Mandir, Shegaon,
District Buldana.
4. Dnyaneshwar s/o Vishwanath Hingane,
Aged about 39, Occ. Business,
R/o. Gajanan Verity Centre,
Near Gajanaj(Gajanan) Mandir, Shegaon,
District Buldana.
5. Ravindra s/o Purushottam Lanjukar,
Aged about 47, Occ.Business.
Mauli Verity Centre, Near Gajanaj(Gajanan) Mandir, Shegaon,
District Buldana.
6. Rajkumar Mahadeorao Dadgal,
Aged 53 years, Occ. Business,
Near Gajanaj(Gajanan) Mandir, Shegaon,
District Buldana.
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7. Vajay s/o Shriram Dadgal,
Aged about 53 years, Occ. Business,
R/o. Near Jai Durga Bhojnalaya,
Near Gajanaj (Gajanan) Mandir, Shegaon,
District Buldana.
8. Subhash s/o Vitthal Kale,
Aged about 47 years, Occ. Business,
Near Gajanaj (Gajanan) Mandir, Shegaon,
District Buldana.
9. Abhijit s/o Vijay Shegokar,
Aged about 30 years, Occ. Business,
Near Gajanaj (Gajanan) Mandir, Shegaon,
District Buldana.
10. Dilip s/o Dinkar Muddalkar,
Aged about 57 years, Occ.Business,
Near Gajanaj (Gajanan) Mandir, Shegaon,
District Buldana.
11. Ambadas s/o Baban Wankhede,
Aged about 39 years, Occ. Business,
Near Gajanaj (Gajanan) Mandir, Shegaon,
District Buldana.
12. Dilip s/o Shrikrishna Mane,
Aged about 35 years, Occ. Business,
Near Gajanaj(Gajanan) Mandir, Shegaon,
District Buldana.
Deleted as per 13. Madhuri w/o Waman Tiwaskar,
Court's order dated
17/12/2021
Aged about 67 years, Occu. Business,
Sd/- counsel for Near Gajanaj Mandir, Shegaon,
petitioner District Buldana. ..... PETITIONERS
dt.20/12/2021
...V E R S U S...
1. State of Maharashtra,
Through its Principal Secretary,
Department of Urban Development,
Mantralaya, Mumbai-400 032 .
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2. The Divisional Commissioner,
Amravati Division, Amravati.
3. The Collector,
Buldana.
4. Sub-Divisional Officer and Land
Acquisition Officer, Khamgaon,
District Buldana.
5. Municipal Council, Shegaon,
Through its Chief Officer,
At/PO: Shegaon, Tahsil-Shegaon,
District Buldana.
Added R.No.6
Amendment carried 6. Shri Gajanan Maharaj Sansthan,
our as per Court's
order dated
Shegaon, through its Managing Trustee
08.02.2021 (Power of Attorney Holder)
Sd/-Counsel for
Petitioner
At/PO: Shegaon, Tahsil Shegaon,
03.04.2021 District Buldana. ....... RESPONDENTS
with
WRIT PETITION NO. 1292 OF 2021
1. Sanjay s/o Tukaram Shegokar,
Aged 57 years, Occ.:Business
2. Summet s/o Sanjay Shegokar,
Aged 21 years, Occ.Business
3. Rajendra s/o Bhaskarrao Chouthe,
Aged 49 years, Occ. Business,
All R/o. Shegaon, Tah. Shegaon,
District Buldhana.
--VERSUS--
1. State of Maharashtra,
Through its Principal Secretary,
Department of Urban Development,
Mantralaya, Mumbai-400 032 .
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2. The Divisional Commissioner,
Amravati Division, Amravati.
3. The Collector, Buldana,
District Buldana.
4. Sub-Divisional Officer and Land
Acquisition Officer, Khamgaon,
District Buldana.
5. Municipal Council, Shegaon,
Through its Chief Officer, Shegaon,
Tahsil-Shegaon,
District Buldana.
Added respondent 6. Shri Gajanan Maharaj Sansthan,
no.6 vide Court's
order dated Shegaon, through its Managing Trustee
10.03.2021 (Power of Attorney Holder)
Sd/-R.K.Thakkar
Counsel for Shegaon, Tahsil Shegaon,
Petitioner District Buldhana. ....... RESPONDENTS
05.04.2021
with
WRIT PETITION NO.1349 OF 2021
1. Pralhad Kisan Tayde
Aged about 50 years, Occ. Labourer
R/o. Shegaon, Tah. Shegaon,
District Buldana.
2. Dhruv Kisan Tayde,
Aged about 55 years, Occ. Labourer
R/o. Shegaon, Tah. Shegaon,
District Buldana.
3. Sunanda Supaji Taktode,
Aged about 50 years, Occ. Labourer
R/o. Khaira, Tah. Motala,
District Buldana.
4. Lata Ramesh Tayde
Aged about 50 years, Occ. Household
R/o. Shegaon, Tah. Shegaon,
District Buldana. ...PETITIONERS
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---VERSUS--
1. State of Maharashtra,
Through its Principal Secretary,
Department of Urban Development,
Mantralaya, Mumbai-400 032 .
2. The Divisional Commissioner,
Amravati Division, Amravati.
3. The Collector, Buldana,
District Buldana.
4. Sub-Divisional Officer and Land
Acquisition Officer, Khamgaon,
District Buldana.
5. Municipal Council, Shegaon,
Through its Chief Officer,
Shegaon, Tahsil-Shegaon,
District Buldana.
....... RESPONDENTS
with
WRIT PETITION NO.733 OF 2023
Dhananjay s/o Tukaram Shegokar,
Aged 51 years, Occupation- Business,
R/o. Shegaon, Tah. Shegaon,
District Buldhana. ..... PETITIONER
--VERSUS--
1. State of Maharashtra,
Through its Principal Secretary,
Department of Urban Development,
Mantralaya, Mumbai-400 032 .
2. The Divisional Commissioner,
Amravati Division, Amravati.
3. The Collector, Buldana.
District Buldana.
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4. Sub-Divisional Officer and Land
Acquisition Officer, Khamgaon,
District Buldana.
5. Municipal Council, Shegaon,
Through its Chief Officer,
At/PO: Shegaon, Tahsil-Shegaon,
District Buldana.
6. Shri Gajanan Maharaj Sansthan,
Shegaon, through its Chairman
R/o. Shegaon, Tahsil Shegaon,
District Buldana. ....... RESPONDENTS
-------------------------------------------------------------------------------------------------------
Shri Masood Shareef with Shri Aadil J. Mirza, Advocate for petitioners in
W. P. No.2127/2020
Shri R.K.Thakkar, Advocate for petitioners in Writ Petition Nos.1292/2021,
1349/2021 and 733/2023
Shri D. P. Thakare, Additional Government Pleader for respondent nos. 1 to
4 in all writ petitions.
Shri D.M.Kale, Advocate for respondent no.5 in all writ petitions
Shri Arun R.Patil Advocate for respondent no.6 in all writ petitions.
------------------------------------------------------------------------------------------------------
CORAM :- A.S.CHANDURKAR AND MRS. VRUSHALI V. JOSHI, JJ.
