Bombay High Court
Dagdabai Vitthal Kadam vs State Of Maharashtra Thr The Revenue And ... on 25 October, 2024
Author: G. S. Kulkarni
Bench: G. S. Kulkarni
2024:BHC-AS:42751-DB
WP.3592.2022.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.3592 OF 2022
Mrs. Dagdabai Vitthal Kadam,
Age: 91, R/a: C/o Kondiba Raoji Shelar,
Koyna Vasahat, Shirshinge,
Post Taluka Palus,
District Sangli. 416 310. .... Petitioner
Versus
1. The State of Maharashtra,
Through the Revenue &
Forest Department,
Mantralaya, Mumbai.
2. District Rehabilitation
Officer/Dist.Collector,
Office at : Collector Office,
Near LIC Building, Powai
Naka, Satara 415 001. .... Respondents
Mr. Ketan Shinde a/w. Mr. Ranjit D. Shinde, Advocate for
Petitioner.
Ms. P.J. Gavhane, AGP for Respondent-State.
CORAM : G. S. KULKARNI &
SOMASEKHAR SUNDARESAN, JJ.
RESERVED ON : AUGUST 23, 2024
PRONOUNCED ON : OCTOBER 25, 2024
AARTI GAJANAN
GAJANAN Date:
PALKAR 2024.10.25
16:11:23
+0530
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Judgment (Per. Somasekhar Sundaresan J):
1. Rule. Rule made returnable forthwith. With the consent of
the parties, Writ Petition is taken up for final hearing and disposal since
pleadings are complete.
Factual Matrix :
2. This is a Petition essentially seeking a direction against the
District Rehabilitation Officer/District Collector, Satara, Respondent
No.2 ("Respondent No.2") for allotment of alternate land admeasuring
300 sq.ft. on the premise that the Petitioner is a project affected person
of the Koyna Wildlife Sanctuary Project ( "Project"). The Petitioner's late
husband was the original owner of a house bearing no. 30 situated at
Village Zhadoli (Ambeghar), Taluka Patan, District Satara admeasuring
300 sq.ft. which came to be acquired for purposes of the Project under
the Wildlife (Protection) Act, 1972 ("Wild Life Act").
3. The Petitioner's case is that she had been living for almost 60
years in the said property prior to losing her house, when it was taken
over in 2012, pursuant to the acquisition. The Petitioner's three step-
sons also handed over their respective agricultural and non-agricultural
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properties for the Koyna Project, the Petition states, as did various
project affected families who were rehabilitated under the
Rehabilitation Program pursuant to the acquisition. The Petitioner's
grievance is that she has neither received any alternate land nor any
other accommodation. In fact, the Petitioner's grievance is that her
name was not even included in the list of project affected persons.
4. Various written and oral representations seeking allotment of
alternate land or accommodation having failed, the Petitioner has filed
this Petition. A complaint was filed by the Petitioner with the Lok
Ayukta of the State. In proceedings before the Learned Lok Ayukta,
Respondent No.2 submitted that the three step-sons have been paid
compensation and granted alternate accommodation, and since the
Petitioner was purportedly living with them, it would be inappropriate
to give her the benefit of rehabilitation. Consequently, the Learned Lok
Ayukta closed the complaint of the Petitioner without any directions.
5. It is Petitioner's case that the compensation and
accommodation granted to the three step-sons relate to their respective
properties and had nothing to do with the Petitioner's land and
residential property thereon. According to Petitioner, who the
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Petitioner was living with, is totally irrelevant, when the question to be
considered is whether the Petitioner was entitled to compensation and
rehabilitation in respect of the land that she had occupied as a house. In
any case, it is her case that she was not living with her step-sons, and at
an advanced age, she has been forced to live at the mercy of her brother.
6. According to the Petitioner, the contention of Respondent
No.2 that giving her alternate accommodation may be "inappropriate" is
clever word play, which obfuscates addressing her legal entitlement
under the Wild Life Act. The Petitioner has annexed records of the
Gram Panchayat from the year 2009-10 to demonstrate that the
residential property in question admeasuring 300 sq.ft. was in her name
and it should be reasonable and logical that she must get compensation
for the same. Likewise, the Petitioner has also annexed records to show
other properties that had been standing in the name of her step-sons at
the relevant time which would point to the compensation and other
benefits granted to them being demonstrably for other properties and
not in respect of the property of the Petitioner, which has been acquired
for the Project.
