Bombay High Court
Ashok Hari Sitlani vs The State Of Maharashtra And Ors on 2 May, 2023
Bench: R.D. Dhanuka, Gauri Godse
2023:BHC-AS:13185-DB
WP- 12354 of 2017 Jud..doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 12354 OF 2017
Ashok Hari Shitlani )
Age 5years, Occup. Agriculturist, )
Residing at Trimurti Building, Plot No.17 )
Santacruz North, Mumbai - 400 054 )...Petitioner
Versus
1. The State of Maharashtra )
Through the Secretary, )
Revenue and Forest Department )
Mantralaya, Mumbai )
2. The Deputy Collector (Land Acquisition) )
Metro Centre No.1, New Panvel )
Taluka Panvel, District Raigad )
3. The Deputy Collector (Land Acquisition) )
Metro Centre No.1, New Panvel )
Taluka Panvel, District Raigad. )
4. Madhukar Babu Angre )
Since deceased through his )
Legal Representativ e Nos. 5 to 10 )
5. Anant Madhukar Angre )
6. Malti Madhukar Angre )
7. Sanjay Madhukar Angre )
Tikam page 1 of 45
::: Uploaded on - 02/05/2023 ::: Downloaded on - 03/05/2023 14:42:11 :::
WP- 12354 of 2017 Jud..doc
All residing at Bamandongri )
Post Vahal, Taluka Panvel )
Dist. Raigad )
8. Supriya Sunil Wani )
Residing at Block No. 3, )
Pandurang Kripa CHS Ltd. )
Opp. Ghodke Hospital, Panvel, )
Taluka Panvel, District Raigad )
9. Vishakha Vilas Choudhary )
Residing at Dahisar, )
District Thane - 400612 )
10. Kalyani Kailas Pote, )
Residing at Vadap, Post Gorkamat, )
Taluka Karjat, District Raigad - 410 201)
11. City and Industrial Development )
Corporation (Maharashtra) Ltd. )
Having its head office at CIDCO Bhavan )
CBD Belapur, Navi Mumbai - 400 614 )
nd
and registered office at 'Nirmal', 2 Floor,)
Nariman Point, Mumbai - 400 021 )
Through its Managing Director )...Respondents
Mr.Y.S. Jahagirdar, Senior Advocate with Mr.N.V. Walawalkar, Senior
Advocate, Mr.S.M. Sabrad and Mr.Amey Sawant for the Petitioner.
Tikam page 2 of 45
::: Uploaded on - 02/05/2023 ::: Downloaded on - 03/05/2023 14:42:11 :::
WP- 12354 of 2017 Jud..doc
Mr.A.I. Patel, Additional Government Pleader with Ms.M.S. Bane,
AGP for the State - Respondent Nos.1 to 3.
Mr.Kezar Kharawala with Mr.Pradosh Patil i/b Lex Juris for the
Respondent Nos.5 to 8.
Dr.Uday Warunjikar with Mr.Nitesh Bhutekar i/b Mr.Vijay Dighe for
the Respondent Nos.9 and 10.
Mr.Akshay R. Kulkarni i/b Mr.Ashutosh M. Kulkarni for CIDCO -
Respondent No.11.
CORAM:- R.D. DHANUKA &
GAURI GODSE, JJ.
RESERVED ON 10 APRIL, 2023
PRONOUNCED ON 2 MAY, 2023
JUDGMENT [ PER R.D. DHANUKA, J.]
1. Rule. Mr.Patel, learned Additional Government
Pleader waives service for the Respondent Nos.1 to 3.
Mr.Kharawala waives service for the Respondent Nos.5 to 8.
Dr.Warunjikar, waives service for the Respondent Nos.9 and
Tikam page 3 of 45
WP- 12354 of 2017 Jud..doc
10. Mr.Kulkarni waives service for CIDCO - Respondent No.11.
Rule is made returnable forthwith. By consent of the parties,
the Petition is taken up for final hearing.
2. By this Petition filed under Article 226 of the
Constitution of India, the Petitioner seeks a writ of certiorari
for quashing and setting the Consent Award dated 4 July, 2017
and for a declaration that the land acquisition proceedings in
respect of the writ property bearing Survey No.395, Hissa
No.O at Village Vahal, Taluka Panvel, District Raigad
admeasuring 01 H 75R (17500 sq. mtrs.) have lapsed.
3. The Petitioner has also prayed for a writ of
certiorari for quashing and setting aside the order dated 28
August, 2015 passed by the Respondent No.2 and further
seeks a writ of mandamus against the Respondent Nos.1 to 3
to pass an order under Section 11 of the Land Acquisition Act,
1894 in the name of the Petitioner in respect of the
agricultural land i.e. land bearing Survey No.395, Hissa No.O
at Village Vahal, Taluka Panvel, District Raigad admeasuring
01 H-75R-OP (17500 sq. mtrs.).
Tikam page 4 of 45
WP- 12354 of 2017 Jud..doc
Some of the relevant facts for the purpose of
deciding this Petition are as under :-
4. It is the case of the Petitioner that prior to 16 June,
2006, the Respondent No.1 was the owner of the writ
property. On 16 June, 2006, the original Respondent Nos.4
and 5 to 7 being consenting party executed a registered
Agreement to Sale in respect of the writ property in favour of
the Petitioner thereby conferring all rights, title and interest
in respect of the writ property in favour of the Petitioner.
5. On 24 December, 2012, the original Respondent
No.4 through his power of attorney holder made an
application dated 12 April, 2012 to the learned Additional
Collector of Raigad at Alibag for sale of the said property. It is
the case of the Petitioner that the learned Additional Collector
after considering the said application, opinions of the learned
Tahsildar of Panvel and CIDCO, passed an order thereby
granting permission for sale of the said property under
Section 43 of the Maharashtra Tenancy and Agricultural
Lands Act, 1948 and Rules made there under.