ARGUMENTS WERE HEARD ON 3rd FEBRUARY, 2023
JUDGMENT IS PRONOUNCED ON : 28th APRIL, 2023
JUDGMENT (PER CORAM)
The challenge raised in these writ petitions is to the preliminary
notification dated 26.06.2019 issued under Section 11(1) of the Right to
Fair Compensation and Transparency in Land Acquisition, Rehabilitation
and Resettlement Act, 2013 (for short, the Act of 2013) as well as
notification dated 20.06.2020 issued under Section 19 of the Act of 2013.
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During the pendency of the writ petitions, the Special Land Acquisition
Officer passed his award on 16.12.2020 and hence by amending Writ
Petition Nos. 2127 of 2020, 1292 of 2021 and 1349 of 2021 a challenge is
also raised to the final award. Similar challenge is also raised in Writ
Petition No.733 of 2023.
Rule. Rule made returnable forthwith and heard the learned
counsel for the parties.
FACTUAL BACKGROUND
2] The facts relevant for adjudication of these writ petitions are as
under:
Samadhi of Shri Gajanan Maharaj Deosthan is located at Shegaon,
District Buldana. It is visited by numerous devotees throughout the year.
Keeping in mind the huge rush of devotees, the State of Maharashtra had
on 26.11.1991 issued a Government Resolution thereby sanctioning a
Special Development Plan for Shegaon as a Pilgrimage Centre. Municipal
Council, Shegaon was designated as Development Authority for the said
purpose. Since the development as was expected to be undertaken under
the Special Development Plan could not be effected, Writ Petition No.5856
of 2007 (Anandilal H. Bhutada and others. vs. Shegaon Municipal Council
and others) came to be filed in this Court. The said proceedings were
treated to be in public interest and the matter was entertained in that
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context. The State Government having taken cognizance of the rush of
devotees at various religious places and with a view to avoid occurrence of
any untoward incident as a result of stampede, etc., issued various
guidelines vide Government Resolution dated 09.03.2009. These guidelines
were made applicable to all religious structures/places in the State. Insofar
as the town of Shegaon is concerned, it was noticed that on the western
side of Shri Gajanan Maharaj Deosthan - the Sansthan, there were some
encroachments in the area called as Matangwadi. The Maharashtra Housing
and Area Development Authority (MHADA) constructed various tenements
with a view to rehabilitate the persons occupying Matangwadi area.
3] On 08.03.2010 a fresh development plan for extension of the
Sansthan premises came to be issued. Some of the present petitioners had
approached this Court by filing Writ Petition Nos.4438 of 2017, 4439 of
2017 and 341 of 2018 raising a challenge to the notice dated 03.07.2017
that was issued by Municipal Council, Shegaon, calling upon the said
petitioners to vacate the premises in their occupation. Various orders came
to be passed from time to time in the said writ petitions. By the order dated
29.11.2017 passed in aforesaid writ petitions alongwith Writ Petition
No.5856 of 2007, it was noticed that claims of twenty-seven persons were
involved. The report of the Collector indicated that ten properties were
privately owned while seventeen properties were subjected to
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encroachment. After noting that in the light of the development work that
had been undertaken and the situation had become irreversible as further
development could not be halted, cognizance of the statement made by the
petitioners that they were not against such development and that they
would co-operate with the Municipal Council, State Government and the
Sansthan if their rights were protected was taken. The petitioners were
directed to file their affidavits agreeing to hand over their respective sites to
the Municipal Council to enable the development work to be undertaken.
The said writ petitions came to be disposed of on 05.04.2018 by which
various directions were issued by the Court requiring all occupants to vacate
their premises within seven days. The lands of the persons recognised by
the Collector as owners were deemed to have been acquired and the Special
Land Acquisition Officer was directed to determine the amount of
compensation.
4] The order dated 05.04.2018 passed by this Court came to be
challenged before the Hon'ble Supreme Court in Special Leave Petition
No.9452 of 2018 that arose from Writ Petition No.4438 of 2017. It was
directed that except the petitioner no.1- Sau. Lata Ramesh Tayade in Writ
Petition No. 4438 of 2017, the petitioner nos. 2 to 14 as well as the sole
petitioner in Special Leave Petition No.9453 of 2018 that also arose from
Writ Petition No.4438 of 2017 were directed to remove their built up
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structure from the land in question and any goods therein within a period of
fifteen days. In Special Leave Petition No.9362 of 2018 arising from Writ
Petition No.4439 of 2017, the directions given in paragraph 19 (b) to (d) of
the order dated 05.04.2018 passed by this Court came to be stayed. In
Special Leave Petition No.9969/2018 arising out of Writ Petition No.341 of
2018 notice was issued on 19.04.2018 but the petitioners were directed to
vacate the premises in question on their own within a period of three
months. Thus, of the twenty-seven petitioners who had suffered the order
dated 05.04.2018, the possession of only ten petitioners was protected.
They were nine petitioners in Writ Petition No. 4439 of 2017 and one
petitioner in Writ Petition No. 4438 of 2017. During pendency of the
aforesaid proceedings, an attempt was made to resolve the dispute through
mutual negotiations but it appears that the same was not possible. On
12.10.2018 the General Body of Shegaon Municipal Council passed a
Resolution proposing acquisition of privately owned lands from Nazul Sheet
No.28-B from Matangpura area.
All the aforesaid Special Leave Petitions came to be decided on
10.05.2019. The directions contained in paragraph 19 (b) to (d) of the
order dated 05.04.2018 passed by this Court came to be set aside. Other
directions as issued were not interfered with and the State Government was
permitted to proceed with the acquisition in accordance with law.
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5] In the light of the aforesaid order passed by the Hon'ble Supreme
Court, the Divisional Commissioner on 21.05.2019 issued a communication
to the Sub-Divisional Officer to take further steps in accordance with the Act
of 2013. On 23.05.2019 the Chief Officer, Municipal Council, Shegaon, sent
a proposal to the Sub-Divisional Officer, Khamgaon proposing acquisition of
lands from Nazul Sheet Nos.28-B and 28-A, Matangpura area. Such
proposal was accordingly prepared for acquisition of the aforesaid lands by
indicating that under Government Resolution dated 08.03.2010 the land
was required as open land/garden, provision of various amenities and
facilities to devotees. The area proposed to be acquired was 1555.10 square
meters. The petitioners on 25.05.2019 raised an objection before the
Divisional Commissioner stating therein that no direction had been issued
by the Hon'ble Supreme Court to acquire the said lands. On 01.06.2019 the
Sub-Divisional Officer issued notice to the land owners offering to purchase
their lands by executing sale deeds in their favour. They were asked to
attend the meeting in that regard on 07.06.2019. The land owners however
raised an objection to the aforesaid process on 07.06.2019 stating therein
that the acquisition was being undertaken in violation of the orders passed
by the Hon'ble Supreme Court.
Preliminary notification under Section 11(1) of the Act of 2013
came to be published in the Government Gazette dated 11.07.2019. It was
also published in two local newspapers on 06.07.2019 and 07.07.2019.
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The preliminary notification was also pasted at prominent places in
Shegaon town on 29.06.2019, on the notice board of Tahsil Office on
19.08.2019 and on the notice board of Municipal Council on 20.08.2019.
The Sansthan submitted its objection under Section 15(1) of the Act of
2013 stating therein that twenty properties were owned by forty-two
persons. However, in the preliminary notification, there was reference to
fifty-one properties. Besides this objection, no land owner including the
petitioners raised any objection under Section 15(1) of the Act of 2013.
