Dismissed

Shri Ramesh Chindhusa Gulwade and Others v. the State of Maharashtra through Collector Amravati and Others

Bombay HC28 Apr 2014WP/545/2013

Case brief

AI extract

What is this about?

Writ petition challenging land acquisition award for violation of Section 5A hearing requirements. Court held that urgency under Section 17 exempted proceedings from Section 5A, and petitioners were estopped by annexing the notification excluding these provisions.

What did the court decide?

Writ petition dismissed with costs.

What the court decided

Shri Ramesh Chindhusa Gulwade and Others Vs the State of… — Land Acquisition | Bombay HC (2014)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR.

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WRIT PETITION NO.545 OF 2013

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Ramesh Chindhusa Gulwade and others

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-vs-

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The State of Maharashtra and others

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Office notes, Office Memoranda of Coram, appearances, Court's orders or directions and Registrar's orders.

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Court's or Judge's Orders.

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Mr.G.R.Sadar, counsel for the petitioners. Ms T.H.Udeshi, AGP for the respondent Nos.1 and 2. Mr.Ankush Kalmegh, counsel for the respondent No.3.

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CORAM : SMT. VASANTI A. NAIK & A.S.CHANDURKAR, JJ.

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DATE : 28.04.2014.

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By this petition, the petitioners seek a declaration that the land acquisition proceedings initiated by the State of Maharashtra in pursuance of Section 4 Notification dated 01/02/2010 are vitiated in view of the non compliance of the provisions of Section 5A of the Land Acquisition Act, 1894. The petitioners challenge the award passed by the Special Land Acquisition Officer dated 26/05/2011 in pursuance of Section 4 Notification dated 01/02/2010.

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It is canvassed on behalf of the petitioners that it was necessary for the State Government to grant a hearing to the petitioners under Section 5A of the Act and since the petitioners were not heard after the filing of the objection, the award is liable to be set aside. It is submitted that no reason for invoking the urgency clause under Section 17 of the Land Acquisition Act is stated in the Section 4 notification dated 01/02/2010. It is submitted that even while invoking the urgency clause, it is mandatory for the State Government

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to follow the provisions of Section 5A of the Act. The learned counsel relied on the judgments of the Hon'ble Supreme Court reported in (2012) 1 SCC 792 (Raghbir Singh Sherawat v. State of Haryana), AIR 2012 SC (Civil) 482 (Kamal Trading Private Ltd. v. State of West Bengal), (2004) 8 SCC 14 (Union of India v. Mukesh Hans), (1973) 2 SCC 337 (Munshi Singh v. Union of India) and (2014) 3 SCC 183 (Pune Municipal Corpn. v. Harakchand Misirimal Solanki) to substantiate his submissions.

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On the other hand, it is submitted on behalf of the State Government and the Special Land Acquisition Officer by the learned Assistant Government Pleader that it was not necessary for the State to apply the provisions of Section 5A of the Land Acquisition Act to the facts of this case, as the urgency clause under Section 17 of the Act was invoked while issuing Section 4 Notification dated 01/02/2010. It is submitted that it is stated in the notification dated 01/02/2010, annexed to the petition, that in view of the provisions of Section 17(4) of the Act, the provisions of Section 5 would not be applicable. According to the learned Assistant Government Pleader, the petitioners could not have filed the objections under Section 5A of the Land Acquisition Act, since it is clearly mentioned in the notification dated 01/02/2010 that the provisions of Section 5A would not apply. It is submitted that if the petitioners were aggrieved by the issuance of the notification dated 01/02/2010 or by the application of Section 17 of the Act, the petitioners could have challenged the notification dated 01/02/2010 immediately. It is submitted that a false statement was made before this Court on 31/01/2013 that the petitioners were totally ignorant about the land

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acquisition proceedings till they received the notice under Section 12(2) of the Land Acquisition Act. According to the learned Assistant Government Pleader, the petitioners were served with Section 9 notice and they had also made a grievance about the insufficiency of the compensation. It is submitted that the judgments relied on by the counsel for the petitioners cannot be made applicable to the facts of this case. It is also submitted that the possession of the land was taken on 01/02/2013 and the petitioners cannot be permitted to challenge the award dated 26/05/2011 by filing the writ petition on 29/01/2013 on the ground that there is non compliance of the provisions of Section 5A of the Act, specially when the provisions of Section 5A cannot be made applicable to the facts of this case.

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Shri Kalmegh, the learned counsel for the respondent No.3, adopted the submissions made on behalf of the respondent Nos.1 and 2 and sought for the dismissal of the writ petition.

