Bombay High Court
Shri. Shri. Visawas Trambak Patil And ... vs State Of Maharashtra And Ors on 2 May, 2024
Author: M. M. Sathaye
Bench: Nitin Jamdar, M. M. Sathaye
2024:BHC-AS:20544-DB
Digitally WP.5807.2019.doc
signed by
ANANT
ANANT KRISHNA
KRISHNA NAIK
NAIK Date:
2024.05.04
16:54:08
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
+0530
APPELLATE SIDE CIVIL JURISDICTION
WRIT PETITION NO. 5807 OF 2019
1. Shri Visawas Trambak Patil )
Age-49, Occupation-Agriculturist )
A/P Kopar, Tal-Panvel, District-Raigad )
2. Shri Kashinath Shataram Mhatre )
Age-68, Occupation-Agriculturist )
A/P Kopar, Tal-Panvel, District-Raigad )
3. Late. Maibai Dharma Patil )
Through her legal heir )
Shri Shashikant Pundalik Patil )
Age-35, Occupation-Agriculturist )
A/P Kopar, Tal-Panvel, District-Raigad )
4. Shri Haribhau Balaram Patil )
Age-80, Occupation-Agriculturist )
A/P Kopar, Tal-Panvel, District-Raigad )
5. Shri Ananta Lahu Patil )
Age-75, Occupation-Agriculturist )
A/P Kopar, Tal-Panvel, District-Raigad )
6. Shri Nakul Govind Patil )
Age-55, Occupation-Agriculturist )
A/P Kopar, Tal-Panvel, District-Raigad )
7. Shri Nitesh Krushna Patil )
Age-35, Occupation-Agriculturist )
A/P Kopar, Tal-Panvel, District-Raigad )
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8. Shri Krushna Ambo Patil )
Age-80, Occupation-Agriculturist )
A/P Kopar, Tal-Panvel, District-Raigad )
9. Shri Rambhau Bando Patil )
Age-70, Occupation-Agriculturist )
A/P Kopar, Tal-Panvel, District-Raigad )
10 Shri Rambhau Joma Mhatre )
Age-70, Occupation-Agriculturist )
A/P Kopar, Tal-Panvel, District-Raigad )
11. Shri Jayendrath Aanat Patil )
Age-58, Occupation-Agriculturist )
A/P Kopar, Tal-Panvel, District-Raigad )
12. Shri Datta Mahadu Mhatre )
Age-68, Occupation-Agriculturist )
A/P Kopar, Tal-Panvel, District-Raigad )
13. Shri Vinayak Khana Zuge )
Age-66, Occupation-Agriculturist )
A/P Kopar, Tal-Panvel, District-Raigad )
14. Shri Namdev Sadanand Pawar )
Age-45, Occupation-Agriculturist )
A/P Kopar, Tal-Panvel, District-Raigad )
15. Shri Ramabhau Nama Patil )
Age-75, Occupation-Agriculturist )
A/P Kopar, Tal-Panvel, District-Raigad )
16. Shri Ram Laxman Patil )
Age-50, Occupation-Agriculturist )
A/P Kopar, Tal-Panvel, District-Raigad )
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17. Shri Ram Chandar Patil )
Age-58, Occupation-Agriculturist )
A/P Kopar, Tal-Panvel, District-Raigad )
18. Shri Krishna Gopal Mhatre )
Age-75, Occupation-Agriculturist )
A/P Kopar, Tal-Panvel, District-Raigad )
19. Shri Bhalchandra Maruti Mhatre )
Age-50, Occupation-Agriculturist )
A/P Kopar, Tal-Panvel, District-Raigad )
20. Shri Natha Hadku Patil )
Age-70, Occupation-Agriculturist )
A/P Kopar, Tal-Panvel, District-Raigad )
21. Shri Vinod Changya Patil )
Age-35, Occupation-Agriculturist )
A/P Kopar, Tal-Panvel, District-Raigad )
22. Rupesh Gopinath Patil )
Age-70, Occupation-Agriculturist )
A/P Kopar, Tal-Panvel, District-Raigad )
22. Maruti Babu Patil )
Age-35, Occupation-Agriculturist )
A/P Kopar, Tal-Panvel, District-Raigad )
All Petitioners through their Power of )
Attorney holder viz. Shri Rajendra )
Madhukar Joshi, )
Age-42, Occupation-Agriculturist and )
Business, R/o. Flat No. 101, Tulsi Corner )
Plot No. 87 and 88 Kamothe )
Navi Mumbai - 420209 ) ...Petitioners
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Versus
