Bombay High Court
Madukar Morba Nimje vs The State Of Maharashtra, Through ... on 5 September, 2024
Author: Nitin W. Sambre
Bench: Nitin W. Sambre
2024:BHC-NAG:9990-DB
1 wp6024.16.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 6024 OF 2016
Madhukar Morba Nimje,
Aged about 51 years,
Occupation - Cultivation,
R/o Patansaongi, Tahsil Saoner,
District Nagpur. .... PETITIONER
VERSUS
1) The State of Maharashtra,
through its Secretary, Revenue
and Forest Department, Mantralaya,
Mumbai - 400032.
2) The Collector, Nagpur
Collectorate, Civil Lines, Nagpur.
3) Sub-Divisional Officer and Land
Acquisition Officer, Saoner,
District Nagpur.
4) Chief Engineer, South East Central
Railway, Nagpur. .... RESPONDENTS
______________________________________________________________
Mr. S.P. Bhandarkar, Counsel for the petitioner,
Mr. A.M. Kadukar, AGP for respondent Nos. 1 to 3,
Ms. Neerja G. Chaubey, Counsel for respondent No.4.
______________________________________________________________
CORAM : NITIN W. SAMBRE &
ABHAY J. MANTRI, JJ.
DATE OF RESERVING THE JUDGMENT : 04. 07 2024
DATE OF PRONOUNCEMENT OF THE JUDGMENT : 05.09.2024
2 wp6024.16.odt
JUDGMENT :
(Per : Abhay J. Mantri, J.)
The petitioner has invoked the writ jurisdiction to seek a
declaration that the acquisition proceedings vide Land Acquisition Case
No.4/A-65/2008-09 of Mouza--Patansaongi, Tahsil Saoner, District
Nagpur, stands lapsed pursuant to the non-compliance of mandatory
provisions of the Land Acquisition Act, 1894 (for short, "the Act of
1894").
2. The petitioner claims that his father, Morba Vithoba Nimje,
owned land measuring 0.14 Hectares, Survey No.94/1 of village
Patansaongi, Tahsil Saoner, District Nagpur (for short, "the land").
Morba died, leaving behind four legal heirs, including the petitioner.
3. It is contended that the land was acquired by respondents
Nos.3 and 4 for 'paving pathways' of the proposed bridge on
Patansaongi Khapa Road under the broad-gauge Nagpur-Chhindwara
Railway Line. Respondent No.3 had passed the award on 11-11-2011.
4. It is claimed that despite passing the Award, respondents
Nos.3 and 4 have neither taken physical possession of the land nor paid
compensation to him or his brother and sisters. Therefore, as per
provisions of Section 31(2) of the Act of 1894 and Section 24(2) of the
Right to Fair Compensation and Transparency in Land Acquisition,
3 wp6024.16.odt
Rehabilitation and Resettlement Act, 2013 (for short, " the Act of
2013"), the entire acquisition proceedings stand lapsed. Therefore, on
16-06-2016, the petitioner made a representation to respondent Nos.2
and 3 to release the land in his favour. However, respondents Nos.2
and 3 have neither bothered to reply to the said communication nor
taken cognizance of the same. Hence, the petitioner has preferred this
petition.
5. As against, respondents Nos.3 and 4 contended that vide
letter dated 23-11-2009, notices under Section 4(1) of the Act of 1894
were published. So also, the amount was deposited in the P.L.A.
Account No.947/84435083 of respondent No.3 to the tune of
Rs.7,87,75,000/-. After that, respondent No.3 issued notices dated
23-12-2011 and 27-01-2012 to the landowners, calling upon them to
collect the said amount. Despite receiving the said notices, the
petitioner never appeared in the office of respondent No.3 to collect the
said compensation nor initiate any proceedings under Section 18 of the
Act of 1894. After passing the Award, possession of the land was taken
vide possession letter dated 25-03-2013.
6. Respondents Nos.3 and 4 further categorically denied that
they had taken possession of the land nor deposited the compensation
4 wp6024.16.odt
amount in the P.L.A. account. Per contra, it is averred that in the 7/12
extract, the name of the Central Railway Department has been
recorded, and the land is shown as "Railway Pad Land" and, therefore,
the petitioner is not entitled to claim the relief under Section 31(2) of
the Act of 1894. Hence, they urged for the dismissal of the petition.
