Dismissed

Shripati Hari Barkale v. State of Maharashtra and Ors.

Bombay HC7 Jun 2010WP/1143/2002

Case brief

AI extract

What is this about?

This judgment dismisses multiple writ petitions challenging the State of Maharashtra's decision to reduce the land acquisition slab for the Chikotara irrigation project from 3 hectares 23 ares to 1 hectare 61 ares without issuing prior notice under Section 13(2) of the Maharashtra Project Affected Persons Rehabilitation Act, 1986. The High Court held that Section 13(2) notice is only mandatory for changes to the affected or benefited zones, not for changes to the applicable slab. The court further negatived the challenges on delay grounds, noting that a final award had already been passed on the land before the petitions were filed.

What did the court decide?

Writ petitions dismissed; Rules discharged; Order stayed for eight weeks to allow approach to the Apex Court.

Shripati Hari Barkale Vs State of Maharashtra and Ors. — Land Acquisition | Bombay HC (2010)

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lgc

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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WRIT PETITION NO. 1143 OF 2002

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Shri. Shripati Hari Barkale ] Adult, Occupation-Agriculture ] Alabad, Tal Kagal, District Kolhapur ]... Petitioner.

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Versus

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1	State of Maharashtra ] [summons to be served on the learned]
	Additional Government Pleader ]
	appearing for State of Maharashtra ] under order XXVII, ] Rule 4, of the Code of Civil Procedure ] Code 1908] ] ]
2	Special Land Acquisition Officer No.12] Old Rajawada, Kolhapur ]
	[summons to be served on the learned]
3	Additional Government Pleader ] appearing for State of Maharashtra ] under order XXVII, ] Rule 4, of the Code of Civil Procedure ] Code 1908] ] ] Divisional Commissioner, ]
	Pune Division, Pune ]
	[summons to be served on the learned]
	Additional Government Pleader ] appearing for State of Maharashtra ] under order XXVII, ]
	Rule 4, of the Code of Civil Procedure ] Code 1908 ]...Respondents.

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WITH WRIT PETITION NO. 2319 OF 2010

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1	Shri Babaso Hyachand Manoli Adult Occ :- Agriculturist Residing at Alabad, Tal Kagal, District Kolhapur	] ] ] ] ]
2	Shri Abdulmajid Hyachand Manoli Adult Occ :- Agriculturist Residing at Alabad,	] ] ]
	Tal Kagal, District Kolhapur	] ]
3	Shri Najirahmad Hyachand Manoli Adult Occ :- Agriculturist Residing at Alabad,	] ] ]
	Tal Kagal, District Kolhapur	]... Petitioners.

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Versus

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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 Code 1908]	] ] ] ] ] ] ]
2	The District Collector, District Kolhapur	] ]
	[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 Code 1908]	] ] ] ] ] ]
3	Special Land Acquisition Officer Non12, Old Rajwada, Kolhapur District : Kolhapur.	] ] ]...Respondents.

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WITH WRIT PETITION NO. 1139 OF 2002

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Shri. Dattu Hari Barkale ] Adult, Occupation-Agriculture ] Alabad, Tal Kagal, District Kolhapur ]... Petitioner.

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Versus

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1	State of Maharashtra ]
	[summons to be served on the learned]
	Additional Government Pleader ] appearing for State of Maharashtra ] under order XXVII, ] Rule 4, of the Code of Civil Procedure ]
	Code 1908] ] ]
2	Special Land Acquisition Officer No.12] Old Rajawada, Kolhapur ]
	[summons to be served on the learned]
3	Additional Government Pleader ] appearing for State of Maharashtra ] under order XXVII, ] Rule 4, of the Code of Civil Procedure ] Code 1908] ] ] Divisional Commissioner, ] Pune Division, Pune ]
	[summons to be served on the learned]
	Additional Government Pleader ] appearing for State of Maharashtra ] under order XXVII, ] Rule 4, of the Code of Civil Procedure ] Code 1908 ]...Respondents.

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WITH WRIT PETITION NO. 1141 OF 2002

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Shri. Adinath Ratnappa Utture ] Adult, Occupation-Agriculture ] Alabad, Tal Kagal, District Kolhapur ]... Petitioner.

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Versus

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1	State of Maharashtra ]
	[summons to be served on the learned]
	Additional Government Pleader ] appearing for State of Maharashtra ] under order XXVII, ] Rule 4, of the Code of Civil Procedure ]
	Code 1908] ] ]
2	Special Land Acquisition Officer No.12] Old Rajawada, Kolhapur ]
	[summons to be served on the learned]
3	Additional Government Pleader ] appearing for State of Maharashtra ] under order XXVII, ] Rule 4, of the Code of Civil Procedure ] Code 1908] ] ] Divisional Commissioner, ] Pune Division, Pune ]
	[summons to be served on the learned]
	Additional Government Pleader ] appearing for State of Maharashtra ] under order XXVII, ] Rule 4, of the Code of Civil Procedure ] Code 1908] ]...Respondents.

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WITH WRIT PETITION NO. 1142 OF 2002

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Smt Shamunisa Najirkhan Inamdar ] Residing at Alabad, Tal Kagal ] District Kolhapur ] Through the Power of Attorney Holder ] Shri Ayubkhan Najirkhan Inamdar ] age about 35 years, Occ : Agriculture, ] Residing at Alabad, ] Tal : Kagal, District Kolhapur ]... Petitioner.

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Versus

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1 Special Land Acquisition Officer No.12] Old Rajawada, Kolhapur ] [summons to be served on the learned] Additional Government Pleader ] appearing for State of Maharashtra ] under order XXVII, ] Rule 4, of the Code of Civil Procedure ] Code 1908] ] ] 2 State of Maharashtra, ] [summons to be served on the learned] Additional Government Pleader ] appearing for State of Maharashtra ] under order XXVII, ] Rule 4, of the Code of Civil Procedure ] Code 1908] ]...Respondents.

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WITH

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WRIT PETITION NO. 1144 OF 2002

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Shri. Chandrakant Adinath Utture ] Adult, Occupation-Agriculture ] Alabad, Tal Kagal, District Kolhapur ]... Petitioner.