1. State of Maharashtra )
(Summons to be served on the learned )
Government pleader appearing for )
State of Maharashtra under order XXVII )
Rule 4 of the Code of Civil Procedure, 1908) )
2. Municipal Corporation of Panvel )
(Summons to be served on the learned )
Government pleader appearing for )
State of Maharashtra under order XXVII )
Rule 4 of the Code of Civil Procedure, 1908) )
3. City and Industrial Development Corporation )
(Summons to be served on the learned )
Government pleader appearing for )
State of Maharashtra under order XXVII )
Rule 4 of the Code of Civil Procedure, 1908) )
4. Land Acquisition Officer )
(Summons to be served on the learned )
Government pleader appearing for )
State of Maharashtra under order XXVII )
Rule 4 of the Code of Civil Procedure, 1908 )
5. Commissioner of Mumbai Division )
Kokan Division Mumbai )
(Summons to be served on the learned )
Government pleader appearing for )
State of Maharashtra under order XXVII )
Rule 4 of the Code of Civil Procedure, 1908 )
6. The Union of India )
Through its Secretary, Civil Aviation )
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Department, Ministry of Civil Aviation )
New Delhi )
7. Airport Authority of India )
Through its Chairman, Rajiv Gandhi Bhawan )
Safdarjung Airport, New Delhi- 110003 )
8. The Collector, )
Raigad (Alibag) )
9. The GVK Ltd. )
Managing Director )
Paigah House, 156-159, SP Road, )
Secunderabad - 500003, Telangana, India )
Mr. Vishwajeet Kapse i/b Fast Track Legal for Petitioners
Mr. B. V. Samant, Addl. GP a/w Ms. Tejas J. Kapre, AGP for State-
Respondent
Mr. A. S. Rao, for Respondent No.2
Mr. Ashutosh M. Kulkarni a/w Mr. Akshay Kulkarni for Respondent
No. 3
CORAM : NITIN JAMDAR &
M. M. SATHAYE, JJ.
DATED : 2 MAY 2024
JUDGMENT (Per M. M. Sathaye J) :
1. Heard learned Counsel for the parties. Perused the record. The
matter is arising out of land acquisition. Therefore hereinafter, The Right
to Fair Compensation and Transparency in Land Acquisition,
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Rehabilitation and Resettlement Act, 2013 is referred to as "the 2013 Act"
and the Land Acquisition Act, 1894 is referred to as "the 1894 Act".
2. The Petitioners claim to be the owners of the various lands at
Village Kopar, Taluka Panvel Dist. Raigad, as specifically described in
Exhibit A to the Petition (Page 23). The Petitioners also claim to be still
in possession of the subject matter lands. Here and now, it is necessary to
note that all 7x12 extracts (revenue records) of the subject matter lands,
annexed by the Petitioners themselves at Exh. 'B' show name of CIDCO
as holder.
3. By this Petition under Article 226 of the Constitution of India, the
Petitioners, 23 in number, all through a Power of Attorney holder,
initially challenged the acquisition of the subject matter lands on the
ground that their respective lands are still in their possession and that no
compensation is paid to them. The Petition was initially filed seeking
declaration that the acquisition in respect of subject matter lands has
lapsed under section 24(2) of the 2013 Act and therefore claiming
compensation as per the provisions thereof at today's market rate. Further
alternative prayer is made seeking directions to the Respondents to give
benefit of 22.5% scheme to the Petitioners as decided by the State in
CIDCO areas.
