Maruti Genba Veer And Ors vs State Of Maharashtra Thru Revenue ...
2023 Latest Caselaw 1875 Bom

                                                      WP-1082-2019 J.doc



          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                  CIVIL APPELLATE JURISDICTION
                     WRIT PETITION NO. 1082 OF 2019

 1. Maruti Genba Veer                     )
  (Since deceased through legal heirs)
 1a. Laxmibai Maruti Veer                 )
      Aged adult, Occu: Household         )
 1b. Dilip Maruti Veer                    )
      Aged adult, Occu: Agriculture       )
 1c. Kisan Maruti Veer                    )
      Aged adult, Occu: Agriculture       )
      All residing at Pisal Wadi,         )
      Tal. Khandala, Dist. Satara         )
 2. Aanna Genba Veer                      )
         Aged: 75 yrs, Occu: Agriculture )
 3. Shivaji Genba Veer                    )
         Aged: 70 yrs, Occu: Agriculture )
 4. Ramdas Genba Veer                     )
         Aged: 65 yrs, Occu: Agriculture )
 5. Ankush Genaba Veer                    )
         Aged: 55 yrs, Occu: Agriculture )
 6. Lahudas Genba Veer                    )
  (Since deceased through Legal heirs)
 6a. Sandeep Lahudas Veer                 )
      Aged: 25 yrs, Occu: Agriculture )
      All R/A. Pisalwadi, Shrival,        )
      Taluka Khandala, Dist. Satara       )    ....Petitioners


          Versus

 Husen                          Page 1 of 15



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 1. State of Maharashtra, through            )
      Revenue and Forest Department )
      Mantralay, Bombay-400032               )
 2. District Rehabilitation Officer,         )
      And Deputy District, Collector         )
      Satara Dist. Satara                    )
 3. Sub Divisional Officer,                  )
      Wai Division, Satara                   )
 4. Additional Commissioner                  )
      Pune Division, Pune                    )     ....Respondents

                             ---------
 Mr.Vishwajeet S. Kapse a/w. Ms.Freddy Bhedha, for Petitioner.
 Ms.M.S. Bane, AGP, for Respondents / State.
                             ---------
                               CORAM : R.D.DHANUKA AND
                                       M.M.SATHAYE, JJ.

                               RESERVED ON        : 25th JANUARY, 2023
                               PRONOUNCED ON : 24th FEBRUARY, 2023


                  : JUDGMENT (PER: M.M.SATHAYE, J.):

1. Rule. Rule made returnable. Learned AGP waives service

for Respondents / State. Taken up for final disposal by consent.

2. This petition is filed under Article 226 of the Constitution

of India, praying for quashing and setting aside the impugned

Award dated 19.03.1996 bearing No.LAQ/19/SR/362 passed by

Special Land Acquisition Officer No.19, Satara in respect of the

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writ land, which is land Gat No.533 admeasuring 84 R, situated

at Village Dhangarwadi, Taluka Khandala, District Satara.

Initially the petition was filed praying to set aside impugned

Order dated 10.08.2018 passed by learned Minister for Forest

and Revenue, in Application No. LST/3517/INO.23/A-3,

rejecting the same. The said order is passed confirming rejection

of Petitioner's Application u/s. 48 The Land Acquisition Act,

1894, to remove the writ land from acquisition. However,

subsequently by amending the petition, a prayer to set aside

award has been added.

3. Brief facts necessary for disposal of this petition are as

below:

(i) Petitioners' family was holding lands at village Shirwal

and village Dhangarwadi. Lands at village Shirwal bearing

No. 301, 306, 310 and 314, where admeasuring 2H - 38R with

pot-kharaba 43R. Land at village Dhangarwadi bearing No. 533

was totally admeasuring 2H, 10R. Thus, the total holding of the

Petitioners was originally 4H - 48R.

(ii) On 05.02.1986, a notification u/s. 11(1) of the

Maharashtra Resettlement of Project Displaced Persons Act,

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1976 came to be issued thereby applying provisions of said Act

to Nira (Deoghar) flow-cum-Lift Irrigation Project and many

villages including Petitioners' entire villages, both Shirwal and

Dhangarwadi were notified as benefitted zone.