¶31

Versus

¶32

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1	State of Maharashtra ]
	[summons to be served on the learned]
	Additional Government Pleader ]
	appearing for State of Maharashtra ] under order XXVII, ] Rule 4, of the Code of Civil Procedure ] Code 1908] ] ]
2	Special Land Acquisition Officer No.12] Old Rajawada, Kolhapur ]
	[summons to be served on the learned]
3	Additional Government Pleader ] appearing for State of Maharashtra ] under order XXVII, ] Rule 4, of the Code of Civil Procedure ] Code 1908] ] ] Divisional Commissioner, ]
	Pune Division, Pune ] [summons to be served on the learned]
	Additional Government Pleader ] appearing for State of Maharashtra ] under order XXVII, ] Rule 4, of the Code of Civil Procedure ] Code 1908] ]...Respondents.

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	WITH WRIT PETITION NO. 2663	OF 2009
1	Shri Sheetal Appasaheb Utture	]
	Age 32 years, Occ : Agriculturist	]
	Residing at : Alabad	]
	Tal : Kagal, District : Kolhapur	] ]
2	Shri Balkrishan Maruti Barkale	]
	Age 42 years, Occ : Agriculturist	]
	Residing at : Alabad	]
	Tal : Kagal, District : Kolhapur	]

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3	Shri Mohammad Pasha Abdul Desai	]
	Age 56 years, Occ : Agriculturist	]
	Residing at : Alabad	]
	Tal : Kagal, District : Kolhapur	]
		]
4	Shri Ashok Bapu Chaugule	]
	Age 55 years, Occ : Agriculturist	]
	Residing at : Alabad	]
	Tal : Kagal, District : Kolhapur	]
		]
5	Shri Ashok Bandu Khandekar	]
	Age 50 years, Occ : Agriculturist	]
	Residing at : Alabad	]
	Tal : Kagal, District : Kolhapur	]
		]
6	Shri Gundu Arjun Kamathe	]
	since deceased through his legal heir	]
	Shri Nana Gundu Kamathe	]
	Age 60 years, Occ : Agriculturist	]
	Residing at : Alabad	]
	Tal : Kagal, District : Kolhapur	]
		]
7	Shri Mahadeo Gundu Kharade	]
	Age 67 years, Occ : Agriculturist	]
	Residing at : Alabad	]
	Tal : Kagal, District : Kolhapur	]
	Through the Power of Attorney Holder	]
	Shri Dhanji Mahadeo Kharade	]
	Age 35 years, Occ : Agriculturist	]
	Residing at : Alabad	]
	Tal : Kagal, District : Kolhapur	]
		]
8	Shri Dadu Kondiba Khandekar	]
	Adult, Occ : Agriculturist	]
	Residing at : Alabad	]
	Tal : Kagal, District : Kolhapur	]
	Through the Power of Attorney Holder	]
	Shri Ramchandra Dagadu Chougule	]
	Adult, Occ : Agriculturist	]
	Residing at : Alabad	]
	Tal : Kagal, District : Kolhapur	]

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9	Mrs.Hausabai Vishnu Barvekar ] Adult, Occ : Agriculturist ] Residing at : Alabad ]
	Tal : Kagal, District : Kolhapur ] Through the Power of Attorney Holder] Shri Sandeep Dhondiram Sarawade ]
	Age 22 years, Occ : Agriculturist ]
	Residing at : Alabad ]
	Tal : Kagal, District : Kolhapur ] ]
(All	through Power of Attorney Holders viz ]
Shri	Balaso @ Balkrishan Maruti Barkale ]
Viz.	Petitoner No.2 and Shri Dhanaji ]
Mah	adeo Karade viz. Petitioner No.7 above ]... Petitioners.

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Versus

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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	] ] ] ]
	Code 1908]	] ]
2	The District Collector,	]
	District Kolhapur	]
	[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 Code 1908]	] ] ] ] ]
3	Special Land Acquisition Officer No.12 Old Rajwada, Kolhapur Dist.Kolhapur	] ]
	[summons to be served on the	]
	Learned Government Pleader appearing for State of Maharashtra	] ]

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under order XXVII, ] Rule 4, of the Code of Civil Procedure ] Code 1908] ]...Respondents.

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WITH

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WRIT PETITION NO. 2720 OF 2010

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1	Shri Annaso Santaram Chougale since deceased	] ]
	Shri Prakash Annaso Chougle	]
	Age 39 years, Occ : Agriculturist	]
	Residing at : Alabad	]
	Tal : Kagal, District : Kolhapur	] ]
2	Shri Tukaram Santaram Chougale since deceased	] ]
	Shri Sanjay Tukaram Chougale	]
	Age 42 years, Occ : Agriculturist Residing at : Alabad	] ]
	Tal : Kagal, District : Kolhapur	]
3	Shri Vasant Santaram Chougle	]
	Age 65 years, Occ : Agriculturist Residing at : Alabad	] ]
	Tal : Kagal, District : Kolhapur	] ]
4	Shri Dnyandev Santaram Chougale since deceased	] ]
	Shri Vinayak Dnynadev Chougale	]
	Age 25 years, Occ : Agriculturist Residing at : Alabad Tal : Kagal, District : Kolhapur	] ] ]... Petitioners.

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Versus

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1 State of Maharashtra	]
[summons to be served on the	]
Learned Government Pleader	]
appearing for State of Maharashtra	]

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	under order XXVII, Rule 4, of the Code of Civil Procedure Code 1908]	] ] ]
2	The District Collector, District Kolhapur	] ]
3	[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 Code 1908] Special Land Acquisition Officer No.12 Old Rajwada, Kolhapur Dist.Kolhapur	] ] ] ] ] ] ] ] ]
	[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 Code 1908]	] ] ] ] ] ]...Respondents.

