:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION WRIT PETITION NO.6827 OF WRIT PETITION NO.6827 OF WRIT PETITION NO.6827 OF 2006 2006 2006 1. Sukumar M. Khot Age 43 years, Occ : Agriculture, Residing at :- Kolge, Tal : Kagal, District Kolhapur. 2. Shivaji Bhimrao Patil Age 45 years, Occ : Agriculture, Residing at :- Kolge, Tal : Kagal, District Kolhapur. 3. Shri. Dyandeo Hari Mane Age 55 years, Occ : service, Residing at :- Kolge, Tal : Kagal, District Kolhapur. 4. Shri. Sudhakar Balaso Wani Age 37 years, Occ : Agriculture, Residing at :- Kolge, Tal : Kagal, District Kolhapur. 5. Asharath Vithu Patil Age 70 years, Occ : Agriculture, Residing at :- Kolge, Tal : Kagal, District Kolhapur. 6. Shri. Kerba Hari Mane, Age 40 years, Occ : Agriculture, Residing at :- Kolge, :2: Tal : Kagal, District Kolhapur. 7. Shri. Rahul Dyandeo Mane, Age 18 years, Occ : agriculture, Age 70 years, Occ : Agriculture, Residing at :- Kolge, Tal : Kagal, District Kolhapur. 8. Shri. Baburao Tukaram Mane, Age 18 years, Occ : agriculture, Age 70 years, Occ : Agriculture, Residing at :- Kolge, Tal : Kagal, District Kolhapur. 9. Shri. Pandurang Tukaram Mane, Age 50 years, Occ : agriculture, Residing at :- Kolge, Tal : Kagal, District Kolhapur. 10. Shri. Mahadeo Tukaram Mane, Age 47 years, Occ : service, Residing at :- Kolge, Tal : Kagal, District Kolhapur. 11. Shri. Nivrutti Dattu Mane, Age about 60 years, Occ : agriculture, Residing at :- Kolge, Tal : Kagal, District Kolhapur. 12. Shri. Shamrao Dattu Mane, Age about 55 years, Occ : agriculture, :3: Residing at :- Kolge, Tal : Kagal, District Kolhapur. 13. Shri. Bhimrao Dattu Mane, Age about 47 years, Occ : agriculture, Residing at :- Kolge, Tal : Kagal, District Kolhapur. 14. Shri. Ramu Laxman Ghugare, Age about 58 years, Occ : agriculture, Residing at :- Kolge, Tal : Kagal, District Kolhapur. 15. Shri. Dhondiba Shiva Ghugare, Age 66 years, Occ : agriculture, Residing at :- Kolge, Tal : Kagal, District Kolhapur. 16. Shri. Vilas Sakharam Ghugare, Age 47 years, Occ : agriculture, Residing at :- Kolge, Tal : Kagal, District Kolhapur. 17. Shri. Shamrao Nagoji Sabale, Age about 70 years, Occ : Sheti, Residing at :- Kolge, Tal : Kagal, District Kolhapur. 18. Shri. Rajaram Pandurang Sabale, Age about 50 years, Occ : agriculture, Residing at :- Kolge, Tal : Kagal, :4: District Kolhapur. 19. Shri. Dyanu Dattu Daware, Age about 67 years, Occ agriculture, Residing at :- Kolge, Tal : Kagal,District Kolhapur. 20. Shri. Tumaram Dattu Daware, Age about 64 years, Occ : agriculture, Residing at :- Kolge, Tal : Kagal, District Kolhapur. 21. Shri. Shankar Dattu Daware, Age about 60 years, Occ : agriculture, Residing at :- Kolge, Tal : Kagal, District Kolhapur. 22. Shri. Santosh Shankar Khot, Age about 25 years, Occ : service, Residing at :- Kolge, Tal : Kagal, District Kolhapur. 23. Shri. Dundappa Balaso Wani, Age about 33 years, Occ : service, Residing at :- Kolge, Tal : Kagal, District Kolhapur. 24. Shri. Sanjay Balaso Wani, Age about 30 years, Occ : service, Residing at :- Kolge, Tal : Kagal, District Kolhapur. 25. Parvati Shivling Wani, :5: Age about 75 years, Occ : agriculture, Residing at :- Kolge, Tal : Kagal, District Kolhapur. 26. Ananda Rau Daware, Age about 52 years, Occ : service, Residing at :- Kolge, Tal : Kagal, District Kolhapur. 27. Shri. Rangrao Rama Patil, Age about 65 eyars, Occ : agriculture, Residing at :- Kolge, Tal : Kagal, District Kolhapur. 28. Shri. Rajaram Shankar Patil, Age about 45 years, Occ : agriculture, Residing at :- Kolge, Tal : Kagal, District Kolhapur. 29. Shri. Pandurang Govind Patil, Age about 66 years, Occ : agriculture, Residing at :- Kolge, Tal : Kagal, District Kolhapur. 30. Shri. Vilas Shankar Patil, Age about 50 eyars, Occ : agriculture, Residing at :- Kolge, Tal : Kagal, District Kolhapur. 31. Smt. Malubai Shrikant Patil, Age about 48 years, Occ : agriculture, Residing at :- Kolge, Tal : Kagal, :6: District Kolhapur. 