(iii) On 28.11.1989, Petitioners' lands at Village Shirwal were

notified u/s. 4 of the Land Acquisition Act, 1894 for Krantisinh

Nana Patil College of Veterinary Science at Shirwal and

ultimately an Award came to be passed on 03.04.1991 acquiring

the Petitioners lands at Village Shirwal. This award is hereinafter

referred to as "the earlier Award of 1991" for short. This is

neither in respect of Nira Deoghar Project nor in respect of

Petitioners' land at Village Dhangarwadi.

(iv) On 23.06.1993, by a declaration u/s. 13(1) of the

Maharshtra Project Affected Persons Rehabilitation Act, 1986,

138 H and 88 R of Village Dhangarwadi was declared as

benefitted zone for Nira Deoghar Irrigation Project affected

persons.

(v) By Notification dated 30.03.1994, the Petitioners' land

admeasuring 84 R situated at Village Dhangarwadi, came to be

notified u/s. 4 of the Land Acquisition Act for resettlement of

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Nira Deoghar Irrigation Project affected persons.

(vi) Petitioners filed objection/representation dated

05.07.1994, informing the Land Acquisition officer that the

earlier acquisition of 1991 has been done by the same office in

respect of Petitioners' lands at Village Shirwal and requested not

to acquire their land at Dhangarwadi also, since they will be left

with very little land not sufficient for the livelihood of their big

family.

(vii) By a report dated 28.04.1994 u/s. 5A of the Land

Acquisition Act, the Special Land Acquisition Officer No. 19,

Satara rejected the Petitioners' prayer of excluding their land at

Dhangarwadi on the ground that Petitioners' land holding is 4H,

48R which comes under applicable slab.

(viii) Impugned Award was passed on 19.03.1996 u/s. 11 of the

Land Acqisition Act, 1894 and the Petitioners' writ land

admeasuring 84R of Gat No. 533 at village Dhangarwadi was

acquired.

4. Heard learned Counsel Mr. Kapse for the Petitioners and

Ms. Bane, learned AGP for the Respondents. Perused the record.

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5. Mr. Kapse took us through various documents annexed to

the Petition explaining above dates and events. He submitted

that it is the case of the Petitioners that as out of their total land

holding admeasuring 4H, 48R, land at Village Shirwal

admeasuring 2H, 38R was already acquired under the earlier

Award of 1991 for some other project (Krantisinh Nana Patil

College of Veterinary Science) they were left with only 2H 10R

land at Dhangarwadi. He submitted that when the impugned

award was made and land at Dhangarwadi was acquired for

Nira Deoghar project affected persons, Petitioners' holding was

less than applicable slab of 3H 23R as per Slab III of Part II of

schedule of applicable Maharashtra Project Affected Persons

Rehabilitation Act, 1986 as on date of notification (30/03/1994)

mentioned in the impugned Award.

6. It is submitted by Mr. Kapse that the Petitioners have

neither signed the so called possession receipt dated 06.08.1996

nor received any compensation under the impugned Award.

Petitioners are in possession of the writ land. Petitioners are

relying on a Certificate dated 23.10.2012 issued by Talathi of

village Dhangarwadi, showing that Petitioners do not have any

other land except total area of 1H, 33R and also a Certificate

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dated 29.11.2012 issued by Talathi of Village Shirwal stating

that Petitioners have no land holding at all in village Shirwal. It

is contended that the same Office has issued earlier Notification

and earlier Award in respect of the Petitioners' other land at

Village Shirwal and therefore the same office could not have

passed the impugned Award in respect of writ land at Village

Dhangarwadi.

