Bombay High Court
Satyanarayan Hiralal Bhatawale And ... vs The Competent Authority Nanded And ... on 6 December, 2023
Author: Ravindra V. Ghuge
Bench: Ravindra V. Ghuge
2023:BHC-AUG:25485-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 12133 of 2017
with Civil Application No.5935/2020
1. Satyanarayan s/o Hiralal Bhatawale,
Age: 37 Years, Occu: Agriculture,
2. Umesh s/o Hiralal Bhatawale,
Age: 45 years, Occu: Agri.,
3. Dinesh s/o. Hiralal Bhatawale,
Age: 39 years, Occu: Agri.
4. Gopal s/o. Chotulal Bhatawale,
Age: 60 years, Occu: Agri.,
5. Mahendra s/o Nandu Bhatawale,
Age: 28 years, Occu: Agri.,
6. Mukesh s/o Nandu Bhatawale,
Age: 25 years, Occu: Agri.,
7. Punamchand s/o Chotulal Bhatawale,
Age: 55 years, Occu: Agri.,
8. Mohan s/o. Chotulal Bhatawale,
Age: 52 years, Occu: Agri.,
9. Premchand s/o. Chotulal Bhatawale,
Age: 50 years, Occu: Agri.,
All R/o. Rahimpur,
Tq. & Dist. Nanded.
10. Gangaram s/o Chotulal Bhatewale
Age: 82 yrs, Occ. Agri.,
R/o Vasarni, Cidco, Nanded. ... PETITIONERS
V/s.
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1. The Competent Authority /
Sub Divisional Officer /
The Land Acquisition Officer,
(For acquisition of Lands for
National Highway No. 361)
Sub Division Office, Chikhalwadi Corner,
Tq. & Dist. Nanded.
2. The Collector,
Tq. & Dist. Nanded.
3. The State of Maharashtra,
Public Works / B & C Department,
Through the Executive Engineer,
Office, Near I.T.I.,
Near Rest House, Tq. & Dist. Nanded.
4. The National Highway Authority of India,
Ministry of Road Transport and Highway,
Project implementation Unit, Nanded.
Through the Project Director,
N.H.A.I., P.I.U. Nanded.
Bharadwaj, Venkatadri Nagar,
Near Ayodhya Nagari,
Malegaon Road, Taroda (Kd.),
Tq. & Dist. Nanded ... RESPONDENTS
...
Mr. Pratap P. Mandlik, Advocate for the Petitioners
Mr. P.K. Lakhotiya, AGP for Respondent-State
Mr. R.B. Bhosale and B.M. Dhanure for Advocate for Respondent/U.O.I.
Mr. Deepak S. Manorkar, Advocate for Respondent No.4
...
CORAM : RAVINDRA V. GHUGE &
Y.G. KHOBRAGADE, JJ.
RESERVED ON : 20th October, 2023
PRONOUNCED ON : 6th December, 2023
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JUDGMENT (Per: Y.G. Khobragade, J.) :
-
1. Rule. Rule made returnable forthwith and heard finally with the
consent of the parties.
2. Heard at length Adv. Pratap Mandlik, the learned counsel
appearing for the Petitioners, Shri Lakhotiya learned AGP for the Respondent
Nos. 2 & 3 and Adv. Deepak Manorkar for the Respondent No.4. Besides oral
arguments, both sides have tendered written notes of arguments. After going
through the written notes of both the sides it appears that, they are not in
consonance with the pleadings to the petition as well as affidavit in reply.
3. By the present petition under Article 226 of the Constitution of
India, the Petitioners have put forth prayer clause-B-1 and B-2 as under:
"B-1. Appropriate Writ/Directions, may be issued against the
respondents, directing them, if the respondents want total 2 H 21 Aar
land of the petitioners, for construction of National Highway No.
361, they should acquire total land 2 H 21 Aar from S. No. 4/1,4/2,
Gut No. 1, situated at Rahimpur Tq. & Dist. Nanded required for
construction of National Highway No. 361 (as per notification dated
01-06-2016) by modifying the notification dated 06-04-2017 or by
issuing fresh notification and to pay the compensation and all the
consequential benefits to the petitioners as per law, for acquisition of
2H 21 Aar land.
