Bombay High Court
Ranojirao Jaysingrao Ghorpade And Ors vs The Collector, Kolhapur Dist, And Ors on 14 February, 2025
Author: M S Sonak
Bench: M.S. Sonak
2025:BHC-AS:7738-DB 903-IA-19496-2022 ORS-F.DOCX
Darshan Patil
Digitally
signed by
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
DARSHAN
DARSHAN PRAKASH CIVIL APPELLATE JURISDICTION
PRAKASH PATIL
PATIL Date:
2025.02.17
14:30:42
+0530
INTERIM APPLICATION NO. 19496 OF 2022
WITH
INTERIM APPLICATION NO. 19080 OF 2022
WITH
INTERIM APPLICATION NO. 210 OF 2023
IN
WRIT PETITION NO. 12919 OF 2017
Ranojirao Jaysingrao Ghorpade and Ors. ...Applicants
In the matter between
Ranojirao Jaysingrao Ghorpade and Ors. ...Petitioners
Versus
The Collector, Kolhapur and Ors. ...Respondents
WITH
WRIT PETITION NO. 12919 OF 2017
Ranojirao Jaysingrao Ghorpade and Ors. ...Petitioners
Versus
The Collector, Kolhapur and Ors. ...Respondents
______________________________________________________
Mr R B Huded, a/w Mr Madhav Chavn, for the Applicants/
Petitioners.
Mr A I Patel, Addl. GP a/w Ms M S Bane, AGP, for the
Respondent-State.
______________________________________________________
CORAM: M.S. Sonak &
Jitendra Jain, JJ.
DATED: 14 February 2025
903-IA-19496-2022 ORS-F.DOCX
Oral Judgment (per M S Sonak):-
1. Heard learned counsel for the parties.
2. Instead of taking up the Interim Applications to vary the
order dated 13 October 2022 by which the Coordinate Bench
of this Court vacated the interim relief the Petitioners had
obtained, we have heard the learned counsel for the parties in
the Main Petition, which, though instituted in 2017, has yet to
be admitted.
3. Today, Mr. Huded, the learned counsel for the
Petitioners, submitted that in this case, the acquisition stands
lapsed given the provisions of Section 24 of the Right to Fair
Compensation and Transparency in Land Acquisition,
Rehabilitation and Resettlement Act, 2013 ("said Act"). He
pointed out that the acquisition commenced under the Land
Acquisition Act, 1894 but continued post the coming into
force of the said Act on 01 January 2014. He submitted that
though the award was made on 01 June 2001, the Petitioners
continued in physical possession of the allegedly acquired
portion. As a result, in terms of Section 24(2), the acquisition
proceedings lapsed.
4. Mr Huded submitted that in this case neither was the
compensation amount deposited before any alleged
possession was taken nor were any proper notices issued to
the Petitioners about taking over of possession and payment
of compensation. He referred to certain notices annexed along
with the Rejoinder and pointed out that on the date when the
Petitioners were called upon to receive the compensation and
hand over possession, neither was any compensation paid nor
possession taken over. Based on all this, Mr. Huded submitted
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that this is a case of lapsing of the acquisition under Section
24(2) of the said Act.
5. Mr Huded referred to paragraph 263 of Indore
Development Authority Vs. Manoharlal and others1. In this
paragraph, the Hon'ble Supreme Court has referred to the
decision in Banda Development Authority, Banda Vs. Moti Lal
Agarwal and others2 which discusses the mode of taking over
possession of the property on which the crop is standing. Mr
Huded submitted that this was a property with standing crops
and therefore, unless the procedure in Band Development
Authorities is followed, the State could not claim that
possession was taken over in accordance with law.
6. Mr Huded also referred to paragraph 274 of Indore
Development Authorities (supra) and submitted that it was
not even the government's case that the Petitioners had re-
entered into the property. For all these reasons, Mr Huded
submitted that this was a clear case where the acquisition
proceedings had lapsed.
7. Without prejudice to the above contentions, Mr. Huded
submitted that the acquired land, till date, remains unutilised
for the alleged public purpose for which it was acquired.
Accordingly, he referred to Section 101 of the said Act and
submitted that the government was duty-bound to revert the
said land to the Petitioners.
8. Mr Patel referred to the affidavit in reply of Avinash
Hudgal, Deputy Collector (Land Acquisition) No.12, Kolhapur,
(2020) 8 SCC 129
(2011) 5 SCC 394
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filed in this Petition on 10 July 2018. He submitted that
categorical statements were made about taking over the
possession of the acquired land. He pointed out that even the
compensation was offered to the Petitioners by issuing notice
under Section 12(2) of the Land Acquisition Act, 1894, but it
is the Petitioners, who failed to come forward and receive this
compensation. He referred to the decision in the Indore
Development Authority (supra) including paragraphs 246 to
252 and submitted that there was no case of lapsing made
out.
9. Mr Patel submitted that there was documentary
evidence of taking over possession and in any event, such a
disputed question of fact may not be gone into by this Court
in exercising its extraordinary jurisdiction.
