Dismissed

Ajit Ramchandrarao Jadhav and Ors. v. the State of Maharshtra and Ors.

Bombay HC8 May 2012WP/2763/2010

Case brief

AI extract

What is this about?

The Court dismissed a writ petition challenging a declaration under Section 6 of the Land Acquisition Act. Holding that sufficient inquiry was conducted and petitioners were provided opportunities, the Court found no illegality in the decision-making process and rejected the petitioners' plea of non-hearing.

What did the court decide?

The writ petition was dismissed and the interim relief granted earlier was vacated.

Ajit Ramchandrarao Jadhav and Ors. Vs the State of… — Land Acquisition | Bombay HC (2012)

¶1

1 W.P. No.2763 of 2010

¶2

IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

¶3

Writ Petition No.2763 of 2010

¶4

Ajit Ramchandrarao Jadhav And Another.

¶5

.. Petitioners.

¶6

Versus

¶7

The State of Maharashtra And Others.

¶8

.. Respondents.

¶9

Shri. P.S. Dighe, Advocate for petitioners.

¶10

Shri. V.D. Rakh, Assistant Government Pleader for respondent Nos.1 to 4.

¶11

CORAM: NARESH H PATIL & S.B. DESHMUKH, JJ.

¶12

DATE : 8^th MAY 2012 PER COURT :

¶13

Heard.

¶14

The petitioners challenge declaration under Section 6 of the Land Acquisition Act 1894 published in official gazette dated 28-1-2010 to the extent of lands survey No.19 admeasuring 2 H 60 R and land survey No. 22 admeasuring 5 H 40 R. The petitioners submitted written objection on 11-3-2008. On 15-4-2008 the Special Land Acquisition Officer issued notice to the petitioners

¶15

2 W.P. No.2763 of 2010 directing to submit written objection. Accordingly the petitioners submitted written objections. Declaration under section 6 of the Act was published on 26-6-2008 without giving opportunity of hearing to the petitioners.

¶16

The petitioners filed Writ Petition No.4906 of 2008 challenging the said notification. By an order dated 10-2-2009 a Division Bench (Coram: Nishita Mhatre and B.R. Gavai, JJ.) decided Writ Petition No.4906 of 2008 and Writ Petition No.4507 of 2008. The Court set aside the declaration under section 6 and the respondents were directed to hear the petitioners and other land owners as contemplated under section 5-A of the Act.

¶17

It is contended by the petitioners that on 5-5-2009 the Special Land Acquisition Officer issued notice of hearing of the proceedings under section 5-A and directed the petitioners to remain present on 14^th May 2009. On 12-5-2009 the petitioners filed petition under Section 15-A of the Land Acquisition Act before the State Government which, according to the petitioners, was pending. On 14^th May 2009 the petitioners remained

¶18

3 W.P. No.2763 of 2010

¶19

present in the office of the Special Land Acquisition Officer who was not available. On 1-6-2009 the Special Land Acquisition Officer issued notice informing the date of hearing on 11-6-2009. The hearing was adjourned on 11-6-2009 on the application filed by the land owners. On 25-6-2009 the Special Land Acquisition Officer again issued notice of hearing which was kept on 7-7-2009 which notice, according to the petitioners, was not received by them. Hearing of the petition filed before the State Government was adjourned on 30-6-2009. The petitioners filed application on 7-7-2009 before the Special Land Acquisition Officer for staying the proceedings under section 5-A of the Act as the matter was pending before the State Government. On 7-7-2009 the Special Land Acquisition Officer again issued notice directing the petitioners to remain present for spot inspection on 14-7-2009. The petitioners remained present on 14-7-21009 but none from the office of the Special Land Acquisition Officer remained present. On 5^th December 2009, it is contended that, the petitioners made an application to the Collector not to acquire their land. On 19-12-2009 the Special Land Acquisition Officer

¶20

4 W.P. No.2763 of 2010

¶21

informed the petitioners that decision under section 5-A is already taken. On 28^th January 2010 declaration under section 6 of the Act came to be published in the official gazette for acquiring the land. Paper publication was also made by the State Government.