4. This Petition was amended multiple times.
5. The first amendment is of 2 December 2019. Under this
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amendment, averments challenging the section 4 notification dated 24
December 1959 and section 6 declaration dated 2 September 1965
issued under the 1894 Act were incorporated. The declaration under
section 6 was sought to be challenged on the ground that it is not made
within 3 years from the publication of notification under section 4 of the
Act of 1894 Act. The challenge was also raised to the award dated 28
February 1970, that it is passed beyond the period of 10 years and
therefore, it is vitiated. It was sought to be contended that though the
name of Panvel Municipal Council (for short "the PMC") was included in
7/12 extracts way back on 19 December 1959, the Petitioners continue to
be in actual possession of the subject matter lands.
6. On 18 December 2019, the Petition was again amended and the
Union of India, Airport Authority of India, Collector, Raigad and GVK
Limited were made parties. This time, it was sought to be contended that
the subject matter lands have been allotted to CIDCO for construction of
Navi Mumbai International Airport (for short "NMIA") vide order dated
5 June 2012 and the CIDCO awarded the contract to construct the
NMIA to GVK Limited sometime in 2017. It is sought to be contended
that employees and workers of GVK Limited entered into the plot of the
Petitioner No. 21 for levelling on 09 December 2019 but due to strong
resistance of the Petitioners and other local residents, the workers left the
place. Again, an assertion was made that the Petitioners are in possession
of the subject matter lands. An omnibus statement is made claiming that
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there are almost 100 more families who still need to be rehabilitated in 10
villages, which are affected by the NMIA project. The details of the
alleged 100 families or alleged need of rehabilitation or which 10 villages
are affected are conveniently omitted.
7. It was contended that the proposed work of the airport is going to
result in irreparable loss to the Petitioners without payment of
compensation. It was contended that the order allotting the subject
matter lands to CIDCO for construction of NMIA is arbitrary and
unjust. It was then contended that since the lands in question are not the
government property, the Collector has no authority to allot or transfer
the subject lands to CIDCO or to the construction company for NMIA.
It was contended that this could not have been done without
compensating the Petitioners under the 2013 Act or before giving the
benefits of 22.5% scheme to them. In this round of amendment, prayers
were added to quash the order dated 5 June 2012 under which the
subject matter lands were transferred to CIDCO, Navi Mumbai. An
injunction was sought restraining the Respondents from in any way
interfering with the alleged possession of the Petitioners.
8. For the reasons best known to the Petitioners, the Petition was yet
again amended, on 22 April 2022. This time, a completely new line of
contention was raised, which is apparent from the amended paragraph
nos. 33Z-1 to 33Z-36. In short, this amendment stated that in the
Government Resolution dated 10 October 1973, the Collector must take
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steps for restoration of the subject lands to the original owners on
payment of market value which should not exceed double the amount of
compensation paid while acquiring the land. It is imperative to note right
here that the Petitioners had originally contended that they have not
received any compensation and now diametrically opposite stand was
taken that on payment of market value not exceeding double 'the
compensation received', the subject lands should be restored to them.
Reference was made to the judgment of State of Kerala and Ors. Vs M.
Bhaskaran Pillai and Anr.1 and it is sought to be contended that the said
case law of Hon'ble Supreme Court does not lay down a law having
precedental value. It is sought to be contended that the policy of the
government of restoration of land to original owners under Government
Resolution dated 10 October 1973 was neither challenged nor quashed at
any point and as such policy is intact. It is contended that this policy is
reiterated in section 101 of the 2013 Act, which contemplates return of
unutilized land. Again, an omnibus statement is made that Government
of Maharashtra has returned thousands of hectors of land which were
although acquired, not utilized for the purpose for which they were
acquired. No details of 'thousands of hectors' are given.