B-2. The respondents may be directed not to interfere into the
remaining land of petitioners i.e. land S. No. 4/1/,4/2, Gut No. 1
situated at Rahimpur Tq. & Dist. Nanded (except 51 Aar which they
have notified for acquisition) and not to construct any Road in the
remaining land of the petitioners without acquisition and without
paying the compensation, with all consequential benefits."
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4. Adv. Pratap Mandlik the learned counsel appearing for the
Petitioners vehemently canvassed that one Chotualal Bhatawale was the owner
of land bearing Survey No. 4/1/, 4/2 (Gut No. 1) ad-measuring 14 Acres 10
Guntha situated at Rahimpur, Tq. & Dist. Nanded. Said Shri Chotulal Bhatawale
was having 7 sons viz., (1) Hiralal (2) Gangaram (3) Gopal (4) Nanhu (5)
Punamchand (6) Mohan and (7) Premchand. In the year 1975, Shri Chotulal
Bhatawale had partitioned the entire land Survey No. 4/1/, 4/2 (Gut No. 1)
amongst his 7 sons. Accordingly, mutation entry no. 84 was effected. On
09.05.2017, Shri Hiralal s/o Chotulal died, therefore, names of his LRs
(Satyanarayan, Dinesh and Umesh) were mutated in the revenue record.
5. The learned counsel for the Petitioners further submits that on
01.06.2016, the Respondent No. 4 - National Highway Authority of India issued
a Notification u/s 3(k) of the National Highways Act, 1956 and proposed to
acquire 2 H (Hectare) 21 R land of the Petitioners out of Survey No. 4/1/, 4/2
(Gut No. 1), but land was not acquired. However, again on 06.04.2017, the
Respondent No.4 issued another Notification intending to acquire only 51 R
land of the Petitioners. Since, the Petitioners realized that Respondent No.4
would be taking possession of 2 H 21 R land and going to pay compensation
only for 51 R land. Therefore, the Petitioners approached the Respondent No. 4
and on inquiry, they were informed by the official of Respondent No. 4 about
(5) wp 12133.17
passing of 30 meter wide State Highway Road through their land and the
Respondent No. 4 require to acquire only 51 R land as per notification dated
06.04.2017. According to the Petitioners, the Respondents-State Authorities
took possession of their land ad-measuring 30 ft x 1200 Ft. = 36000 sq.ft. from
their land S.No. 4/1, 4/2 (Gut No. 1) for the construction of Nanded - Latur
Road from the northern side of petition land and had assured to pay
compensation, but no award was passed and no compensation was paid to
them.
6. The learned counsel for the Petitioners submitted that because of
passing of said Highway through the Petitioners land, it is divided in two parts
and only 11 Gunthas land remained towards the northern side and 13.29
Gunthas land remained on southern side. Though, the existing road was
constructed but as on today the revenue record shows that, the Petitioners are
owners to the extent of 14 Acres and 10 Gunthas. Since, the Petitioners have
not received compensation in respect of acquired land, therefore on
03.08.2015, they submitted a representation to the Hon'ble Union Minister. On
21.08.2015, the Hon'ble Minister directed the Executive Engineer, National
Highway Authority to conduct an inquiry in respect of acquisition of the
Petitioners land and to pay appropriate compensation, if already not paid.
(6) wp 12133.17
7. The learned counsel for the Petitioners further submitted that on
03.02.2016, the Respondent No.3 Deputy Collector issued a letter to the
Hon'ble Union Minister and informed that, no lands of the Petitioners are
acquired for construction of Nanded-Latur highway and no proposal for
acquisition of land of the Petitioners is pending. On 19.03.2016, Respondent
No.2 issued letter and directed (i) the Sub Divisional Officer, Nanded, (ii) the
Executive Engineer, P.W.D./B & C, Nanded and (iii) the Executive Engineer,
National Highway Authority, Nanded Division to make an inquiry and to submit
report in respect of grievance of the Petitioners even though no compensation
has been paid in spite of acquisition of land.
8. The learned counsel for the Petitioners further submits that the
Respondent-Authorities are claiming about passing of the 100 feet width road
through the Petitioners land. The said road is State Highway No.2 (M.S.H.-2)
Vasarani-Ambedkar Chowk. Therefore, on 28.12.2016, the Petitioners
submitted an application under the Right to Information Act to the Respondent-
P.W.D., seeking information as to when the State Highways was declared and
when it was constructed. However, on 28.12.2016, the Public Works
Department replied to them about non availability of such information with
them.