6. On 13 February, 2013, the Respondent No.4 through his
Tikam page 5 of 45
WP- 12354 of 2017 Jud..doc
power of attorney holder executed a registered Sale Deed in
favour of the Petitioner thereby conferring all rights, title and
interest in respect of the said property in favour of the
Petitioner.
7. On 7 December, 2013, the Respondent No.1 issued
a Notification which was published in Maharashtra
Government Gazette on 16 December, 2013 under Section 4 of
the Land Acquisition Act, 1894 regarding intention to acquire
the lands at Village Vahal, Taluka Panvel, District Raigad for
Navi Mumbai Project and included the writ property in the
said Notification.
8. On 1 July, 2014, the Petitioner made an application
to the Respondent No.3 and informed the Special Land
Acquisition Officer that the Petitioner had purchased the writ
property and therefore, and that the Respondents should
make all correspondence in respect of the acquisition of the
said property with the Petitioner only.
9. On 4 August, 2014, the Petitioner made an
application to the Respondent No.3 and informed the Special
Tikam page 6 of 45
WP- 12354 of 2017 Jud..doc
Land Acquisition Officer that the Petitioner had purchased the
writ property and therefore, should make all correspondence
in respect of the acquisition of the writ property with the
Petitioner only. On 5 August, 2014, the Respondent No.3
addressed a letter to the Petitioner assuring about conducting
an enquiry about the grievances of the Petitioner and that the
decision of the said enquiry will be communicated to the
Petitioner.
10. On 20 May, 2015, the Respondent No.1 decided to
acquire the writ property and issued a Declaration under
Section 6 of the Land Acquisition Act, 1894, which came to be
published on 20 May, 2015 in Maharashtra Government
Gazette regarding acquisition of the writ property for Navi
Mumbai Project.
11. On 23 June, 2015, the Petitioner made an
application to the Respondent No.2 and raised his objection
for making any correspondence with the earlier owners of the
writ property. On 28 August, 2015, the Respondent No.2
passed an order purportedly under Section 9(3) & (4) of the
Tikam page 7 of 45
WP- 12354 of 2017 Jud..doc
Land Acquisition Act, 1894, directing to declare an award in
the name of the earlier owners of the writ property. It is the
case of the Petitioner that the Respondent No.2 totally
overlooked the Sale Deed executed by the earlier owner in
favour of the Petitioner. A copy of the said order dated 28
August, 2015 was sent to the Petitioner in the last week of
December, 2015. The Petitioner thus filed this Petition on 31
October 2016 for various reliefs.
12. Mr. Y. S. Jahagirdar, learned Senior Counsel for the
Petitioner tendered synopsis and also brief written arguments
and copy of the Plaint in S.C. Suit (St) NO. 4229 of 2022 filed
by the Respondent Nos. 9 and 10 against Respondent No.7-
Sanjay Madhukar Angre and others including the Petitioner
herein. He also invited our attention to the various documents
annexed to the Affidavit in Reply filed by various parties. He
submitted that prior to the Notification dated 7 December,
2013 issued under Section 4 of the Land Acquisition Act, 1894
the acquisitions proceedings had already commenced in year
1970. Since no Award was rendered by the Special Land
Acquisition Officer in pursuance of the said Notification
Tikam page 8 of 45
WP- 12354 of 2017 Jud..doc
issued in the year 1970 within the time prescribed under
Section 11-A i.e. within 2 years from the date of declaration
of Notification under Section 6 of the Land Acquisition Act,
1894 the acquisition proceedings initiated earlier lapsed.
13. It is submitted by the Learned Senior Counsel that
Section 4 Notification was once again issued on 7 December,
2013 in respect of the writ property followed by Notification
under Section 6 on 20 May, 2015 i.e. after expiry of one year
from Section 4 Notification which itself is a patent illegality.
It is submitted that consent award was passed, after expiry of
two years from the date of declaration under Section 6 issued
on 20 May, 2015, whereas the consent award was passed on 4
July, 2017, which is again hit by Section 11A of the Land
Acquisition Act, 1894.
14. It is submitted that the consent award could not
have been made in any event under the Land Acquisition Act,
1894 after 1 January, 2014 as the said Fair Compensation Act
clearly mandated that any acquisition proceedings initiated
under the Land Acquisition Act, 1894 is to be proceeded
Tikam page 9 of 45
WP- 12354 of 2017 Jud..doc
under the Fair Compensation Act from the stage at which it
was on the date of coming into operation of the Fair
Compensation Act i.e. with effect from 1 January, 2014, only
when no award was passed under the Land Acquisition Act,
1894.
15. It is submitted by the learned Senior Counsel that
by virtue of provisions of 24(1) (a) of the Fair Compensation
Act, the acquisition of the writ property, if any, ought to have
been continued under the provisions of the Fair
Compensation Act from the stage of Notification under
Section 4 dated 7 December, 2013. This submission is made
without prejudice to the rights and contentions of the
Petitioner that the said acquisition initiated once by issuance
of Notification under Section 4 of the Land Acquisition Act,
1894 the proceedings stood lapsed in view of the Special Land
Acquisition Officer not having made any Award within two
years from the date of issuance of Notification under Section
6.
16. It is submitted by the learned Senior Counsel that
Tikam page 10 of 45
WP- 12354 of 2017 Jud..doc
the original owner had already executed a registered
Agreement of Sale for the writ property with the Petitioner on
16 June,2006, few years before the said notification dated 7
December, 2013 under Section 4 of the Land Acquisition Act
and two of the sons of the original owner and one daughter
viz. Respondent Nos. 5 to 7 herein had signed the said
Agreement of Sale as confirming parties.
17. It is submitted by the Learned Senior Counsel that
the writ property being a tenanted land, permission of the
Collector was applied for as required by Section 43 of the
Maharashtra Tenancy and Agricultural Lands Act, 1948 and
was granted on 24 December, 2012. He submitted that the
writ property was transferred by the original owner vide
Registered Sale Deed dated 13 February, 2013 executed with
the Petitioner. The name of the Petitioner was already mutated
in the record of rights of the writ property by mutation entry
No. 4947 on 2 July, 2014 which was certified on 30 July, 2014
after due notice to the vendors.
