1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD WRIT PETITION NO. 2244 OF 2009 1 Annasaheb s/o Baburao Bade, age 69 years, occ. Retired, r/o Nimbenandur, Taluka Shevgaon, District Ahmednagar, through General Power of Attorney Holder Suhas s/o Annasaheb Bade, age 28 years, occ. Agril.., r/o as above ...Petitioner VERSUS 1 The State of Maharashtra, through it’s Secretary, Department of Revenue & Forest, Mantralaya, Mumbai – 32, 2 The Collector, Ahmednagar, District Ahmednagar, 3 The District Special Land Acquisition Oficer, No.12, Nagar-Ahmednagar Road, Ahmednagar, District Ahmednagar, 4 The Deputy Director, Rehabilitation (Land), Collector Office, Ahmednagar, District Ahmednagar, 2 5 The Tahsildar, Tahsil Office, Shevgaon, Taluka Shevgaon, District Ahmednagar, 6 Trimbak s/o Dadaba Tagad, age 60 years, occ. Agril., r/o Avahana (Bk.), Taluka Shevgaon, District Ahmednagar, 7 Hausabai w/o Tulshiram Sabale, age Major, occ. Household & agril., r/o Avahane (Bk.), Taluka Shevgaon, District Ahmednagar ...Respondents ..... Shri Y.V.Kakade, advocate for the petitioner Shri V.D.Rakh, A.G.P. for respondent nos. 1 to 5 Shri D.R.Markad, advocate for respondent nos. 6 and 7 ..... CORAM : S.B.DESHMUKH AND SHRIHARI P.DAVARE, JJ. DATE OF RESERVING THE JUDGMENT : 13.10.2010 DATE OF PRONOUNCING THE JUDGMENT : 25.10.2010 3 J U D G M E N T : (Per Shrihari P. Davare, J.) 1 Rule. Rule made returnable forthwith. With the consent of the learned counsel for the parties, the petition is taken up for final hearing at the admission stage. 2 The petitioner claims to be the owner of the land bearing Old Survey No. 31 (present Gat No. 149), situated at Nimbenandur (Nandur Vihire), Taluka Shevgaon, District Ahmednagar, admeasuring 7 Hectare 2 Ares, and out of the said total area of land, the land admeasuring 1 Hectare 46 Ares is acquired by respondent no.3 by due procedure. 3 By the present petition filed by the petitioner under Articles 226 and 227 of the Constitution of India, the petitioner prayed for issuance of directions to respondent nos. 1 to 5 to take over the possession of the land admeasuring 1 hectare 46 ares out of land Old Survey No. 31 (present Gat No. 149), situated at Nimbenandur (Nandur Vihire), Taluka Shevgaon, District Ahmednagar, as per the statement recorded by respondent no.3 on 30.9.1975 or towards northern side of the said land and also prayed that respondent nos. 6 and 7 be restrained from taking over the 4 possession of the said land, and by amended prayer, the petitioner prayed that the letter dated 7.8.2009 issued by respondent no. 5 to Police Inspector, police station Shevgaon be stayed. 4 Respondent no.1 is the State of Maharashtra represented through its Secretary, Department of Revenue and Forest, Mantralaya, Mumbai, who has control over respondent nos. 2 to 5 and respondent no. 2 is the Collector, Ahmednagar; whereas respondent no.3 is the Special Land Acquisition Officer, under whose control land was acquired and respondent no.4 is the Deputy Director of Rehabilitation, who rehabilitates landless persons; whereas respondent no. 5 is the Tahsildar, Shevgaon, who is the controlling authority at Tahsil level and respondent nos. 6 and 7 are the persons, whom respondent no.3 allegedly allotted the acquired land of the petitioner. 5 According to the petitioner, land Survey No. 31, situated at Nimbenandur (Nandur Vihire) is his ancestral property and that is the only source for his and his family’s livelihood, since he has retired as Teacher. The petitioner also contends that the Government decided to acquire land of the persons who had more than prescribed limit i.e. prescribed limit of command area in the 5 year 1975. Accordingly, respondent no.3 acquired the land admeasuring 1 Hectare 46 Ares from Survey No. 31 (New Gat No. 149) of the petitioner (hereinafter referred to as ‘the said land’). Respondent no.3 has also prepared map to that effect on 24.3.1975, which is produced at Exh. ‘A’. 6 Respondent no.3 on 30.9.1975 recorded statement of the petitioner, wherein petitioner stated that the petitioner was ready and willing to give his land adjacent to the lake at northern side or towards east side south-north direction. Respondent no.3 also agreed that the petitioner had every right to take water from the canal and also it was cleared that there was no well and there is no farm house constructed by the petitioner in the acquired land, but rest of the land towards western side is in possession of the petitioner and respondent no.3 agreed to the said statement dated 30.9.1995 which is produced at Exh. ‘B’. 