The objection raised by the Sansthan was considered by the Sub-Divisional
Officer/Land Acquisition Officer, Khamgaon and the proceedings were then
sent to the Collector for approval under Section 19 of the Act of 2013.
Thereafter final declaration under Section 19 (1) of the Act of 2013 came to
be published in the Official Gazette dated 09.07.2020. It was published in
two local newspapers on 20.06.2020 and thereafter steps contemplated by
Section 21(1) and (4) of the Act of 2013 were taken. Notice was issued to
all interested parties to attend the Office of the Sub-Divisional Officer.
Seventeen land owners remained present, out of whom fifteen land owners
raised a written demand of amount of compensation. The Special Land
Acquisition Officer determined the amount of compensation at Rs.11,300/-
per square meter for Plot Nos. 56/1 and 56/2 falling in Nazul Sheet No.28-
A and Plot No.11 in Nazul Sheet No.28-B. Amount of Rs.4,700/- per square
meter was determined as compensation for all other plots from Nazul Sheet
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No.28-B. Thus, final award came to be passed in the aforesaid manner on
16.12.2020.
CONTENTIONS OF LEARNED COUNSEL
6] Shri Masood Shareef, learned counsel for the petitioners in Writ
Petition No.2127of 2020 submitted that the award dated 16.12.2020 passed
by the Special Land Acquisition Officer was not in accordance with the
provisions of the Act of 2013 for various reasons. At the outset, it was
submitted that the order passed in Writ Petition No.5856 of 2007 and
connected writ petitions on 05.04.2018 was the subject matter of challenge
before the Hon'ble Supreme Court. By its judgement dated 10.05.2019
directions issued in para 19 (b) to (d) of the order dated 05.04.2018 had
been set aside. A statement was made on behalf of the Authorities that the
State Government would proceed with acquisition and in accordance with
law. This statement was construed by the Authorities as a direction to
acquire the lands of the petitioners. In absence of any such direction to
acquire the petitioners lands, there was no justification in proceeding on
that basis. The initiation of the said proceedings itself was therefore by
misconstruing the order dated 10.05.2019. It was then submitted that
various mandatory provisions of the Act of 2013 while seeking to acquire
the petitioners land had not been followed. The learned counsel invited
attention to Chapter II of the Act of 2013 and submitted that there was no
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Social Impact Assessment study undertaken by the respondents though it
was mandatory for the Collector to do so. Reference was also made to the
Right to Fair Compensation and Transparency in Land Acquisition,
Rehabilitation, Resettlement (Social Impact Assessment and Consent) Rules,
2014 in that regard. Similarly, the provisions of Chapter-III of the Act of
2013 had also not been followed. Though the power to exempt certain
projects from the provisions of Chapters II and III of the Act of 2013 was
available with the State Government, the present acquisition did not fall in
that category. There was no case made out to invoke the provisions of
Section 40 of the Act of 2013 since there was no urgency to acquire the said
lands.
7] It was then submitted that the steps required to be taken while
publishing a preliminary notification under Section 11 of the Act of 2013
had not been followed. The preliminary notification was not published as
required nor was the Gram Sabha informed as per Section 11(2) of the Act
of 2013. Though the notification dated 26.06.2019 published at a
prominent place in the city of Shegaon stated that compliance of the
provisions of Section 11 had been done, the same was not a fact. Referring
to the provisions of Section 15 of the Act of 2013, it was submitted that by
filing the present proceedings, the petitioners had raised objections as
contemplated by Section 15(1) of the Act of 2013 and the same deserved
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consideration. Referring to the award dated 16.12.2020 it was submitted
that the same was silent insofar as the aspect of Social Impact Assessment
as well as rehabilitation of displaced persons was concerned. The award
also did not indicate how the market value of the acquired land came to be
determined by the Collector under Section 26 of the Act of 2013. It was
further submitted that on 01.06.2019, the Special Land Acquisition Officer
issued notice to the land owners as well as the Sansthan to remain present
on 07.06.2019 for purchasing the lands required. The petitioners had
raised an objection to the same on 07.06.2019 and had opposed execution
of any sale deed. Inviting attention to the replies filed by the Divisional
Commissioner, Collector and Sub-Divisional Officer, it was submitted that
the same were silent with regard to following the mandatory procedure for
acquisition.
8] The learned counsel further submitted that the lands of the
petitioners could not be said to be required for any public purpose inasmuch
as the Municipal Council had proposed acquisition of the said land only
with a view to provide facilities to devotees visiting the Sansthan. The
Government Resolution dated 08.03.2010 also did not indicate that the
land was required to be acquired for any public purpose. The Sansthan was
a registered public trust like any other trust. The provisions of Section 2(1)
and (2) of the Act of 2013 were not at all attracted and hence there was no
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legal basis to acquire the lands in question. The petitioners being owners of
the lands in question, they could not be deprived of their said lands in a
manner contrary to law and in absence of any scheme for rehabilitation. It
was thus submitted that the prayers made in the writ petition be granted.
In support of aforesaid submissions, the learned counsel relied upon the
decisions Union of India and others vs. Krishan Lal Arneja and others
[(2004) 8 SCC 453], Girnar Traders vs. State of Maharashtra and others
[(20110 3 SCC 1], J.K.Housing Board and another vs Kunwar Sanjay
Krishan Kaul and others [(2011) 10 SCC 714], Raghbir Singh Sehrawat vs
State of Haryana and others [(2012) 1 SCC 792], Usha Stud and
Agricultural Farms Private Limited and others vs. State of Haryana and
others [(2013) 4 SCC 210], Laxmi Devi vs State of Bihar and others
[(2015) 10 SCC 241], Mehtab Laiq Ahmad Sheikh and another vs. State of
Maharashtra and others [2017 (6) Mh L J 408], Shiv Singh vs State of
Himachal Pradesh [(2018) 16 SCC 270], Chandrakant Mahadev Patil and
others vs. State of Maharashtra and others [(2018) SCC Online Bom 2825],
Nareshbhai Bhagubhai and others vs Union of India and others [(2019) 15
SCC 1], D. B. Basnett (Dead) through Legal Representatives vs Collector
East District, Gangtok, Sikkim and another [(2020) 4 SCC 572], Bangalore
Development Authority vs. State of Karnataka [2022 Live Law (SC)76] and
Bharat Petroleum Corporation Limited and others vs. Nisar Ahmed and
others [2022 Live Law (SC) 837].
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9] Shri R.K.Thakkar, learned counsel appearing for the petitioners in
Writ Petition Nos.1292 of 2021, 1349 of 2021 and 733 of 2023 adopted the
contentions raised the learned counsel for the petitioners in Writ Petition
No. 2127 of 2020. In addition, he submitted that the provisions of Section
41 of the Act of 2013 would be attracted. The same however were not
considered by the Authorities. It was thus submitted that the prayers made
in the writ petitions be granted.
10] Shri D. P. Thakre, learned Additional Government Pleader
appearing for the respondent nos. 1 to 4 opposed the aforesaid submissions.
