Godavari Marathwada Irrigation Development Corporation Thru Executive Engineer v. the State of Maharshtra and Ors.

Bombay HC14 Mar 2018WP/5908/2012

Case brief

AI extract

What is this about?

The High Court rejected a writ petition challenging an order granting rental compensation and interest to landowners whose possession was taken prior to the issuance of a Section 4 Land Acquisition notification. The court upheld the Special Land Acquisition Officer's decision citing settled law.

What did the court decide?

Petition rejected; prior direction to deposit rental amount in court registry enforced; interest calculation left to Special Land Acquisition Officer.

Godavari Marathwada Irrigation Development Corporation Thru… — Land Acquisition | Bombay HC (2018)

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5908.12WP

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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. 5908 OF 2012

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Godavari Marathwada Irrigation
Development Corporation,
Jalna Road, Aurangabad
Through Executive Engineer,
Minor Irrigation Department,
Osmanabad, Dist. Osmanabad.

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...PETITIONER

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 VERSUS

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1. The State of Maharashtra,

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2. The Collector, Collector Office, Osmanabad, District Osmanabad

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3. The Special Land Acquisition Officer, Krishna Khore Project, Osmanabad District Osmanabad.

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4. Vithal S/o Ambadas Nande Age : 65 years, Occ : Agri,

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5. Anant S/o Rama Nande Age : 60 years, Occ : Agri,

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6. Arun S/o Prabhu Paul, Age : 54 years, Occ : Agri,

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7. Fulchand S/o Prabhau Paul, Age : 70 years, Occ : Agri,

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`8.`	`Sopan S/o`	`Maruti Nande`
	`Age : 75`	`years, Occ : Agri,`
`9.`	`Uttam S/o`	`Vitthal Bhakre`
	`Age : 65`	`years, Occ : Agri,`
`10.`	`Yasin S/o`	`Hanif Mujavar`
	`Age : 20`	`years, Occ : Agri,`
`11.`	`Jaherabi`	`W/o Yasin Mujavar,`
	`Age : 65`	`years, Occ : Agri,`
`12.`	`Ahmed S/o`	`Yasin Mujavar,`
	`Age : 35`	`years, Occ : Agri,`
`13.`	`Rajendra`	`S/o Maruti Dhone`
	`Age : 35`	`years, Occ : Agri,`
`14.`	`Dilip S/o`	`Ramchandra Pawar`
	`Age : 38`	`years, Occ : Agri,`
`15.`	`Ashok S/o`	`Bhimrao Kapse`
	`Age : 53`	`years, Occ : Agri,`
`16.`	`Rangnath`	`S/o Pralhad Nande`
	`Age : 75`	`years, Occ : Agri,`
`17.`	`Ankush S/`	`o Rangnath Nande`
	`Age : 45`	`years, Occ : Agri,`
`18.`	`Santosh S`	`/o Rangnath Nande`
	`Age : 30`	`years, Occ : Agri,`
`19.`	`Dnyanoba`	`S/o Bapu Chaugule`
	`Age : 70`	`years, Occ : Agri,`
`20.`	`Rama S/o`	`Krishna Nande`
	`Died thro`	`ugh L.Rs.`
`20-A`	`) Anant S` `Age : 70`	`/o Rama Nande` `years, Occ : Agri,`

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20-B) Shivaji S/o Rama Nande
Age : 60 years, Occ : Agri,

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20-C) Shankar S/o Rama Nande Age : 55 years, Occ : Agri,

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21. Sopan S/o Maruti Nande Age : 75 years, Occ : Agri,

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22. Uttam S/o Vithal Bhakre Age : 60 years, Occ : Agri,

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23. Khodabai W/o Bapurao Nande Died through L.Rs.

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23-A) Khodabai W/o Rangnath Nande
Age : 60 years, Occ : Agri,

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Nos.4 to 23-A, R/o Aalni,
Tq. Dist. Osmanabad.

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...RESPONDENTS

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...

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Mr.Tatyasaheb Bhosle Advocate for Petitioner.
Mrs.V.S. Choudhari, A.G.P. for Respondent
Nos.1 to 3.

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Mr. A.B. Kale, Advocate for Respondent Nos.4
to 7, 10, 12, 13 to 19, 20A, 23A.

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...

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CORAM: S.S. SHINDE AND

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 S.M. GAVHANE, JJ.

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DATE OF RESERVING ORDER: 05TH MARCH, 2018.