7 It is also the contention of the petitioner that since the year 1975 till the year 2008, the respondents did not take any steps to take possession of the acquired land and the said land remained in the possession of the petitioner. Hence, petitioner gave representation to respondent no.2 on 17.11.2008 stating that the said 6 land was acquired under command area in the year 1975, and accordingly procedure was completed and respondent no.3 by award No.LAQ/SR/12/1975 completed the necessary requisite procedure and copy of the relevant extract of the award register is produced at Exh. ‘C’. 8 The petitioner also contends that respondent no.3 recorded the statement of petitioner at the time of acquisition of land. Accordingly, the petitioner contends that he was ready and willing to give his land as per the said statement dated 30.9.1975. Accordingly, the petitioner gave representation dated 17.11.2008 to respondent no.2 and thereby prayed that as per the statement recorded on 30.9.1975 the said land was acquired and according to that statement the independent map of the petitioner’s land was prepared and it was kept in the office and the copy of the said representation is produced at Exh. ‘D’. 9 The petitioner further contends that thereafter he gave an application to respondent no.4 on 25.11.2008 and thereby prayed to take possession of the said land from northern side and copy of the said representation is produced at Exh. ‘E’. However, the respondents did not take any positive steps. Hence, the petitioner 7 again made representation to respondent nos. 2 to 5 on 5.12.2008 and requested to take possession of the said land as per the statement recorded by respondent no.3 on 30.9.1975 or on northern side of Old Survey No. 31 i.e. present Gat No. 149 and copy of the said representation dated 5.12.2008 is produced at Exh. ‘F’. However, in spite of giving repeated representations by the petitioners, the respondents did not take the cognizance thereof, and therefore, the petitioner gave legal notice to respondent nos. 2 to 5 on 31.12.2008 and copy thereof is annexed at Exh. ‘G’ and thereby stated that the possession of the said land be taken as per the statement recorded by respondent no.3 or possession of the northern side of the land be taken. 10 However, the petitioner submits that by order dated 8.5.2008 and the order dated 14.7.2004, respondent no.4 allotted the acquired land to respondent nos. 6 and 7 against the amount paid by them to the Government and copy of the 7/12 extract of Gat No. 149/1 and copy of mutation entry No. 1566 are annexed at Exh. ‘H’. 11 The grievance of the petitioner is that although his statement was recorded by respondent no. 3 on 30.9.1975 and although the petitioner was ready and willing to give the possession 8 of the land as per the said statement, the respondents failed to take the possession thereof and they are trying to take possession as per the map prepared before recording of the statement of the petitioner. The petitioner further contends that if the respondents do not take possession as per his statement, then the petitioner would suffer irreparable loss and hardship. Accordingly, the petitioner stated that he is ready and willing to give the possession of the land as per the statement recorded by respondent no.3. 12 The petitioner further contends that after filing the present petition, respondent nos. 6 and 7 made an application on 6.4.2009 to respondent no. 5 and made grievance that the petitioner and his son tried to disturb their possession of the land Gat No. 149 and copy thereof is produced at Exh. ‘I’, and although the present substantive petition was pending, respondent no. 5 issued letter dated 7.8.2009 to the Police Inspector, Shevgaon police station to make necessary inquiry and to take necessary action as per the representation of respondent nos. 6 and 7 and to submit the report to respondent no. 5, and the petitioner assailed the said communication dated 7.8.2009 in the present petition by way of amendment and made prayer in that respect by way of amended prayer clause. 