According to him, the award dated 16.12.2020 had been passed after
complying with all provisions of the Act of 2013. A Special Development
Plan for the town of Shegaon had been prepared on 26.11.1991 and the
same was partly modified by issuing notification under Section 31 (1) of the
Maharashtra Regional and Town Planning Act, 1966 (for short, the Act of
1966). Subsequently on 08.03.2010 a Government Resolution came to be
issued with a view to provide various basic facilities to devotees visiting the
Sansthan at Shegaon under the Special Development Plan. Since the State
Government had stated before the Hon'ble Supreme Court that it would
proceed with acquisition in accordance with law, the preliminary
notification under Section 11 (1) of the Act of 2013 was issued on
26.06.2019. No objection whatsoever was raised by the petitioners to the
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said preliminary notification and hence there was no question of hearing
the petitioners in that regard under Section 15(1) of the Act of 2013. After
a declaration under Section 19 came to be published, individual notices
were given to all petitioners under Section 21. The objections raised were
considered and decided by the Competent Authority. Since the final award
had been passed, the petitioners had a remedy under Section 64 of the Act
of 2013, if they were not satisfied by the amount of compensation
determined by the Special Land Acquisition Officer. During the pendency of
the proceedings pursuant to the order dated 08.02.2021 passed in writ
petition the possibility of exploring amicable settlement was also examined
by the Divisional Commissioner on 19.06.2021. The petitioners however
were not willing to have the dispute settled amicably. It was thus submitted
that there was no reason to interfere with the award passed by the Special
Land Acquisition Officer.
Shri D.M.Kale, learned counsel appearing for the Municipal
Council-respondent no.5 submitted that on 23.05.2019 the Chief Officer
had sent a proposal to acquire lands from Nazul Sheet No.28-B and 28-A to
the Sub-Divisional Officer, Khamgaon. It was pursuant to this request made
by the Planning Authority that the process of acquisition commenced and
the steps were thereafter taken by the Authorities under the Act of 2013.
The Municipal Council had passed its resolution long back indicating the
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need for the aforesaid lands under the Special Development Plan. The
learned counsel also opposed the prayers made in the writ petitions.
11] Shri A.R.Patil, learned counsel appearing for the Sansthan -
respondent no.6 also opposed the submissions made by the learned counsel
for the petitioners. According to him, the Sansthan was in need of 6766
square meters of land under the Special Development Plan. Land to the
extent of 5200 square meters was already received by the Sansthan after
the same was acquired. In the present proceedings, the remaining land
of 1555.10 square meters was sought to be acquired. The learned counsel
invited attention to various orders passed in Writ Petition Nos. 4338 of
2017, 4339 of 2019 and 341 of 2018 followed by the orders passed by the
Hon'ble Supreme Court in proceedings challenging the order dated
05.04.2018 passed by this Court. It was submitted that most of the
petitioners in the present writ petitions were parties in the earlier litigation
and they had been called upon to vacate their respective lands and hand
over possession. The same was however not done. Insofar as the owners of
respective pieces of lands were concerned, their lands were now sought to
be acquired by the impugned award.
The learned counsel referred to the developments that took place
since publication of the Special Development Plan on 26.11.1991 followed
by the Circular dated 23.03.2009 whereby cognizance was taken by the
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State Government of the possibility of a stampede like situation arising at
religious places. In that backdrop, another Government Resolution was
issued on 08.03.2010 approving various basic facilities to be provided at
Shegaon under the Special Development Plan. The land in question was
not required exclusively for any garden but for providing facilities to
devotees visiting the Sansthan. The map prepared in that regard was
accepted by this Court in the order dated 05.04.2018 which was not
interfered with by the Hon'ble Supreme Court while considering the appeal
against that order. It was then submitted that keeping in mind the risk to
the life of the devotees that was likely for want of necessary facilities, steps
were taken by the Sansthan as well as the Authorities to provide basic
facilities. These steps taken were in the nature of Social Impact Assessment
and the requirements in that regard stood satisfied. In that regard, he
invited attention to the preliminary statement dated 26.06.2019 that was
prepared by the Special Land Acquisition Officer. Referring to the
provisions of Section 125 of the Act of 1966, it was submitted that by virtue
of proviso thereof, the applicability of Sections 4 to 15 of the Act of 2013
stood excluded. Since the development plan dated 08.03.2010 was in
existence, there was no need whatsoever to again undertake any Social
Impact Assessment. Despite publication of preliminary notification under
Section 11(1) of the Act of 2013, no objections were raised by the
petitioners and hence it was clear that the petitioners did not dispute the
WP-2127-20 c 1292-21 c 1349-21(J) c 733-23(J).odt 21/44
aspect that the lands were required for public purpose. The petitioners
were not precluded from raising such objection but failed to do so for no
justifiable reason. The petitioners had subsequently raised objection to the
notification issued under Section 19 of the Act of 2013 and they had been
heard in that regard. Thereafter the award came to be passed after
determining the market value of the said land. The remedy under Section
64 of the Act of 2013 was available to the petitioners and hence there was
no reason to interfere in writ jurisdiction. The learned counsel relied upon
the decisions in Municipal Corporation of Greater Bombay vs Industrial
Development Investment Co. Pvt. Ltd. and others [(1996) 11 SCC 501],
K.D.Sharma vs. Steel Authority of India Ltd. and others [(2008) 12 SCC
481], Navnath s/o Kashinathappa Biradar and others vs. State of
Maharashtra and others [2009 (1) Mh.L.J. 227], Dalip Singh vs. State Uttar
Pradesh and others [(2010) 2 SCC 114], Mehtab Laiq Ahmed Shaikh and
another vs. State of Maharashtra and others [2017(6) Mh.L.J.408],
Sahebrao Bhausaheb Kalate vs. State of Maharashtra and others [2019 (6)
Bom.C.R.575], Ajay Kumar and others vs. Kewal Kumar Jaggi and others
[2021(9) SCALE 256], Shri K.Jayaram and others vs. Bangalore
Development Authority and others, [2021 (14) SCALE 663] and M/s.
Soorajmull Nagarmull vs. Sri Brijesh Mehrotra and others [2021 (15)
SCALE 346], in support of his submissions.
WP-2127-20 c 1292-21 c 1349-21(J) c 733-23(J).odt 22/44
EVENTS LEADING TO PRESENT LITIGATION
12] We have heard the learned counsel for the parties at length and
with their assistance we have perused the documents placed on record.
Since the acquisition proceedings have a chequered history, it would be
necessary to refer to certain events/developments that have taken place in
the past which have relevance in the matter of acquisition. Considering the
fact that large number of devotees visit Shegaon to pay obeisance at Shri
Gajanan Maharaj Deosthan, the Planning Department of the State
Government on 26.11.1991 issued a Government Resolution proposing
various steps to be taken for providing basic facilities to devotees visiting
Shegaon. This included widening of roads and providing sewerage systems
as well as toilets in the town. A provision was also made to arrange for
temporary accommodation. On 26.04.1994 notification under Section
31(1) of the Act of 1966 came to be issued providing for revision of the
sanctioned development plan in the context of facilities to be provided.