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	WITH WRIT PETITION NO. 2725	OF 2010
1	Shri Kiran Vitthal Chougle	]
	Age 32 years, Occ : Agriculturist	]
	Residing at : Alabad	]
	Tal : Kagal, District : Kolhapur	] ]
2	Shri Baburao Vitthal Chougle	]
	Age 55 years, Occ : Agriculturist	]
	Residing at : Alabad	]
	Tal : Kagal, District : Kolhapur	]
3	Shri Bajirao Vitthal Chougale since deceased	] ]
	Smt.Janabai Bajirao Chougale	]
	Age 45 years, Occ : Agriculturist	]
	Residing at : Alabad	]
	Tal : Kagal, District : Kolhapur	]

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4	Shri Mahadev Vitthal Chougale Age 42 years, Occ : Agriculturist Residing at : Alabad Tal : Kagal, District : Kolhapur	] ] ] ] ] ]
5	Shri Hindurao Vitthal Chougale Age 35 years, Occ : Agriculturist	] ]
	Residing at : Alabad	]
	Tal : Kagal, District : Kolhapur	] ]... Petitioners

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Versus

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1	State of Maharashtra	]
	[summons to be served on the	]
2	Learned Government Pleader appearing for State of Maharashtra under order XXVII, Rule 4, of the Code of Civil Procedure Code 1908] The District Collector, District Kolhapur	] ] ] ] ] ] ] ]
3	[summons to be served on the Learnedl Government Pleader appearing for State of Maharashtra under order XXVII, Rule 4, of the Code of Civil Procedure Code 1908] Special Land Acquisition Officer No.12 Old Rajwada, Kolhapur Dist.Kolhapur [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 Code 1908]	] ] ] ] ] ] ] ] ] ] ] ] ] ] ]...Respondents.

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WITH WRIT PETITION NO. 2894 OF 2001

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1	Shri Madhukar Shankar Mutnale	]
	adult,	]
	Occ : Agriculturist	]
	Residing at : Senapati Kapshi	]
	Tal : Kagal	]
	District Kolhapur	]
		]
2	Shri Narayan Ramchandra Ghorpade adult,	] ]
	Occ : Agriculturist	]
	Residing at : Senapati Kapshi	]
	Tal : Kagal	]
	District Kolhapur	]
		]
3	Shri Appasaheb Baburao Rachoti adult,	] ]
	Occ : Agriculturist	]
	Residing at : Senapati Kapshi	]
	Tal : Kagal	]
	District Kolhapur	]
		]
4	Shri Anant Ishwara Shinge	]
	adult,	]
	Occ : Agriculturist	]
	Residing at : Senapati Kapshi	]
	Tal : Kagal	]
	District Kolhapur	]
		]
5	Shri Santosh Surendar Saundatte	]
	adult,	]
	Occ : Agriculturist	]
	Residing at : Senapati Kapshi	]
	Tal : Kagal	]
	District Kolhapur	] ]

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6	Shri Chandrakant Laxman Saundatte	]
	adult,	]
	Occ : Agriculturist	]
	Residing at : Senapati Kapshi	]
	Tal : Kagal	]
	District Kolhapur	]
		]
7	Shri Ramchandra Maruti Naik	]
	adult,	]
	Occ : Agriculturist	]
	Residing at : Senapati Kapshi	]
	Tal : Kagal	]
	District Kolhapur	]
		]
8	Shri Vijay Narayan Bhangore	]
	adult,	]
	Occ : Agriculturist	]
	Residing at : Senapati Kapshi	]
	Tal : Kagal	]
	District Kolhapur	]
		]
9	Shri Shivaji Maruti Nawale	]
	adult,	]
	Occ : Agriculturist	]
	Residing at : Senapati Kapshi	]
	Tal : Kagal	]
	District Kolhapur	]
		]
10	Shri Maruti Linkappa Naikwade	]
	adult,	]
	Occ : Agriculturist	]
	Residing at : Senapati Kapshi	]
	Tal : Kagal	]
	District Kolhapur	]
		]
11	Shri Babasaheb Shankar Mutnale	]
	adult,	]
	Occ : Agriculturist	]
	Residing at : Senapati Kapshi	]
	Tal : Kagal	]
	District Kolhapur	]

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12	Shri Raosaheb Annasaheb Patil adult,	] ]
	Occ : Agriculturist	]
	Residing at : Senapati Kapshi	]
	Tal : Kagal	]
	District Kolhapur	]
13	Smt.Akkabai Malgunda Patil adult,	] ] ]
	Occ : Agriculturist	]
	Residing at : Senapati Kapshi	]
	Tal : Kagal	]
	District Kolhapur	]
14	Shri Vaibhav Tattyasaheb Patil adult,	] ] ]
	Occ : Agriculturist	]
	Residing at : Senapati Kapshi	]
	Tal : Kagal	]
	District Kolhapur	] ]
15	Smt.Shankutala Tattyasaheb Patil adult,	] ]
	Occ : Agriculturist	]
	Residing at : Senapati Kapshi	]
	Tal : Kagal	]
	District Kolhapur	]
		]
16	Shri Chandrakant Vijay Tashildar adult,	] ]
	Occ : Agriculturist	]
	Residing at : Senapati Kapshi	]
	Tal : Kagal	]
	District Kolhapur	]...Petitioners

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Versus

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1	State of Maharashtra ] [summons to be served on the learned]
	Additional Government Pleader ]
2	appearing for State of Maharashtra ] under order XXVII, ] Rule 4, of the Code of Civil Procedure ] Code 1908] ] ] The Divisional Commissioner, ] Pune Division, Pune. ]
3	[summons to be served on the learned] Additional Government Pleader ] appearing for State of Maharashtra ] under order XXVII, ] Rule 4, of the Code of Civil Procedure ] Code 1908] ] ] Special Land Acquisition Officer No.12] (Old Rajwada, Kolhapur) ] [summons to be served on the learned]
	Additional Government Pleader ] appearing for State of Maharashtra ] under order XXVII, ] Rule 4, of the Code of Civil Procedure ] Code 1908] ]...Respondents.