9. It is contended that the subject lands are acquired under award
dated 28 February 1970 but the same have remained unutilized for the
purpose for which it was acquired i.e. construction of Panvel Drainage
1 (1997) 5 SCC 432
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Scheme or any other purpose for more than 40 years, but the
Government decided to hand over the lands to CIDCO for the
development of NMIA vide order dated 30 May 2012.
10. It is contended that once the subject lands were acquired for Panvel
Drainage System, it stood vested in Panvel Municipal Council and
neither the Government nor the Collector were competent to transfer the
said land to the CIDCO contrary to the Government Policy under
Government Resolution dated 10 October 1973. It is again asserted that
though the subject lands are shown to have been taken in the possession
in paper panchanama on 19 March 1971, they are still in actual
possession of the Petitioners.
11. Interestingly enough, the Petitioners themselves have then pleaded
that the State Government has issued Government Resolution dated 12
March 2004 holding that earlier Government Resolution dated 10
October 1973 is rendered meaningless and ineffective in the light of the
judgment of the Hon'ble Supreme Court in case of M Bhaskaran
Pillai(supra). It is sought to be contended that the policy decision
adopted by the Government cannot be rendered meaningless unless in a
challenge in this Court or Hon'ble Supreme Court, the policy is quashed
and set aside or held as unconstitutional. Reference is made to the
judgment of the Hon'ble Supreme Court in Nagpur Improvement Trust
and Anr. vs. Vitthalrao and Ors .2 A challenge is set up to Government
2 (1973) 1 SCC 500
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Resolution dated 12 March 2004 in the amendment of April 2022. This
time, one more prayer is added seeking declaration that GR dated 12
March 2004 is ultra-vires of Article 14 and 300A of the Constitution.
12. On the other hand, the Deputy Collector of Land Acquisition,
Raigad has filed affidavit-in-reply dated 4 February 2020 opposing the
Petition, on behalf of the State. It is contended inter alia by the State that
the subject matter lands have been acquired for the purpose of drainage
system at Kopar and the compensation thereof has been deposited as
Revenue Deposit and the possession of the said lands have been taken
and handed over to the acquiring body. It is contended therefore the
Petitioners are not entitled to claim any relief.
13. It is pointed out that Section 4 notification and section 6
declaration under 1894 Act were duly issued on 24 December 1959 and
2 September 1965 for acquisition of the subject matter lands. The award
under section 11 of the 1894 Act has been passed on 28 February 1970,
copy of the award is produced on record. The total amount of
compensation under the award has been quantified. Revenue reduction
order dated 26 April 1971 is passed in due course. Its copy is produced
on record. It is contended that the entire amount of compensation has
been received by many villagers, except 39 land owners who have not
accepted the amount, which are listed in the revenue deposit list. Copy of
the said deposit list dated 31 March 1970 is produced on record. The
possession receipt dated 19 March 1971 taking over the subject matter
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lands by the acquiring body has been placed on record. It mentions that
the land owners have declined to sign on the same and therefore
possession is taken in presence of panch witnesses. It is further pointed
out that vide letters dated 24 May 2010 and 2 February 2011, CIDCO
requested for allotment of the subject matter lands for NMIA. As per the
directions of Government of Maharashtra, Collector Raigad has passed
the order dated 5 June 2012 directing restoration of land with the State
Government and its hand over to CIDCO for NMIA. Copy of the said
order is produced on record.
14. Additional Chief Lands and Survey Officer of the Respondent -
CIDCO has filed the affidavit in reply dated 5 April 2022 opposing the
Petition. It is contended inter alia by CIDCO that for the construction of
NMIA and acquisition relating thereto, the State Government is an
acquiring body. The Petition suffers from gross delay and laches, which
are unexplained. The Petitioners are challenging the acquisition done in
the year 1970. the Petitioners or their predecessors were aware of initial
taking over of the possession and handing over to Panvel Municipal
Council and thereafter to CIDCO. The dates of section 4 notification and
Section 6 declaration are reiterated. Copies of said notification and
declaration are produced on record. It is reiterated that the award has
been passed on 28 February 1970. Its copy is produced on record. Copy
of the possession receipt dated 19 March 1971 has been produced on
record. Notice under section 12(2) of the 1894 Act has been produced on
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record. It is reiterated that under order of Collector, Raigad the subject
matter lands were handed over for construction of NMIA and necessary
copies of the Government Decisions dated 30 May 2012 and 5 June
2012 are produced on record.
