Allowed

Babasaheb Eknath Wakchaure and Others v. the State of Maharashtra and Others

Bombay HC27 Sept 2016WP/9800/2014

Case brief

AI extract

What is this about?

The High Court held that land acquisition proceedings under the 1894 Act, where an award was passed over five years prior to the 2013 Act's commencement, had lapsed under Section 24(2) of the 2013 Act. This was because neither physical possession of the land was taken nor was compensation paid or deposited in court as required.

What did the court decide?

The land acquisition proceedings in respect of the specified land declared lapsed; Writ Petition allowed and rule made absolute.

Babasaheb Eknath Wakchaure and Others Vs the State of… — Land Acquisition | Bombay HC (2016)

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WP 9800/14

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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BENCH AT AURANGABAD

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 WRIT PETITION NO.9800/2014

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1] Babasaheb Eknath Wakchaure, age 55 yrs., occu.agri.,

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2] Sunil Namdeo Wakchaure, age 42 yrs., occu.agri.,

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3] Balasaheb Gangadhar Wakchaure, age 60 yrs., occu.agri.,

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r/o Virgaon Tq.Akole,
Dist.Ahmednagar.

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...Petitioner..

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Versus

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1] The State of Maharashtra, through the Principal Secretary, Revenue (Land Acquisition), Mantralaya, Mumbai – 400 032.

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2] The Collector (Land Acquisition), Ahmednagar.

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3] The Special Land Acquisition Officer No.1, Jayakwadi Project, Ahmednagar.

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4] The Deputy Director of Rehabilitation (Lands), Ahmednagar.

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5] The Tahsildar, Akole. Dist.Ahmednagar.

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...Respondents...

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 .....

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Shri S.T. Shelke, Advocate for petitioners.
Shri S.S. Dande, AGP for respondent nos.1 to 5.

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 .....

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CORAM: R.M. BORDE &

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K.L. WADANE, JJ.

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JUDGMENT RESERVED ON 19.7.2016 JUDGMENT PRONOUNCED ON: 27.09.2016

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JUDGMENT (Per Wadane, J.) :

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1]Heard learned counsel for the parties. Rule.

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Rule made returnable forthwith and with the consent of
learned counsel for the parties, the petition is taken
for final hearing at the stage of admission.

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2]The petitioners have challenged the award dated
10.3.1977 passed by the Land Acquisition Officer –
respondent no.3 by which the land of the petitioners
bearing Survey No.112/3 (Gut No.463) admeasuring 5 Acres

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4 Gunthas has been acquired for the purpose of
rehabilitation of project affected persons. The

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petitioners have challenged the award mainly on the two
grounds that the physical possession of the land has not
been taken from the petitioners and no compensation of
the acquired land has been paid to them.

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3]Initially the above mentioned properties were
recorded in the name of grandfather of the petitioners
and after his death, the properties are succeeded by the
petitioners and name of one Haribhau, eldest cousin

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brother of the petitioners, has been recorded as per the
mutation entry No.1048.

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4]On 10.3.1977, the respondent no.3 notified the

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above land for acquisition for resettlement of project
affected persons. The petitioners and their family
members have opposed the said land acquisition
proceedings stating that the lands of the petitioners are
not liable for acquisition. The actual physical
possession of the land was not taken by the respondents
and the same is with the petitioners, which is evident

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from the 7/12 extracts right from the year 1978 onwards.
After the acquisition of the aforesaid land, the mutation

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entry No.4418 came to be recorded in the name of
respondent no.5, but it is merely a paper entry. There
was civil litigation regarding the aforesaid properties
and the same is decreed and as per the order of the
Tahsildar, partition came to be effected and further, as
per the mutation entry No.4665, the land was further
partitioned and allotted to the petitioners and their
brother.

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5]On 25.9.2006, the respondent no.5 – Tahsildar,
Akole, issued a notice alleging encroachment upon the

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acquired land and directing to remove the same. The
petitioners have submitted their say and it seems that
the authority was satisfied with the explanation and,
therefore, did not proceed further. The petitioners have
lastly prayed that the acquisition proceedings and the
award are deemed to be lapsed in view of the provisions
of Section 24(2) of the Right to Fair Compensation and
Transparency in Land Acquisition, Rehabilitation and
Resettlement Act, 2013.

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6]The respondent nos.2,3,4 and 5 have filed their
affidavit in reply. The respondent nos.2,3 and 4 have
contended that the possession of the acquired land was
already taken by the authorities. However, the

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respondent no.5 in his affidavit in paragraph no.9 has
contended that as per the report dated 3.7.2014 submitted
by the Sub Divisional Officer, Sangamner Division, to the
Collector, Ahmednagar, that an enquiry was conducted by

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the Tahsildar about the land Gut No.463 and one Popat
Nivrutti Darade has requested to give him this land.
Vide order dated 14.4.1980, the District Collector and
Deputy Director, Land Records, Ahmednagar, has allotted
the said land to one Popat Nivrutti Darade. He was also

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informed to deposit the amount of Rs.7741=80 towards
occupancy price of this land. Accordingly, he has
deposited the first installment to the tune of Rs.1548=36
and the fees required for the measurement of land by
challan. However, it is brought to the notice that till
this date, the possession of the land was not given to
the project affected persons because one Mr.Balasaheb
Gangadhar Wakchaure (petitioner no.1) is in possession of
the said land as an encroacher.