32. Shri.Bapu Sambhaji Bhosale, Age about 55 years, Occ : agriculture, Residing at :- Kolge, Tal : Kagal,District Kolhapur. 33. Shri. Vikas Bapu Bhosale, Age about 40 years, Occ : agriculture, Residing at :- Kolge, Tal : Kagal, District Kolhapur. 34. Shri. Jambuwant Bhau Satpute, Age about 55 years, Occ : agriculture, Residing at :- Kolge, Tal : Kagal, District Kolhapur. 35. Shri. Gundu Raghu Patil, Age about 67 years, Occ : agriculture, Residing at :- Kolge, Tal : Kagal, District Kolhapur. 36. Shri. Bhimrao Laxman Patil, Age about 70 years, Occ : agriculture, Residing at :- Kolge, Tal : Kagal, District Kolhapur. 37. Shri. Namdeo Sakharam Mane, Age about 65 years, Occ : agriculture, Residing at :- Kolge, Tal : Kagal, District Kolhapur. 38. Smt. Laxmibai Shankar Patil, :7: Age about 75 years, Occ : agriculture, Residing at :- Kolge, Tal : Kagal, District Kolhapur. 39. Shri. Vitthal Tukaram Supale, Age about 26 years, Occ : agriculture, Residing at :- Kolge, Tal : Kagal, District Kolhapur. 40. Shri. Bhairu Dattu Supale, Age about 55 years, Occ : agriculture, Residing at :- Kolge, Tal : Kagal, District Kolhapur. 41. Shri. Shivaji Dattu Supale, Age about 45 years, Occ : agriculture, Residing at :- Kolge, Tal : Kagal, District Kolhapur. 42. Shri. Sadashiv Dhondiba Supale, Age about 52 years, Occ : agriculture, Residing at :- Kolge, Tal : Kagal,District Kolhapur. 43. Shri. Dadu Dhondiba Supale, Age about 48 years, Occ : agriculture, Residing at :- Kolge, Tal : Kagal, District Kolhapur. 44. Shri. Baburao Dhondiba Supale, Age about 45 years, Occ : agriculture, Residing at :- Kolge, Tal : Kagal, District Kolhapur. 45. :8: Shri. Dilip Pandurang Bhosale, Age about 23 years, Occ : agriculture, Residing at :- Kolge, Tal : Kagal, District Kolhapur. 46. Shri. Balaso Rajaram Bhosale, Age about 35 years, Occ : agriculture, Occ : agriculture, Residing at :- Kolge, Tal : Kagal, District Kolhapur. 47. Shri. Nandkumar Rajaram Bhosale, Age about 32 years, Occ : agriculture, Occ : agriculture, Residing at :- Kolge, Tal : Kagal, District Kolhapur. 48. Shri. Babu Hari Torse, Age about 42 years, Occ : agriculture, Residing at :- Kolge, Tal : Kagal, District Kolhapur. 49. Shri. Ananda Hari Torse, Age about 40 years, Occ : agriculture, Residing at :- Kolge, Tal : Kagal, District Kolhapur. 50. Shri. Maruti Hari Torse, Age about 65 years, Occ : agriculture, Residing at :- Kolge, Tal : Kagal, District Kolhapur. 51. Sharubai Tukaram Torse Age about 65 years, :9: Occ : agriculture, Residing at :- Kolge, Tal : Kagal, District Kolhapur. 52. Shri. Babu Vithu Kumbhar, Age about 55 years, Occ : agriculture, Residing at :- Kolge, Tal : Kagal, District Kolhapur 53. Shri. Pandurang Tukaram Korane, Age about 38 years, Occ : agriculture, Occ : agriculture, Residing at :- Kolge, Tal : Kagal, District Kolhapur. 54. Shri. Raghunath Tumaram Korane, Age about 28 years, Occ : agriculture, Occ : agriculture, Residing at :- Kolge, Tal : Kagal, District Kolhapur. 55. Shri. Maruti Rama Khot Age about 62 years, Occ : agriculture, Residing at :- Kolge, Tal : Kagal, District Kolhapur. 56. Shri. Bhairu Amba Killedar, Age about 50 years, Occ : service, Occ : agriculture, Residing at :- Kolge, Tal : Kagal, District Kolhapur. 57. Shri. Balu Gopal Kudale, Age about 52 years, :10: Occ : service, Occ : agriculture, Residing at :- Kolge, Tal : Kagal, District Kolhapur. 58. Shri. Dyandeo Gopala Kudale, Age about 48 years, Occ : agriculture, Occ : agriculture, Residing at :- Kolge, Tal : Kagal, District Kolhapur. 59. Shri. Pandurang Bhau Khot, Age about 58 years, Occ : agriculture, Residing at :- Kolge, Tal : Kagal, District Kolhapur. 60. Shri. Babu Bhau Khot, Age about 52 years, Occ : agriculture, Residing at :- Kolge, Tal : Kagal, District Kolhapur. 61. Shri. Shahaji Tukaram Khot, Age about 20 years, Occ : agriculture, Residing at :- Kolge, Tal : Kagal, District Kolhapur. 