9 13 While opposing the present petition, respondent no.3 has filed affidavit in reply, which was sworn in by Smt. Sneha Kisve, presently working as Special Land Acquisition Officer No. 12, Ahmednagar and thereby denied the averments and contentions made by the petitioner in the present petition unless admitted specifically. Respondent no.3 stated that the land of the petitioner was acquired vide Award No. LAQ/SR/57/73, dated 5.5.1979, to the extent of 1 Hectare 46 Ares out of Gat No. 149/1 belonging to Anna Baburao Bade and copy of the said award is annexed at Exh. ‘R-1’. Since the said land was under the slab, as per the policy introduced by the Government, it was to be distributed to the Project Affected persons. It is also stated that at that time the petitioner had given consent to the concerned officer to give his land at cultivation side or towards east side (south-north) directions. In the statement given by the petitioner, which was recorded by respondent no.3, on 30.9.1975, it was also agreed that the petitioner had right to take the canal water for cultivation of the land since there was no well and no farm house constructed by the petitioner. Accordingly, after following due procedure under the Act, the award was passed. 14 It is further contention of respondent no.3 that respondent no.4 has allotted the said land as per the order issued by the State 10 Government bearing Gat No. 149/1 admeasuring 1 Hectare 46 Ares to respondent nos. 6 and 7, who are project affected persons, on 11.4.2008. It is also the contention of respondent no.3 that the entire procedure was followed by the Special Land Acquisition Officer at the time of acquisition and after completion of said acquisition proceedings, petitioner has no right to shift the site from one place to another for his convenience. Respondent no.3 also submitted that the amount of Rs. 2,570/- has been awarded and the possession of the said land has already been given to respondent nos. 6 and 7 as per order dated 11.4.2008 and copy of the said letter dated 11.4.2008 is produced at Exh. ‘R-2’. In the premises, respondent no. 3 submits that there is no substance and force in the present petition, and hence, same deserves to be dismissed. 15 Respondent nos. 6 and 7 also filed affidavit in reply, which is sworn in by Trimbak Dada Tagad (respondent no. 6) and thereby opposed the present petition and denied the averments and contentions made by the petitioner unless admitted specifically. It is submitted by respondent nos. 6 and 7 that land Survey No. 78/1, which was in the name of father of respondent no. 6, was acquired for Jaikwadi Project and due to that he was rehabilitated in the village Avhade, Taluka Shevgaon, District Ahmednagar. On 16.8.2004 he 11 made an application before the District Collector/Rehabilitation Officer, Ahmednagar claiming the land as project affected person and stated that he has made earlier application on 9.7.1996, but till that date he neither got any response nor was allotted any land, and also filed affidavit in that respect and copy thereof is annexed at Exh. ‘P-1’ collectively. Respondent nos. 6 and 7 also stated that one more affidavit was made on 26.6.2007 before the Tahsildar, Shevgaon stating that they themselves visited the land and they are ready to accept any land which is mentioned in that affidavit and also gave an undertaking that they would not demand exchange of land once granted to them in future and copy of the said affidavit dated 26.6.2007 is annexed at Exh. ‘P-2’. 16 Accordingly, respondent nos. 6 and 7 stated that the Collector/Rehabilitation Administrator, Ahmednagar by order dated 17.4.2008 granted the land to respondent nos. 6 and 7 and on certain conditions from village Nandurvihire, Taluka Shevgaon out of Gat No. 149 to the extent of 1 Hectare 46 Ares, which was acquired by the Government in Ceiling from the petitioner in the year 1975 and copy of the said order issued by Collector on 17.4.2008 is annexed at Exh.’P-3’. Accordingly, respondent nos. 6 and 7 submitted that the Rehabilitation Officer, Circle Inspector and Kamgar Talathi measured 12 the allotted land on the spot in presence of panchas and gave the possession thereof to respondent nos. 6 and 7 under panchanama deed 14.8.2008 and copy of the said panchanama dated 14.8.2008 is produced at Exh. ‘P-4’. Thus, respondent nos. 6 and 7 contend that after taking the possession of the said land, they started cultivation of crops like Cotton, Bajara and Sugarcane therein and 7/12 extract for the year 2009-2010 to that extent is annexed at Exh. ‘P-5’. 