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7]So, looking to the rival contentions of both the
parties, there is dispute between the parties as regards
the possession. On perusal of the contents of the award,
it reveals that the possession of the land has not been
taken u/s 17 of the Land Acquisition Act, 1894, so also
no advance compensation is paid to the interested persons
and further, it is mentioned in the award that the
possession of the land under acquisition should be handed
over to the acquiring body. So, one thing is very much
clear that till passing of the award, no possession of
the acquired land was taken by the authorities from the
respective land holders.

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8]True copy of the possession receipt is placed on

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record. It is dated 27.8.1983 in which the date of taking
over the possession is left blank and it is recorded as

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“___-7-83”. The 7/12 extract of the land is placed on
record and from the contents of the 7/12 extract, it
reveals that the names of the petitioners are
consistently appearing in the column of cultivation since
1979 onwards. Furthermore, from the report submitted by
the Deputy Collector dated 3.7.2014, it reveals that when
the Circle Inspector inspected the land and drawn
panchanama, at that time the petitioner no.1 is found in
possession and has grown pomegranate trees in the land
to the extent of 0.80 Aares. However, it was further
stated that the petitioners have encroached on such a
land. At the time of preparing the panchanama, panch
witnesses have stated that the possession of the disputed
properties is with the petitioners since beginning.

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9]Though the respondents have disputed the factum
of possession, but the documents on record demonstrate
that the possession of the disputed property is with the
petitioners. It is material to refer to the notice
issued by the Tahsildar – respondent no.5 to the father,
brothers and uncle of the petitioners dated 25.9.2006,

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from which it appears that as per this notice, a
direction was given to the persons to remove the
encroachment at their own costs. The language employed
in this notice presupposes the factum of possession with
the petitioners.

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10]Though the respondents have disputed the factum

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of possession with the petitioners, the other documents
demonstrate that the petitioners are still in physical
possession over the suit property. The petitioners have
claimed the relief u/s 24(2) of the Right to Fair
Compensation and Transparency in Land Acquisition,
Rehabilitation and Resettlement Act, 2013, the provisions
of which read as follows:-

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“24 Land acquisition process under Act

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No. 1 of 1894 shall be deemed to have
lapsed in certain cases:

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(1)Notwithstandinganything

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contained in this Act, in any case of
land acquisition proceedings initiated
under the Land Acquisition Act, 1894 (1
of 1894)

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 (a) where no award under section

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11 of the said Land Acquisition Act has
been made, then, all provisions of this
Act relating to the determination of

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compensation shall apply; or

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 (b) where an award under said
section 11 has been made, then such
proceedings shall continue under the
provisions of the said Land Acquisition
Act, as if the said Act has not been
repealed.

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(2) Notwithstanding anything contained
in subsection (1), in case of land
acquisition proceedings initiated under
the Land Acquisition Act, 1894 (1 of
1984),where an award under the said
section 11 has been made five years or
more prior to the commencement of this
Act but the physical possession of the
land has not been taken or the
compensation has not been paid the said
proceedings shall be deemed to have
lapsed and the appropriate Government,
if it so chooses, shall initiate the
proceedings of such land acquisition
afresh in accordance with the provisions
of this Act :

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Provided that where an 'award'
has been made and compensation in
respect of a majority of land holdings
has not been deposited in the account of
thebeneficiaries,then,all
beneficiariesspecifiedinthe

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notification for acquisition under
section 4 of the said Land Acquisition
Act, shall be entitled to compensation
in accordance with the provisions of
this Act.

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10 In view of subsection (2) of
Section 24, though award in the instant
matter has been made five years or more
prior to the commencement of the Act and
that the compensation has not been paid
to the petitioner, proceedings in
respect of acquisition shall be deemed
to have lapsed and the appropriate
Government, if it so chooses, shall
initiate proceedings in respect of land
acquisition afresh in accordance with
provisions of the Act of 2013.”

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11]On bare perusal of the aforesaid provisions, the

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award lapses when it is made five years or more prior to
the commencement of the new Act of 2013 and the physical
possession of the land has not been taken or the
compensation has not been paid, the said proceedings
shall be deemed to have lapsed. Admittedly, the award in
the present case has been passed prior to five years i.e.
on 10.3.1977, before commencement of the new Act i.e. on
1.1.2014.

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12]Second aspect, which is to be taken into
consideration is that no compensation has been paid to
the petitioners. Nowhere it is contended by any of the
respondents in their affidavit that the compensation of
the acquired land has been either paid to the petitioners
or their father. On the contrary, from the copy of the

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E-statement, it reveals that the compensation of
Rs.12,7876/- is granted in the name of Haribhau, elder
cousin brother of the petitioners, however, the same was
neither paid to him nor it was deposited in the Court.