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 DATE OF PRONOUNCING ORDER : 14TH MARCH, 2018.

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ORDER [PER S.S. SHINDE, J.]:

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This Petition takes exception to the
impugned order dated 25th May, 2010 passed by

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Respondent No.3.

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2. Learned counsel appearing for the

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petitioner submits that, the order impugned in
this Petition is in ignorance of the Government
Resolutions dated 17thApril, 2003 and 26th

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December, 2003 issued by the Irrigation
Department, Government of Maharashtra, Mantralaya
Mumbai. He further submits that, the Special Land
Acquisition Officer has not properly verified the

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record and contrary to the date of taking
possession mentioned in the Award, has mentioned
1st March, 2001 as a date on which the possession
of the land of the Respondents was taken by the
petitioner. Whole approach of the Special Land
Acquisition Officer is contrary to the orders
passed by this Court in Writ Petition No.7396/2010

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(Kalyan S/o Uttamrao Dubale V/s State of
Maharashtra and others). It is submitted that, the

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possession is taken after issuance of notification
under Section 4 of the Land Acquisition Act,

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therefore, the claimants are not entitled for
rental compensation or interest on such rental
compensation. Learned counsel invites our
attention to the Award passed by the Special Land
Acquisition Officer on 10th August, 2005. It is
submitted that, the Reference Petition under
Section 18 of the Land Acquisition Act is pending
before the Civil Court and the Respondents have
claimed rental compensation for acquired land by
submitting an application with the Special Land
Acquisition Officer. Therefore, relying upon the
pleadings in the Petition, grounds taken therein
and annexures thereto, learned counsel appearing
for the petitioner submits that, the Petition
deserves to be allowed.

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3.On the other hand, Mr.A.B. Kale, learned

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counsel appearing for Respondent Nos.4 to 7, 10,
12, 13 to 19, 20A and 23A invites our attention to

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the impugned order, and submits that keeping in
view the record maintained by the office of the

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Special Land Acquisition Officer, it is mentioned
that the possession of the land of the Respondents
has been taken prior to issuance of Section 4
Notification, and therefore, the Respondents are
entitled for rental compensation with interest, in
view of the ratio/law laid down in the following
cases :-

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(1) R.L. Jain (D) by Lrs V/s D.D.A. and others1

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(2) State of Maharashtra and others V/s Maimuma
Banu and others2

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(3) Bhagwat Nathu Patil V/s State of Maharashtra
and ors3

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(4) Maimune Banu Hamidali Khan and others V/s
State and others4

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It is submitted that, the Respondents

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have not yet received the amount towards rental
compensation and the interest thereupon for long

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1 AIR 2004 SC 1904

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2 AIR 2003 SC 3698

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3 2009(1) Bom.C.R. 328

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4 2001(3) Bom.C.R. 529

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period, therefore, the petitioner may be directed
to release the payment forthwith.

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4.We have carefully considered the
submissions advanced by learned counsel appearing
for the petitioner and learned counsel appearing
for Respondent Nos.4 to 7, 10, 12 to 19, 20A and
23A. We have perused the averments in the
Petition, grounds taken therein, annexures thereto
and the impugned order passed by the Special Land
Acquisition Officer.

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5.Upon careful perusal of the impugned
order, it appears that, the petitioner herein
earlier approached to the High Court, and pursuant
to the directions given to the Special Land
Acquisition Officer, he undertook exercise to
consider the cases of the private Respondents for
their entitlement for rental compensation and

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interest thereon. In the impugned order, he has
stated that, the possession of the lands of the

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private Respondents was taken by private
negotiation by the Executive Engineer, Minor
Irrigation, Osmanabad on 1st March, 2001, for the
purpose of constructing storage tank to store the
water. The proposal was sent for Section 4
Notification on 4thMay, 2000, however, the

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Notification was issued on 26th April, 2001, and
thereafter the Award was passed on 10th August,
2005. Therefore, it appears that, the possession
of the land of the private Respondents was taken

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on 1st March, 2001 and the Notification under
Section 4 of the Land Acquisition Act was issued
on 26th April, 2001.