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9. According to the Petitioners, though the Respondents have
acquired their land ad-measuring 30 ft x 12000 ft = 36000 for construction of
State Highway, no compensation has been paid to them. Further, on
01.06.2016, Respondent No. 4 issued a notification and proposed to acquire 2
H 21 R of land for construction of National Highway No. 361 in between
522.420 kms to 600.400 kms (Khupsarwadi to Pardi Section) but subsequently
the Respondents issued another notification on 06.04.2017 for acquisition of 51
R land only. Accordingly, the State Authorities have acquired entire land of the
Petitioners, but no compensation has been paid, hence, prayed for award of
compensation in respect of acquired land.
10. In support of their submissions, the learned counsel for the
Petitioners relied on cases of Tukaram Kanha Joshi & Ors. Vs. M.I.D.C., & Ors.;
2013 AIR SC 565, Vidya Devi Vs. The State of Himachal Pradesh & Ors.; (2020)
2 SCC 569 and Sukh Dutt Ratra and Another Vs. State of Himachal Pradesh
and Ors.; (2022) 7 SCC 505.
11. Per contra, Mr. Lakhotiya the learned AGP appearing for
Respondent Nos.2 & 3 submits that, on 04.05.1967 the State Government
issued Government Gazette and declared the existing Road as State Highway.
The appropriate compensation for acquired land was already paid. The said
road of 30 ft. width is in existence since 1967. The Petitioners are claiming
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compensation for acquired land after lapse of 51 years. Therefore, claim of the
Petitioners is hopelessly barred by limitation, hence, prayed for dismissal of the
petition.
12. The learned AGP further canvassed that as per revenue record i.e.
field book prepared in the year 1942 [Fasali 1352] which shows about the
existence of vehicle road (Motarichi Sadak) passing through the survey nos.
4/1 and 4/2. So also, as per revenue record Pahanipatra of 1955-1958 which
shows about existence of the road (Motarichi Sadak). He further submitted
that, the Petitioners themselves admitted about existence of 30 meters wide
road in between Gut No. 4/1 and Gut No. 4/2. Petitioner No.10 namely
Gangaram Chotulal Bhatawale submitted the layout plan dated 09.05.2011 for
sanction to the Assistant Director of Town Planning Nanded-Waghala, wherein
the Petitioner has shown about existence of Latur-Nanded "30 ft" wide road in
Gut No.1 at village Rahimpur. The said layout plan was sanctioned and
approved by the Assistant Director of Town Planning Nanded-Waghala. The
said layout plan is at Exh. Z-3. Therefore, as per the provisions of Sec. 19-E of
the Bombay Highway Act, 1955, the Land Acquisition Act is not applicable. On
19.04.1967 the State Government issued a notification and Latur-Nanded Road
was declared as State Highway taking into consideration the old revenue
record of 1942. The Notification dated 01.06.2016 published by the
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Government of India under Section 3 D of the National Highways Act and
acquired 0.5095 out of S.Nos. 4/1 and 4/2 (Gut No.1). Therefore, the
Petitioners are not entitled for compensation for the land which was acquired
in the year 1967.
13. The learned AGP further canvassed that on 15.10.2018, the Deputy
Land Record, Nanded, submitted its report to the Respondent No.2 - Collector
about existence of 30 ft wide road since 1923. The road which is subject
matter of the petition is 30 ft wide road at village Vasarni-Rahimpur and
Mujapeth / Dhanegaon and work of widening of 100 ft. road is in progress.
Therefore, the Petitioners may be entitled to receive the compensation for the
land which has been acquired for widening of National Highway as per the law.
14. Adv. Deepak Manorkar the learned counsel for Respondent No. 4
submits that as per the revenue records a 30 meter width old existing road is
passing through the land of the Petitioners. On 22.03.203, Respondent No. 4
issued a notification under Sub-section 2 of Section 2 of the National Highways
Act, 1956 vide Gazette Notification No. S.O. 814 (E) and declared Highway as
National Highway No. 361 starting from Tuljapur on NH-52 connecting to Latur
- Ahmedpur - Nanded - Yavatmal - Wardha terminating at NH-44 junction near
Butibori (Nagpur-Maharashtra). Thereafter, Respondent No.4 proposed a four
lane up-gradation of Tuljapur (Km 000) to Waranga (Km 244.369) section of
( 10 ) wp 12133.17
NH-361 passing through Osmanabad-Latur-Nanded-Yavatmal-Nagpur. The said
project has been divided into four packages. The learned Counsel for the
Respondent No. 4 canvassed that the Respondent No. 1 already initiated land
acquisition proceeding bearing dz2016@jkjkek&361@Hkqla@leks@flvkj&6@152 - On
06.02.2018, the Land Acquisition Officer passed an award and determined
appropriate compensation in respect acquired land. Accordingly, Respondent
No. 4 already deposited said amount before the Competent Court, hence,
prayed for dismissal of the petition.