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WITH WRIT PETITION NO. 2896	OF	2001
Shri Manohar Jyoti Pawar	]
At & Post Baleghol	]
Tal : Kagal,	]
District Kolhapur	]..	.Petitioner
Versus
1 State of Maharashtra [summons to be served on the learn	] ed]
Additional Government Pleader	]
appearing for State of Maharashtra	]

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	under order XXVII, Rule 4, of the Code of Civil Procedure Code 1908]	] ] ]
2	The District Rehabilitation Officer, Kolhapur, [summons to be served on the learned Additional Government Pleader appearing for State of Maharashtra under order XXVII, Rule 4, of the Code of Civil Procedure Code 1908]	] ] ] ] ] ] ] ]
3	The Divisional Commissioner, Pune Division, Pune. [summons to be served on the learned	] ] ] ]
	Additional Government Pleader appearing for State of Maharashtra under order XXVII, Rule 4, of the Code of Civil Procedure Code 1908]	] ] ] ] ] ]
4	Special Land Acquisition Officer No.12 (Old Rajwada), Kolhapur [summons to be served on the learned Additional Government Pleader appearing for State of Maharashtra under order XXVII, Rule 4, of the Code of Civil Procedure Code 1908]	] ] ] ] ] ] ] ]...Respondents.

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	WITH WRIT PETITION NO. 2900	OF	2001
1	Shri Vithu Krishna Pawar	]
2	Shri Dyanu Krishna Pawar	]
3	Shri Balwant Krishna Pawar	]
	At & Post Balikire	] ]
	Tal : Kagal, District Kolhapur.	]..	.Petitioners.

¶69

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Versus

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1	State of Maharashtra ]
	[summons to be served on the learned]
	Additional Government Pleader ]
	appearing for State of Maharashtra ] under order XXVII, ] Rule 4, of the Code of Civil Procedure ] Code 1908] ]
2	] The State Divisional Commissioner, ] Pune Division, Pune. ]
	[summons to be served on the learned]
	Additional Government Pleader ]
	appearing for State of Maharashtra ] under order XXVII, ] Rule 4, of the Code of Civil Procedure ] Code 1908] ] ]
3	Special Land Acquisition Officer No.12]
	(Old Rajwada), Kolhapur ] District Kolhapur. ]
	[summons to be served on the learned]
	Additional Government Pleader ]
	appearing for State of Maharashtra ] under order XXVII, ] Rule 4, of the Code of Civil Procedure ] Code 1908] ]...Respondents.

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Mr. A V Anturkar with Mr. S B Deshmukh a/w Mr. Tanaji Mathugade for the Petitioners Mr. C R Sonawane, AGP for Respondent Nos.1 to 3.

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CORAM : A. M. KHANWILKAR,

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R. M. SAVANT, JJ.

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Judgment Reserved on : 21^st April 2010 Judgment Delivered on : 07^th June 2010

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JUDGMENT [ PER R M SAVANT, J] :

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1 The above Writ Petition No.1143 of 2002 and the companion Writ Petitions impugn the Notification dated 26^th July 1995 issued under the Maharashtra Project Affected Persons Rehabilitation Act, 1986, (herein after referred to as “the Act of 1986” for brevities sake), by which notification the slab applicable for the project in question was changed from 3 hectares 23 ares to 1 hectare 61 ares for the acquisition of the lands in the benefited zone. The Petitions also challenge the declaration dated 14^th December 2001 issued under Section 6 of the Land Acquisition Act, (herein after referred to as “The L.A. Act” for brevities sake), that the lands which are the subject matter of the above Petitions are sought to be acquired for the rehabilitation of the project affected persons of the Chikotara project.

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2 The facts necessary to be cited for adjudication of the above Petitions can be stated thus :-

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Writ Petition No.1443 of 2002 would be treated as a lead

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matter and the facts in the said Petition would be referred to for the sake of convenience.

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The Petitioner claims to be the owner of the property bearing Gat No.127 [part] admeasuring 28 ares, situated at village Alabad, Tal.Kagal, District Kolhapur. The lands in the said village Alabad fall within the benefited zone of the irrigation project known as the Chikotara project. By virtue of the notification issued under Section 11(1) of the Act of 1986, the provisions of the said Act of 1986 have been made applicable to the Chikotara project. The said notification issued under Section 11(1) has been issued and published in the Government Gazette on 15^th September 1990. In terms of the scheme of the said Act of 1986, the notices under Section 13(2) of the said Act of 1986 were issued by the Collector of Kolhapur on 20^th September 1993, 22^nd November 1993 and 3^rd December 1993. The said notices were inter-alia for the purpose of identifying the area of the benefited zone, affected zone and the slab applicable. After

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¶85

following the procedure under subsection (2) of Section 13, a notification was published under Section 13(1) of the Act of 1986 on 4^th March 1994. In terms of the said notification, the area of the affected zone was mentioned as 261 hectares and the area of the benefited zone was mentioned as 7887 hectares and 75 ares and in so far as the slab is concerned, the slab of 3 hectares 34 ares mentioned in Part II of the Schedule was made applicable to the said Chikotara project for the purpose of acquisition of land in the benefited zone.

¶86

Thereafter another notification under subsection (1) of Section 13 dated 26^th July 1995 came to be issued on 26^th July 1995 which was also published in the Government Gazette on the same day. By the said notification, the slab of 1 hectare and 61 ares mentioned in Part II of the Schedule to the said Act of 1986 was made applicable for the purpose of acquisition of the land in the benefited zone.

¶87

3 In terms of the scheme of acquisition of land, a notification under Section 4(1) of the L.A. Act came to be issued on 21^st September 2000. After following the gamut of processes mentioned in the L.A. Act, declaration under Section 6 came to be

¶88

¶89

issued on 14^th December 2001 which was published in the Maharashtra Government Gazette on 19^th December 2001.

¶90

Thereafter notices under Sections 9(3) and 9(4) of the L.A. Act came to be issued to the Petitioner on 15^th January 2002. As mentioned herein above the notification under Section 13(1) of the Act of 1986 dated 26^th July 1995 and the declaration under Section 6 dated 14^th December 2001 issued under the L.A. Act qua the lands of the Petitioners, which have been impugned in the above Petition and the companion matters.