62. Shri. Shivaji Tukaram Khot, Occ : agriculture, Residing at :- Kolge, Tal : Kagal, District Kolhapur. 63. Shri. Shankar Laxman Khot, Age about 48 years, Occ : service, Occ : agriculture, Residing at :- Kolge, Tal : Kagal, :11: District Kolhapur. 64. Shri. Aannaso Dadu Khot, Age about 40 years, Occ : agriculture, Occ : agriculture, Residing at :- Kolge, Tal : Kagal, District Kolhapur. 65. Hirabai Mahadeo Kumbhar, Age about 60 years, Occ : agriculture, Residing at :- Kolge, Tal : Kagal, District Kolhapur. 66. Shri. Maruti Appa Supale, Age 60 years, Occ : agriculture, Residing at :- Kolge, Tal : Kagal, District Kolhapur. 67. Shri. Pandurang Appa Supale, Age about 55 years, Occ : agriculture, Residing at :- Kolge, Tal : Kagal, District Kolhapur. 68. Shri. Chandrakant Dattatray Potdar Age about 32 years, Occ : agriculture, Residing at :- Kolge, Tal : Kagal, District Kolhapur. 69. Sou. Sugandha Appaso Kumbhar, Age about 50 years, Occ : agriculture, Residing at :- Kolge, Tal : Kagal, :12: District Kolhapur. 70. Sharabai Bapu Kumbhar, Age about 45 years, Occ : agriculture, Residing at :- Kolge, Tal : Kagal, District Kolhapur. 71. Shri. Shankar Hari More, Age about 60 years, Occ : agriculture, Residing at :- Kolge, Tal : Kagal, District Kolhapur. 72. Shri. Ananda Nana Parale, Age about 60 years, Occ : agriculture, Residing at :- Kolge, Tal : Kagal, District Kolhapur. 73. Shri. Ramchandra Yasaba Narwekar, Age about 58 years, Occ : agriculture, Occ : agriculture, Residing at :- Kolge, Tal : Kagal, District Kolhapur. 74. Shri. Maruti Rama Khot, Age about 52 years, Occ : agriculture, Residing at :- Kolge, Tal : Kagal, District Kolhapur. Petitioner No.. 5 to Petitioner No. 74 through Power of Attorney Holder namely Petitioners No. 1 to 4 herein. PETITIONERS VERSUS :13: 1. State of Maharashtra [Summons to be served on the Learned Government Pleader appearing for State of Maharashtra under order XXVII, Rule 4, of the Code of Civil Procedure, 1908]. 2. The Divisional Commissioner , Pune Division, Pune. [Summons to be served on the Learned Government Pleader appearing for State of Maharashtra under order XXVII, Rule 4, of the Code of Civil Procedure, 1908]. 3. Sub Division Officer Karveer Sub Division, Kolhapur. [Summons to be served on the Learned Government Pleader appearing for State of Maharashtra under order XXVII, Rule 4, of the Code of Civil Procedure, 1908]. 4.Shri. Sadashivrao Mandlik Kagal Sahakari Sakhar Karkhana Ltd., At Post Sadashivnagar, Hamidwada, Tal : Kagal, District Kolhapur. RESPONDENTS Mr.A.V.Anturkar with Mr.Sugandh B. Deshmukh for the Petitioners. Mr.R.D.Rane, Addl. Government Pleader for Respondent Nos.1 to 3. Mr.Y.S.Jahagirdhar, Senior Advocate with Mr.H.V.Kode with Mr.N.V.Bandiwadekar for Respondent No.4. CORAM : F.I. REBELLO AND CORAM : F.I. REBELLO AND CORAM : F.I. REBELLO AND S.J. VAZIFDAR, JJ. S.J. VAZIFDAR, JJ. S.J. VAZIFDAR, JJ. DATED : 8TH FEBRUARY, 2007 DATED : 8TH FEBRUARY, 2007 DATED : 8TH FEBRUARY, 2007 ORAL JUDGMENT : ORAL JUDGMENT : ORAL JUDGMENT : (Per F.I. Rebello, J.) :14: Rule. Heard forthwith. 2. The Petitioners are owners of lands in respect of which proceedings for acquisition were initiated under the Land Acquisition Act, 1894 (hereinafter referred to as the Act). The Petitioners had earlier moved this Court by a Writ Petition, being Writ Petition No.6022 of 2005, challenging the declaration made under section 6, dated 23.6.2005 which was published on 22.8.2005. A learned bench of this Court by an order dated 21.3.2006 set aside the declaration under section 6 of the Land Acquisition Act for the area of 54 hectares and 16.30 ares and remitted the matter to the land acquisition officer for fresh inquiry in terms of Section 5-A of the Land Acquisition Act. 3. Pursuant to those directions, a notice was issued to the Petitioners for an inquiry to be conducted under section 5A of the Land Acquisition Act, read with the rules framed by the State of Maharashtra. Subsequent to the notice and after giving a :15: hearing to the Petitioner, the Appropriate Government has been pleased to issue a fresh declaration under section 6 of the Land Acquisition Act, dated 10.8.2006. The notification recites that the report of the officer competent to send report as per section 5(2) has been considered and it is necessary to acquire lands for the public purpose at the cost of the Government. 