On 03.05.2005 the Charity Commissioner, Mumbai, issued a communication
to the Sansthan inviting its attention to the guidelines to be followed for
taking precautionary measures to avoid any untoward incident in the nature
of a stampede. Since nothing much took place at the ground level, Writ
Petition No.5856 of 2007 was filed in this Court seeking implementation of
the Special Development Plan. Cognizance of the said proceedings was
WP-2127-20 c 1292-21 c 1349-21(J) c 733-23(J).odt 23/44
taken in public interest. The Revenue and Forest Department issued a
Circular on 23.03.2009 requiring steps to be taken to ensure that
surroundings of temples/religious places are kept spacious and clear to
avoid any mishap due to overcrowding. An emergency management plan
with pilgrims in mind was directed to be prepared. Thereafter on
08.03.2010 the Planning Department issued another Government
Resolution indicating the Special Development Plan for the town of
Shegaon since 100th anniversary of Shri Gajanan Maharaj was to be
celebrated on 12.09.2010. The nature of basic facilities to be provided were
indicated therein which included provision of various facilities to devotees.
The Municipal Council on 03.07.2017 issued notices to various occupants of
properties especially in Matangwadi area to clear the same. This resulted in
filing of Writ Petition Nos. 4438 of 2017, 4339 of 2017 and 341 of 2018 in
this Court. On 29.11.2017 the claim of twenty-seven petitioners in Writ
Petition Nos. 4438 of 2017 and 4439 of 2017 came to be examined. It was
noticed that ten properties were privately owned while seventeen properties
on government land had been encroached. These writ petitions were heard
alongwith the public interest litigation and on 05.04.2018, the Division
Bench issued various directions under which six of the seventeen
encroachers opted for resettlement in the MHADA colony while eleven
sought allotment of shops in the commercial complex on ownership basis.
A direction was accordingly issued to all occupants in Matangwadi area to
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vacate their premises within a period of seven days failing which a
Superintendent of Police, Buldhana was directed to ensure that said persons
were evicted. Insofar as persons whose names were found as owners were
concerned, their lands were deemed to have been acquired under the Act of
2013. The Divisional Commissioner was directed to depute a Special Land
Acquisition Officer to determine the claim of the persons who were owners
of the land and on such determination, the Sansthan was to deposit the
entire amount of compensation within a period of forty-eight hours with the
Special Land Acquisition Officer. These specific directions insofar as owners
of the lands are concerned, are contained in para 19 (b) to (d) of the order
dated 05.04.2018. It is not in dispute that insofar as these directions
contained in para 19 (b) to (d) are concerned, the same have been set aside
by the Hon'ble Supreme Court on 10.05.2019. Rest of the directions that
relate to the encroachers as well as the steps for rehabilitation of other
persons and approval of the map indicating location of the police chowky
have not been interfered with. Similarly, the plan prepared by the Sansthan
to take care of interests of the citizens as well as pilgrims visiting the shrine
have not been interfered with.
EARLIER LITIGATION
13. At this stage, it would be necessary to refer to the orders passed in
Writ Petition No. 4438 of 2017, 4439 of 2017 and 341 of 2018. Insofar as
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Writ Petition No.4438 of 2017 is concerned, there were in all eighteen
petitioners. By the order dated 05.04.2018 the said petitioners were asked
to vacate their properties in Matangwadi area. Special Leave Petition Nos.
9452-9453 of 2018 came to be preferred against the order dated
05.04.2018. Except the petitioner no.1-Sau. Lata Ramesh Tayade in Writ
Petition No. 4438 of 2017, other petitioners were directed to remove their
built-up structure on the land in question within a period of fifteen days
from 11.04.2018. Insofar as Writ Petition No. 4439 of 2017 is concerned,
there were nine petitioners. An order of status quo was passed as regards
demolition while staying directions given in para 19 (b) to (d) of the order
dated 05.04.2018. These Special Leave Petitions came to be disposed of on
10.05.2019 in the manner stated hereinabove. Insofar as Writ Petition No.
341 of 2018 is concerned, there were ten petitioners therein. Since consent
of these petitioners was not obtained as recorded on 05.04.2018, they were
held entitled to benefit of compensation under the Act of 2013. The said
petitioners had challenged the order dated 05.04.2018 by preferring Special
Leave Petition No.9969 of 2018. On 19.04.2018 while issuing notice in the
said Special Leave Petition, the petitioners were directed to vacate the
premises in question on their own within a period of three months from the
date of the order. The order dated 05.04.2018 passed in Writ Petition No.
341 of 2017 was also challenged before the Hon'ble Supreme Court in
Special Leave Petition No.9969 of 2018. The said petitioners however
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19.04.2018 were directed to vacate the premises in question on their own
within a period of three months from the date of that order. The sole
petitioner in Writ Petition No.733 of 2023 was a party to those proceedings
and it was necessary for him to vacate the said premises within a period of
three months from 09.04.2018. Insofar as the said petitioner in Writ
Petition No.733 of 2023 is concerned, it may be stated that he sought to
redress his grievances in the public interest litigation being Writ Petition No.
5856 of 2007. In those proceedings an order passed on 28.09.2022
permitting the Sansthan to go ahead with the development of necessary
works excepting those works that were prevented from being undertaken by
virtue of an interim order passed in Writ Petition No.2127 of 2020. The
said petitioner sought to intervene in the public interest litigation but his
application came to be rejected on 20.10.2022 on the ground that pursuant
to the final award, he had received compensation of Rs.13,25,445/- for
36.866 square meter land owned by him. Being aggrieved, the said
petitioner challenged the aforesaid two orders before the Hon'ble Supreme
Court by filing Special Leave Petition (Dairy) No.39311 of 2022. On
09.01.2023 the Hon'ble Supreme Court refused to interfere with the
aforesaid orders and dismissed the Special Leave Petition.
It is thus clear that of the twenty-seven petitioners before this
Court, the possession of only ten petitioners was protected by the order
dated 11.04.2018 in Special Leave Petition Nos. 9362 of 2018, 9452 of
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2018 and 9453 of 2018. The orders passed by this Court on 05.04.2018
and thereafter by the Hon'ble Supreme Court in various Special Leave
Petitions would indicate that most of the petitioners barring few had been
directed to vacate the respective premises and hand over possession of their
respective lands/premises to the Authorities. Some of them have received
the amount of compensation pursuant to the final award.
ABSENCE OF SOCIAL IMPACT ASSESSMENT
14] It is in this factual backdrop that the challenge raised to the final
award would be required to be considered. The provisions of Section 4 of
the Act of 2013 require preparation of Social Impact Assessment study. In
that regard, the appropriate government intending to acquire land for
public purpose has to consult the concerned local Authority in the affected
area and carry out Social Impact Assessment study in consultation with it.
While carrying out such study adequate representation has to be given to
representatives of the local Authority and the study has to be completed
within six months from its commencement. The matters to be considered
included assessment as to whether the proposed acquisition serves public
purpose, estimation of the number of families likely to be displaced, extent
of lands likely to be affected by the proposed acquisition, whether the
extent of land proposed for acquisition is the absolute bare minimum extent
needed for the project, whether any alternate place has been considered
WP-2127-20 c 1292-21 c 1349-21(J) c 733-23(J).odt 28/44
and found not feasible as well as the nature and cost of the impact on the
overall cost of the project. Section 5 prescribes public hearing to be held at
the affected areas by giving due publicity. Thereafter the Social Impact
Assessment study report has to be made available in the local language,
published in the affected areas and also uploaded on the website of the
appropriate government.
