Allowed

Shri. Sadashiv Sahadu Dhapte v. Pune Municipal Corporation through Commissioner and Ors.

Bombay HC21 Dec 2011WP/9378/2011

Case brief

AI extract

What is this about?

This writ petition challenged the notification under Section 6 of the Land Acquisition Act. The court held the notification void due to non-application of mind and lack of consideration of objections. It also granted the remedy though it rejected the limitation defence, relying on Supreme Court precedent.

What did the court decide?

The notification issued under Section 6 dated 12.09.2011 is set aside and the rule is made absolute.

Shri. Sadashiv Sahadu Dhapte Vs Pune Municipal Corporation… — Land Acquisition | Bombay HC (2011)

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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. 9378 OF 2011

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Shri Sadashiv Sahadu Dhapte .... Petitioner vs Pune Municipal Corporation, through Commissioner and ors. .... Respondents

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Mr. A. Y. Sakhare, Senior Advocate i/by Mr. V.R. Chavan for the petitioner.

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Mr. R.S. Khadapkar for respondents 1 to 3.

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Mr. V.S. Gokhale, AGP for respondents 3 to 5.

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CORAM: D. K. DESHMUKH &

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ANOOP V. MOHTA, JJ.

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DATE : December 21, 2011

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P.C.:

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Rule, returnable forthwith. Heard finally by consent of the

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parties.

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2 The Petitioner is owner of land in Survey No.115-A/1 of village

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Kalas, Tal. Haveli, Dist. Pune. A Notification under Section 4 of the

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Land Acquisition Act was issued on 15.07.2010 proposing to acquire the above referred land along with some other land for the purpose of expansion of the cremation ground. A notice under Section 4 was also served on the Petitioner. The Petitioner therefore submitted detailed objection to the proposed acquisition of the land. There were many objections raised. The Petitioner pointed out that the expansion of the cremation ground is not necessary because enough land is available for that purpose. It was also pointed out that the land of the Petitioner is in green zone and therefore, it cannot be acquired. There were other objections also raised.

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3 It appears that the Land Acquisition Officer submitted a report of

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the Commissioner, pursuant to the objection. A copy of the 5A report submitted by the Land Acquisition Officer is produced with the Petition. Perusal of that report shows that though the objections raised by the Petitioner have been described in detail in that report, the opinion given by the body for which the land is being acquired namely, the Pune Municipal Corporation has also been indicated. However, the Land Acquisition Officer has not dealt with the objections at all. Against each objection the only remarks that has been made by the the Special Land Acquisition Officer is that the land

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is needed for public purpose. It is the settled law as a result of th series of judgments of the Supreme Court and this Court that the purpose of giving individual and public notice under Section 4 is to afford the owner and other persons interested in the land which is to be acquired an opportunity to raise objection to the proposed acquisition of the land and the Authority which has power to issue Notification under Section 6 is under a duty to consider those objections. Perusal of the record of 5A enquiry shows that there is total non-application of mind to the objections raised by the Petitioner and on the basis of that report, final Notification under Section 6 has been issued which is dated 12 September 2011 and it has been published in the Official Gazette on 13 September 2011. As the Notification under Section 6 has been issued without considering the objections raised by the Petitioner to the acquisition, the Notification will have to be struck down. One of the contentions urged before us by the learned counsel for the Petitioner was that Section 4 Notification was issued on 15.07.2010 and Section 6 Notification has been issued on 12.09.2011 and that according to the learned counsel, therefore, making of the Notification under Section 6, is beyond a period of one year from the date of the Notification issued under Section 4.

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4 The learned counsel has relied on a judgment of Division Bench

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of Aurangabad Bench of this Court in the case of Ramrao P. Deshmukh vs. State of Maharashtra, 2008(2) LJ Soft 145 , in support of his submission. We have perused the judgment of the Division Bench in the case of Ramrao referred to above and we find that what is stated by the Division Bench in that judgment is without consideration of the provisions of Section 4 which requires consideration of the last date of publication of Notification under Section 4 to be the relevant date for the purpose of the limitation which is provided in Section 6 for issuance of Notification under Section 6. Perusal of the judgment of the Supreme Court in the case of Sriniwas Ramnath Khatod vs. State of Maharashtra & ors ., (2002) 1 SCC 689 shows that the Supreme Court has considered the provisions of Section 4 and has held that a Notification under Section 4 has to be published in the manner laid down in that provision and as per that provision, last date on which the Notification is published is relevant date for the purposes of computing the period of limitation provided in Section 6. The Supreme Court in its judgment in the case of Sriniwas Khatod has relied on its judgment in the case of Eugenio Misquitta v. State of Maharashtra, (1997) 8 SCC 47 and

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quoted with approval the following paragraph from that judgment :

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“7 It is now well settled that the last of the dates in the series of the publications made under Section 4(1) of the Act is the relevant date to reckon the starting point of limitation for the purpose of proviso to Section 6(1)(ii). Now, the question is which is the relevant date to reckon the last date for the purpose of clause (ii) of the first proviso to Section 6(1). In other words, whether the modes of publication prescribed under Section 6(2) obviously for the purpose of reckoning limitation under Section 11-A of the Act have any part to play in the matter of computing the period prescribed under clause (ii) of the first proviso to Section 6(1).”

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5 It is thus clear that the learned counsel appearing for the Petitioner was not justified on relying on the judgment of the Division Bench in the case of Ramdrao P. Deshmukh (supra ).

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6 In the result, therefore, the Petition succeeds and is allowed.

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The Notification issued under Section 6 dated 12.09.2011 is set aside.

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7 Rule is made absolute accordingly. There shall be no order as

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to costs.

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(ANOOP V. MOHTA, J.) (D. K. DESHMUKH,J.)

Shri. Sadashiv Sahadu Dhapte v. Pune Municipal Corporation through Commissioner and Ors.

Case brief

What is this about?

What did the court decide?

Shri. Sadashiv Sahadu Dhapte v. Pune Municipal Corporation through Commissioner and Ors.

Case brief

What is this about?

What did the court decide?

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