18. It is submitted by the learned Senior Counsel that
Tikam page 11 of 45
WP- 12354 of 2017 Jud..doc
the Petitioner had already informed the Special Land
Acquisition Officer by letter dated 1 July, 2014 about sale deed
between the original owner and the Petitioner and that he
applied to the Talathi for recording the name of the Petitioner
in the 7/12 extracts but the same could not be effected by
then. The Petitioner requested the Special Land Acquisition
Officer to cancel the notice under Section 4(1) of the Land
Acquisition Act, 1894 and issue the same to the Petitioner to
continue further proceedings for acquisition of the said Land
in the name of the Petitioner.
19. It is submitted by the learned Senior Counsel that
the Petitioner had once again informed the Deputy Collector
(Acquisition) by a letter dated 4 August, 2014 about his
Agreement of Sale and Sale Deed with Madhukar Babu Angre
and requested him to carry out further correspondence with
him. The Petitioner stated that he was placing the 7/12
extract showing his name on record which was manually
informed to the Deputy Collector (Acquisition) to carry on
further action in respect of the land under acquisition in the
name of the Petitioner.
Tikam page 12 of 45
WP- 12354 of 2017 Jud..doc
20. Learned Senior Counsel invited our attention to the
letter dated 5 August, 2014 addressed to the Petitioner
informing that a notice had been issued to the original owner
Shri Madhukar Babu Angre regarding Survey No.395 which
was replied in July, 2014. The Deputy Collector accepted that
by his letter dated 4 August, 2014 the Petitioner had informed
him about his ownership as per the Sale Deed dated 13
February, 2013 and that the notice under the Land Acquisition
Act, 1894 was not binding on him. The Deputy Collector
assured the Petitioner that appropriate decision would be
taken in that behalf by making detailed investigation/hearing
about it, and that further intimation would be given to him.
21. It is submitted by the learned Senior Counsel that
however, on 11 August, 2014, the said Madhukar Babu Angre
alleged to have filed an application to the Deputy Collector
for passing the consent award. It is submitted that the
notification under Section 6 was issued after one year from
the date of issuance of Section 4 notification. He submitted
that in any event admittedly, on that date, the name of the
Tikam page 13 of 45
WP- 12354 of 2017 Jud..doc
Petitioner was found in the Records of Rights by reason of the
said entry certified on 2 July, 2014. The Petitioner had already
informed the Deputy Collector regarding the name of the
Petitioner in the 7/12 extracts on the basis of the Sale Deed
dated 13 February, 2013 and placed the documents on record.
22. It is submitted that the Deputy Collector, however,
had passed a perverse order on 28 August, 2015 purportedly
under Section 9(3) and (4) of the Land Acquisition Act by
taking notice of the said objections of the owner that the said
Sale Deed was illegal. He did not consider the objection of the
Petitioner that the notice of acquisition was issued to the
original owner though the land was sold to the Petitioner. The
Deputy Collector observed that the process of acquisition was
already going on and it was not possible to take decision in
the matter due to dispute about the ownership of the said
land, and therefore passed an order that the compensation
may be paid as per Section 30 of the Land Acquisition Act,
1894 after award is declared in the name of the original
owner.
Tikam page 14 of 45
WP- 12354 of 2017 Jud..doc
23. It is submitted by the learned Senior Counsel that
admittedly the appeal filed by Respondent Nos. 8 to 10
against the order recording the name of the Petitioner in the
mutation entry was dismissed by the Sub-Divisional Officer on
2 May, 2016 and further application against the said order
filed by the Respondent Nos. 8 to 10 also came to be
dismissed by the Deputy Collector on 7 July, 2016. Learned
Senior Counsel submitted that admittedly on 4 July, 2017, the
Deputy Collector passed an order and award calling it to be
consent award on the basis of the application dated 11
August, 2014 filed by the Respondent No.4 for passing
consent order and declared it in favour of Madhukar Babu
Angre, Respondent No.4 herein (since deceased).
24. It is submitted that no notice was given to the
Petitioner of such application for passing consent award nor
the Petitioner was supplied with any documents filed before
the Deputy Collector by the original owner. He submitted that
though the said Madhukar Babu Angre expired on 8
September, 2015, the alleged consent award was passed in
favour of the dead person, by erroneously observing that in
Tikam page 15 of 45
WP- 12354 of 2017 Jud..doc
old 7/12 extract, the Respondent No.4 was found in
possession of the land. He submitted that the Deputy
Collector gave an option whether the monetary compensation
would be accepted or the compensation in the nature of
developed plot would be accepted, that the concerned land
owner/person interested opted for compensation in terms of
Government Resolution dated 1 March, 2014. He submitted
that the Deputy Collector relied upon the alleged consent
letter purported to be signed by Madhukar Babu Angre. He
submitted that the alleged signature of Madhukar Babu Angr
if compared with the signatures on the admitted documents of
Agreement of Sale and Sale Deed, the alleged signature on
the letter of consent seems to be doubtful.
25. It is submitted by the learned Senior Counsel that
since the Deputy Collector had on earlier occasion by the
letter dated 5 August, 2014 accepted that the objection
raised by the Petitioner in the letter dated 4 August, 2014
would be investigated in detail, thoroughly and appropriate
decision would be taken, the Deputy Collector ought to have
given notice to the Petitioner of any application made by the
Tikam page 16 of 45
WP- 12354 of 2017 Jud..doc
Original Owner of the land before passing a consent award
and could not have passed any order after granting personal
hearing to the Petitioner and after considering the objections
of the Petitioner before making the consent award.
26. It is submitted by the learned Senior Counsel that
the Deputy Collector could not have made a consent award
on the basis of the consent alleged to have been given by the
person who had ceased to be the owner and more particularly
without notice to the Petitioner-transferee of the writ property
and present owner when his name was already entered into
the revenue record as far as back as on 2 July, 2014, certified
on 30 July, 2014.