The aforesaid provisions would indicate that the effect of
acquisition of the lands proposed in the context of its social impact has to be
assessed by considering the opinion of the representatives of the local body
and by providing an opportunity of public hearing to families likely to be
affected by such acquisition. Perusal of the preliminary statement dated
26.06.2019 published by the Sub-Divisional Officer indicates that at
Annexure-4 it was stated that there was an exemption from undertaking the
Social Impact Assessment study under Section 6 of the Act of 2013. It is
however seen that Section 6 does not deal with granting any exemption
from undertaking the Social Impact Assessment study. The only exemption
is with regard to irrigation projects where the process of Environment
Impact Assessment is required to be carried out. The proviso to Section
6(2) of the Act of 2013 is not attracted to the facts of the present case. It is
thus clear that the Social Impact Assessment study has not been undertaken
prior to publication of the preliminary notification under Section 11(1) of
the Act of 2013.
WP-2127-20 c 1292-21 c 1349-21(J) c 733-23(J).odt 29/44
15] To get over this situation, the learned counsel for the Sansthan
sought to rely upon the provisions of Section 125 of the Act of 1966. It
stipulates that when any land that is reserved in a development plan for a
public purpose is required, it shall be deemed to be a land needed for a
public purpose within the meaning of the Act of 2013 and that the
procedure prescribes specified in Sections 4 to 15 (both inclusive) of the Act
of 2013 shall not be applicable in respect of such lands. It is however seen
that Section 125 of the Act of 1966 finds place in Chapter-VII of the Act of
1966, which relates to land acquisition. The said provision therefore would
apply where acquisition is undertaken for any public purpose under Section
126 of the Act of 1966. This is for the reason that in the present case the
acquisition has been undertaken by issuing preliminary notification under
Section 11(1) and the process thereafter as stipulated by the Act of 2013
has been followed till passing of the final award dated 16.12.2020. It is
only when land is to be acquired under the Act of 1966 that the procedure
specified in Sections 4 to 15 (both inclusive) of the Act of 2013 would not
be applicable. The said contention therefore cannot be accepted. It will
thus have to be held that the acquisition in question has taken place under
the Act of 2013 and therefore the procedure prescribed under Chapter-II of
the Act of 2013 in the matter of determination of social impact and public
purpose was required to be undertaken.
WP-2127-20 c 1292-21 c 1349-21(J) c 733-23(J).odt 30/44
16] It appears from the record that the appropriate government as
defined by Section 3 (e) of the Act of 2013 has proceeded on the premise
that since the Special Development Plan dated 26.11.1991 for the town of
Shegaon was already prepared followed by notification dated 26.04.1994
under Section 31(1) of the Act of 1966 coupled with the Government
Resolution dated 08.03.2010 stipulating provision of various basic facilities
in consonance with the Special Development Plan, it was not found
necessary to undertake the exercise of having a Social Impact Assessment
study. In other words, it can be gathered that since there was sufficient
material available with the appropriate government to indicate its need for
the lands in question for public purpose, that was existing much prior to the
Act of 2013 coming into force, it was not found necessary to undertake
Social Impact Assessment study. It is for that reason that the preliminary
notification/statement dated 26.06.2019 states that there is an exemption
from undertaking such study.
We do not find that there are any malafides on the part of the
appropriate government in proceeding on this premise that there was an
exemption from undertaking the Social Impact Assessment study under
Section 4 of the Act of 2013. It is clear from the record that there is
sufficient material available to demonstrate that for complying with the
Special Development Plan prepared on 26.11.1991 with a view to provide
basic facilities/amenities to devotees visiting the Sansthan, it was necessary
WP-2127-20 c 1292-21 c 1349-21(J) c 733-23(J).odt 31/44
to acquire the adjoining lands for that purpose. In the public interest
litigation, the relevant plan indicating the manner of land use for the said
project came to be approved by the order dated 05.04.2018. In this regard,
it is necessary to refer to the relevant portion of that order dated
05.04.2018 and especially paragraphs 8, 10 and 19 (l).
"8. We have perused the map placed on record by
respondent no.6/Sansthan alongwith Civil Application
No.767 of 2018. Perusal of the said map would reveal that
immediate steps are required to be taken for development of
Matangwadi area which is abutting the temple premises.
Perusal of the map would also reveal that if immediate steps
for development of the area and providing ample open
space within the precinct of the area are not taken,
possibility of mishap occurring cannot be ruled out."
"10. It is further to be noted that, in order to maintain
law and order and to take care of any untoward situation
taking place, it is necessary that a permanent Police Chowki
is established there, which will take care of the exigencies
that may arise. It is further to be noted that an open area is
also required to be kept around the temple if, in the event
any incident of catching fire takes place, the fire department
should reach the temple without any hindrance."
"19(l). We find that the suggestion given by the learned
amicus to accept the plan of the Sansthan annexed
alongwith the Civil Application would take care of interests
of the citizens as well as the pilgrims visiting the shrine. On
one hand the Sansthan will have open area adjacent to the
temple and on the other hand, the citizens will have wider
road of 30 ft. for their passage. We, therefore, accept the
plan as submitted alongwith the Civil Application No.767 of
2018 and permit the Sansthan to execute the same in
accordance with the said plan. However, it is made clear
that the plan as given alongwith the Civil Application shall
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be scrupulously executed and no further construction except
the one as is provided in the plan shall be made by the
Sansthan."
17] It is pertinent to state here that though the order dated
05.04.2018 had been challenged before the Hon'ble Supreme Court, the
aforementioned part of the order was not interfered with and only the
directions contained in paragraph 19 (b) to (d) came to be set aside on
10.05.2019. It is thus clear that rest of the order passed by this Court on
05.04.2018 has attained finality and the lands which are the subject matter
of the final award dated 16.12.2020 have been acquired for putting up a
permanent police chowky at the said area. To reiterate, the plan submitted
by the Sansthan in that regard came to be accepted and with a view to
maintain law and order as well as to take care of any untoward situation,
the establishment of a permanent police chowky was found necessary. This
would therefore indicate that there exists a public purpose behind acquiring
the lands from Nazul Sheet Nos.28-B and 28-A.
Reference is also required to be made to Resolution No.35 passed
on 12.10.2018 by the General Body of the Municipal Council, which is the
local Authority under Section 3(s) of the Act of 2013. It is on the basis of
this Resolution that the proposal for acquisition of the said lands at
Matangpura was processed leading to issuance of the preliminary
notification under Section 11(1) of the Act of 2013 followed by the final
WP-2127-20 c 1292-21 c 1349-21(J) c 733-23(J).odt 33/44
award. This would thus indicate that the Municipal Council was involved in
the determination of the need for acquiring the said lands. Its involvement
has been found to be necessary under Section 4(1) of the Act of 2013 while
preparing the Social Impact Assessment study. It is thus clear that in view
of the involvement of the local Authority which put forward the need for
such lands to provide basic facilities to devotees, the further exercise of
acquisition came to be undertaken. These facts would have to be borne in
mind while considering the question as to whether the award dated
16.12.2020 is liable to be set aside for failure to undertake the Social
Impact Assessment study.