7. Mr. S.P. Bhandarkar, learned Counsel for the petitioner, has
vehemently contended that despite passing of the award, respondents
Nos.3 and 4 have neither taken possession of the land nor paid the
compensation to the petitioner and, therefore, as per Section 31(2) of
the Act of 1894 and Section 24 of the Act of 2013, the acquisition
proceedings stand lapsed. Therefore, the petitioner is entitled to release
the land in his favour. To substantiate his claim, the petitioner has
produced on record a copy of the Award, documents, and photographs
to show that the said land is in his possession. To buttress his
submissions, he has relied on the judgment in the case of Pune
Municipal Corporation and another V/s Harakchand Misirimal Solanki and
others reported in (2014) 3 SCC 183 . He has also drawn our attention to
Section 31(2) of the Act of 1894 and urged us to allow the petition.
8. As against Mr. A.M. Kadukar, the learned Assistant
Government Pleader has strenuously argued that after the passing of
5 wp6024.16.odt
the Award, the possession of the land was taken by the authorities, so
also compensation amount was deposited in the P.L.A. account, and
notices were also issued to the petitioner to collect the said amount.
Despite the said fact, the petitioner has neither collected the
compensation amount nor initiated any proceedings under Section 18
of the Act of 1894. Therefore, the petitioner is not entitled to claim the
relief as sought under Section 31(2) of the Act of 1894. Hence, he has
prayed for the dismissal of the petition.
9. We have appreciated the rival submissions and perused the
Award and record.
10. Having considered the same, the short question that arises
for consideration is "whether the petitioner is entitled to seek the relief
of declaration under Section 31(2) of the Act of 1894".
11. At the outset, it appears that pursuant to a letter dated
23-11-2009 on 27-11-2009, 28-11-2009, and 03-12-2009, notifications
under Section 4 of the Act of 1894 were issued. Then, as per Section
5(A) of the Act of 1894, individual intimation letters and public notices
dated 05-02-2010 and 11-02-2010 were served to the respective
landowners to call upon their objections. Thereafter, pursuant to a
6 wp6024.16.odt
letter dated 07-07-2010, notifications under Section 6 of the Act of
1894 were issued on 22-07-2010 and 24-07-2010. Then, as per
Sections 9(1),(2) and 6(2) of the Act of 1894, individual intimation
letters and public notices dated 23-11-2010 were served to the
respective landowners to submit documentary evidence in support of
their claim to compensation and call upon their objections till
14-12-2010. Finally, an Award under Sections 11 and 12 of the Act of
1894 was passed. Pursuant to the Award, respondent No.4 deposited
the compensation amount with respondent No.3 in P.L.A. A/c No.
947/84435083.
12. On 11-11-2011 and 01-12-2011, notices under Section
12(2) of the Act of 1894 were issued to the respective landowners. On
23-01-2012, Morba, father of the petitioner, acknowledged the notice U/s 12
(2) of the 1894 Act. By the said notice, he was called upon to collect the
compensation amount from the office on 27-01-2012. However, Morba did
not turn to the office to collect the compensation or initiate any
proceedings disputing the said amount. Similarly, notices U/s 12(2) of
the 1894 Act were issued to other landowners; pursuant to said notice,
they had acknowledged that they had received Compensation. The
amount of compensation pertains to the share of the petitioner lying in
the account of respondent No.3.
7 wp6024.16.odt
13. The petitioner, though, averred that no possession was
taken by respondent Nos.3 and 4, but he still possesses the said land.
However, he failed to demonstrate the said fact from the documents on
record. The petitioner has failed to produce the cogent documentary
evidence to support his claim. Per contra, respondent No.3 has
categorically averred that it has taken physical possession of the land.
From the record, he has pointed out that on 25-03-2013, the
authorities took possession of the land. So also, the 7/12 extract for
the years 1921-22 shows that the land is in possession of the authority
and the cultivation column is shown as "Railway Pad", i.e. in possession
of respondent No.4. The said fact itself clearly indicates that the
petitioner failed to demonstrate that he is in possession of the land in
question.