27. It is submitted by the learned Senior Counsel that
the statement of the Deputy Collector in the consent award
mentioned the name of the Madhukar Babu Angre as alleged
to have been mentioned as per the record is totally erroneous
and illegal because the name of the Petitioner had already
been entered into the revenue record as far as back on 2
July, 2014 and was certified after due notice to the heirs of
Tikam page 17 of 45
WP- 12354 of 2017 Jud..doc
the original owner on 30 July, 2014. It is submitted by the
learned Senior Counsel that the entire consent award is in
gross violation of principles of natural justice. The said so
called concerned affidavit dated 11 August 2014 came to be
produced for the first time in the Affidavit in Sur-rejoinder
filed by Respondent Nos.5 and 7.
28. It is submitted by the learned Senior Counsel that
the Petitioner is in possession of the writ property under
registered Agreement for Sale dated 16 June, 2006. The
Deputy Collector has passed the impugned award without
referring to the documents filed by the Petitioner.
Respondent Nos.4 to 7 had not challenged the agreement for
sale executed by the original owner in favour of the Petitioner.
The Deputy Collector has not disbursed any compensation in
favour of the Respondent No.4 or Respondent Nos. 5 to 7.
29. Learned Senior Counsel invited our attention to
the affidavit in reply filed by the Collector, notorized on 26
May, 2022 and in particular paragraph 7, stating that as could
be seen from the documents produced on record, Award could
Tikam page 18 of 45
WP- 12354 of 2017 Jud..doc
not have been passed in the name of the deceased
Respondent No.4. It is submitted that in paragraph 6, the
Deputy Collector has contended that Order under Section
9(3) (4) of the Land Acquisition Act, 1894 was passed on 19
August, 2015 pointing out that since there was dispute about
the ownership, award would be passed in the name of the
original owner and the amount of compensation would be
given as per Section 30 of the Land Acquisition Act, 1894. The
said order dated 28 August, 2015 was initially challenged
before this Court in this Writ Petition. During the pendency of
this Writ Petition, on 4 July, 2017, consent award under
Section 11(2) of the Land Acquisition Act, 1894 came to be
passed which is also challenged by the Petitioner.
30. In paragraph 8 of the said affidavit, the Deputy
Collector stated that taking into consideration all the facts
mentioned in the said affidavit, the original award needs to
be corrected and accordingly prayed that this Court be
pleased to pass necessary orders. It is submitted that in view
of the affidavit filed by the Deputy Collector, the impugned
consent award deserved to be quashed and set aside on this
Tikam page 19 of 45
WP- 12354 of 2017 Jud..doc
ground alone. He submitted that even if there is any dispute
about the ownership, the award could not have been passed
in the name of original owner.
31. It is submitted by the learned Senior Counsel that
even in the said affidavit, the Deputy Collector did not
produce any copy of the alleged consent given by the original
owner for making a consent award. Learned Senior Counsel
submitted that recently Respondent Nos.9 and 10 have filed
civil suit in this Court challenging the Sale Deed, Agreement
for Sale and Power of Attorney. Respondent Nos.9 and 10 are
the daughters of the original owner. He submitted that the
said suit is filed by the Respondent Nos. 9 and 10 after several
orders recording mutation entry in the name of the Petitioner
and after having rejection of the proceedings filed by some of
the legal heirs of Respondent No.4 challenging mutation entry
in favour of the Petitioner.
32. Learned Senior Counsel for the Petitioner invited
our attention to the Affidavit in Reply, affirmed on 30 June,
2017 filed by Ashwini Patil I/c. Deputy Collector, Land
Tikam page 20 of 45
WP- 12354 of 2017 Jud..doc
Acquisition and submitted that in the said affidavit, it is
contended that under the law, the lawful owner of the land
under acquisition is eligible to get compensation and other
benefits, such as the developed plot having area 22.5% of
the total land under acquisition. If there is a dispute regarding
ownership under the land under acquisition, the rival
pleadings can be decided by the Civil Court and the
machinery under the Land Acquisition Act does not have
requisite jurisdiction to do so. There is no legal fault in the
order dated 28 August, 2015 that has been belatedly
challenged by the Petitioner after more than one year.
33. It is further contended in the said affidavit that
under the Government Resolution dated 16 June, 2014 where
the developed plot has been allotted to the true owner of the
land under acquisition can be set apart in case of dispute
regarding the ownership of the land under acquisition. He
submitted that according to the Deputy Collector, the very
same resolution has directed the concerned Deputy Collector
to refer the dispute to the Civil Court. The Deputy Collector
accordingly requested vide its order dated 23 June, 2017,
Tikam page 21 of 45
WP- 12354 of 2017 Jud..doc
CIDCO to set apart the developed plot and the monetary
compensation till the dispute of ownership is effectively
resolved under Section 30 of the Land Acquisition Act, 1894.
34. Learned Senior Counsel invited our attention to
the affidavit filed by the Deputy Collector on 26 May, 2022,
stating that the Deputy Collector has admitted in the said
affidavit that on 7 December, 2013, Notification under Section
4 of the Land Acquisition Act came to be issued through
inadvertence in the name of Respondent No.4 though the
Petitioner was the owner of the land on that date. The
Petitioner had made an application pointing out that the
notification under Section 4(1) issued in the name of
deceased Respondent No.4 be cancelled and the same be
issued in the name of the Petitioner. The name of the
Petitioner had appeared on 4 August, 2014 in the Mutation
Entry No. 4947.
35. It is submitted that in the said affidavit filed by the
Deputy Collector, he had referred to the letter dated 28
August, 2015 addressed by the Deputy Collector to the
Tikam page 22 of 45
WP- 12354 of 2017 Jud..doc
Petitioner that after holding inquiry/hearing, necessary
decision would be taken. He submitted that the Deputy
Collector has also admitted that the declaration under Section
6 issued on 20 May, 2015 also came to be issued and once
again through inadvertence was issued in the name of the
deceased Respondent No.4.