¶22

Precisely, the contention of the learned counsel Shri. Dighe appearing for the petitioners is that, the petitioners were not heard during the proceedings of Section 5-A of the Act. The petitioners were not noticed of the date of hearing. When the petitioners attended the office of the Special Land Acquisition Officer, none from the said office was present. Therefore the proceedings under section 5-A has been completed without hearing the petitioners. It is further submitted that decision arrived at while issuing declaration under Section 6 does not refer to the decision taken on the proceedings of Section 5-A. In absence of any decision reached by the Commissioner on the issue raised in respect of proceedings under section 5- A, the matter needs to be remanded again as the respondents have not accorded appropriate opportunity of hearing to the petitioners. For that purpose earlier writ

¶23

5 W.P. No.2763 of 2010

¶24

petition was filed and directions were issued by this Court. The learned counsel further submits that, under the Right to Information Act they have derived certain information which goes to show that there are other suitable lands for the purpose of establishment / construction of police headquarters. The petitioners' land is not suitable for the said purpose. The learned counsel has placed reliance on the judgments in (1) Sukumar M. Khot v. State of Maharashtra , 2006(4) Mh.L.J. 338, (2) Amiruddin Hasan Noorani Malak v. State of Maharashtra , 2008(6) Bom.C.R. 599; (3) Ibaldo Alvito Gomes v. State of Goa , 2010 ALL MR (Supp.) 693; and (4) Hindustan Petroleum Corpn. Ltd. v. Darius Shapur Chenai, (2005)7 SCC 627 in support of his contentions.

¶25

The learned Assistant Government Pleader, on instructions of the officer from the office of the Special Land Acquisition Officer, who is present in Court, has produced original file from the office of the Special Land Acquisition Officer. The learned Assistant Government Pleader placed reliance on the original record and the

¶26

6 W.P. No.2763 of 2010

¶27

affidavit-in-reply filed consequent to the notice issued by this Court. In paragraphs 5, 10 and 11 the deponent contends thus :--

¶28

“ 5. I say that the petitioner alleged that opportunity of hearing as contemplated under section 5A inquiry is not given to the applicant. It is pertinent to note that the applicant along with others were called upon for attending the office in pursuance to Section 5-A proceedings. The applicant refused to accept the notice. Report submitted in that regarding non acceptance of the notice. Copy of the information letter dated 14-5-2009 along with notice dated 1-6-2009 is annexed herewith and marked as Exhibit R-2.”

¶29

“ 10. I say that the petitioner have made false allegations that proper inquiry as contemplated under Section 5-A of the Act is not conducted. On perusal of the contentions raised above, and the documents relied upon herein above, it can be seen that there was no reason for the authority to make false report. It is the petitioner who have tried to stall the proceedings. He has avoided appearance during the spot verification. Contentions raised by the petitioners are not correct and needs no consideration.”

¶30

“ 11. I say that according to the spot inspection, report is submitted to the Divisional Commissioner for approval under section 6 of the said Act on 23-12-2009. The petitioners though were given opportunity, did not avail it. Objections raised by the petitioner is decided and orders are passed as provided under section 5-A of the said Act.”

¶31

The learned Assistant Government Pleader has placed on record copy of order passed by the Special Land Acquisition Officer dated 24-8-2009 rejecting the objections raised by the petitioners for the said acquisition. The learned Assistant Government Pleader

¶32

7 W.P. No.2763 of 2010

¶33

further has brought to our notice an order passed by the Additional Commissioner dated 30-12-2009 in Namuna “D” after perusing report submitted under section 5-A(2) of the said Act. The Additional Commissioner reached appropriate conclusion to proceed with the acquisition and directed to issue declaration under section 6 of the Land Acquisition Act. In the facts of the case, the learned Assistant Government Pleader submits that the respondents have made sufficient compliance of the provisions of law. In the facts of the case the learned Assistant Government Pleader submits that, the acquisition proceedings are deliberately delayed by the petitioners on some or the other grounds and, therefore, the petition deserves to be dismissed at this stage and the interim relief granted on 29-3-2010 be vacated accordingly.