14. It further reveals from the record that in the year 2013-14,
the name of respondent No.4 had been recorded in the ownership
column, and in the cultivation column, the land was shown as ' barren'.
Neither the petitioner's father nor the petitioner has challenged the
same. Respondent No.4 also produced the 7/12 extract for 2022-23,
wherein, in the cultivation column, 'the land is shown as railway pad'.
The said entry/document itself denotes that the petitioner does not
possess the land in question. Though the petitioner claimed that he was
in possession of the land, he failed to demonstrate this by producing
8 wp6024.16.odt
the documents. Per contra, the documents on record depict that
respondent No.4 is in possession of the land in question. However, the
petitioner failed to challenge the said entry before the competent
authority.
15. The learned Counsel for the petitioner has drawn support
from the judgment in the case of Pune Municipal Corporation and another
V/s Harakchand Misirimal Solanki and others and canvassed that based on
the dictum laid down in the judgment above, the petitioner is entitled
to the reliefs as claimed. However, the record depicts that the petitioner
failed to prove his possession of the land. The Three Judge Bench of
the Hon'ble Apex Court in the case of Delhi Development Authority V.
Jagan Singh and Ors., 2023(3) Scale 117, after considering the dictum
laid down in the case of Pune Municipal Corporation and another and
other similar matters, has summarised as under :
"366.3. The word "or" used in Section 24(2) between
possession and compensation has to be read as "nor" or as
"and". The deemed lapse of land acquisition proceedings
under Section 24(2) of the 2013 Act takes place where,
due to inaction of authorities for five years or more prior to
commencement of the said Act, the possession of land has
not been taken, nor compensation has been paid. In other
words, in case possession has been taken, compensation
has not been paid then there is no lapse. Similarly, if
compensation has been paid and possession has not been
taken, then there is no lapse.
366.4. The expression "paid" in the main part of Section
24(2) of the 2013 Act does not include a deposit of
compensation in court. The consequence of non-deposit is
9 wp6024.16.odt
provided in the proviso to Section 24(2) in case it has not
been deposited with respect to the majority of
landholdings, then all beneficiaries (landowners) as on the
date of notification for land acquisition under Section 4 of
the 1894 Act shall be entitled to compensation in
accordance with the provisions of the 2013 Act. In case the
obligation under Section 31 of the Land Acquisition Act,
1894 has not been fulfilled, interest under Section 34 of
the said Act can be granted. Non-deposit of compensation
(in court) does not result in the lapse of land acquisition
proceedings. In case of non-deposit with respect to the
majority of holdings for five years or more, compensation
under the 2013 Act has to be paid to the "landowners" as
on the date of notification for land acquisition under
Section 4 of the 1894 Act.
366.5. In case a person has been tendered the
compensation as provided under Section 31(1) of the 1894
Act, it is not open to him to claim that acquisition has
lapsed under Section 24(2) due to non-payment or non-
deposit of compensation in court. The obligation to pay is
complete by tendering the amount under Section 31(1).
The landowners who had refused to accept compensation or
who sought reference for higher compensation, cannot claim
that the acquisition proceedings had lapsed under Section 24(2)
of the 2013 Act.
366.6. The proviso to Section 24(2) of the 2013 Act is to be
treated as part of Section 24(2), not part of Section 24(1)
(b).
366.7. The mode of taking possession under the 1894 Act
and as contemplated under Section 24(2) is by drawing of
inquest report/memorandum. Once award has been passed
on taking possession under Section 16 of the 1894 Act, the
land vests in State there is no divesting provided under
Section 24(2) of the 2013 Act, as once possession has been
taken there is no lapse under Section 24(2).
366.8. ...............
366.9. Section 24(2) of the 2013 Act does not give rise to a
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
10 wp6024.16.odt
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 ."