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13]Since it is clear from the record that the
amount of compensation though granted, but it has not

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been paid to the petitioners, therefore, the present case is governed by the decision of the Apex Court in the case of Pune Municipal Corporation & another v. Harakchand Misirimal Solanki [ 2014(4) Mh.L.J. (SC) 566 ] . The Apex Court interpreted the Sub-section (2) of Section 24 while

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dealing with the issue whether the offer of the
compensation to the owner / persons interested will be
covered by the word “paid” used in sub-section (2) of
Section 24. Paragraphs 15 to 17 of the said decision
read thus:

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“15. Simply put, Section 31 of the 1894
Act makes provision for payment of
compensation or deposit of the same in
the court. This provision requires that
the Collector should tender payment of
compensation as awarded by him to the
persons interested who are entitled to
compensation. If due to happening of
any contingency as contemplated in
Section 31(2), the compensation has not
been paid, the Collector should deposit
the amount of compensation in the court
to which reference can be made under
Section 18.

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16. The mandatory nature of the
provision in Section 31(2) with regard
to deposit of the compensation in the
court is further fortified by the
provisions contained in Sections 32, 33
and 34. As a matter of fact, Section 33
gives power to the court, on an
application by a person interested or
claiming an interest in such money, to
pass an order to invest the amount so
deposited in such government or other
approved securities and may direct the
interest or other proceeds of any such
investment to be accumulated and paid
in such manner as it may consider

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proper so that the parties interested
therein may have the benefit therefrom
as they might have had from the land in
respect whereof such money shall have
been deposited or as near thereto as
may be.

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17. While enacting Section 24(2),
Parliament definitely had in its view
Section 31 of the 1894 Act. From that
one thing is clear that it did not
intend to equate the word “paid” to
“offered” or “tendered”. But at the
same time, we do not think that by use
of the word “paid”, Parliament intended
receipt of compensation by the
landowners/persons interested. In our
view, it is not appropriate to give a
literal construction to the expression
“paid” used in this sub-section (sub-
section (2) of Section 24). If a
literal construction were to be given,
then it would amount to ignoring
procedure, mode and manner of deposit
provided in Section 31(2) of the
1894 Act in the event ofhappeningof
any of the contingenciescontemplated
therein which may prevent theCollector
from making actual payment of
compensation. We are of the view,

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therefore,thatfor the purposes of
Section 24(2), thecompensation shall
be regarded as “paid” if the
compensation has been offered to the
personinterested and such compensation
has beendeposited in the court where
reference under Section 18 can be
made on happening of any of the
contingenciescontemplatedunder
Section 31(2) of the 1894 Act. In
other words, the compensation may be
said to have been “paid” within the
meaning of Section 24(2) when the
Collector (or for that matterLand
Acquisition Officer) has discharged his
obligation and deposited the amount of
compensation in court andmade that
amount available to the interested
person to be dealt with as provided in
Sections 32 and 33. (underline added)

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4.Ultimately,in

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paragraph 20 the Apex Court held thus:

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“20. From the above, it is clear
that the award pertaining to the
subject land has been made by the
Special Land Acquisition Officer more
than five years prior to the
commencement of the 2013 Act. It is
alsoadmittedpositionthat

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compensation so awarded has neither
been paid to the landowners/persons
interested nor deposited in the court.
The deposit of compensation amount in
the government treasury is of no avail
and cannot be held to be equivalent to

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compensationpaidtothe
landowners/persons interested. We have,
therefore, no hesitation in holding
that the subject land acquisition
proceedings shall be deemed to have
lapsed under Section 24(2) of the 2013
Act.“ (underline added)

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14]So, looking to the overall circumstances of the
above case, it appears that the award in the present
matter was passed on 10.3.1977 and neither physical

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possession of the property has been taken by the
respondents nor compensation for the same was paid to the
petitioners. In these circumstances, we are of the
opinion that the present case is squarely covered under
the provisions of Section 24(2) of the Right to Fair
Compensation and Transparency in Land Acquisition,
Rehabilitation and Resettlement Act, 2013. Therefore, we

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hold and declare that the land acquisition proceedings in
respect of land old Survey No.112/3 (part and now new Gut

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No.463 admeasuring 5 Acres 23 Gunthas (2 H 4 R) situated
within grampanchayat limits of village Virgaon Tq.Akole
Dist.Ahmednagar, stand lapsed as per Section 24(2) of the
Right to Fair Compensation and Transparency in Land
Acquisition, Rehabilitation and Resettlement Act, 2013.
11]Writ petition is allowed and disposed of in
above terms. Rule made absolute accordingly. There
shall be no order as to costs.

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Babasaheb Eknath Wakchaure and Others v. the State of Maharashtra and Others

Case brief

What is this about?

What did the court decide?

Babasaheb Eknath Wakchaure and Others v. the State of Maharashtra and Others

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

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