¶91

4 On behalf of the Respondents three Affidavits in Reply have been filed. Out of which two have been filed by one Pradip R Katkar, District Resettlement Officer, Kolhapur which are dated 17^th April 2007 and 28^th June 2007 and one has been filed by Dr.Swati Deshmukh, Special Land Acquisition Officer, No.12, Kolhapur which is dated 16^th April 2007. In the Affidavit in Reply dated 28^th June 2007, it has been mentioned that though the land slab of 3 hectares and 23 ares was made applicable to the said Chikotara project for the purpose of acquisition of land in the benefited zone, since the land as per the slab of 3 hectares and 23 ares was not proving to be sufficient for the purpose of allotment to the rehabilitation of project affected

¶92

¶93

persons, it was decided to reduce the slab from 3 hectares 23 ares to 1 hectare 61 ares. It has further been stated in the said affidavit that the State Government granted approval for reduction of the said slab from 3 hectares 23 ares to 1 hectare 61 ares which was accordingly communicated to the District Resettlement Officer by a letter dated 30^th September 1995. In so far as 2^nd notification is concerned, the said affidavit states that the notification under subsection (1) of Section 13 of the Act of 1986 was issued on 26^th July 1995, reducing the slab from 3 hectares 23 ares to 1 hectare 61 ares and accordingly a proposal for acquisition in terms of the reduced slab was submitted to the Special Land Acquisition Officer on 13^th March 1996 for taking further steps in respect of the acquisition of the lands.

¶94

Now coming to the affidavit of Dr. Swati Deshmukh, the Special Land Acquisition Officer No.12, Kolhapur dated 16^th April 2007, the dates and events, encompassing the notification under Section 4(1), declaration under Section 6, leading to passing of the Award dated 21^st January 2004 have been mentioned. The sum and substance of the said affidavit is that the said affidavit discloses that the final award in respect of the lands in question has been passed on 21^st Januar 2004 after following the gamut of processes mentioned in

¶95

¶96

the L.A. Act. Hence indubitably, during pendency of the above Petitions, the award has been passed in respect of the lands in question.

¶97

5 We have heard Shri A V Anturkar, the learned counsel appearing for the Petitioners in all the above Petitions and Shri C R Sonawane, the learned AGP for the Respondent Nos.1 to 3 in all the above Petitions.

¶98

6 On behalf of the Petitioners, it was principally contended by Shri Anturkar, the learned counsel appearing for the Petitioners, that the Respondents could not have reduced the slab mentioned in the notification dated 4^th March 1994 which was 3 hectares and 23 ares to 1 hectare 61 ares without following the procedure. The learned counsel for the Petitioners submitted that though in subsection (2) of Section 13 of the Act of 1986 there is a reference to the clauses (a) and (b) only of subsection (1), since the slab mentioned in clause (c) forms an integral part of the notification under Section 13(1), the Collector was obliged to issue notices under Section 13(2) in respect of clause (c) also if any change in the slab was to be effected. The learned counsel submitted that since the

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objections and suggestions have to be invited in respect of clauses (a) and (b), it would necessarily follow that if there is a change in the slab which is covered by clause (c), the Collector is obliged to follow the procedure prescribed in subsection (2) in effecting the change in the slab. He further submitted that clauses (a) and (b) though they are only for the purpose of identifying the lands which come within the affected zone and benefited zone, it would not be correct to restrict the procedure envisaged in subsection (2) of Section 13, to clauses (a) and (b) only, as the slabs applicable, are also an important facet of the acquisition. The learned counsel submitted that after the notice under subsection (2) of Section 13, the agriculturist would know whether he would be affected by the proposed notification or not under subsection (1) of Section 13 and, therefore, unless the notice mentions the proposed slab, no agriculturist would know as to whether he would be affected by acquisition or not and, therefore, a notice under subsection (2) of Section 13 must be given also in respect of clause (c) of subsection (1) of Section 13 of the Act of 1986. The learned counsel appearing for the Petitioners, further submitted that reading of Sections 13(3) and 13(4) provides and indicates that for changing any parameter in the notification issued under section 13(1), the procedure contemplated in subsection (2) of

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Section 13 has to be followed. The learned counsel lastly submitted that if it is construed that Sections 13(3) and 13(4) do not apply to the modification/change in slab, then the logical corollary would be that though a change could be effected as regards clauses (a) and (b) of Section 13(1), the intent of the legislature is clear that no change is permitted in respect of the slab mentioned in the clause (c) of Section 13(1), i.e. there can be no change in the slab. The learned counsel therefore submitted that the change in slab effected without following the procedure is therefore illegal.

¶103

7 Shri Anturkar, the learned counsel appearing for the Petitioners, relied upon a Judgment of the Apex Court reported in 1970(1) SCC 125 in the matter of Narendrajit Singh and another v/s. The State of U.P. And another . The learned counsel for the Petitioners also relied upon the Judgment of the Division Bench of this Court reported in 2004(3) Bom.C.R. 328 in the matter of Trimbakrao Vithalrao Dhokane v/s. Sate of Maharashtra and ors. as also the Judgment of the Division Bench of this Court reported in

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CDJ 2004 BHC 337 in the matter of Shri Appa Ganpati Jadhav v/s Special Land Acquisition Officer and ors. in support of his contention that in the matters of land acquisition strict adherence to

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the procedural requirement is necessary and any deviation would vitiate the said proceedings and prove fatal.

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In so far as the Judgment of the Apex Court is concerned,

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in the said case urgency clause was applied. In that case, notifications issued under section 4 suffered from a very serious defect inasmuch as the locality wherein the lands were situated was not specified. The notification merely stated that the lands mentioned in the schedule were needed. The schedule in its turn though it contained the headings District, Pargana, Mauza and approximate area, gave no particulars of the same and all that was mentioned by way of a note was that the plan of the land might be inspected in the office of the Collector of Ramur. The said defect was sought to be rectified by notification under section 6 which was issued within fortnight after the notification under section 4. The Apex Court in the fact situation of the said case, observed that any notification which is the first step to deprive a man of his property must be strictly construed and the courts ought not tolerate any lapse on the part of the acquiring authority in the issue of such notification,

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if it be of a serious nature. The Apex Court held that the defect in a notification under section 4(1) cannot be cured by giving full

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particulars in the notification under section 6(1). The Apex Court, in the fact situation of the said case, therefore, quashed and set aside the acquisition proceedings on the said grounds.

