Shaniwar Laxman Patil and Ors. Vs the Central Railways and Ors.

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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CIVIL APPELLATE JURISDICTION

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WRIT PETITION NO. 441 OF 2002

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Shri Shaniwar Laxman Patil ) 2. Smt. Draopadi Jairam Bhoir ) 3. Smt. Shakuntala Anant Patil ) alias Wayale ) 4. Smt. Muktabai Jejeram Patil ) 5. Shri Kapil Jejeram Patil ) 6. Smt. Kavitha Jejeram Patil ) 7. Smt. Tarabai Pundlik Patil ) 8. Smt. Ratnabai Abimanu Patil ) Adults, Indian Inhabitants, ) residing at village - Dativali, ) post - Dive, Taluka and ) District- Thane. ) ...Petitioners. V/s 1. Central Railways ) (Through Deputy Chief ) Engineer (C), II) Central ) Railway, Dadar, Mumbai- 400028 ) ) 2. The Railways (& Parliamentary) Affairs) Ministery, Governmnt ) of India, New Delhi. ) ) 3. The Collector, ) (Through District Officer), ) the Office of the District ) Officer, Thane, Maharashtra. ) ) 4. Thane Municipal Corporation ) Thane, District - Thane. ) ...Respondents. ---Mr. Rajaram P. Lote for the petitioners. Mr. A.N.Samant for respondent No.1 & 2. Mr. V.S. Gokhale, GP for respondent No.3 Mr. R.S. Apte for respondent No.4.

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CORAM: R.M.S. KHANDEPARKAR & V. M. KANADE, JJ.

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DATE: 24th August, 2005.

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ORAL JUDGMENT: (Per R.M.S. KHANDEPARKAR, J.)

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Heard.

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2.	The		Petitioners,	by	the present Petition,	seek
declaration		that	the r	esponden	ts are not entitled	to
enter	into	and	use	the	land bearing Pardi	No.1,
situated	at	Datiw	ali, Tal	uka	Thane, District Thane	for
any	of	the	Railway	pur	poses, unless the land	is
acquired	under	due	process	of	law and further that	the
respondents		are	not	entit	led to disturb	the
petitioners’		com	mercial	premis	es situated in the	said

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land, unless the alternate plot is made available and

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compensation is paid to the petitioners.

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3.	It	is the	case of	the	petitioners	that	they	have
constructed		commercial	premises	.		That,	they	are
carrying		out mil	k business	in	the	said	land	described
above	and	are	the owners	in	possession	of	the	said
entire l	and	as is	confirmed	from	7 x	12	Extract	issued
by	the	Revenue	Authorities.		It is	their	further	case
that	the	petitio	ners were		surprised		when	the
respondents		started	laying	do	wn	additiona	l	railway
track	by	the	side of	the	existing	railway	track	which

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connects	Jaw	aharlal	Neh	ru	Port	Trust	towards		Panvel
and	the	said	additional	track	has	been	laid	down	in
the	said	land,	contendi	ng	that	the	respon	dents	are
carrying	out	the	said	work	wit	hout	acquiring	the	land
under	due	proces	s of		law	and	with	out	offering
alternate	premis	es	to	the		petition	ers	for	their
commercial		purposes		and,	there	fore,	the	re	spondents

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have acted high-handedly in dispossessing the

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petitioners from the land in question.

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4.	On the ot	her hand, it i	s the ca	se of	the
respondents	that	under an award	dated 21/02	/1975	and
18/09/1986,	the land	at Datiwali	Village in	Taluka	and
District	Thane	was acquired for	Diva Ba	ssein	Road,
Rail Li	nk Project.	The consent	letter was	obtained	on
19/09/1973	from	the owners of	the land	for	taking
possession	of the	land which was	sought to	be	acquired
under	the award	dated 21/02/1975.	While	the	land
which	was sought	to be acquired	under the	award	dated
18/09/1986,	the	possession thereof	was	taken	on
20/11/1986.	The	land so acquired	was meas	ured by	the
Taluka	Inspector of	Land Record,	Thane pursu	ant to	the
request	in that	regard by the	Railway	Admin	istration
under	letter dated	22/09/1999.	It is, h	owever,	stated
in	the affidavit-i	n-reply that it	was not	clear as	to
whether	the Pa	rdi No.1 claimed	by th	e pe	titioners

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forms part of any of the survey numbers of the lands

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which were acquired under the said awards.