15. The contention of the Petitioners that they are in possession of the
lands is categorically denied. The survey report dated 31 May 2016 by
the Circle officer allegedly showing Petitioners' possession is also denied.
It is contended that name of the CIDCO is mutated in the revenue
records. It is contended that the arguments about section 6 declaration or
award being passed beyond the prescribed period of limitation cannot be
considered after long delay and laches of more than 50 years. It is
contended that this case is not covered under section 24 of the 2013 Act.
The CIDCO is carrying out work of NMIA. It is contended that the
subject matter lands are crucial and integral for the construction of
NMIA. On these grounds the Petition was opposed.
16. We have carefully considered the submissions of Mr. Kapse for the
Petitioners, Mr. Kulkarni for the Respondent-CIDCO and Mr. Rao for
the Respondent PMC.
17. In the facts of this case, the observations of the Hon'ble Supreme
Court made in paragraph 14 of the Judgment of State of Maharashtra v/s.
Digambar3 assumes importance in the context of undue delay and laches.
In the said judgment, the Hon'ble Supreme Court has explained how the
3 (1995) 4 SCC 683
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State may not be able to show that its actions were legal or correct for
want of records or for the reason of non-availability of the Officers who
were responsible for the action complained of, in petitions filed after
undue delay. Paragraph 14 of the Judgment is reproduced below:
"14. How a person who alleges against the State of
deprivation of his legal right, can get relief of compensation
from the State by invoking writ jurisdiction of the High
Court under Article 226 of the Constitution even though,
he is guilty of laches or undue delay is difficult to
comprehend, when it is well settled by decisions of this
Court that no person, be he a citizen or otherwise, is
entitled to obtain the equitable relief under Article 226 of
the Constitution if his conduct is blameworthy because of
laches, undue delay, acquiescence, waiver and the like.
Moreover, how a citizen claiming discretionary relief under
Article 226 of the Constitution against a State, could be
relieved of his obligation to establish his unblameworthy
conduct for getting such relief, where the State against
which relief is sought is a Welfare State, is also difficult to
comprehend. Where 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, should, if anything, be more stringent
than in other cases, for the reason that the State due to
laches or undue delay on the part of the person seeking
relief, may not be able to show that the executive action
complained of was legal or correct for want of records
pertaining to the action or for the officers who were
responsible for such action not being available later on.
Further, where granting of relief is claimed against the State
on alleged unwarranted executive action, is bound to result
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in loss to the public exchequer of the State or in damage to
other public interest, the High Court before granting such
relief is required to satisfy itself that the delay or laches on
the part of a citizen or any other person in approaching for
relief under Article 226 of the Constitution on the alleged
violation of his legal right, was wholly justified in the facts
and circumstances, instead of ignoring the same or leniently
considering it. Thus, in our view, persons seeking relief
against the State under Article 226 of the Constitution, be
they citizens or otherwise, cannot get discretionary relief
obtainable thereunder unless they fully satisfy the High
Court that the facts and circumstances of the case clearly
justified the laches or undue delay on their part in
approaching the Court for grant of such discretionary relief.
Therefore, where a High Court grants relief to a citizen or
any other person under Article 226 of the Constitution
against any person including the State without considering
his blameworthy conduct, such as laches or undue delay,
acquiescence or waiver, the relief so granted becomes
unsustainable even if the relief was granted in respect of
alleged deprivation of his legal right by the State."