¶112

In so far as the Judgment of the Division Bench of this Court reported in 2004 (3) Bom. C.R. 328 is concerned, the Division Bench has held that unless person interested in the land which has been notified under section 4(1) of the L. A. Act, is given opportunity of being heard, the authority cannot proceed further. The Division Bench held that the heart of section 5-A of the Act is the hearing of the objections and under sub-section (2) personal hearing is mandatorily provided and it does not depend upon demand for personal hearing. Since the Petitioner in that case was not given an opportunity of hearing before making recommendations to the Commissioner for approval of the draft notification under section 6 of the Act, the said declaration under section 6 was quashed and set aside and the authorities were directed to hear the Petitioner as contemplated under section 5-A of the Act and thereafter to proceed with acquisition.

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Now coming to the Judgment of the Division Bench of this

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Court reported in CDJ 2004 BHC 337 on which reliance was placed by the learned counsel for the Petitioners, this was a case where a declaration under section 11 of the Resettlement Act, 1976 was already made when the said Act was in force and a particular slab from Part II of Schedule was already applied namely of 8 acres for acquiring land from the benefited zone for the resettlement of the project affected persons of Urmodi Major Irrigation Project. Thereafter Rehabilitation Act, 1986 came into force. Section 26 of the Rehabilitation Act, of 1986 which is the Repeal and saving clause saved actions taken under the Resettlement Act, 1976. A notification under section 13(1) of the said Act was issued on 1^st December 1998. Similar notification was issued on the same date applying the slab of 2 H. 42 Rs. of Part II of the Schedule. The argument of the Petitioner in the said case was that the procedure under Section 13(2) of the Rehabilitation Act 1986 was not followed, and hence, no notification under Section 13(1) could have been issued and therefore there could not be any acquisition under the L.A. Act. The notifications under sections 4 and 6 of the L.A. Act were therefore challenged on the said grounds. The said argument of the Petitioner was negatived by the Division Bench by holding that since the declaration under section 11

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had already been made under the Resettlement Act 1976 and in view of section 26 of the Rehabilitation Act of 1986, the said action being saved there was no requirement to issue a notification under section 13(2) inviting objections and suggestions and hence there was compliance of Section 13 of the Act of 1986. The notification issued under section 4 and the declaration under section 6 in that case were therefore upheld by the Division Bench.

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8 On behalf of the Respondents, Shri Sonawane, the learned AGP, submitted that the Act of 1986 has been made applicable to the Chikotara project and the notification has accordingly been issued under Section 11(1) of the Act 1986. The learned AGP submitted that the notification under Section 13(1) of the Act of 1986 dated 4^th March 1994 was issued after following the procedure for the same by inviting objections and suggestions under Section 13(2). The learned AGP submitted that the said notification inter alia specified the affected zone and the benefited zone and fixed the slab as 3 hectares 23 ares, considering the land that is required for rehabilitation of the persons affected by the said project. The learned AGP further submitted that the lands which come within the affected and benefited zones are the determining factors for application of a

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particular slab. He therefore submitted that it is on the said basis that the authorities chose one of the slabs mentioned in the Schedule of the Act of 1986. The learned AGP submitted that in the instant case, initially the slab of 3 hectares and 23 ares was thought to be appropriate considering the requirement of lands in the benefited zone, however in terms of the said slab the land was falling short of the requirement for the resettlement of the project affected persons of the said Chikotara project, therefore, according to the learned AGP the slab was lowered to 1 hectare 61 ares which has been approved by the State Government. The learned AGP submitted that considering the purport and intent of the Act of 1986, the legislature has consciously limited the notice to only clauses (a) and (b) of Section 13(1) of the Act of 1986, as clauses (a) and (b) are the determining factor and depending on the area, in question, a particular slab is applied. The learned AGP submitted that accepting the contention of the Petitioners would amount to reading into the provision something which Legislature did not contemplate. The learned AGP submitted that in the instant cases, as mentioned in the affidavit of Dr.Swati Deshmukh, the final award has been passed on 21^st January 2004 during the pendency of the above Petitions. However, though the final Award has been passed, the Petitioners

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have not chosen to challenge the said acquisition proceedings by carrying out any amendment to the Petitions. The learned AGP submitted that this Court should not interfere in the acquisition proceedings in its writ jurisdiction under Article 226 of the Constitution of India.

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9 We have heard the learned counsel for the parties and bestowed our anxious consideration to the rival contentions.

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10 In the context of the issue which arises viz. whether for a change in the slab mentioned in the notification issued under Section 13(1), procedure under Section 13(2) of the Act of 1986 is required to be followed. In the context of the said issue, it would be relevant to refer to Section 13 of the said Act of 1986 which is reproduced herein under :-

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“13. (1) The State Government shall, by notification in the Official Gazette and also by publication of such notification in the manner provided in sub-section (2) of section 11, declare----

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(a) the extent of area which shall constitute the area of affected zone under the project ;

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(b) if the project is an irrigation project, the extent of area which shall constitute the area of benefited zone under the project;

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(c) which of the slabs mentioned in Part II of the Schedule shall apply to such project for the purposes of acquisition of land in the benefited zone.

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(2) Before publishing a notification under sub-section (1), the Collector shall give a public notice inviting objections or suggestions in respect of the lands falling under clauses (a) and (b) of sub-section (1), by publishing in the manner specified in subsection (2) of section 11 and also in the Official Gazette and in one daily newspaper in the Marathi language circulating in the local area comprising such villages and areas of affected and benefited zone. Any person interested in the land in such areas may make, objections or suggestions, if any, to the Collector within 30 days from the date on which such public notice is published by beat of drums in the village or area concerned or the date on which it is published in the newspaper as aforesaid, whichever is later; and the Collector shall, with all reasonable despatch, forward any objections or suggestions so made together with his report in respect thereof to the State Government and on considering the report and the objections and suggestions, if any, the State Government may pass such order as it deems fit.