4. We may point out that the notification under section 4, was issued on 20.9.2004 and the declaration under Section 6 was made on 23.6.2005, within the time prescribed by section 6 of the Land Acquisition Act. The petition was filed on 25.9.2006 and the judgment of this Court came to be delivered on March 21, 2006. The effect of the judgment was that the declaration under section 6 was quashed and set aside and the matter was remitted back to the Collector for completing the inquiry under section 5A of the Land Acquisition Act in terms of directions issued in the judgment. The State Government was directed on receiving the report of the Collector and his recommendations to the objections, to take recourse to its powers in accordance with law. :16: 5. The Petitioner by the present petition, impugnes the fresh declaration. Various grounds have been urged. At the hearing of the petition before us, it was submitted that it was not open to the Appropriate Government to have made the declaration, as the time for making the declaration under section 6 had already expired. The learned counsel placed reliance on the judgment of the Apex Court in Padma Sundara Rao Padma Sundara Rao Padma Sundara Rao (Dead) & Ors. v. State of Tamil Nadu & Ors., (Dead) & Ors. v. State of Tamil Nadu & Ors., (Dead) & Ors. v. State of Tamil Nadu & Ors., (2002) 3 Supreme Court Cases, 533 (2002) 3 Supreme Court Cases, 533 (2002) 3 Supreme Court Cases, 533. There are some other contentions which, in our opinion, considering the order we intend to pass, need not be dealt with. On the other hand, on behalf of the Respondents, the learned counsel submitted, placing reliance on a Full Bench judgment of the Madras High Court in K. K. K. Chinnathambi Gounder & Anr. v. Government of Tamil Chinnathambi Gounder & Anr. v. Government of Tamil Chinnathambi Gounder & Anr. v. Government of Tamil Nadu & Anr., AIR 1980, Madras, 251 Nadu & Anr., AIR 1980, Madras, 251 Nadu & Anr., AIR 1980, Madras, 251 and the judgment of the Division Bench of this Court in Anna Shankar Anna Shankar Anna Shankar Walvekar v. State of Maharashtra & Ors., 1997(1) Walvekar v. State of Maharashtra & Ors., 1997(1) Walvekar v. State of Maharashtra & Ors., 1997(1) Maharashtra Law Journal, 470 Maharashtra Law Journal, 470 Maharashtra Law Journal, 470, that the prescribed period under section 6 is only in respect of the first declaration and not in the event subsequent declarations are made, consequent upon the first :17: declaration being quashed. It is therefore submitted that in the instant case as what is impugned is the second declaration, the time prescribed under section 6 would not apply and, consequently, there is no infirmity or illegality which can result in the declaration being set aside. On behalf of the State, Respondents, it is submitted that they have only complied with the orders of this Court. The Petitioner, it is submitted, ought not to be permitted to raise such a contention, considering the judgment of this Court. At least, in the exercise of its Extra Ordinary Jurisdiction, this Court ought not to interfere with the declaration issued, and consequently, the petition be dismissed. 6. We have given our anxious consideration to the contentions advanced. More so, in the context that it is this Court which had remitted the matter to the land acquisition officer, after the quashing the declaration under section 6 of the Land Acquisition Act. Whether we should accept the argument canvased on behalf of the State/Respondents, will be considered after examining the issue of law arising :18: in this petition. 