1 UNREPORTED IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO.2801 OF 1993. 1. Sudhir Hanmantrao Deshmukh, Age 40 years, Occ.Medical Practitioner. 2. Pradeep Hanmantrao Deshmukh, Age 32 years, Occ.Agriculturist. 3. Shirish Hanmantrao Deshmukh, Age 28 years, Occ.Service, 4. Shrikrishna Hanmantrao Deshmukh, Age 24 years, Occ. Education. All residing at Kallam, Tal. Kallam, Dist. Osmanabad. ... Petitioners. Versus 1. The State of Maharashtra. 2. The Collector, Osmanabad, Dist. Osmanabad. 3. The Administrative, Command Area Development Authority, Aurangabad. 4. Executive Engineer, Majalgaon Canal Division No.8, Ambejogai, Dist. Beed. ... Respondents. ... 2 Mr.P.R.Katneshwarkar, advocate for the petitioner No.2. Mr.N.B.Patil, Asstt. Govt. Pleader for the State. ... CORAM : B.R.GAVAI AND : S.V.GANGAPURWALA,JJ. Date : 02.08.2010. ORAL JUDGMENT (Per S.V.Gangapurwala,J.) 1. The petitioner is owner of land bearing S.No.231 of Kalamb, totally admeasuring 28 acres 30 gunthas. In the year 1982-83 Manjra dam was constructed. It is the case of the petitioner that when the water is stored in the Manjra dam to its full capacity, the entire land of the petitioner get submerged in the water,thereby the whole land becomes uncultivable. Previously on number of occasions the entire crop in the land was destroyed. Time to time, the Tahsildar had made the panchanama and had also assessed the damage caused to the crop. 2. Vide the present petition, the petitioner claims that as he is not in a position to enjoy the said property, he has been deprived of the use and enjoyment of the said property as 3 a owner, the Respondents should take up necessary acquisition proceedings of the entire land of the petitioner i.e. S.No.231. 3. Mr.Katneshwarkar, learned counsel for the petitioner relying on the report of the Sub- Divisional Engineer, contends that after the height of the dam has been increased, the land to the extent of 6 hectares 36 Ares is submerged and the State authorities would be duty bound to acquire the said land. 4. Mr.Patil, learned Asstt.Govt. Pleader contends that considering the height of the dam having been increased by 0.5 metres, then in that case the land to the extent of 3.07 hectares only will be required to be acquired. According to him, as per the Govt. circular dt.17.01.1975 the extent of land to be effected is to be counted either by taking the measurement of height or the length of the dam and as per the principle laiddown therein whichever area comes less (as affected) the same is only required to be acquired and as per the said calculation only 4 3.07 hectares of land would be affected and required to be acquired. Out of the said area 2.07 hectares is already acquired and a proposal for acquisition of 0.79 hectare is already forwarded. As such only 0.22 hectare would be required to be acquired. 5. Normally, this Court would not have entertained the petition if disputed questions of fact are involved but taking into account the report of the Executive Engineer, Sub-Divisional Engineer and we had also asked the Tahsildar to submit his report by making the factual inquiry. On receipt of the same and considering all the aforesaid reports we do not find any disputed question of fact would arise. The said reports of Executive Engineer and Tahsildar are taken on record and marked Exh.'X' and Exh.'X-1' for identifcation. 6. Right to property though now is not a fundamental right but still remains a constitutional right by virtue of Article 300-A of the Constitution of India. A right on higher 5 pedestal than a mere statutory right. The Tahsildar has inspected the said land and has submitted his report. At the time of inspection he has also recorded the statements of the residents, the adjoining lands owners and has also conducted the panchanama. The Tahsildar on recording the statements and personally visiting the site has observed that almost 6 to 7 hectares of land is submerged in the water whenever the dam is filled to its optimum and this was the scenario in previous years. The statements of the witnesses which are recorded by the Tahsildar substantiate the said fact. Even the Sub- Divisional Engineer had given a detail report wherein by referring to various calculations and also the position as it existed he was of the opinion that an area of almost 8.40 acres is required to be acquired. 7. Even we had asked measurement to be carried out. The measurements were carried out and the Executive Engineer, Latur Division, Latur and had submitted a report. Even according to them if the vertical measurement is taken then 6 area of 3.07 hectares would be sub-merged and if the measurement is done taking into account the length then in that case an area of 6 hectares 36 Ares would be affected. The jurisprudential concept of the right of ownership is that a person should be in a position to use and enjoy his property completely without any impediment. When the land of the petitioner to the extent of 6 hectares 36 ares is rendered in such a state that it can not be used for cultivation then the very efficacy of ownership is lost. 8. Taking into consideration the aforesaid facts we deem it appropriate to direct the respondents to acquire the land of the petitioner considering that the total area affected would be 6 hectares 36 ares of the said land S.No.231. Out of 6 hectares 36 ares, 2 hectares 6 ares land is already acquired and as such the Respondents are hereby directed to acquire the remaining area from 6 hectares 36 ares of the land i.e. about an area of 4 hectares 30 ares. Necessary steps be initiated by the Respondents to acquire the said remaining land within a period of three (3) 7 months from today. 7. Rule made absolute with aforesaid terms. However, there shall be no order as to costs. (S.V.GANGAPURWALA,J.) (B.R.GAVAI,J.) asp/office/wp280193