[Emphasis supplied]
18. To say the least, this Petition is one more example of chance
litigation. The dates of section 4 notification, section 6 declaration,
award, possession receipt, revenue deposit receipt (as already given
above) clearly show that this petition suffers from unexplained laches of
more than 50 years. It is hopelessly belated. The award, the possession
receipt, the deposit list and the revenue reduction order produced along
with both replies include subject matter land numbers and names of
either Petitioners or their predecessors. There is clear material on record
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to establish that due process of law has been followed while acquiring the
subject lands.
19. Taking advantage of the old acquisitions, details whereof are likely
to have been lost due to passage of time, Petitions like this are filed after
the 2013 Act came into force. Since the compensation provided under
the 2013 Act is available on the basis of current market value, the
Petitioners have seen an opportunity and the Petition seems to have been
filed. From the nature of the challenge set up by the Petitioners from time
to time during the pendency of the Petition, as explained above in detail,
we are forced to observe that the Petitioners, at various points of time,
have sought to contend differently to the extent of taking self-destructive
and diametrically opposite stands. This tendency must be deprecated. We
place our disapproval on record. We have no manner of doubt that the
Petitioners have tried to ride on the wave of chance and this Petition is
nothing but an effort to dig old graves in search of chance treasures. We
are certain that our jurisdiction cannot be exercised in aid of such efforts.
20. Looking at the ages of the Petitioners, some of the Petitioners were
obviously themselves alive when the award was passed. For remaining
petitioners, their predecessors were there. In short either Petitioners or
their predecessors had every opportunity to challenge the award within a
reasonable time in accordance with law. That is obviously not done on
the spacious case of their alleged existing possession. This case is only
stated to be rejected. Petitioners' own Exh. B are 7x12 extracts showing
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CIDCO's name in holder column for the said lands on the date of
petition.
21. The list of persons who have not taken compensation is produced
by the Respondents. The possession receipt is produced by the
Respondents. It is a settled position of law, in the judgment of Indore
Development Authority vs Manoharlal4 that on the aspect of possession,
panchanama and possession receipt are valid pieces of evidence.
Therefore, claim of the Petitioners that they are still in possession, cannot
be accepted in the eyes of law. Once, one of the two conditions are met,
there is no question of lapsing of acquisition under section 24(2) of the
2013 act after the authoritative pronouncement under Indore
Development Authority (supra). Since possession is found to have been
taken and compensation is also found to have been deposited, the
challenge to the acquisition must fail.
22. The argument of section 6 notification or award being issued
belatedly and therefore being vitiated, cannot be considered after more
than 50 years in our extraordinary writ jurisdiction, as the same suffers
from hopelessly long unexplained laches.
23. This petition is certainly 'an attempt to revive stale and time barred
claims' which are expressly prohibited under conclusion given by the
Hon'ble Supreme Court in the case of Indore Development Authority
(Supra). We draw support from clause 366.9 of the said Judgment,
4 (2020) 8 SCC 129
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wherein the Hon'ble Supreme Court has concluded as below:
"366.9. Section 24(2) of the 2013 Act does not give rise
to new cause of action to question the legality of
concluded proceedings of land acquisition. Section 24
applies to a proceeding pending on the date of
enforcement of the 2013 Act i.e. 1-1-2014. It does not
revive stale and time-barred claims and does not reopen
concluded proceedings nor allow landowners to question
the legality of mode of taking possession to reopen
proceedings or mode of deposit of compensation in the
treasury instead of court to invalidate acquisition."
(Emphasis supplied)
24. At this stage, it is necessary to record that although in the
pleadings, petitioners have challenged the Government Resolution of 12
March 2004 as ultra vires and claimed restitution of the subject matter
lands under the alleged existence of the policy under the Government
Resolution of 10 October 1973 as also claimed entitlement to 22.5%
scheme, none of these are either pressed or argued before us.
25. In the aforesaid factual and legal position, there are no merits in
this writ petition and the same is accordingly dismissed. No costs.
(M. M. SATHAYE, J.) (NITIN JAMDAR, J.)