7. For the purpose of discussion, we may reproduce the relevant portion of section 6 of the Land Acquisition Act, 1894 :- "6. Declaration that land is 6. Declaration that land is 6. Declaration that land is required for a public purpose.- required for a public purpose.- required for a public purpose.-(1) Subject to the provisions of Pat VII of this Act, when the appropriate Government is satisfied after considering the report, if any, made under section 5A, sub-section (2), that any particular land is needed for a public purpose, or for a Company, a declaration shall be made to that effect under the signature of a Secretary to such Government or of some officer duly authorised to certify its orders, and different declarations may be made from time to time in respect of different parcels of any land covered by the same notification under section 4, sub-section (1), irrespective of whether one report or different reports has or have been made (wherever required) under section 5A, sub-section (2); [Provided that no declaration in respect of any particular land covered by a notification under section 4, sub-section (1),- (i) published after the commencement of the Land Acquisition (Amendment and Validation) Ordinance, 1967 (1 of 1967) but before the commencement of the Land Acquisition (Amendment) Act, 1984 (68 of 1984) shall be made after the expiry of :19: three years from the date of the publication of the notification; or (ii)published after the commencement of the Land Acquisition (Amendment) Act 1984, shall be made after the expiry of one year from the date of the publication of the notification:] [Provided further that] no such declaration shall be made unless the compensation to be awarded for such property is to be paid by a Company, or wholly or partly out of public revenues or some fund controlled or managed by a local authority. [Explanation 1.-In computing any of the periods referred to in the first proviso, the period during which any action or proceeding to be taken in pursuance of the notification issued under section 4, sub-section (1), is stayed by an order of a Court shall be excluded. Explanation 2.- .............. ................................... .................................." We shall first examine, as to whether the time limit for the declaration under section 6 is only in so far as the first declaration that is made and not the subsequent declaration, on the first declaration being quashed. K. Chinnathambi Gounder & Anr. (supra), was a proceeding initiated before the amendment to section 6, by Act 68 of 1984 with effect from 24.9.1984. Considering the section as :20: it stood before this amendment, the learned Full Bench of the Madras High Court was pleased to hold that the maxim "actus curiae neminem gravabit" will apply to the legislative measure contained in the first proviso to Section 6(1) of the Act notwithstanding there being no express provision in the proviso to causes which are delayed by reason of issuance of a Courts order. This maxim, the Court held, is founded upon justice and good sense; and affords a safe and certain guide for the administration of the law. The Court therefore held that the time prescribed under section 6, as it then stood, would not apply to a subsequent declaration, as on account of the stay order in favour of the Petitioners, the Government was not a free agent during that period to set right any mistakes committed by it. The Full Bench of the Madras High Court, was considered by a learned Division Bench of this Court in Anna Shankar Walvekar (supra). Here also, the land was sought to be acquired for the Vadgaon Agricultural Produce Market Committee. It was submitted before the learned Division Bench that section 6 as applicable at the relevant time, provided that a declaration