15. It is submitted that as per revenue record i.e. Field Book which
pertains to year 1942 [Fasali 1352] shows existence of vehicle road through the
Survey Nos. 4/1 and 4/2. The Revenue and Inspection Record (Pahanipatra)
pertaining to 1955-1958 shows about existence of the vehicle Road. The
Petitioners themselves admitted that on 09.05.2011, the Assistant Director of
Town Planning Authority sanctioned layout Development Plan which was
submitted by Shri Gangaram Chotulal Bhatawale i.e. Petitioner No.10. In the
said map existence of Latur-Nanded "30 ft" wide road was shown. The
Petitioners have not denied about existence of 30 ft. wide Road between Gut
No.1. Therefore, as per the provisions of Section 19-E of the Bombay
Highways Act, 1955, the Land Acquisition Act is not applicable. Though the
existing road constructed but as on today the revenue record shows that they
( 11 ) wp 12133.17
are owners to the extent of 14 Acres and 10 Gunthas. However, it is submitted
that, revenue record does not confer right of the petitioners and said revenue
record can only used for fiscal purpose.
16. In the case of Suraj Bhan & Ors. V/s. Financial Commissioner &
Ors.; (2007) 6 SCC 186, it has been held that mutation entries in the revenue
record does not confer any right, title or interest in favour of the person and
objective is only for fiscal purpose.
17. In the case of State of Maharashtra Vs Digambar; 1995 AIR (SC)
1991, it has been held that no person is entitled to obtain the equitable relief
under Article 226 of the Constitution if his conduct is blameworthy because of
of laches, undue delay and acquiescence or waiver the relief so granted
becomes unsustainable. The relief sought under Article 226 of the Constitution
by a person against the welfare state is founded on its alleged illegal or
wrongful executive action, the need to explain laches or undue delay on his
part to obtain such relief would be more stringent than in other cases.
(Emphasis Supplied). Therefore, the petitioners are required to show that their
land has been acquired by the Respondent No. 4 but no compensation has been
paid.
( 12 ) wp 12133.17
18. No doubt in cases of Vidya Devi and Tukaram Joshi cited (supra)
relied on behalf of the Petitioners, the Hon'ble Supreme Court laid down the
law that right to property is a Constitutional right under Article 300-A of the
Constitution of India and the State cannot dispossess a citizen of his property
except in accordance with procedure established by the law. The obligation to
pay compensation, though not expressly included in Article 300-A, can be
inferred in that Article.
19. The Petitioners contended that the Respondent-Authorities took
possession of their land ad-measuring 30 ft x 1200 ft.= 36000 sq.ft., from their
land S.Nos. 4/1, 4/2 Gut No.1 for construction of Nanded-Latur Road land and
assured to pay compensation, but no award was passed and no compensation
was paid to them. However, on perusal of notification dated 01.06.2016, it
appears that the Respondent No.4 had shown area of Petitioners land as 2.2101
and 1.1901 out of S. Nos. 4/1,4/2, Gut No.1, but said land was not acquired.