16. A bare perusal of the mandate above shows that if the
possession has been taken and compensation has not been paid, then
there is no lapse. Similarly, non-deposit of compensation in court does
not result in a lapse of the land acquisition proceedings. Likewise, once
the award has been passed by taking possession under Section 16 of
the Act of 1894, the land vests in the State there is no divesting
provided under Section 24(2) of the Act of 2013, as once possession
has been taken, there is no lapse under Section 24(2). The landowners
who refused to accept the compensation or sought reference for higher
compensation cannot claim that the acquisition proceedings had lapsed
under Section 24(2) of the Act of 2013. Lastly, it is held that it does not
revive Stale and time-barred claims and does not reopen concluded
proceedings, not allow landowners to question the legality of the mode
of taking possession to reopen proceedings or mode of deposit of
compensation in the treasury instead of the court to invalidate
acquisition and declare that the acquisition with respect to the land in
question is deemed to have lapsed is hereby quashed and set aside. In
view of the law laid down by the Hon'ble Apex Court in the matter of
Delhi Development Authority, in our view, the law laid down in Pune
11 wp6024.16.odt
Municipal Corporation is hardly of any use to the petitioner to substantiate
his claim. As against, in view of the aforesaid dictum laid down by the
Hon'ble Apex Court, the petitioner is not entitled to the relief as claimed.
Hence, we do not find any substance in the contentions of the learned
Counsel for the petitioner in that regard.
17. The second point raised by the learned Counsel for the
petitioner was that no compensation was paid to the petitioner or his
father regarding the acquired land. However, on perusal of the record,
it emerges that the competent authority i.e. respondent No.4, had
deposited the said compensation amount with respondent No.3.
Likewise, respondent No.3 issued notices under Section 12(2) of the Act of
1894 to the father of the petitioner which he acknowledged on 23-01-2012.
By the said notice, he was called upon to collect the compensation amount
from the office on 27-01-2012. However, despite the service of notices,
neither the petitioner nor his father approached the authority to collect
the compensation amount. Also, neither the petitioner's father nor the
petitioner has complied nor replied to the said notice under Section
12(2) of the Act of 1894. The act on the part of the petitioner or his
father leads to drawing an adverse inference that they refused to accept
compensation, have no grievance about the issuance of the said notice,
or have impliedly admitted the receipt of the notice. Similarly, the
petitioner's father or petitioner has not initiated any proceedings under
Section 18 of the Act of 1894. Therefore, we disagree with the learned
12 wp6024.16.odt
Counsel's argument that no compensation was paid to the petitioner.
So, the acquisition proceedings had lapsed under Section 24(2) of the
2013 Act.
18. On the contrary, it seems that the petitioner's father and
petitioner were at fault for not collecting the compensation amount
from the concerned office; however, the record shows that other
landowners have collected compensation. It further reveals that the
original owner, Morba, during his lifetime, has not challenged the
acquisition proceedings, but after his demise and after the cancellation
of the project of construction under the bridge, the petitioner is trying
to take a disadvantage by seeking the relief as claimed for which he is
not entitled to it.
19. Apart from above, the learned Assistant Government
Pleader has raised the question of delay and laches in filing the
petition. According to him, the proceedings were initiated in 2010, the
award was passed in 2011, notice under Section 12(2) of the Act of
1894 was served on the father of the petitioner on 23-01-2012 and
possession was taken on 25-03-2013, however, the petitioner has failed
to explain the delay and laches in filing the petition. He kept quiet till
filing of the application/representation dated 16-06-2016. He has not
given sufficient cause in that regard. On the contrary, it reveals that
13 wp6024.16.odt
only after the cancellation of the construction of the pathway under the
bridge the petitioner has moved this petition.
20. Having considered the above discussion, it is evident that
the petitioner failed to demonstrate that the competent authority did
not acquire land, nor has compensation been paid to him. As against, it
is apparent from the record that on 25-03-2013, possession of the land
was taken, and the 7/12 extract for the year 2021-22 clearly depicts
that the land is shown as a " railway pad". It also appears that the
competent authority, i.e. respondent No.4, has deposited the amount
with respondent No.3. But the petitioner's father failed to collect the
said compensation despite service of notice. That means they were at
fault for not collecting the amount.
In the background above, we do not find substance in the
petitioner's claim that he is entitled to claim relief under Section 31(2)
of the Act of 1894. In such circumstances, it would not be proper to
cause interference in the extraordinary jurisdiction of this Court.
Accordingly, the petition stands dismissed with no order as to costs.
(ABHAY J. MANTRI, J.) (NITIN W. SAMBRE, J.)
adgokar
Signed by: MR. P.M. ADGOKAR
Designation: PS To Honourable Judge
Date: 05/09/2024 14:47:00