7. The journey of this Petition is littered with multiple attempts
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by various benches of this Court attempting to enable the State resolving
the grievance of the Petitioner. On October 11, 2023, an order was
passed directing the Respondents to reconsider their stance and after
examining the claim of the Petitioner (by then a 92-year old widow), to
pass an appropriate order. The Respondents passed an order dated
October 16, 2023 rejecting the Petitioner's claim.
8. The Petition was then amended to bring such order of
rejection on record to show that the rejection is on the ground that:- (a)
the Petitioner's name does not appear in the village records prior to
1985; and (b) alternate land was given to the step-sons of the Petitioner.
9. The Petitioner's case is that she had inherited the house from
her late husband who passed away in 1998 and therefore there can be no
question of her name being in the village records prior to 1985.
According to her, the village itself was established and recognised in
1998 and the village records were prepared for the first time in 2001,
and indeed the Petitioner's name is reflected in the records as the owner
of 300 sq.ft. of land with a house on it.
10. In these circumstances, the Petitioner has prayed that the
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rejection order dated October 16, 2023 be quashed and set aside and
that the Respondents be directed to allot alternate land to the Petitioner
along with monetary compensation for construction of a residential
house.
Review and Analysis :
11. We have heard Mr. Ketan Shinde along with Mr. Ranjit
Shinde, Learned Counsel on behalf of the Petitioner and Ms. P.G.
Gavhane, Learned Additional Government Pleader on behalf the
Respondent State.
12. It is seen from the record that the primary stance of the
Respondents is that the Petitioner is not entitled to any compensation
or alternate land since the Petitioner's name did not stand in the list of
project affected persons owning any property as of October 10, 1985,
which was the "appointed date" for purposes of the Project.
13. We have examined in detail, the pleadings of the parties filed
through the journey of these proceedings. In the Respondents' affidavit-
in-reply dated June 28, 2022, they acknowledge that the Petitioner's
name indeed stood in the Gram Panchayat records from 1998 but that
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such records would not help since the appointed date for the acquisition
was October 10, 1985. Consequently, according to the Respondents, this
development deserves to be ignored. The Respondents affirm that the
Petitioner and her step-sons are treated as a "single unit" entitled to an
alternate plot. However, from the affidavit in reply it is apparent that
three distinctly numbered plots have been allotted to the three step-sons
in Survey No.227/2 of Village Palus, Dist. Sangli, admeasuring 370
sq.mtrs. each.
14. In rejoinder, vide an affidavit dated October 3, 2022, the
Petitioner has submitted that Section 20 of the Wild Life Act provides
that after the issuance of a notification, no right may be acquired in land
covered by the notification except by succession, testamentary and
intestate. According to the Petitioner, since the statute itself recognises
an exception of inheritance, and the Petitioner's case has always been
that the land came to her name upon the demise of her husband in
1998, the stance of the Respondents is very causal and untenable. The
Petitioner contends that the order dated October 16, 2023 did not
contain any logical reasons and the reasons are sought to be improved
upon by way of an affidavit, which itself contains untenable reasons. The
Petitioner has also submitted that there is no provision of law entailing
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the concept of treating her step-sons and her as a " single unit".
15. In a subsequent affidavit dated February 17, 2023, the
Petitioner has brought on record the house tax receipts, the extracts of
land records from the Gram Panchayat, the gift-deed executed by her
step-sons in favour of the Government in respect of their own properties
and attempted to demonstrate that her property is distinct from the
properties of her step-sons. In response, an additional affidavit has
been filed on behalf of the State on September 8, 2023, stating that
seven names had been shown as the family unit of the Petitioner's late
husband, namely, two wives, three sons and two daughters. It is also
stated that Gram Panchayat Form No.8 for the years 1985-86 to 1989-
90 were inspected, but no record was found in the name of the
Petitioner even while confirming that the Gram Panchayat records were
initiated only in the year 2001-02. Such records indeed reflect the name
of the Petitioner as the owner of House No.30. A mutation Entry
No.178 dated July 26, 1994 points to the three step-sons being included
as heirs as per the report of the Tehsildar, which according to the
Respondents, would show the entitlement of the step-sons to being
given compensation for acquisition of the property.