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(3) If at any time during the course of execution of a project, the project authority is satisfied that any change in the areas

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mentioned in the notification under subsection (1) is necessary, it shall communicate such change with reasons and the plans and particulars relating to the change to the State Government through the Collector.

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(4) One receipt of the communication under sub-section(3) and the report of the Collector, if any, the State Government may after considering the reasons given by the project authority and in the report, if any, of the Collector and making such enquiry, if any, as it thinks fit, make such change in the manner laid down in sub-sections (1) and (2)”

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(emphasis supplied)

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As can be seen, the notification issued under section 13(1) declares the area of the affected zone under the project, the extent of area which would constitute the benefited zone and which of the slabs mentioned in Part II of the Schedule shall apply to such project for the purposes of acquisition of land in the benefited zone.

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Sub-section (2) of Section 13 postulates that before publishing a notification under sub-section (1), the Collector shall give a public notice inviting objections or suggestions in respect of the “lands falling under clauses (a) and (b) of sub-section (1)”, by publishing the same in the manner specified in sub-section (2) of Section 11 and also in the Official Gazette and in one daily

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newspaper in the Marathi language circulating in the local area comprising such villages and areas of affected and benefited zone. The said objections and suggestions, received by the Collector, shall be forwarded by him to the State Government with his report and, the State Government is obliged to pass such orders on such objections and suggestions as it deems fit.

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Sub-section (3) of Section 13 provides that if during the course of execution of project, the project authority is satisfied that any change in the “areas” mentioned in the notification under subsection (1) is ascribable to clauses (a) and (b) thereof, is necessary, it shall communicate such change with reasons and the plans and particulars relating to the change to the State Government through the Collector.

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Sub-section (4) of Section 13 provides that on receipt of the communication under sub-section (3) and the report of the Collector, the State Government may after considering the reasons given by the project authority as also the reasons contained in the report of the Collector and, after making such enquiry, if any, as it thinks fit, make such change obviously referable to areas mentioned

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in terms of clauses (a) and (b) of subsection (1) in the manner laid down in sub-sections (1) and (2) of Section 13.

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11 What can, therefore be seen from a reading of the said Section 13 is that the objections and suggestions are to be invited only in respect of “areas” mentioned in clauses (a) and (b) i.e. the extent of area coming in the affected zone and the extent of the area coming in the benefited zone. A reference to clause (c) is conspicuously absent for obvious reasons. As the slab which would be applicable would be contingent upon the extent of the area of the affected zone and the extent of the area of the benefited zone. They are, according to us, the determining factors on the basis of which the slab is fixed by the authorities by choosing one of the slabs mentioned in the Schedule. A perusal of the Part II of the Schedule would disclose the various slabs which could be applied to a particular project considering the lands in the affected zone and the benefited zone. A perusal of the slabs especially slab-I of Part II of the schedule which is now made applicable discloses the maximum area that can be acquired from a person holding the land above the slab mentioned viz. in the instant case 1 hectare 61 ares. The slabs in that sense are elaborate and inter-alia stipulate the extent of land that can be

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acquired from the landholders to which a particular slab is made applicable. The said slabs forming part of the Act of 1986 are therefore statutory in nature and once a particular slab is made applicable the State Government is free to acquire the lands above the said slab restricted to the maximum that can be acquired from the land holder having a particular holding. Since the requirement of the land depends upon the extent of the area covered by the affected zone and the benefited zone, the opportunity, if any, would, therefore, have to be given if there is a change in the area of the affected or benefited zone and, therefore, the legislature has consciously excluded clause (c) from section 13(2) in the matter of inviting objections and suggestions. The application of a particular slab mentioned in the Schedule is akin to a legislative action and therefore, for a change in the slab, in our view, no notice is required to be issued.

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12 It is true, as contended by the learned counsel for the Petitioners, that vide clauses (a) and (b) of Section 13(1) of the Act of 1986, the lands in the affected and benefited zone are identified, however, once the extent of the lands are identified which come in the affected and benefited zone, fixing of the slab is only a sequitur to

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such identification or a ministerial act - as the lands in the benefited zone are to be acquired and allotted to the project affected persons. Therefore, the Petitioners’ contention that notices ought to have been given even in respect of the change in the slab cannot be accepted.

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13 The contention of the Petitioners that the words appearing in section 13(4) viz such change in the manner laid down in subsections (1) and (2) make it abundantly clear that even for a change in parameters relating to slabs mentioned in the notification under Section 13(1), the procedure contemplated in sub-section (2) of section 13 has to be followed, is, in our view, misconceived. As mentioned herein above, sub-section (2) contemplates that only when there is a change in the extent of the “areas” mentioned in clauses (a) and (b) of section 13(1), that a notice would have to be published under section 13(2) since clauses (a) and (b) are the vital parameters determining the area to which the proposed acquisition would be applicable. The legislature has, therefore consciously excluded clause (c) from the requirements of giving notice under section 13(2), even if there is a change in the said parameter. As mentioned herein above, clauses (a) and (b) are really the determinative factors on the basis of which the slab is to be applied. It is on the basis of the

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extent of the areas covered by clauses (a) and (b) of section 13(1) that one of the slabs mentioned in the schedule is chosen by the State Government. Hence even if there is a change in the slab without there being any change in the parameter of the land covered by clauses (a) and (b), there is no requirement of issuing notice and inviting objections and suggestions as the benefited zone remains the same and the lands have to be acquired from the said benefited zone.

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14 As can be seen in the instant case, since the lands which were acquired from the persons pursuant to the earlier slab fixed viz 3 hectares 23 ares were falling short of the requirement for rehabilitating the project affected persons of the Chikotara project, that the authorities moved the State Government for lowering the slab to 1 hectare 61 ares which proposal the State Government has sanctioned and the notification under section 13(1) of the Act of 1986 dated 26^th July 1995 came to be issued. Therefore, in the instant case, what has happened is that, there is no change in the benefited zone, however, the slab has been lowered so that sufficient land becomes available for rehabilitating the project affected persons of the said Chikotara project.