7. Per contra Ms. Bane, learned AGP appearing for the

Respondents / State invited our attention to the affidavit in

reply dated 04.06.2019 affirmed by Deputy Collector,

(Rehabilitation), Satara. It is contended on behalf of the State

that relevant date for considering the Petitioners' holdings, and

for application of slab, is the date of original Notification when

the lands were notified for Nira Deoghar Irrigation Project. It is

contended that on the said date 05.02.1986, the Petitioners'

land at Village Shirwal was also available and notified and

therefore, holdings of the Petitioners, as on that date will have

to be considered. She submits that at the relevant time the

Petitioners' total holdings (4H, 48R) was above the applicable

slab of 3H, 23R. It is further contended that for the purpose of

acquiring land as per Section 16 read with Schedule A of

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Maharashtra Resettlement of Project Displaced Persons Act,

1976, the holding of a person on the date u/s. 11 of the

Notification, is relevant.

8. It is contended that such date will be relevant because

thereafter there are restrictions on transfer particularly sub-

division and partition of the land covered under the said

Notification. It is contended that even if by earlier Award dated

03.04.1991, the Petitioners' lands at Village Shirwal are

acquired, even then, the Petitioners' holdings will not be

considered as changed, having been reduced after the appointed

date. According to the learned AGP, for the purpose of Award

dated 19.03.1996, the holding of the Petitioners as on

03.04.1991 cannot be taken into account. It is further contended

that earlier Award dated 03.04.1991 was not under the

Resettlement Act. Principally on this argument, the learned AGP

supported the impugned Award and the impugned Order passed

by the Minister.

REASONS AND CONCLUSION

9. We have perused the record, specially Notification dated

05.02.1986 which was issued under Maharashtra Resettlement

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of Project Displaced Persons Act, 1976, in which entire villages

Shirwal and Dhangarwadi were notified, including Petitioners'

both lands. We have also perused earlier Award dated

03.04.1991 based on notification dated 28.11.1989 u/s. 4 of the

Land Acquisition Act and impugned Award dated 19.03.1996,

based on notification dated 30.03.1994 u/s. 4 of the Land

Acquisition Act. It is important to note that both Awards are

passed by the same Land Acquisition Office namely Special Land

Acquisition Officer No.19, Satara and therefore the earlier

Award and its proceedings are completely within its knowledge

and record.

10. It is further material to note that the earlier Award was in

respect of acquisition for Krantisinh Nana Patil College of

Veterinary Science at Shirwal and impugned Award is for

resettlement of Nira Deoghar Irrigation Project affected persons.

These 2 Awards, apart from being for different projects, also

refer to different notifications u/s. 4 of the Land Acquisition Act

and different declarations thereunder. Though both the Awards

are under Land Acquisition Act, the purpose for the earlier

Award is for acquisition for educational purpose of a College and

impugned award under which the writ land at Village

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Dhangarwadi is acquired, is for resettlement of Nira Deoghar

Irrigation Project affected persons.

11. If that be so, then in what manner the same Notification

u/s. 4 dated 05.02.1986 would apply, is not explained by the

Respondent-State in its affidavit in reply. It is also necessary to

note that the Notification dated 05.02.1986 relied upon by the

Respondents / State is issued u/s. 11(1) of Maharashtra

Resettlement of Project Displaced Persons Act, 1976 and is

stated to apply to Nira Deoghar Irrigation Project, only and not

for the purpose of Krantisinh Nana Patil College of Veterinary

Science at Shirwal.

12. The argument of the Respondents / State that after the

Notification dated 05.02.1986, transfer was restricted and

therefore holding of the Petitioners as on that date has to be

considered, is fallacious argument for the simple reason that

acquisition of the part of the Petitioners holding under earlier

Award dated 03.04.1991 is not a transfer inter vivos or

voluntary transfer / sale / mortgage by the Petitioners in favour

of private third party. It is compulsory acquisition of Petitioners'

holding (part thereof) by operation of law and that too for a

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completely different project (College of Veterinary Science). The

Petitioners have not breached any restriction due to said earlier

Award. To say that 'transfer restricted by law due to earlier

notification will hit subsequent compulsory acquisition under

law and therefore reduction in holding can not be considered' is

nothing short of perverse interpretation. If a citizen is subjected

to such interpretation, that too in respect of an exproprietory

legislation such as Land Acquisition Act, it will be travesty of

justice.