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Wild Life Act and Land Acquisition:
16. Before dealing with the contentions of the parties, it would be
important to examine the scheme of the Wild Life Act in order to
understand the framework of land acquisition as compared with other
laws governing land acquisition. Under Section 18, the State
Government may declare its intention to constitute any area other than
an area within any reserved forest if it considers that such area is
significant for the purpose of protecting, propagating or developing wild
life. Such notification would need to specify as nearly as possible, the
location and the limits of such area and it would be sufficient to describe
the area by reference to roads, rivers, ridges and other well known and
readily intelligible boundaries.
17. Under Section 18A of the Wild Life Act, when such a
notification is issued, the provisions of Sections 27 to 33A would come
into effect forthwith, which essentially deal with restrictions on entry,
prohibition on construction without permit, causing fire, entry with a
weapon, usage of injurious substances such as chemicals and explosives,
initiation of control measures, and mandatory immunization of life
stock in a radius of 5 kilometers, with prohibition on grazing of live
stock that is not immunized.
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18. Sections 19 to 24 of the Wild Life Act deal with resettlement
of affected persons. Until the rights of the affected persons are settled,
under these provisions, it would be the responsibility of the State of
make alternative arrangements for making fuel and other forest produce
available to the affected persons. Under Section 19, once a notification
is issued under Section 18, the Collector must enquire into and
determinate the existence of any person in the land comprised within
the limits of the sanctuary. Section 20 essentially bars acquisition of
new rights after a notification has been issued under Section 18 except
for inheritance and succession. Under Section 21, the Collector is
required to issue a proclamation calling for filing of claims of rights for
which compensation would be required. Thereafter, the Collector is
meant to conduct an enquiry into such claims under Section 22 and
such enquiry must include even determining the existence of any right
that may not have even been claimed under Section 21. Towards this
end, regard should be had to records of the State Government and the
evidence of any persons acquainted with the same. Under Section 24 of
the Wild Life Act, the Collector is required to adjudicate and pass an
order admitting or rejecting the claims.
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Petitioner's Evident Entitlement:
19. It will therefore be seen that the exercise of land acquisition
for purposes of the Wild Life Act is designed differently from the
conventional provisions of land acquisition laws that are generally used
for acquiring land for various stipulated public purposes. In the facts of
the instant case, it is common ground that while the notification may
have been made with the appointed date being in 1985, the actual
acquisition occurred much later, in 2012. There was no formal village
and records of the village until 2001-02 but after such records started
being maintained, the Gram Panchayat's records indeed showed the
Petitioner as the owner of the house in question. It is also common
ground that on the appointed date of the notification, the Petitioner's
husband was alive and he expired in 1998 leading to the Petitioner
inheriting the same - a matter explicitly envisaged and covered by
Section 20 of the Wild Life Act. All these are events between 1985 and
2012.
20. It is in 2012 that the residents of the village were shifted and
rehabilitated from Satara District to Sangli District. Right since 1998,
the Petitioner was indeed and evidently the owner of the land and the
house thereon, which were acquired for the Project. It is also apparent
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that right since 2010 the Petitioner has been corresponding with the
Respondents on the issue, indicating that the Petitioner has been
vigilant and has not slept over her rights. Indeed, the records of the
village and the Respondents' own affidavits confirm that the name of the
Petitioner came to be entered in the land records of the Gram Panchayat
as an owner of the property in question since 1998 well before the actual
relocation of the village and the acquisition took place in 2012.
21. We are unable to agree with the stance of the Respondents
that the inheritance by the Petitioner is in any manner in conflict with
Section 20 of the Wild Life Act, as argued by them in their affidavits.