could not be made after :21: the expiry of the time set out therein. Relying on the judgment in K. Chinnathambi Gounder & Anr. (supra), the learned Division Bench noticed that the second declaration made beyond a period of three years, could not be held to be invalid and there was no necessity that a second declaration should be made within the period of three years from the date of the notification under Section 4. The Court held that the first proviso to section 6(1) refers only to the declaration under section 6 and does not say that effect to declaration shall be made within three years. Nor does the section say that in the event of the declaration being quashed by the Court, the subsequent declaration should be made within three years. From the judgment of the learned Division Bench of this Court, which followed the judgment of the Full Bench of the Madras High Court, it would appear, that in so far as the fresh declaration under section 6, the time prescribed to make a fresh declaration, will not apply. 8. We will now consider the judgment of the Supreme Court relied upon on behalf of the Petitioners. Reliance was placed on the judgment in N. N. N. Narasimhaiah & Ors. v. State of Karnataka & Ors., Narasimhaiah & Ors. v. State of Karnataka & Ors., Narasimhaiah & Ors. v. State of Karnataka & Ors., (1996) 3 Supreme Court Cases, 88 (1996) 3 Supreme Court Cases, 88 (1996) 3 Supreme Court Cases, 88. The matter had :22: came up in Appeal to the Supreme Court from the judgment of a Division Bench of the Karnataka High Court. The learned Division Bench there, had noted that the declaration under Section 6, published in the first instance was within the period prescribed under the proviso to Section 6(1). The learned Division Bench had held that after the declaration under Section 6 was quashed in the first instance, the limitation of one year does not apply. It further held that the view that the declaration under section 6 is still required to be published from the date of the notification under Section 4(1) is not correct in law. Before the Supreme Court, reliance was placed on the judgment in Oxford Oxford Oxford English School v. Govt. of T.N., 1(1995) 5 SCC, English School v. Govt. of T.N., 1(1995) 5 SCC, English School v. Govt. of T.N., 1(1995) 5 SCC, 206 206 206 and P. Chinnanna v. State of A.P., 2(1994) 5 P. Chinnanna v. State of A.P., 2(1994) 5 P. Chinnanna v. State of A.P., 2(1994) 5 SCC, 486 SCC, 486 SCC, 486 to contend that the view of the High Court is not correct in law. On behalf of the Respondents, it was contended that on facts, the notification under section 4(1) and the declaration under section 6 were published within the limitation prescribed under the Act. By an act of the court, if the declaration under Section 6 of the Act was quashed, giving power to the Government to conduct an enquiry under Section :23: 5-A, after giving opportunity to the claimants, declaration under Section 6 can never be made within the original period of limitation and public purpose would be in jeopardy since, under no circumstance, the enquiry and declaration under Section 6 could be done within the limitation prescribed in the first instance and second exercise will be rendered fruitless since by that the limitation prescribed under the proviso would stand expired. The Apex Court posed to itself a question, whether the limitation prescribed under the second (sic first) proviso to Section 6(1) would be applicable after the notification has been quashed by the High Court? Considering the scheme of the Act, the Court posed another question, whether the State is required to have the declaration published under Section 6 within the limitation prescribed under the proviso to Section 6(1) of the Act ? After considering the judgments in Oxford English School v. Govt. of T.N., (supra) and P. Chinnanna (supra), the Court answered the issue as under : "Thus, we hold