13. For that reason, we are not impressed with the above

argument of the Respondents / State. Perusal of the part II slab

III of the Schedule of Maharashtra Project Affected Persons

Rehabilitation Act, 1986 applicable on the date of notification

dated 30.03.1994 shows that the for slab 'not more than 3H and

23R', area to be acquired is 'Nil'. Obviously therefore, the

Petitioners' holding on the date of Notification (30.03.1994) of

the impugned Award dated 19.03.1996 was below the said slab.

The Petitioners writ land at Dhangarwadi could not have been

acquired under law.

14. Perusal of the impugned Order of the learned Minster

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shows that in paragraph 6.1 to 6.4 thereof, reasons are stated.

The aspect of 2 different Awards under 2 different Notifications

for 2 different purposes, has been totally missed and rejection of

the Petitioners' application under Section 48(1) by Order dated

19.09.2016 seems to have been confirmed on limited ground

that power under the said section can not be exercised again.

15. The Petitioners have denied the possession receipt, which

is relied upon by the Respondents. Perusal of said possession

receipt dated. 06.08.1996 shows that it is a printed format

receipt made for various lands including writ land, which is

signed by the Authorities and some other land holders; but it is

certainly not signed by the Petitioners (Veers). It is material to

note that the Respondent / State has not denied specific

averments of the Petitioners not signing the said possession

receipt. So also Respondent / State has stated in their Reply that

the compensation for the Petitioners is kept / deposited in

revenue account, which means that it is not paid over to

Petitioners.

16. Careful perusal of record further reveals that way back in

the year 2012, concerned Tahsildar has written to concerned Dy

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Collector (Resettlement) in communication dated 15.12.2012

giving NOC for removing / excluding writ land from the

impugned Award. In view of such recommendation already

given by Circle Officer, the Petitioners' land-holding was indeed

reduced at the relevant time when impugned Award was drawn

by erroneous application of slab. The letter dated 26.03.2002

issued by concerned District Resettlement Officer to concerned

Additional Collector, stating similar aspects, also seem to have

been ignored without action. We fail to see why these

communications /NOC / recommendation were not acted upon.

17. It is seen from the record that the Petitioners were

permitted to amend this Petition to add averments, grounds and

prayers for challenging the impugned Award. Respondents /

State has not filed any additional reply raising objection to

belated challenge to the impugned Award. It also appears from

the record that Petitioners were pursuing their case, by filing

objection dated 05.07.1994 to concerned SLAO which was

rejected. The Petitioners filed application dated 14.12.2000 to

Additional Commissioner, Pune Division, Pune for excluding writ

land from the impugned Award, was rejected on 19.09.2016.

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18. The Petitioners thereafter moved the State Government

through learned Minister by filing appeal application No. LST-

3517/INO-23/A-3, in which impugned Order of Minister was

passed on 10.08.2018, turning down the Petitioners' grievance.

Thereafter, the Petitioners seem to have knocked the doors of

this Court by filing present Petition. Considering these dates, it is

clear that the Petitioners were diligently following up their cause

and in that view of the matter, we have no hesitation in

exercising our extra-ordinary jurisdiction under Article 226 of

the Constitution of India.

19. The sum and substance of the case made out by the

Petitioners is that this is a petition by a diligent litigant, whose

land has been acquired by illegal application of slab, who has

neither parted with possession nor received any compensation.

Therefore, in peculiar facts and circumstances narrated above,

there is merit in the petition and it must succeed.

20. Hence, we pass following Order:

[A] Petition is allowed in terms of prayer clause (a) and

(aa). Impugned Award dated 19.03.1996 bearing

No.LAQ/19/SR/362 is quashed and set aside only

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in respect of Petitioners' writ land bearing Gat

No.533 area 84R at Village Dhangarwadi, Taluka

Khandala, District Satara.

[B] Concerned Office of the Respondents, is directed to

pass necessary consequential orders in favour of the

Petitioners, thereby suitably modifying the revenue

record of the writ land. The Respondent State is at

liberty to take back amount of compensation in

respect of writ land deposited in revenue account.

[C] Writ Petition is allowed and Rule is made absolute

in above terms. No order as to costs.

[D] All concerned to act on authenticated copy of this

Order.

 (M.M. SATHAYE, J.)                              (R.D. DHANUKA, J.)