10. Regarding the issue of unutilised acquired property, Mr
Patel submitted that provisions of Section 101 were not
attracted in the facts of this case. He submitted that in any
event, there was never any demand made by the Petitioner in
this regard and Writ of Mandamus without prior demand or
refusal may not be considered by this Court.
11. The rival contentions now fall for our determination.
12. From the perusal of the Petition and material
accompanying the Petition, it is evident that this Petition was
filed before the Constitution Bench decided on the
interpretation of Section 24(2) of the said Act in the case of
the Indore Development Authority (supra). After the
Constitution Bench decision in Indore Development Authority
(supra), it is apparent that the fundamental premise or the
903-IA-19496-2022 ORS-F.DOCX
basis for the Petition was lost or severely dented. Still, Mr
Huded, has made a valiant effort to keep the Petition alive
and see if the interim reliefs obtained continue as long as
possible. In this, we must say, that he has succeeded
admirably.
13. However, the coordinate Division Bench, by order dated
13 October 2022, noted that the law and the facts did not
support the continuance of the interim relief any further.
Therefore, on 13 October 2022, the coordinate Division Bench
made the following order: -
"This writ petition is filed in the year 2017.
Pursuant to the order dated 13 September 2022, this writ
petition is listed today under the caption 'for dismissal'.
2. The Petition is premised on the assertions that
possession of the Petitioners' land is not taken and
compensation has not been paid and, therefore, as per
Section 24(2) of the Right to Fair Compensation and
Transparency in Land Acquisition, Rehabilitation and
Resettlement Act, 2013, acquisition proceedings have been
lapsed.
3. Reply affidavits are filed on behalf of the State.
First, on 10 July 2018, thereafter, on 24 July 2018,
wherein it is clearly asserted that possession is taken by
drawing panchanama and Kabja Pawati on 13 April 2018,
and compensation is deposited in 'Personal Ledger
Account' (PLA), since even after notice given to the
Petitioners they did not approach to collect the
compensation.
4. Learned Counsel for the Petitioners have orally
sought to controvert both the assertions contending that
the acquisition was not for the entire property and it is
unclear that the possession of which part is taken and the
State has not followed the proper procedure by executing
panchanama.
5. The legal issue has now been conclusively
concluded by the Constitution Bench in the case of Indore
Development Authority Vs. Manoharlal and Others
903-IA-19496-2022 ORS-F.DOCX
[(2020) 8 SCC 129] where mode of taking possession of
property is by way of drawing inquest
report/memorandum to permissible. Further if there is
deposit in Personal Ledger Account, there can be no
lapsing of acquisition. More importantly if either of factors
are present, there would be no lapsing. We find no
particulars in the petition. The case is advanced before us
only through an oral argument.
6. Learned Counsel for the Petitioners now seeks to
amend the petition and to file Rejoinder. Reply was filed
four years after. We note that by order dated 07 February
2019, parties were directed to maintain status quo. The
Respondents have placed on record that part of the
properties is allotted to Respondent No.5-A to 5-C, after
the order of status quo is passed. In such circumstances,
though by way of indulgence, we accede to the request of
the Petitioners to file rejoinder and application for
amendment, we are not inclined to continue the status
quo, and same stands vacated. Further steps will be subject
to the outcome of the petition.
7. Stand over to 5 December 2022."
14. Upon considering Mr Huded's submission and perusing
material on record, we find that the case pleaded on behalf of
the government in Mr Avinash Hudgal's affidavit dated 10
July 2018 cannot be disbelieved. Paragraph 4 of this affidavit
reads as follows: -
"4. I say that the final Award vide No.
LQN-12/SR/294/96 including the said land is declared on
01/06/2001. In respect of payment of compensation, total
amount of Rs.2,45,993/- was fixed. I state that inspite of
issuance of notice u/s 12(2) of Land Acquisition Act, 1894
on 01/08/2001 to the Petitioner, he did not come forward
to collect the compensation. Hereto annexed & marked
EXHIBIT- "1" is the copy of notice U/s 12(2) of Land
Acquisition Act, 1894. Therefore, the amount of
compensation due to the Petitioner, was deposited in the
"Personal Ledger Account" (PLA). I further say that the
possession of the said land was taken by Kabjepatti-
Panchnama on 10/08/2001 (Sr.no.23). Hereto annexed &
marked EXHIBIT- "2" is the copy of the said Kabjepatti-
Panchnama."
903-IA-19496-2022 ORS-F.DOCX
15. Similarly, Shri Sunil Nagnath Sherkhane, Tahasildar
(Rehabilitation), Kolhapur, has also filed an affidavit of 24
July 2018 and paragraphs 3 & 4 of this affidavit are relevant
in the context of taking over possession of the acquired land.
They read as follows: -
"3. I say that, the petitioner has originally filled the
present petition challenging the Award dated 01.06.2001
passed in respect of Gat No.511 situated at Village Kapsi,
Taluka Kagal, District Kolhapur. I say that, in the said
matter Affidavit in reply filed by Deputy Collector (Land
Acquisition) No. 12, Kolhapur on behalf of Respondent
No.1 & 2 stating that the Acquisition and proceedings are
completed as per the law and the Award was declared on
01.06.2001. Notices under section 12/2 of Land
Acquisition of 1894 was issued to the petitioner, he didn't
come forward to collect the possession amount and the
same was deposited in his Personal Ledger Account (PLA).