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6.The Supreme Court in the case of R.L.
Jain (supra), in para 11 has considered the scheme
of land acquisition from Section 4(1) Notification

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till the Award. The Supreme Court in para 11
observed thus :-

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“11..... The scheme of the Act does not

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contemplate taking over of possession

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prior to the issuance of Notification

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under S. 4(1) of the Act and if possession
is taken prior to the said Notification it
will dehors the Act. It is for this reason

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that both Ss. 11(1) and 23(1) enjoin the
determination of the market value of the
land on the date of publication of
Notification under S. 4(1) of the Act for

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the purpose of determining the amount of
compensation to be awarded for the land
acquired under the Act. These provisions

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showinunmistakabletermsthat

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publication of Notification under S. 4(1)
is the sine qua non for any proceedings
under the Act.”

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7.Thereafter, the Supreme Court has

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discussed the applicability and scope of Section

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34 of the Land Acquisition Act. An ultimate
conclusion reached by the Supreme Court is that

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the scheme of the Act does not contemplate taking
over possession prior to issuance of Notification

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under Section 4(1) of the Act and if the
possession is taken prior to the said
Notification, it will be dehors the Act. In para
18, it is further observed that, in a case where
the land owner is dispossessed prior to the
issuance of preliminary Notification under Section
4(1) of the Act, the Government merely takes
possession of the land but the title thereof
continues to vest with the land owner. It is fully
open for the land owner to recover the possession

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of his land by taking appropriate legal

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proceedings. He is therefore only entitled to get
rent or damages for use and occupation for the

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period the Government retains possession of the
property. Where possession is taken prior to the
issuance of the preliminary Notification, in our
opinion, it will be just and equitable that the

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Collector may also determine the rent or damages
for use of the property to which the land owner is

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entitled while determining the compensation amount
payable to the land owner for the acquisition of
the property. The provision of S. 48 of the Act
lend support to such a course of action. For
delayed payment of such amount appropriate
interest at prevailing bank rate may be awarded.

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8.The Division Bench of this Court in the
case of Maimune Banu Hamidali Khan (supra) has
also discussed the scheme of the Land Acquisition
Act and reached to the ultimate conclusion that,
in view of the Government Resolutions issued in
the year 1972 and 1977 recognizing the
land/property owners right to receive rental
compensation and interest thereon, in case
possession is taken, such land owner/owners are
entitled for rental compensation and also interest
thereupon, in case of delay in disbursement of
the said amount towards rental compensation,

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wherein the amount is taken by private negotiation
before issuance of Notification under Section 4 of

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the Land Acquisition Act by the State Government.

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The para 15 of the said judgment reads thus :-

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“15. When a citizen looses the possession
of his land/property, the effect is
nothing short of being thrown on the roads
and that involves financial liabilities
not only for loss of the land/property but
also for rehabilitation by way of shelter
and/or means of earnings. It can not be
accepted that the Government has the power
to throw the property owner on roads and
ask him to wait for the land acquisition
proceedings being initiated under the Act
at its sweet will and even, may be decades
later, as has happened in some of the
cases at hand turning down the claim for
compensation. The intention behind the
resolutions as issued by the State
Government is explicit and it shows the
Governments full awareness that it has no
authority in law to take the possession of
the land/property by consent or by private
negotiations prior to the date of
publication of the notice under section
4(1) of the Act and therefore, to meet the

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emergency situation, may be in the larger
public interest to take over the immediate
possessionoftheland/property.
Therefore, the Government Resolutions
appear to have been issued from time to
time recognizing the land/property owners
right to receive rental compensation and
interest thereon. It is also seen from the
record that in selected cases the
Government has paid rental compensation as
well as interest thereon and in some other
cases, the same benefit has been denied to
petitioners for the reasons best known to
the Government. The directions issued by
this Court from time to time which have
been referred to in the earlier
paragraphs, regarding payment of rental
compensation have not been challenged by
the State Government and these directions
have become final. These directions have
been implemented and rental compensation
has been paid to the concerned
land/property owners on the basis of the
Resolutions allowing such payments. The
loss of possession of agricultural land
entails the loss of earning by way of
cultivation of crops and if such

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possession is taken over without
instituting the acquisition proceedings as
contemplated under the Act, the land owner
must be compensated for such loss
immediately. If such rental compensation
has been paid belatedly, the land owner is
entitled to receive interest thereon. The
amended provisions of the Act, as relied
upon by the learned Additional Government
Pleader do not envisage and cover, in
their ambit, the cases of such
acquisitions by consent or by private
negotiations except as contemplated under
section 17 of the Act. We have, therefore,
no hesitation to hold that when the
land/property is acquired by consent or by
private negotiations, the owner concerned
is entitled for the payment of rental
compensation as well as interest thereon.
The absence of such provision regarding
payment of compensation would certainly
defeat the protection guaranteed by
Article 21 of the Constitution, which
states that no person shall be deprived of
his life or personal liberty, except
according to the procedure established by
law.