36. Mr. A.M. Kulkarni, learned counsel for the CIDCO
relied upon the possession receipt dated 15 November, 2017
and submitted that the possession was already handed over to
CIDCO by the Government Authorities in presence of panchas
and submitted that Executive Magistrate had taken
possession on 15 November, 2017. He submitted that the
legal heirs of the deceased Respondent No.4 had entered into
a plot admeasuring 2760 sq. mtrs. based on the alleged
consent of the original Respondent No.4 dated 11 August,
2014. He did not dispute that the Notification under Section
6 of the Land Acquisition Act was issued after the alleged
consent given by the original owner.
37. Mr. Kezer Kharawala, learned counsel for the
Tikam page 23 of 45
WP- 12354 of 2017 Jud..doc
Respondent Nos. 5 to 8 relied upon the Affidavit in Reply filed
by his client. Learned counsel also invited our attention to the
Additional Affidavit filed by Respondent Nos.9 and 10 who are
the daughters of the Original Respondent No.4. He relied
upon various paragraphs of the sur-rejoinder filed by his
clients and submitted that the Respondent No.4 during his life
time had already signed the consent letter dated 10 October,
2014 duly notarized.
37. Upon raising query, the learned counsel admitted
that there is no explanation given in the sur-rejoinder or
earlier affidavits filed by the Respondents as to why the
alleged consent letter was not mentioned. He invited our
attention to the affidavit in reply filed by the Deputy Collector
on 26 May, 2022 and submitted that the Deputy Collector
has taken his stand now that the Award is passed in the name
of the dead person. He submitted that the so called Sale Deed
came to be executed by the Petitioner in his own favour by
representing the Respondent No.4. The other legal heirs of
the Madhukar Babu Angre were not parties to the said Sale
Deed.
Tikam page 24 of 45
WP- 12354 of 2017 Jud..doc
39. Learned counsel relied upon the following
judgments for consideration of this Court:-
1. Sandeep S. Metange and Ors. Vs. State of
Maharashtra and Ors. [AIR 2022 Bombay 77]
2. Rajinder Singh Bhatti & Ors. Vs. State of Haryana
& Ors. [AIR 2009 SC 2232]
3. Shiv Kumar and Anr. Vs. Union of India and Ors.
[AIR 2019 SC 5374]
4. Narayanamma and Anr. Vs. Govindapa and Ors.
[(2019) 19 Supreme Court Cases 42]
5. Parshuram Kathod Gaikar Vs. Pandu madhu Hard &
Anr. [1993 Mh.L.J. 1570]
6. Lotan Ramchandra Shimpi & Ors. Vs. Shankar
Ganpat Kayasth & Ors. [1995 (1) Mh.L.J. 80]
7. Bhimabai Mahadeo Kambekar though LRs vs.
Arthur Import and Export Company and Ors. [2019 (2)
ABR 501]
8. Mussoorie Dehradun Development Authority Vs.
Rajesh Goyal & Others. [2014 SCC Online Utt 1630]
Tikam page 25 of 45
WP- 12354 of 2017 Jud..doc
9. Meera Sahni Vs. Lieutenant Governor of Delhi and
Ors.[(2008) 9 SCC 177]
10. Prakash Vasudeo Deodhar and Ors Vs. State of
Maharashtra and Ors. [1993 Mh.L.J. 1768]
11. State of Maharashtra, Through its Secretary,
Ministry of Revenue of Forest, Mantralaya, Mumbai and
Ors. Vs. Santosh Pralhad Sonkambale and Anr. [2021
SCC Online Bom 9193]
40. Learned counsel for Respondent Nos. 5 to 8 relied
upon the Talathi Certificate and submitted that the writ
property was not under acquisition. He submitted that though
the proceedings initiated by issuance of notification under
Section 4 of the Land Acquisition Act, 1894 had lapsed, the
same was not withdrawn under Section 48 of the Land
Acquisition Act. He submitted that even in 7/12 extract issued
in favour of the Petitioner, there is a reference to the
acquisition proceeding. He submitted that the Petitioner had
fraudulently obtained permissions for cultivation in favour of
the Petitioner in the month of December, 2012. He relied upon
the Condition No.10 of the said Certificate and submitted that
Tikam page 26 of 45
WP- 12354 of 2017 Jud..doc
it was clear that if the land would be acquired, permission for
cultivation would lapse.
41. It is submitted that the Petitioner purchased the
writ property knowing fully well that the land is under
acquisition and the Petitioner had never cultivated land and
the Petitioner was not the cultivator. He had obtained the
certificate about cultivation of land on 30 March, 2010 from
the Rajasthan State Authority. He submitted that the same
certificate issued by the Authority of the Rajasthan State was
referred in Agreement for Sale. He did not dispute that his
clients have not challenged the Sale Deed or Agreement for
Sale in any proceeding so far. He submitted that said Sale
Deed was entered into between Respondent No.11 and the
Petitioner. Respondent Nos. 5,6 and 7 had given consent. He
submitted that the writ property is an ancestral property.
Respondent Nos. 9 and 10 did not given consent. The
objections of the Petitioner was considered in the order under
Section 9 of the Land Acquisition Act.
42. It is submitted by the learned counsel that if this
Tikam page 27 of 45
WP- 12354 of 2017 Jud..doc
Court considers the notification issued under Section 4 in the
year 2013, in that case the Petitioner would have locus to file
a petition. But if this Court comes to the conclusion that the
acquisition proceedings though initiated earlier, lapsed and
no order can be passed under Section 48 of the Land
Acquisition Act, in that event, the Petitioner would have no
any locus to file any petition. He submitted that since the
Petitioner has executed the Sale Deed in his own favour by
exercising the power of attorney which is given only by
Respondent No.4 and not by others, such documents are ex-
facie illegal and cannot be relied upon by the Petitioner.