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15 In so far as the contention of the learned counsel for the

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Petitioners that if it is construed that section 13(3) and section 13(4) do not apply to modification made in respect of change of slab contemplated by section 13(1)(c), then it would have to be held that since the legislature has expressly permitted change in the parameters of the areas mentioned in clauses (a) and (b) of section 13(1) only, and since no such latitude is available in respect of the change in parameter mentioned in clause (c) of section 13(1), therefore, the intention of the legislature is clear namely, that there can be no change at all in respect of the slab mentioned in clause (c). The said submission, in our view, cannot be countenanced in the teeth of the purport and intent of the Act of 1986 whose object primarily is of rehabilitation of the project affected persons in fact the raison d’etre of the said Act is the rehabilitation of such persons. As recorded herein above, the determinative factors are clauses (a) and (b) of section 13(1) of the Act of 1986 on whose basis the State Government applies a particular slab. The intention being that adequate lands become available for rehabilitation of the project affected persons. May be in a given case, the parameters mentioned in clauses (a) and (b) do not change, but if the slab applied earlier does not serve the purpose, then in that event a change in the slab may be warranted. If

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section 13 (2) is to be construed in the manner as contended by the Petitioners, it would militate against the intent and purport of the said Act and, would therefore make the provisions of the Act of 1986 nugatory. We, therefore do not find merit in the aforesaid contention of the Petitioners and accordingly reject it.

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It was also faintly sought to be canvassed by the learned counsel for the Petitioners, that the project in question cannot be called an irrigation project but a percolation project or that the benefited zone cannot be called as such, if the benefit of distribution of water is in future. Though the Petitioners have questioned in the Petition the project being an irrigation project, the second ground that the benefited zone cannot be called as such has not been taken in the Petition. Apart from it, both the said grounds were not canvassed with any deal of conviction. Be that as it may, the said grounds in our view are only stated to be rejected considering the nature of the project and the benefit that is likely to accrue in terms of providing irrigation to large tracts of land.

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16 Another aspect to be considered is that though the above petitions were admitted, the stay operating in favour of the Petitioners

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was only in respect of taking over possession of the lands in question. There was no stay to the land acquisition proceedings being completed. As mentioned herein above, the Special Land Acquisition Officer Dr.Swati Deshmukh has filed an affidavit in which it has been stated that final award in respect of the land in question has been passed on 21^st January 2004. Though the Petitioners have approached this Court before the final award being passed, one would have to bear in mind that the Petitioners have approached this Court after the declaration under Section 6 was issued and not immediately after the notification under Section 13(1) dated 26^th July 1995 under the Act of 1986 was issued. In so far as the scheme for acquisition of land for the projected affected person is concerned, the notification under section 13(1) is the defining notification if one can use the said phraseology, inasmuch as it is by the said notification the land covered by the affected zone, the benefited zone and the slab applicable are made final. Thereafter the land is acquired by taking recourse to the provisions of Land Acquisition Act, therefore, in so far as the present Petitioners are concerned, the notification under Section 13(1) dated 26^th July 1995 in so far as it changes the slab from 3 hectares 23 ares to 1 hectare 61 ares was the vital notification and the Petitioners ought to have challenged the said notification with

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reasonable despatch and ought not to have waited till the Section 6 declaration under the L.A. Act was issued. In our view, therefore, the said fact would also be relevant in the context of considering the challenge raised by the Petitioners in the instant petitions.

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17 A useful reference could be made to the Judgment of the Apex Court reported in A.I.R. 2000 S.C. 671 in the matter of Municipal Council, Ahmednagar and another vs. Shah Hyder Baig and others in which case, the Apex Court turned down the challenge to the acquisition proceedings in view of the fact that the final award had been passed and no land acquisition proceedings could be challenged after the final award had been declared. However, though the above Petitions have been filed before the declaration of final award, since the challenge to the notification under Section 13(1) is long after it has been issued, in our view, considering the scheme of acquisition, the same analogy, as in the judgment (supra), would have to be applied and hence the challenge of the Petitioners to the acquisition of land in question would have to be negatived on the said ground also.

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18 In so far the Judgment of the Apex Court (Supra) and the Judgments of the Division Bench reported in 2004(3) Bom.C.R. 328 and CDJ 2004 BHC 337 (Supra), for the view we have taken namely that there is no requirement of issuing a notification under Section 13(2) if there is a change in the slab, in our view, the said judgments have no application.

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Indeed, in so far as the Judgment of the Division Bench reported in CDJ 2004 BHC 337 is concerned, though the said judgment is under the Act of 1986 and in the said case also the slab was reduced, the fact situation in the said case was totally different inasmuch the Division Bench was required to consider whether a notification under Section 13(2) was required to be issued in the context of the fact that the declaration under Section 11 of the Resettlement Act, 1976, which was in force at the relevant time, was already issued. Hence in our view, the said judgment also does not support the Petitioners case in any manner.

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In fact as can be seen from the said judgment, the Division

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Bench has observed that to what extent the land is required or not is best left to the legislature. This was in the context of the fact that the

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slab was reduced by the authorities to 2 H. 42 Rs from the earlier slab of 8 H. Therefore, the said judgment in fact lends support to the view that we have taken in the present case.

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19 For all the aforesaid reasons, we do not find any merit in the above Petitions which are accordingly dismissed and Rule discharged in all the Petitions with no order as to costs.

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20 On pronouncement of the Judgment today i.e. 07^th June 2010, the learned counsel for the Petitioners applies for time to approach the Apex Court. However, the learned AGP opposes the said prayer. Considering the facts and circumstances of the present case, the operation of this order is stayed for a period of eight weeks from today.

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Sd/-

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sd/-

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(R.M.SAVANT, J.) (A. M. KHANWILKAR, J.)

Shripati Hari Barkale v. State of Maharashtra and Ors.

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Shripati Hari Barkale v. State of Maharashtra and Ors.

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