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15-A. It would be appropriate for the
Government, to review its policy for
acquisitionoflandbeforethe
notification under section 4(1) of the Act
is issued. By incorporating sub-section
(3-A) in section 17, the Parliament has
recognised the land owners right to
receive eighty percent of the compensation
amount at the time of possession taken
over under the said section. Whenever the
State Government decides to take
possession by private negotiations or by
consent, the owner of such land/property
must be paid eighty percent of the
compensation amount as envisaged under the
provisions of section 17(3-A) of the Act
and if such payment is made, all other
benefits under the Act would be available
to such owners. In case such amount of 80%
compensation is not paid at the time of
taking over the possession, the landowners
are entitled for rental compensation as
well as interest thereon and it ought to
be at the rates as provided under sections
23 and 28 of the Act. The land acquisition
officer or the reference Court would have

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powers to deal with the claimants right
for rental compensation and interest
thereon while passing the award. It would
be imperative that such a remedy is
available to the claimants at the first
instance rather than dragging him to knock
the doors of this Court under Article 226
of the Constitution. The State Government
may be better advised to derive a new
policy on these lines, in case it wishes
to continue with its intentions to take
possession of the land/property, in
exceptional cases or as a matter of course
in future, before issuing a notification
under section 4(1) of the Act.”

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.After elaborate discussion in para 16, it
is observed thus :-

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“16. In the result, we allow the writ

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petitionsanddirecttheState
authoritiestopaytherental
compensation and interest thereon at the
rates prescribed in the Government
Resolution dated 24-3-1988 and the
paymentshallbereleasedas

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expeditiously as possible and in any case
within the period of six months from
today by the Collector concerned. We also
hold that the land owners will be
entitled to raise the demand of rental
compensation as well as the interest
thereon before the Collector, when he
would be passing the award under section
11 of the Act or before the reference
Court, as the case may be. In case the
concerned owner has not been paid 80% of
the compensation as calculated by the
Collector while taking possession of such
land/property without issuing notice
under section 4(1) of the Act, we direct
the Government to review its policy for
higher rate of rental compensation as
well as the interest thereon, in the
light of the provisions of sections 17(3-
A), 23(1-A) and section 28 of the Act”

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9.Keeping in view the aforesaid settled
position of law, in our opinion, the Special Land
Acquisition Officer is justified in passing the
impugned order, thereby holding that the private
Respondents are entitled for rental compensation

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and interest thereupon from 22nd August, 2000 to
10th August, 2005. However, it appears that, in the
impugned order, the Special Land Acquisition
Officer has mentioned the date of taking
possession on 1st March, 2001. He has mentioned two

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dates i.e. 22nd August, 2000 and 1st March, 2001
about taking over the possession. Be that as it
may, once again the Special Land Acquisition
Officer can verify from the record the correct
date of taking possession and accordingly do the
needful.

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10.In the light of foregoing paragraphs, we
are not inclined to interfere in the impugned
order. Hence the Petition stands rejected.

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11.On 9th January, 2013, the Division Bench

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of this Court (Coram : R.M. Borde & U.D. Salvi,
JJ) directed the petitioner to deposit the amount

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towards rental compensation, as directed by the
Special Land Acquisition Officer (excluding the

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amount of interest) in the Registry of this Court
within a period of six weeks. It appears that, the
said amount was not deposited for considerable
period, however, lastly, it has been deposited on
30th January, 2014. Be that as it may, the private
Respondents will be entitled to withdraw the said
amount as per their entitlement, unconditionally,
from the Registry, however after establishing
their identity. So far as the interest part is
concerned, it will be open for the Special Land
Acquisition Officer to calculate the same, if
already not calculated, and ensure the payment of

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said amount to the concerned respondents,
expeditiously.

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sga/

Godavari Marathwada Irrigation Development Corporation Thru Executive Engineer v. the State of Maharshtra and Ors.

Case brief

What is this about?

What did the court decide?

Godavari Marathwada Irrigation Development Corporation Thru Executive Engineer v. the State of Maharshtra and Ors.

Case brief

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What the court decided

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