43. It is submitted that the Sale Deed is not signed by
any parties as vendors or confirming parties. He submitted
that, in any event, the mutation entry in favour of the
Petitioner is not conclusive and does not confer any
ownership right in favour of the Petitioner. He submitted that
the consent could not have been given by the Respondent
No.4 father alone. Since name of the father was recorded in
the mutation entry, his affidavit was taken for giving consent
for making a consent award.
Tikam page 28 of 45
WP- 12354 of 2017 Jud..doc
44. Upon raising query, 'whether consent not having
been given by the legal heirs of the Respondent No.4 for
making a consent award according to his clients, whether the
consent award made by the Deputy Collector could be final
and binding upon his clients,' the learned counsel fairly stated
that since the consent was not given by the other legal heirs
of the original Respondent No.4, the Deputy Collector could
not have made any such consent award only based on the
consent affidavit filed by Respondent No.4.
45. Dr. Warunjikar, learned counsel for Respondent
Nos.9 and 10 invited our attention to the plaint filed by his
clients who are the daughters of the Original Respondent
No.4 and submitted that his clients have challenged the
Power of Attorney, Agreement for Sale and the Sale Deed in
the said suit filed in the year 2022. Respondent Nos.5 to 8 are
objecting to the claim of the Respondent Nos.9 and 10. He
submitted that his clients are not disputing the fact that the
acquisition proceedings had lapsed in view of the award
having being made beyond the time prescribed under Section
Tikam page 29 of 45
WP- 12354 of 2017 Jud..doc
11 A of the Land Acquisition Act. He submitted that this
Court cannot adjudicate on the issue of title of the Petitioner
in this writ petition.
46. It is submitted that the consent of Respondent
Nos. 9 and 10 was not taken by the father before executing
the Agreement for Sale, Sale Deed and Power of Attorney for
making the consent award. Respondent No.4 father alone
could not have given such consent for making consent award.
He submitted that the writ property is an ancestral property
and, therefore, the daughters also have equal share in the
said ancestral property. The consent given by the Respondent
No.4 is not binding upon his clients. In support of his
submissions that the daughter have equal rights in the
ancestral property, he relied upon the judgment of the
Supreme Court in case of Vineeta Sharma Vs. Rakesh
Sharma and Ors. [(2020) 9 SCC 1].
47. Learned Senior Counsel for the Petitioner in his
Rejoinder Arguments submitted that the suit is filed in the
year 2022 being S.C. Suit (St) No. 4229 of 2022 and no notice
was issued till date in the said suit. He submitted that the
Tikam page 30 of 45
WP- 12354 of 2017 Jud..doc
name of the Petitioner was already recorded in the mutation
entry on 1 July, 2014. The other legal heirs of Respondent
No.4 have put up the Respondent Nos. 9 and 10 and have
filed a collusive suit on 2 May, 2016. Appeal filed by
Respondent Nos.8 to 10 against the order passed in the
mutation proceedings, has been already dismissed. He
submitted that original application filed by Respondent Nos.8
to 10 against the order dated 2 May, 2016 is already
dismissed on 4 July, 2018. Respondent Nos. 9 and 10 have
thus filed a frivolous suit.
48. It is submitted by the learned Senior Counsel that
since the acquisition proceedings had already lapsed,
admittedly, there was no question of making any consent
award under the Land Acquisition Act and that also in the
name of a dead person, much after the death of the original
Respondent No.4.
Reasons and Conclusions
49. The short question which arises for consideration
of this Court is to (i) whether the Deputy Collector could have
Tikam page 31 of 45
WP- 12354 of 2017 Jud..doc
made a consent award though the land acquisition
proceedings initiated in the year 1970 and thereafter, in the
year 2013 had already lapsed in view of the award not having
been rendered within prescribed period under Section 11A of
the Land Acquisition Act and that also in the name of a dead
person?
(ii) whether the impugned consent award was in violation of
the principles of natural justice in view of the Deputy
Collector not having issued any notice to the Petitioner before
making a consent award, knowing fully well that the name of
the Petitioner was already entered into the mutation entry
within the knowledge of the Deputy Collector or not?
(iii) whether the Deputy Collector could have made a consent
award based on the alleged documents submitted by the
Original Respondent No.4 during his life time and more
particularly when his legal heirs have opposed the filing of
such alleged consent on the ground that the writ property was
ancestral property and thus the Respondent No.4 alone could
not have executed such consent award or not?
50. It is a common ground that the proceedings
Tikam page 32 of 45
WP- 12354 of 2017 Jud..doc
initiated under Section 4 of the Land Acquisition Act acquiring
the writ property in the year 1970 did not culminate into an
award within the time prescribed under Section 11A of the
Land Acquisition Act, 1894. The proceedings thus stood
lapsed. The Special Land Acquisition Officer, however,
initiated fresh acquisition proceedings by issuing notification
under Section 4 of the Land Acquisition Act on 7 December,
2013. Admittedly, Section 6 notification was published in the
Maharashtra Government Gazette on 20 May, 2015 in respect
of the writ property. Admittedly, the consent award came to
be made much after expiry of the period prescribed under
Section 11A of the Land Acquisition Act.
51. Learned counsel for the private Respondents did
not dispute that even this acquisition proceeding commenced
under the notification issued under Section 4 on 7 December,
2014, also stood lapsed in view of the award not having been
made within time prescribed under Section 11A of the Land
Acquisition Act. In our view since the acquisition proceedings
have already been lapsed, much prior to the date of passing
the consent award, no such consent award could have been
Tikam page 33 of 45
WP- 12354 of 2017 Jud..doc
made after lapsing of the acquisition proceedings. The
consent award deserves to be quashed and set aside on this
ground itself.