¶34

We have perused the affidavit-in-reply and the original record submitted by the Assistant Government Pleader, considered the submissions and the judgments cited supra. We have perused the notice issued by the Special Land Acquisition Officer to the petitioners to

¶35

8 W.P. No.2763 of 2010

¶36

remain present for hearing and spot panchanama from time to time. The petitioners are not entitled to say that they were not aware about hearing to be accorded to them consequent to the order dated 10^th February 2009 passed by the Division Bench of this Court in Writ Petition Nos. 4906 of 2008 and 5701 of 2008. The petitioners have raised pleas of ignorance in respect of any inquiry being conducted under section 5-A of the Act consequent to the order passed by this Court. The plea raised by the petitioners of not receiving notice is not convincing so as to again direct the respondents to initiate inquiry under section 5-A of the Act by remanding the matter back for the same purposes.

¶37

We do not find any sound reason for the petitioners in approaching the State Government in the meanwhile under section 15-A of the Act and praying to stay the hearing.

¶38

Provisions of Section 15A of the Land Acquisition Act, as applicable to the State of Maharashtra vide Maharashtra Act 38 of 1964, read as under :-

¶39

9 W.P. No.2763 of 2010

¶40

“ 15A – Power of State Government to call for proceedings and pass orders thereon.-- The State Government may at any time before an award is made by the Collector sunder section 11, call for and examine the record of any order passed by the collector or of any inquiry or proceedings of the Collector, for the purpose of satisfying itself as to the legality or propriety of any order passed and as to the regularity of such proceedings. If in any case, it shall appear to the State Government that any order or proceedings so called for should be modified, annulled or reversed, it may pass such order thereon as it deems fit.”

¶41

The provisions of Section 5A of the Land Acquisition Act, 1894 suffered Maharashtra State amendment vide Maharashtra Act 39 of 1972. Section 5A as applicable to the State of Maharashtra, reads as under :-

¶42

“ 5A – Hearing of objections:-- (1) Any person interested in any land which has been notified under section 4, sub-section (1) as being needed or likely to be needed for a public purpose or for a Company may, within thirty days from the date of the publication of the notification object to the acquisition of the land or of any land in the locality, as the case may be.

¶43

(2) Every objection under sub-section (1) shall be made to the Collector, or to the Land Acquisition Officer, where he has published a notification under sub-section (1) of section 4, in writing and the Collector or, as the case may be, the Land Acquisition Officer shall give the objector an opportunity of being heard in person or by any person authorized by him in this behalf or by pleader and shall, after hearing all such objections and after making such further inquiry, if any, as he thinks necessary, either make a report in respect of the land which has been notified under section 4, sub-section (1), or make different reports in respect of different parcels of such land, to the appropriate Government or, as the case may be to the Commissioner (such report or reports by the Land Acquisition Officer being made to the State Government, or to the Commissioner, if so directed by the State Government) containing his recommendations on the objections, together with the record of the proceedings held by him, for the decision

¶44

10 W.P. No.2763 of 2010

¶45

of the State Government or, as the case may be, of the Commissioner. The decision of the appropriate Government or, as the case may be,of the Commissioner, on the objections shall be final.

¶46

(3) For the purposes of this section, a person shall be deemed to be interested in land who would be entitled to claim an interest in compensation if the land were acquired under this Act.”

¶47

The conduct of the petitioners indicates that the petitioners were not keen to go ahead with the inquiry conducted under section 5A of the Act. The reason probably may be that as the petitioners were running a spinning mill at the concerned site, they were not keen to face this inquiry proceedings.

¶48

The State has placed on record the notes of spot panchanama, communication made to the Collector, which indicate that sufficient efforts were taken by the authorities concerned to conduct the inquiry but on some or the other grounds the petitioners have raised plea that they were not heard by the authorities concerned after remand of the matter by the High Court. From the material placed on record and the original record, which we have perused, we are not convinced with the plea

¶49

11 W.P. No.2763 of 2010 raised by the petitioners that the respondent – authorities have denied opportunity to the petitioners. After exhausting remedies, the Special Land Acquisition Officer had to proceed on the available material and draw a report-cum-order in respect of the proceedings initiated sunder section 5-A of the Land Acquisition Act. Therefore, the issue is required to be considered in the peculiar factual background of this case.

¶50

The issue in respect of hearing to be provided to the affected parties under section 5-A of the Act has been settled by the Courts, by now.