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5.	Considering the rival contentions in the	matter,
this	Court by Order dated 01/08/2003	directed
D.I.L.R./	T.I.L.R., Thane to certify the land	bearing
Pardi	No.1, situated in Village Datiwali, Taluka	&
District	Thane and more particularly described in	para
3	of the Petition and to submit a report in	that
regard.	It was also directed that the survey	should
be	carried out after notice to both the parties.	The
records	disclose that the Inspector of City	Survey,
Thane	had carried out the said survey on 27/11/2003	in
the	presence of both the parties and has, acc	ordingly,
prepared	the plan showing the location of the	land
described	by the petitioners as Pardi No.1 and	that
report	and the plan drawn, further discloses that	the
part	of the land described by the petitioners	had
already	been acquired by the railways and, in the	said
area,	the railways have laid the track in	question.
The	report apparently discloses that the meas	urements
were	taken in the presence of the parties and both	the
parties	had accepted the said situation in loco	while
the	report prepared by the concerned Officer.	The
learned	counsel appearing for the pe	titioners,
however,	has sought to argue that there has been	no

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compensation	paid to the petitioners at	any	point	of
time in	spite of the fact that	the	ownership	and
possession	of the land in que	stion	is	clearly
established	in favour of the petitio	ners	on the	basis
of 7	x 12 Extract. Undoubtedly,	names	of	various
persons incl	uding that of the peti	tioners	are	enlisted
as the	occupants in relation to the	Pardi	No.1 in	the
records of	right. "Occupant" as de	fined	under	the
Maharashtra	Land Revenue Code unde	r	section	2(23)
means a	holder in actual possession		of unal	ienated
land, other	than a tenant or	Go	vernment	lessee;
provided	that, where a holder in	actual	possession	is
a tenant	, the landholder or the	superior	landlord,	as
the case	may be, shall be deemed to	be	the oc	cupant.
The expre	ssion "to hold land" or "to	be	a lan	dholder
or holder	of land" has been defin	ed	under	section
2(12) of	the Maharashtra Land Revenue	Code	to mean	to
be lawfully in pos	session of land, whether such

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possession is actual or not.

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6. In	the	ba	ckground	of	the	facts	stated	in	the
affidavit	of	the	respond	ents,	it	is	apparent	that	the
respondents	clearly		admit	that	thou	gh the		land	has
been	acquired	and	the	posse	ssion	of	the	acquired	land
has been	taken	with	the	consent	of	the	land	owners,	no
compensation	was	paid	as	no	claim	for	com	pensation	was

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filed	by any person. Being so, merely because	the
names	of the occupants continue to appear in	the
records	of right in relation to the land acquired	by
the	railways that, by itself, will not lead to	the
conclusion	that the persons whose names appear in	such
records	continue to be in actual and	factual
possession	of the area which is already occupied	by
the	railways for laying tracks. As already	seen
above,	even the definition of the expression "to	hold
land"	or "to be a landholder or holder of land"	means
to be	lawfully in possession of the land, whether	such
possession	is actual or not. So also, "occupant"	is
the	person defined as a holder in actual p	ossession.
Being	so, merely because names appear as occupan	ts in
the	records of right which may be considered	as
occupants	in lawful possession, such possession	need
not	be an actual possession. The name may	continue,
still,	on all scores, interest of such occupant	is
terminated	in the land which has been	acquired.
Merely	because some interest in relation to the	claim
for	compensation may survive, it cannot be said	that
the	property is stopped from being vested in	the
Governmen	t once the land is acquired and	the
possession	thereof is taken. If one peruses	the
provisions	of the Land Acquisition Act, 1894 and	the
scheme	of the said statute, it is apparent that	once

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the Land Acquisition Officer pas	ses an award and	the
possession of the land which	is the subject matter	of
the award is taken over by	the Government, the	land
vests free from all encumb	rances in the Gove	rnment.
Nevertheless, if the owner or	the person interested	in
the land is not compensated	on account of	such
acquisition, his right to claim	compensation would	not
cease. Certainly, such person	can proceed to	seek
compensation under the provisions	of section 18 of	the
said Act. Being so, merely	because the name of	the
petitioners continued in the rec	ords of right as	the
occupants in relation to the	land in question,	that
itself will not lead to the	conclusion that the	acts
on the part of the respondents	in laying railway	track
in the land in question for	such purposes would	be
illegal. Hence, the questio	n of granting	a
declaration in the manner asked	for, does not	arise.
Needless to say that, in c	ase, petitioners are,	in
fact, persons interested in r	elation to the land	in
question, certainly they would	be entitled to	claim
compensation. As regards su	ch claim, petitioners	will
have to adopt regular remedy	for claiming compe	nsation
and it will not be possible	for this Court in	writ

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jurisdiction to ascertain the compensation for the

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land acquired by the railways.

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the

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For the reasons stated above, therefore,

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Petition fails and is hereby dismissed with no order

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as to costs. Rule stands discharged.

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(R.M.S. KHANDEPARKAR, J.)

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(V.M. KANADE, J.)

Shaniwar Laxman Patil and Ors. v. the Central Railways and Ors.

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Shaniwar Laxman Patil and Ors. v. the Central Railways and Ors.

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