52. A perusal of the affidavit filed by the Deputy
Collector clearly indicates that the award has been made
admittedly in the name of the dead person. The Deputy
Collector in the Affidavit in Reply, affirmed on 30 June, 2017
has contended that if there is a dispute regarding ownership
under the land under acquisition, the rival pleadings can be
decided by the Civil Court and the machinery under the Land
Acquisition Act does not have requisite jurisdiction to do so
and thus, no legal fault can be found in the order dated 28
August, 2015 that has been belatedly challenged by the
Petitioner after more than one year.
53. The Deputy Collector in his affidavit dated 26 May,
2022 has admitted that the Notification dated 7 December,
2013 under Section 4 of the Land Acquisition Act came to be
issued through inadvertence in the name of Respondent No.4
though the Petitioner was the owner of the land on that date.
He also stated that the Petitioner made an application
Tikam page 34 of 45
WP- 12354 of 2017 Jud..doc
requesting that the Notification under Section 4(1) issued in
the name of Respondent No.4 be cancelled and the same be
issued in the name of the Petitioner. He further admitted that
even declaration under Section 6 of the Land Acquisition Act
dated 20 May, 2015 came to be issued inadvertently in the
name of the deceased Respondent No.4. The Petitioner had
raised an objection on 23 June, 2015 by making an
application.
54. The Deputy Collector, however, has made a
perverse statement that order under Section 9(3) and (4) of
the Land Acquisition Act was passed pointing out that since
there was dispute about ownership, award would be passed in
the name of the original owner and the amount of
compensation would be given as per Section 30 of the Land
Acquisition Act. In our view, since land acquisition
proceedings had already lapsed, the said order passed on 28
August, 2015 is contrary to the facts on record and more
particularly that the name of the Petitioner was already
recorded in the mutation entry. The Deputy Collector has
further admitted in the said affidavit that as could be seen
Tikam page 35 of 45
WP- 12354 of 2017 Jud..doc
from the documents produced on record, the award could not
have been passed in the name of the deceased Respondent
No.4.
55. The Full Bench of this Court in case of Sandeep S.
Metange and Ors. (Supra) has held that publication of
preliminary notification under Section 4 of the Land
Acquisition Act amounts to initiation of the land acquisition
proceedings for the purposes of Section 24(1) of the Fair
Compensation Act. In our view, this judgment would advance
the case of the Petitioner and not the case of the Respondents.
In this case notifications under Section 4 were issued much
prior to 1 January, 2014 and thus land acquisition proceedings
for the purposes of Section 24(1) of the Fair Compensation
Act commenced much prior to 1 January, 2014.
56. Supreme Court in case of Rajinder Singh Bhatti
and Ors. (Supra.) has held that if an award under Section
11 is not made by the Collector within a period of two years
from the date of the publication of the declaration, the
entire proceedings for the acquisition of the land shall lapse
under Section 11A. In that matter, the State Government did
Tikam page 36 of 45
WP- 12354 of 2017 Jud..doc
not grant approval to the proposed award and thus award
could not be made within the time prescribed under Section
11A. The Supreme Court held that Section 11A provides
maximum period within which the award from the date of the
publication of the declaration has to be made. In default, the
consequence is that the entire proceedings for the acquisition
would lapse.
57. Section 48 empowers the State Government to
withdraw from the acquisition of any land subject to two
conditions namely; (1) the case is not provided under Section
36 and (ii) that possession has not been taken. Section 11A
and the consequence provided therein i.e. lapse of acquisition
proceedings in the event of the award having not been made
within a period of two years from the date of publication of
the declaration under Section 6 is entirely distinct and
different than the decision that the Government may take for
withdrawal from the acquisition under Section 48(1).
58. It is not the case of the Respondent Nos. 5 to 8 that
any application for withdrawal of the land under acquisition
was made under Section 48(1) of the Land Acquisition Act.
Tikam page 37 of 45
WP- 12354 of 2017 Jud..doc
The said Judgment would advance the case of the Petitioner
and not the case of the Respondent Nos. 5 to 8.
59. Insofar as the judgment of the Supreme Court in
case of Shiv Kumar and Anr. (Supra) relied upon by the
learned counsel for the Respondent Nos. 5 to 8 is concerned,
it is held by the Supreme Court that purchase of land after
Notification under Section 4 of the Land Acquisition Act,
1894, renders the Sale Deed void and thus higher
compensation or benefit under Section 23 of the Fair
Compensation Act is not contemplated for such purchaser.
The Supreme Court in the said judgment held that if any
subsequent purchaser acquires land, his/her only right
would be subject to the provisions of the Act and/or to receive
compensation for the land. In this case, the Sale Deed was
executed prior to the notification under Section 4 of the Land
Acquisition Act, 1984 issued in the year 2013. Be that as it
may, we do not propose to adjudicate upon the validity and
legality of the said Sale Deed in these proceedings.
60. Supreme Court in the case of Narayanamma and
Anr. (supra) has held that the issue whether specific
Tikam page 38 of 45
WP- 12354 of 2017 Jud..doc
performance of Agreement to Sell can be granted when
Agreement to Sell is contrary to the statutory provisions i.e.
when interest of seller is a non-alienable grant. In our view,
the said case would not apply to the facts of this case even
remotely. This Court is not considering a plea of specific
performance of the Sale Deed in this case. The reliance
placed by the learned counsel for Respondent Nos. 5 to 8 in
the case of Narayanamma and Anr. (supra) is thus
misplaced.
61. Insofar as the judgment in a case of Parshuram
Kathod Gaikar (supra) relied upon by the learned counsel
for the Respondent Nos. 5 to 8 is concerned, this Court in the
said judgment has held that there is total and complete bar
on alienation of agricultural lands in question without
previous sanction of Collector which bar includes any
attempt of doing so or execution of document in pursuance
thereof. In our view, the said judgment delivered by the
Learned Single Judge of this Court also does not apply to the
facts of the case. The reliance placed by the learned counsel
for Respondent Nos. 5 to 8 in the case of Parshuram Kathod
Tikam page 39 of 45
WP- 12354 of 2017 Jud..doc
Gaikar (supra) is thus misplaced.