¶51

In the case of Hindustan Petroleum Corpn. Ltd. v. Darius Shapur Chenai, (2005)7 SCC 627, the Apex Court observed in paragraphs 18, 19 and 20 thus :

¶52

“ 18. In view of the fact that the action required to be taken by the State Government is distinct and different from the action required to be taken by the Collector; when the ultimate order is in question it was for the State to satisfy the court about the validity thereof and for the said purpose the counter-affidavit file don behalf of a Collector cannot be held to be sufficient compliance withs the requirements of law. The job of the Collector in terms of Section 5-A would be over once he submits his report. The Land Acquisition Collector would not know the contents of the proceedings before the State and, therefore,he would be incompetent to affirm an affidavit on its behalf.

¶53

12 W.P. No.2763 of 2010

¶54

19. Furthermore, the State is required to apply its mind not only on the objections filed by the owner of the land but also on the report which is submitted by the Collector upon making other and further inquiries therefor as also the recommendations made by him in that behalf. The State Government may further inquire into the matter,if any case is made out therefor, for arriving art its own satisfaction that it is necessary to deprive a citizen of his right to property. It is in that situation that production of records by the State is necessary.

¶55

20. In Gurdip Singh Uban whereupon Mr. Ramamoorthy placed strong reliance, this Court observed:

¶56

“ 50. No reasons or other facts need be mentioned in the Section 6 declaration on its face. If the satisfaction is challenge din the court, the Government can show the record up;on which the Government acted and justify the satisfaction expressed in the Section 6 declaration.”

¶57

It was, thus, for the State to justify its action by production of record or otherwise.”

¶58

We have perused the order passed by the Commissioner. In view of the material placed before the Commissioner and the order passed by the Special Land Acquisition Officer which could be treated as report, we do not find any glaring illegality in the decision making process of the Commissioner in directing issuance of declaration under section 6 of the Land Acquisition Act. In spite of opportunity being provided to the petitioners for second time, the petitioners did not file specific objections in writing. In view of the conduct of the petitioners the

¶59

13 W.P. No.2763 of 2010

¶60

authorities had no option but to reject the prayer for staying the proceedings under Section 5-A till hearing before the State Government. We have perused the said order too.

¶61

The Special Land Acquisition Officer in his report-cum-order dated 24-8-2009 has referred to the earlier objection filed by the petitioners prior to remand order passed by this Court. This demonstrates that the authorities have applied their mind to the objections raised by the petitioners.

¶62

During the course of spot inspection, it reveals from the record, that, other land owners were present. In stead of remaining present on the spot for spot inspection the petitioners filed application with the concerned office. According to the State, the contentions raised by the petitioners are misleading and are made with a purpose to delay the land acquisition proceedings. Some of the land owners had filed their written objections but the petitioners preferred not to file written objections in spite of getting remand order. At the time of personal hearing the other land owners were present but in spite of

¶63

14 W.P. No.2763 of 2010

¶64

opportunity provided the petitioners remained absent. It is contended by the State that the subject land which is to be acquired is adjacent land to the spinning mill and is a vacant land. All these issues were considered while deciding Section 5A proceedings.

¶65

In view of the peculiar facts of the case, there is no case for causing interference in exercise of extra ordinary writ jurisdiction under Article 226 of the Constitution of India. The writ petition is dismissed.

¶66

At this stage the learned counsel for the petitioners prays for continuation of interim relief. The learned Assistant Government Pleader vehemently opposed the same as the same would disrupt the land acquisition proceedings which are held up since last more than two years. We are not inclined to continue the interim relief any further. The request stands rejected. Authenticated copy of the order be given to the counsel for the petitioners.

¶67

Sd/- Sd/- (S.B. DESHMUKH, J.) (NARESH H PATIL, J.) rsl

Ajit Ramchandrarao Jadhav and Ors. v. the State of Maharshtra and Ors.

Case brief

What is this about?

What did the court decide?

Ajit Ramchandrarao Jadhav and Ors. v. the State of Maharshtra and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Muktabai Sopanrao Gadekar Vs the State of Maharashtra and Ors.

Muktabai Sopanrao Gadekar Vs the State of Maharashtra and Ors.

Rajendra Balasaheb Thorat Vs the State of Mah and Ors.

Ishwar Shikshan Prasarak Mandal Vs the State of Mah and Anr.

Angad Laxman More and Anr. Vs the State of Mah and Ors.

Gulabrao Nagorao Gangane Vs the State of Maharashtra Thro Secretary and Ors.