As per the notification dated 06.04.2017, the Respondent No.4-Authority
intended to acquire the Petitioners land as well land of other villagers from
village Rahimpur (Khurd) as under:
Sr. Name of Land Owners Acquired
No. Area
1 Premchand Chottulal Bhatawale 0.0631
2 Gangaram Chottulal Bhatawale 0.2140
3 Hiralal Chottulal Bhatawale 0.0631
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4 Punamchand Chottulal Bhatawale 0.0631
5 Mohan Chottulal Bhatawale 0.0431
6 Gopal Chottulal Bhatawale 0.0631
7 Shrinivas Nanasaheb Jadhao 0.0509
8 (1) Balaji Motiram Kendre 0.0100
(2) Gopalrao Motiram Kendre
9 Laxmibai Balaji Kendre 0.0133
10 (1) Ramdas Sugram Sangle 0.0110
(2) Kisan Sugram Sangale
11 (1) Mohan Sambhaji Ghuge 0.0110
(2) Gajanan Sambhaji Ghuge
12 1) Ramnivas Bhagwandas Bhutada 0.0303
(2) Govind Bhagwandas Bhutada
13 Abhimanyu Nagorao Jogdand 0.0168
14 (1) Panduran Raghunath Durpade 0.0124
(2) Ramrao Raghunath Durpade
(3) Angadrao Raghunath Durpade
15 Paddinbai Madhorao Munde 0.0297
20. It is needless to say that, in pursuance of notification dated
01.06.2016, the Land Acquisition proceeding bearing dz-
2016@jkjkek&361@Hkqla@leks@flvkj&6@152 was initiated. On 06.02.2018, the Land
Acquisition Officer passed an award and determined compensation in respect
the acquired land. The Petitioners have not disputed about passing of award
and deposit of compensation amount by Respondent No. 4 before the
Competent Court as per said Award. It is trite that, no land owner can force or
compel the acquiring body to acquire specific area of land beyond it's
requirement unless such exigencies arises in exceptional circumstances. The
( 14 ) wp 12133.17
Petitioners have not brought any material on record to show that while
acquiring their land in the year 1967, the compensation was not paid to their
predecessor-in-title. Needless to say, by the present petition, the Petitioners are
trying to claim compensation for their land allegedly acquired by the
Respondent-State to the extent of 30 ft. width road in the year 1967, which is
hopelessly barred by law of Limitation.
21. On face of record it appears about existence of 30 ft., wide old
existing State Highway passing through the land of the Petitioners. On
22.03.2013, Respondent No. 4 issued a notification under Sub-section 2 of
Section 2 of the National Highways Act, 1956 vide Gazette Notification No.
S.O. 814 (E) and declared highway as National Highway 361 starting from
Tuljapur on NH-52 connecting to Latur-Ahemadpur-Nanded-Yavatmal-Wardha
terminating at NH-44 junction near Butibori (Nagpur-Maharashtra). Thereafter,
Respondent No. 4 proposed up-gradation of the said Road into four lanes from
Tuljapur (Km 000) to Waranga (Km 244.369) section of NH-361 passing
through Osmanabad-Latur-Nanded-Yavatmal-Nagpur. The said project has been
divided into 4 packages.
22. It is not in dispute that on 01.06.2016, Respondent No. 4 - NHAI
issued a notification and intended to acquire their land 2 H 21 R out of S No.
4/1,4/2, Gut No. 1, situated at Rahimpur Tq. & Dist. Nanded for construction
( 15 ) wp 12133.17
of National Highway No. 361, but no acquisition proceeding was initiated and
no compensation was determined. However, on 06.04.2017, Respondent No. 4
issued fresh notification dated 01.06.2016 and acquired the land of the
Petitioners viz., 0.0631 H.R.+(Premchand)+0.2140 H.R. + (Gangaram) +
0.0631 H.R. (Hiralal) + 0.0631 H.R. (Punamchand)+0.0431H.R. (Mohan)+
0.0631 H.R. (Gopal)= Total 0.5095 H.R., which is lesser area than the
notification dated 01.06.2016. Respondent No. 4 deposited compensation
amount as per award before the Civil Court. The Petitioners, therefore, are
entitled to the compensation to the extent their lands have been acquired.
23. Therefore, we do not find any substance in the submissions of the
Petitioners. Hence, the present Writ Petition fails and the same is disposed off.
Rule is discharged.
24. Pending Civil Application would not survive and stands disposed
off.
25. The learned advocate for the Petitioners prays for continuing the
ad-interim relief granted on 05.11.2020 in Civil Application No.5935 of 2020 in
Writ Petition No.12133 of 2017, for six weeks. By the said order, this Court
had expected that the width of the road concerned should not be extended
beyond 10 meters of the Petitioners claimed land.
( 16 ) wp 12133.17
26. The Respondents oppose the said request.
27. Since a public project is involved and the said project has been
stalled only for the reason that an interim order on a Civil Application was
granted after three years of the filing of the petition, we are not inclined to
continue the said relief.
[Y.G. KHOBRAGADE, J.] [RAVINDRA V. GHUGE, J.]
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