62. Insofar as the judgment in case of Lotan
Ramchandra Shimpi and Ors (supra) relied upon by the
learned counsel for the Respondent Nos.5 to 8 is concerned,
the said judgment deals with the provisions of the Bombay
Tenancy and Agricultural Lands Act and also transfer of
Property Act. In our view, the said judgment does not apply to
the facts of this case even remotely. Since this Court is not
adjudicating upon the legality and validity of the said Sale
Deed in this Writ Petition, the reliance placed by the learned
counsel for Respondent Nos. 5 to 8 in the case of Lotan
Ramchandra Shimpi and Ors (supra) is totally misplaced.
63. Insofar as the judgment of the Supreme Court in
case of Bhimabai Mahadeo Kambekar (supra), relied upon
by the learned counsel for Respondent Nos.5 to 8 is
concerned, it is held by the Supreme Court that mutation and
revenue records does not create or extinguish title nor it has
presumptive value on title. It only enables persons in whose
favour mutation is ordered to pay land revenue in question.
There is no dispute about the proposition of law laid down by
Tikam page 40 of 45
WP- 12354 of 2017 Jud..doc
the Supreme Court in the said judgment.
64. Be that as it may, since the Petitioner claims his
rights not only on the basis of mutation entry in his favour,
but also on the basis of Sale Deed and Agreement for Sale, the
Petitioner is one of the person interested in making a claim in
the writ property for the purposes of claiming right in the
property. Whether the Petitioner would be able to succeed in
establishing his claim or not, would be decided in the
appropriate proceeding. Certainly it cannot be urged by the
learned counsel for the Respondent Nos. 5 to 8 that the
Petitioner was not even a person interested and has no locus
in filing this Writ Petition, inter alia, impuging the consent
Award. The Sale Deed was executed in favour of the Petitioner
itself and thus the Petitioner has locus to file this Petition and
also was entitled to be served with all notices by the Special
Land Acquisition Officer in respect of the land in question
under the provisions of the Land Acquisition Act, 1894 or even
under the Fair Compensation Act.
65. Insofar as the judgment of the Uttarakhand High
Court in case of Mussoorie Dehradun Development
Tikam page 41 of 45
WP- 12354 of 2017 Jud..doc
Authority (Supra) relied upon by the learned counsel for
Respondent Nos. 5 to 8 is concerned, it is held that neither in
Section 24(1)(a) nor in Section 24(1)(b) of the Fair
Compensation Act, there is no question of lapse of
proceedings. It only speaks when the compensation has been
given under the Land Acquisition Act, 1894 and when it has to
be given under Fair Compensation Act. The said judgment is
also not applicable to the facts of this case. Admittedly in this
case, the land acquisition proceedings were initially initiated
under the provisions of the Land Acquisition Act, 1894 and
thereafter under the Fair Compensation Act and have already
lapsed under the provisions of the said Acts. The judgment of
the Uttarakhand High Court in case of Mussoorie Dehradun
Development Authority (Supra) would not assist the case
of the Respondent Nos. 5 to 8.
66. Insofar as the Judgment of the Supreme Court in
case of Meera Sahni (supra) relied upon by the learned
counsel for Respondent Nos. 5 to 8 is concerned, it is held by
the Supreme Court that challenge to acquisition proceedings
by subsequent purchaser after issuance of Notification under
Tikam page 42 of 45
WP- 12354 of 2017 Jud..doc
Section 4,6 and 9 is impermissible. There is no dispute about
the proposition of law laid down by the Supreme Court in the
said judgment. In our view, since in this case Sale Deed was
already executed in favour of the Petitioner prior to the
issuance of notification under Section 4 of the Land
Acquisition Act, which was issued in the year 2013, the
judgment in the case of Meera Sahni (supra) is
distinguishable on the facts of this case and would not
advance the case of the Respondent Nos. 5 to 8.
67. Insofar as the judgment of the Division Bench of
this Court in case of Prakash Vasudeo Deodhar (supra)
relied upon by the learned counsel for Respondent Nos.5 to 8
is concerned, it is held by the Division Bench of this Court
that once the notification under Section 6 of the Land
Acquisition Act is published and notices under Section 9 are
served, the only mode of withdrawal of lands from acquisition
is by resorting to powers under Section 48 of the Land
Acquisition Act, 1894. This judgment of the Division Bench of
this Court does not apply even remotely to the facts of this
case.
Tikam page 43 of 45
WP- 12354 of 2017 Jud..doc
68. Insofar as the judgment of the Supreme Court in
case of State of Maharashtra, through its Secretary,
Ministry of Revenue of Forest, Mantralaya, Mumbai and
Ors. Vs. Santosh Pralhad Sonkambale and Anr. (Supra)
relied upon by the learned counsel for Respondent Nos.5 to 8
is concerned, the said judgment does not apply even remotely
to the facts of this case.
69. Insofar as the judgment of the Supreme Court in
case of Vineeta Sharma (supra) relied upon by Dr.
Warunjikar, learned counsel for Respondent Nos. 9 and 10 is
concerned, there is no dispute about the proposition of law
declared by the Supreme Court in the said judgment that
daughter's right in coparcenary property under substituted
Section 6 of the Hindu Succession Act, 1956 confers status of
coparcener on daughter born before or after the amendment
in the same manner as son with same rights and liabilities.
The Petitioner has not disputed this proposition of law. The
reliance placed on said judgment is totally misplaced. The said
judgment does not apply even remotely to the facts of this
case.
Tikam page 44 of 45
WP- 12354 of 2017 Jud..doc
42. In our view, the Petitioner has made out a case for
grant of relief.
43. We, therefore, pass the following order:
(i) Writ Petition is allowed in terms of prayer clause
(b), (c) and (cc). Rule is made absolute.
(ii) No order as to costs.
(iii) Parties to act on an authenticated copy of this
judgment.
(GAURI GODSE, J.) ( R.D.DHANUKA, J. )
Tikam page 45 of 45