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On hearing the learned counsel for the parties, it appears that the petitioners have not approached this Court with clean hands. The counsel for the petitioners submitted before this Court on 31/01/2013 that the petitioners became aware of the acquisition proceedings only when they received the notice under Section 12(2) of the Act. On a perusal of the award passed by the Special Land Acquisition Officer, dated 26/05/2011, it is clear that most of the petitioners were present in the enquiry and hearing dated 12/07/2010 and they produced the documents pertaining to sale instances of comparable land for seeking higher compensation. In the chart incorporated in the award the names of some of the petitioners and the actual objection

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raised by them are noted. It appears that the petitioners were granted a fair hearing after the issuance of Section 9 notice by the State Government. It is clear on a reading of the award as also the affidavit-in-reply filed on behalf of the respondent No.2 that Section 9 (1) and (2) notice was duly served on the landholders and some of the landholders including the petitioners raised objection in regard to the valuation of the land and the compensation payable to them towards the acquisition of the same.

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Be that as it may, while issuing the notification under Section 4 of the Act, the State Government had invoked the urgency clause under Section 17 of the Act and there was no question of granting any hearing to the petitioners under Section 5A of the Land Acquisition Act. The petitioners have annexed a copy of Section 4 notification dated 01/02/2010 at Annexure P-8 to the petition. It is clearly stated in the notification that the State Government was invoking the provisions of Section 17 of the Land Acquisition Act and in view of the provisions of Section 17(4), the provisions of Section 5 of the Land Acquisition Act were not applicable to the acquisition proceedings. Since the petitioners have annexed the notification dated 01/02/2010 to the petition and since they claim to have filed the objection under Section 5 in pursuance thereof, it is clear that the petitioners were aware that the State was invoking the provisions of Section 17 of the Land Acquisition Act for acquiring the land in question and the notification provided that the provisions of Section 5 would not apply in view of the provisions of Section 17(4) of the Act. If the petitioners were aggrieved by the said notification dated 01/02/2010, the petitioners could have challenged the same immediately.

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Instated of challenging the said notification, the petitioners filed the objection under Section 5, though it was clearly stated in the notification dated 01/02/2010 that the provisions of Section 5 were inapplicable to the land acquisition proceedings. The case of the petitioners that it was mandatory for the State Government to have granted an opportunity of hearing to the petitioners is not well founded, as it is clear from a reading of the notification dated 01/02/2010 and the affidavit-in-reply filed on behalf of the respondent No.2 that the provisions of Section 17 of the Act were invoked by the State Government for acquisition of the land in view of urgency. Since the provisions of Section 5A are not applicable to the cases where Section 17 is invoked, the petitioners cannot be heard to say that the award is liable to be set aside, as the petitioners were not heard under the provisions of Section 5A of the Act.

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The submission made on behalf of the petitioners that the cause for invoking the urgency clause is not mentioned in the notification dated 01/02/2010 is also incorrect, as the opening part of the notification clearly stipulates that the land was being acquired for disposal of the waste in Amravati Municipal Corporation. The judgments reported in (2012) 1 SCC 792, AIR 2012 SC (Civil) 482, (2004) 8 SCC 14, (1973) 2 SCC 337 and (2014) 3 SCC 183 and relied on by the learned counsel for the petitioners cannot be made applicable to the facts of this case. In the judgments reported in (2012) 1 SCC 792, AIR 2012 SC (Civil) 482 and (1973) 2 SCC 337 the urgency clause under Section 17 was not invoked by the State Government. In the judgment reported in (2004) 8 SCC 14 the provisions of Section 17 were invoked, but the land was being acquired for

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an annual festival of the Muslims and in that background the Hon'ble Supreme Court observed that in the peculiar facts in that case, the decision to dispense with Section 5A enquiry was not proper. The last judgment relied on by the learned counsel for the petitioners and reported in (2014) 3 SCC 183 would also not be applicable to the facts of this case. In the case before the Hon'ble Supreme Court, the award was made five years or more before the commencement of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Settlement Act, 2013 and hence, the Hon'ble Supreme Court observed that the land acquisition proceedings were deemed to have been lapsed in view of the provisions of Section 24(2) of the Act of 2013, as the compensation was not paid to the landholders and/or deposited by the State Government in the Court. The question of lapsing of the land acquisition proceedings under the provisions of the Act of 2013 does not arise for consideration in this case. No ground is raised by the petitioners by referring to the provisions of the Act of 2013 either.

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Since there is no merit in the writ petition, the same is dismissed with costs.

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JUDGE JUDGE

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KHUNTE

Shri Ramesh Chindhusa Gulwade and Others v. the State of Maharashtra through Collector Amravati and Others

Case brief

What is this about?

What did the court decide?

What the court decided

Shri Ramesh Chindhusa Gulwade and Others v. the State of Maharashtra through Collector Amravati and Others

Case brief

What is this about?

What did the court decide?

What the court decided

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