Section 20, which prohibits acquisition of interest in notified land,
explicitly provides for interests in the course of succession being
permissible acquisitions. The provision is meant to prevent third party
rights intervening into land notified for a sanctuary. This Section
explicitly provides for inheritance of existing rights by successors. It is
noteworthy that the late husband of the Petitioner was the owner of the
said property in 1985. Upon his demise, the property evidently moved
to the name of the Petitioner. The rights of the late husband flowed to
the Petitioner, upon his demise in 1998. The village started maintaining
land records in 2001-02 and the Petitioner's entitlement in evident and
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clear, as the owner of the house.
22. It is also seen from the record that separate units of property
stand in the name of each of the step-sons. Although the Respondents
have sought to propound a "single unit" theory about a family being
entitled to one unit, it is a matter of record from the Respondents'
affidavits that each of the step-sons has been identified as a distinct
allottee of a distinct and individual unit of alternate property.
23. There is nothing in the Wild Life Act which supports the
theory propounded by the Respondents that all family members would
be treated as a "single unit" for purposes of grant of rehabilitation. Each
of the step-sons being given a specific separate unit conflicts with the
propounded theory of treating all family members as a single unit. The
affidavit of the Respondents also demonstrates that from the Gram
Panchayat's records and the Tehsildar's records, the Petitioner was
indeed the wife of her late husband Mr. Vitthal Kadam. Such evident
facts, coupled with the inheritance of the residential unit in question,
would point to the fact that anything that the late husband would have
been entitled to (had he been alive) would be the entitlement of his
successors.
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24. Consequently, evidently, the Petitioner has made out a case
for her entitlements in lieu of her property that was taken away under
the Wild Life Act, and the same needs to be enforced. We are conscious
of the fact that at the ripe age of 92, the Petitioner has had to run from
pillar to post and has not received any firm response supported by law
to explain why she would not be entitled to being rehabilitated. Instead,
notions of whether her rehabilitation would be "appropriate" based on a
"single unit" theory for every family have been claimed by the
Respondents. The individual units would be the individual parcels of
land, for which rehabilitation in the form of alternate land would have
to be provided. As and when it became necessary for land records to be
kept by the village, the village records recognised the entitlement of the
Petitioner. That cannot be wished away by pointing to an appointed
date of 1985 to deny the Petitioner her rights and entitlements under the
law.
25. The scheme of the Wild Life Act too gives flexibility to the
Collector to take into account ground realities - evidently, considering
that the land would be in the vicinity of a forest and may not have
demarcations as would be normally seen in other cases of land
acquisition. We find that the scope of the power of the Collector to do
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justice and the flexibility to deal with the factual situation on the ground
is expansive in the Wild Life Act as compared with other land
acquisition law. Instead of exercising such power, which it is a duty to
do, the Respondents have gone to great lengths to deny relief to the
Petitioner and to bring up notions alien to law.
Summary and Directions :
26. To summarize, we pass following directions :-
i) the step-sons of the Petitioner have been given
individual units, which point to them not being
treated as a "single unit" and in lieu of their individual
properties, leading to their rehabilitation in their
respective units;
ii) the Petitioner was indeed the spouse of the person
whose entitlement to rehabilitation is admitted and
recognised by the Respondents. Her direct ownership
rights arose when her late husband passed away, and
that event cannot be used by the Respondents to state
that she was not entitled in 1985, without regard to
what transpired since then and before the actual
shifting of the village took place;
iii) the Petitioner is entitled to rehabilitation by provision
of land in Sangli in the same manner that others in
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the same village have been rehabilitated. The
Petitioner ought to be allotted land in Village Palus,
Dist. Sangli, admeasuring 300 Sq. Ft., with a house on
it.
27. We direct that the aforesaid allotment of land admeasuring
300 Sq. Ft. with a dwelling unit be provided urgently to the Petitioner.
Considering that the Petitioner is said to be of 92 years of age already,
we direct that the direction be carried out within a period of 12 weeks
from the date of this order being uploaded on the website of this Court.
28. Rule is made absolute in the aforesaid terms. The Writ
Petition is disposed of in the aforesaid terms. No costs.
[SOMASEKHAR SUNDARESAN, J.] [G. S. KULKARNI, J.]
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