AWARD WHETHER VITIATED
18] It is not in dispute that the provisions of Chapter-II of the Act of
2013 are mandatory in nature and subject to provisions of Section 9 when
the land is proposed to be acquired by invoking the urgency provisions
under Section 40 of the Act of 2013, the Social Impact Assessment study
would be required to be undertaken. Admittedly, the special powers under
Section 40 of the Act of 2013 or Section 10-A as applicable in the State of
Maharashtra have not been invoked. The provisions of Section 9 would
therefore not be attracted. The preliminary notification under Section
11(1) of the Act of 2013 came to be issued on 11.07.2019 by having the
same published in the Government Gazette. The said notification indicates
WP-2127-20 c 1292-21 c 1349-21(J) c 733-23(J).odt 34/44
that the lands in question were sought to be acquired for public purpose. A
person interested in the land that has been notified under Section 11(1) is
granted an opportunity to object to the area and suitability of the land
proposed to be acquired, justification offered for the public purpose and the
findings of the Social Impact Assessment report. This course has been
prescribed by Section 15(1) of the Act of 2013. Thereafter any objection so
made within sixty days from the date of publication of the preliminary
notification is required to be considered by the Collector after giving due
opportunity to such objector. In the present case, none of the petitioners as
land owners have raised any objection whatsoever in terms of Section 15(1)
of the Act of 2013. The only objection raised under Section 15(1) is by the
Sansthan in which it was stated that though the Commissioner had
indicated that there were forty-two owners of properties, the preliminary
notification under Section 11(1) made reference to fifty-one properties.
With regard to twenty-nine property holders, their premises had been
demolished in May 2017 and as regards the property holder with regard to
portion bearing No.187 was concerned, he was an encroacher. This
objection raised by the Sansthan was considered by the Special Land
Acquisition Officer and it was stated that the land that was being acquired
was on the basis of the joint measurement report. Since the allotment of
lands had been undertaken by the draw of lots amongst the encroachers,
the Special Land Acquisition Officer was not concerned with the same.
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Reference to the aforesaid aspect can be found in the final award dated
16.12.2020. It is thus clear that there was no objection raised by any land
owner to the preliminary notification under Section 11(1) of the Act of
2013 and the only objection raised by the Sansthan came to be decided.
Since the petitioners failed to raise any objection whatsoever under Section
15(1) of the Act of 2013, there was no question of the Collector granting
any opportunity of hearing to them under Section 15(2) of the Act of 2013.
In these facts therefore reliance placed by the petitioners on the decisions in
Shiv Singh and others, Nareshbhai Bhagulbhai and ors, Raghbir Singh
Shrawat and Usha Stud and Agricultural Farms Pvt. Ltd. (supra) is
misplaced.
19] Failure on the part of the petitioners to raise any objection
whatsoever under Section 15(1) of the Act of 2013 is a vital factor that
cannot be ignored. It was possible for the petitioners to raise an objection
to the area and suitability of the land proposed to be acquired, that the
justification offered to indicate that the land was required for public
purpose was absent and that there was no Social Impact Assessment study
undertaken by the appropriate government. If such objection would have
been raised by the petitioners, the same could have been dealt with under
Section 15(2) by the Collector and while making a report to the appropriate
government he could have recommended remedial steps to be taken on the
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basis of such objections. In other words, the effect of absence of any Social
Impact Assessment report could have prompted the Collector to recommend
undertaking the Social Impact Assessment study if he found the same was
necessary notwithstanding the Special Development Plan. The petitioners
having failed to raise any objection whatsoever at the appropriate stage
when such objections could have been raised under Section 15(1) of the Act
of 2013 are now precluded from urging that the lands cannot be said to be
required for public purpose or that for failure to undertake the Social
Impact Assessment study, the acquisition proceedings are vitiated.
According to the petitioners, by filing the present writ petitions for
challenging the preliminary notification dated 26.06.2019 it should be held
that they had objected to the issuance of such preliminary notification as
required by Section 15(1) of the Act of 2013. This stand of the petitioners
cannot be accepted for more than one reason. Section 15(2) specifically
requires an objection under Section 15(1) to be made to the Collector in
writing after which it is the Collector who has to hear such objection and
then make the report to the appropriate government. The objections are
required to be made within sixty days from the date of publication of the
preliminary notification. The preliminary notification under Section 11(1)
of the Act of 2013 was to be published on 11.07.2019. The present writ
petitions came to be filed after more than a year of the preliminary
notification being published. Writ Petition No. 2127 of 2020 was filed on
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24.08.2020, Writ Petition No.1292 of 2021 was filed on 08.02.2021, Writ
Petition No.1349 of 2021 was filed on 03.02.2021 and Writ Petition No.733
of 2023 was filed on 25.01.2023. This is much beyond the period of sixty
days as contemplated by Section 15(1). The challenge to a preliminary
notification issued under Section 11(1) by filing a writ petition under
Article 226 of the Constitution of India cannot be equated to raising an
objection to the preliminary notification as contemplated by Section 15(1)
of the Act of 2013. A statutory avenue available to the petitioners to raise a
grievance with regard to absence of any public purpose for acquisition or
absence of any Social Impact Assessment study not having been availed, the
petitioners cannot be heard after long lapse of the statutory period of sixty
days to contend that filing of the present proceedings be treated as an
objection to the preliminary notification under Section 15(1) of the Act of
2013. The said contention raised by the petitioners therefore cannot be
accepted. There is also no basis to hold that the preliminary notification
issued under Section 11(1) of the Act of 2013 has not been published as
required by law.
20] At this stage, it is necessary to refer to the decision of the Hon'ble
Supreme Court in Ramniklal N. Bhutta and another vs. State of
Maharashtra and others [(1997) 1 SCC 134] wherein the Hon'ble Supreme
Court has struck a note of caution while making the following observations
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in paragraph 10:
"10. .........The power under Article 226 is discretionary. It
will be exercised only in furtherance of interests of justice
and not merely on the making out of a legal point. And in
the matter of land acquisition for public purposes, the
interests of justice and the public interest coalesce. They are
very often one and the same. Even in a civil suit, granting of
injunction or other similar orders, more particularly of an
interlocutory nature, is equally discretionary. The Courts
have to weigh the public interest vis-a-vis the private
interest while exercising the power under Article 226 -
indeed any of their discretionary powers. It may even be
open to the High Court to direct, in case it finds finally that
the acquisition was vitiated on account of non-compliance
with some legal requirement that the persons interested
shall also be entitled to a particular amount of damages to
be awarded as a lump sum or calculated at a certain
percentage of compensation payable. There are many ways
of affording appropriate relief and redressing a wrong;
quashing the acquisition proceedings is not the only mode of
redress. To wit, it is ultimately a matter of balancing the
competing interests. Beyond this, it is neither possible nor
advisable to say. We hope and trust that these considerations
will be duly borne in mind by the Courts while dealing with
challenges to acquisition proceedings."
21] In Laxmi Devi (supra) the Hon'ble Supreme Court has explained
the distinction between setting aside of an acquisition and the reversion of
possession to the erstwhile land owners. It was observed however that both
the situations were not required to go hand in hand. In a given case while
setting aside the acquisition of land which the government finds necessary it
would not be imperative to hold that the land would revert to the owners
WP-2127-20 c 1292-21 c 1349-21(J) c 733-23(J).odt 39/44
since the alternate course of permitting the government to keep possession
provided it re-acquired the said lands by issuing a fresh notification was
always available. In the said case, while setting aside the acquisition for
non-compliance of provisions of Section 11 A of the Land Acquisition Act,
1894 the State Government was directed to initiate fresh acquisition
proceedings in accordance with law. The Court however refrained from
passing any order or issuing any direction interfering with the possession of
the government over the subject land.