The possession of the land was taken by the Kabbjepatti -
Panchanama on 10.08.2001 and mutation entry
incorporating name of Collector, Deputy Director, Project
Rehabilitation Officer (Land) in year 2001. I crave leave
the land to file Affidavit by the Deputy Collector (Land),
and as when produced.
4. I say that, the pending Affidavit dated 10.07.2018 in
Writ Petition the part of the land of the petitioner,
Additional Collector (Rehabilitation Branch), Kolhapur,
passed and order allotting the part of the land to the
Respondents No. 5a and 5c by order dated 31.03.2018.
The said order is enclosed by the Petitioner as Exhibit 'A' to
the present petition. I say that, thereafter, on 13.04.2018
Kabbjepatti - Panchanama was carried out at the
possession of the land was allotted was given to the
Respondents No. 5b on 13.04.2018 and accordingly their
names was also in the 7/12 extract. The copy of the said
kabbjepatti - Panchanama, mutation entry no 3152 and
7/12 off gat no 511 is enclosed herewith as colly, Exhibit
'B' to the present petition."
16. Apart from the categorical statements made in the two
affidavits, documents have been produced which support the
pleadings. In the exercise of our extraordinary jurisdiction, we
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cannot accept or instead adjudicate upon the Petitioners'
assertion that notwithstanding statements made by the
government officials on oath and further, notwithstanding the
documents which support such statements, we should still
believe that the Petitioners' version about the possession not
being taken following law or possession not being offered to
the Petitioners. The record shows that after the Petitioners
failed to accept the compensation amount, the same was
deposited in the Personal Ledger Account (PLA) account.
17. Given the authoritative pronouncement of the
Constitution Bench in the Indore Development Authority
(supra) and based on the facts as they emerge from the
record, we find it difficult to accept the Petitioners' case about
the lapsing of the acquisition. Again, we are convinced that
this Petition was filed based on the legal position reflected in
some of the decisions of the Hon'ble Supreme Court including
the decision in the case of Pune Municipal Corporation & Anr
vs Harakchand Misirimal Solanki & Ors3. The Constitution
Bench has, however, overruled this decision and with such
overruling the fundamental basis of this Petition was severely
dented.
18. Based on the pleading or the material on record, it is
difficult for us to hold that the possession of the acquired land
was not taken following law or that no compensation was
offered to the Petitioners. Therefore, no case of lapsing under
Section 24(2) of the said Act is made out. In any event, there
are seriously disputed questions, based upon which it would
not be safe to hold or infer any lapsing. No good reasons have
2014 3 SCC 183
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been shown to us why we should not accept the affidavits
filed by government officials. Moreover, documents back these
statements in the affidavits, and there is not even any
allegation of fabrication of such documents which have been
prepared in the ordinary course of governmental function.
19. For all the above reasons, we see no merit in the
Petitioners' claim that the acquisition proceedings have lapsed.
Accordingly, no relief is due to them on the premise that the
acquisition proceedings have lapsed.
20. Regarding Mr Huded's contention about acquired land
remaining unutilised and for return of the unutilised land as
contemplated by Section 101 of the said Act, we note that the
Petitioners made no such demand before instituting this
Petition. Typically, no Writ of Mandamus is issued unless a
prior demand is met by refusal.
21. Whilst we do not wish to be technical in such matters,
however, we think that the interest of justice would be met if
the Petitioners are granted liberty to file a detailed
representation invoking the provisions of Section 101 of the
said Act and the rules that have been framed in 2015 in this
regard.
22. Learned counsel for the Petitioners states that such
representation will be made within 4 weeks from today. If
such representation is made, we direct the concerned
respondent [ including, in particular, the second Respondent-]
to decide on such representation within 3 months of its
receipt on its own merits and following the law. The second
Respondent or any other Competent Authority must hear the
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Petitioners consider the provisions of Section 101 of the said
Act and the rules made thereunder and Respondents 5A to 5C
and pass a reasoned order.
23. Mr Huded states that the State Government issues
certain notifications and that he would annexe such
notifications to the representation. Such notifications or
government resolutions must also be considered by the second
Respondent or other competent official empowered to decide
such an issue.
24. Accordingly, this Petition insofar as it alleges the lapsing
of the acquisition or so far as it challenges the very acquisition
fails and is dismissed. However, liberty is granted to the
Petitioners in the above terms to pursue relief under Section
101 of the said Act. All contentions of all parties in this regard
are left open because we have not examined the issue of
return of alleged unutilised land on merits.
25. Pending interim applications do not survive given the
disposal of this Petition. Therefore, even the interim
applications are disposed of.
26. All concerned must act an authenticated copy of this
order.
(Jitendra Jain, J) (M.S. Sonak, J)