REASONS FOR MAINTAINING THE AWARD
22] When the aforesaid legal position is considered, it is clear from
the record that in accordance with the Special Development Plan various
steps have been taken to provide basic facilities to devotees. With a view to
ensure maintenance of law and order coupled with safety of devotees, a
permanent police chowky has been proposed on the acquired land. As far
back as on 29.11.2017 this Court in the earlier round of litigation in Writ
Petition Nos. 4438 of 2017 and 4439 of 2017 has observed in paragraph 10
that by virtue of the development already undertaken the situation had
become irreversible and further development could not be now halted. In
the affidavit filed by the Divisional Commissioner it has been stated in
paragraph 11 that by now 97% work under the Special Development Plan
has been completed and only a fraction thereof remains to be completed in
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view of the present litigation. It has to be kept in mind that by the order
dated 05.04.2018 passed by this Court it was found necessary in larger
public interest to accept the suggestion made by the Authorities to have a
permanent police chowky established at the lands that have now been
sought to be acquired. The relevant map indicating its location came to be
accepted by this Court and it is on this basis that steps have been taken to
acquire the present lands. It is also to be kept in mind that with a view to
facilitate re-settlement of affected families as well as encroachers on
government land, an agreement has been entered into between the Revenue
& Forest Department of the State Government and the Sansthan on
21.05.2018 to further carry out the directions issued by this Court on
05.04.2018. As per Clause 6 of the said agreement acquisition of lands
from Nazul Sheet Nos.28-B and 28-A has also been proposed and it is the
Sansthan that is to pay the amount of compensation towards such
acquisition. It is further to be noted that the Sansthan has already
deposited an amount of Rs.3,78,33,422/- towards cost of acquisition with
the Special Land Acquisition Officer prior to passing of the award.
All the aforesaid facts which have neither been denied nor
disputed by the petitioners indicate that with acquisition of almost 97%
lands that were required under the Special Development Plan, the project in
question has almost reached its final stages. That the lands are required for
public purpose is evident from the Special Development Plan dated
WP-2127-20 c 1292-21 c 1349-21(J) c 733-23(J).odt 41/44
26.11.1991 as modified on 26.04.1994 and read with the Government
Resolution dated 08.03.2010. The land acquired in the present award
admeasures only 1555.10 square meters. Each petitioner owns small
portions of the aforesaid land. Even if the final award is quashed for failure
to undertake the Social Impact Assessment study, it would always be open
for the Authorities under the Act of 2013 to initiate a fresh process of
acquisition and acquire the lands. This would only result in delaying the
completion of the project thus depriving the public at large from benefiting
with the provision of basic facilities as well as their safety and well-being. If
a fresh process of acquisition is undertaken, the petitioners would get
compensation at the market rate prevailing on the date of initiation of such
proceedings which could be higher than what has been awarded to them in
the present proceedings. In Krishan Lal Arneja (supra), the Hon'ble
Supreme Court did not accept the view taken by the High Court that the
notification issued under the Land Acquisition Act, 1894 itself must
specifically state about the nature of urgency and in its absence such
notification gets vitiated. It referred to the earlier decision in Union of
India vs. Ghanshyam Dass Kedia [(1996) 2 SCC 285] that the notification
need not specifically recite the nature of urgency and that it was enough if
the records disclosed the consideration by the Government of the urgency
for taking action under the provisions of Sections 17 (1) and (4) of the Land
Acquisition Act, 1894.
WP-2127-20 c 1292-21 c 1349-21(J) c 733-23(J).odt 42/44
23] We are satisfied from the material on record that there is larger
public interest behind acquiring 1555.10 square meters of land as has been
done under the impugned award. It would not be always necessary for the
Court to exercise discretion under Article 226 of the Constitution of India
merely on the ground that a legal point has been made out. While
exercising such discretion the Court cannot turn a blind eye to the ground
realities based on larger public interest. With the preparation of the Special
Development Plan more than thirty years ago, steps are being taken to
ensure that there is a systematic provision of basic facilities to devotees to
ensure their safety and convenience and at the same time by
accommodating the owners of the affected lands either by rehabilitating
them by providing alternate accommodation/commercial shops or by
paying them monetary compensation. Since we find that overwhelming
public interest requires completion of the project in hand, we do not find it
justified in larger public interest to set aside the award for absence of
undertaking the Social Impact Assessment study. As noted above, had the
petitioners raised an objection to the absence of such study at the
appropriate stage that was available under Section 15(1) of the Act of 2013,
the remedial steps, if any, could have been taken at that stage itself. We
have also kept in mind the delay on the part of the petitioners in
challenging the preliminary notification dated 26.06.2019 after more than
one year while refusing to quash the final award dated 16.12.2020. Having
WP-2127-20 c 1292-21 c 1349-21(J) c 733-23(J).odt 43/44
approached this Court after expiry of more than one year from publication
of the preliminary notification under Section 11(1) of the Act of 2013, we
do not find it expedient to set aside the final award dated 16.12.2020.
BALANCING COMPETING INTERESTS
24] Though we have declined to set aside the final award dated
16.12.2020 notwithstanding the fact that there has been absence of Social
Impact Assessment study, we are inclined to award additional
compensation to the petitioners while sustaining the final award dated
16.12.2020 with a view to balance the interests of both sides. We find that
considering the period that has elapsed since issuance of preliminary
notification dated 26.06.2019 and keeping in mind the fact that fresh
proceedings could be immediately initiated if the final award is set aside,
the interest of justice would be served by holding the petitioners in Writ
Petition Nos. 2127 of 2020, 1292 of 2021 and 1349 of 2021 entitled to
receive 25% additional compensation over and above the compensation that
has been awarded to them under the final award. This amount of
compensation would meet the ends of justice and would also result in
putting an end to the aforesaid litigation. Needless to state that with the
passing of the final award, it would be open for the aggrieved land owners
to invoke remedy under Section 64 of the Act of 2013 by making a
reference to the Collector for enhancement of the amount of compensation.
WP-2127-20 c 1292-21 c 1349-21(J) c 733-23(J).odt 44/44
Since the final award dated 16.12.2020 was passed during pendency of Writ
Petition No. 2127 of 2020, the said petitioners are entitled to invoke remedy
under Section 64 of the Act of 2013 by treating the date of the judgment as
the relevant date on which the limitation would commence for making such
reference under Section 64 of the Act of 2013. Since Writ Petition Nos.1292
of 2021 and 1349 of 2021 have been filed on 08.02.2021 and 03.02.2021
respectively, the benefit of the aforesaid directions would also be available
to the petitioners therein. Writ Petition No.733 of 2023 has been filed on
25.01.2023 and the said petitioner has already received the amount of
compensation under the said final award. There being no explanation for
the delay in approaching this Court for challenging the preliminary
notification dated 26.06.2019 as well as the final award dated 16.12.2020,
the aforesaid direction to treat the date of the judgment as the date of
passing of the award for the purposes of Section 64 of the Act of 2013
would not be applicable to the said petitioner nor would he be entitled for
additional compensation of 25% as granted to the other petitioners.
25] Rule in all aforesaid writ petitions is disposed of in aforesaid
terms with no order as to costs.
This judgment shall come into effect on expiry of four weeks
from today.
(MRS. VRUSHALI V. JOSHI, J.) (A.S.CHANDURKAR, J.)
Andurkar