17 Respondent nos. 6 and 7 further submitted that the above referred land of the petitioner was already acquired by the State Government in Ceiling long back i.e. in the year 1975; whereas the petitioner has filed the present petition in the year 2009 i.e. after span of about 34 to 35 years, and hence, the said petition deserves to be dismissed at the admission stage itself. It is further submitted that if the Government takes the possession of the land out of Gat No. 149 as per the contention of the petitioner, then said land becomes like a meter scale i.e. very long in length and very short in width and it would be impossible to cultivate the said land, and hence, submitted that present petition deserves to be dismissed. 18 Besides that, respondent nos. 6 and 7 further submitted 13 that every procedure in respect of allotment of land was completed in the year 2008 and actual/physical possession is also given to respondent nos. 6 and 7 in the year 2008 itself and respondent nos. 6 and 7 are cultivating the said land since then, as well as names of respondent nos. 6 and 7 have been recorded in the revenue record and present petition bears no substance and same is devoid of any merits, and therefore, same be dismissed. 19 The petitioner also filed additional affidavit stating that although the award was passed in respect of land Gat No. 149, situated at village Nandur Vihire, Taluka Shevgaon, District Ahmednagar, till today no possession was taken by the respondents/authorities from the petitioner. It is further stated by the petitioner that respondents/authorities, as per order issued to respondent nos. 6 and 7, did not give any notice to the petitioner while handing over the possession in favour of respondent nos. 6 and 7. Moreover, the petitioner has categorically stated that as per the statement recorded by the respondents/authorities on 30.9.1975 the petitioner is ready and willing to give land from east side South- North direction, and the respondents/authorities agreed for the same and thereafter award was passed. Accordingly, the petitioner urged that he is ready and willing to give land admeasuring 1 Hectare 46 14 Ares from Old Survey No. 32 (New Gat No. 149) from Northern side to the respondents/authorities. 20 Respondent no.3 also filed additional affidavit in reply, which is sworn in by Dattatraya s/o Shantaram Deogaonkar, presently working as Special Land Acquisition Officer No. 12, Ahmednagar, and thereby stated that the Special Land Acquisition Officer has acquired the land vide Award No. LAQ/SR/57/73, dated 5.5.1979 from Gat No.149/1 to the extent of area admeasuring 1 Hectare 46 Ares. Pursuant to the query made by this court whether possession receipt was executed between the petitioner and deponent’s office, it is stated that deponent’s office has already issued notice to the petitioner, but petitioner was not present, and hence, in his absence, deponent’s office made panchanama and took the possession of the land from Gat No. 149/1 and copy of the said panchanama is annexed at Exh. ‘R-1’. It is further stated that as per the Government’s policy, the deponent’s office i.e. respondent no.3 allotted the said land to respondent nos. 6 and 7 and possession receipt was executed therefor when the land was allotted to respondent nos. 6 and 7. It is further stated that the office of respondent no.3 verified the entire record and submitted that the possession was handed over by Surveyor of Rehabilitation 15 Department to respondent nos. 6 and 7 and copy thereof is annexed thereto at Exh. ‘R-2’. 21 We have perused the contents of the petition, its annexures, more particularly map Exh. ‘A’ (page 11), statement of the petitioner dated 30.9.1975 Exh. ‘B’ (page 12) and the affidavit in reply filed by respondent no.3 and affidavit in reply filed by respondent no.3 and affidavit in reply filed by respondent nos. 6 and 7, as well as additional affidavit in reply filed by the petitioner and additional affidavit in reply filed by respondent no.3 and annexures therewith and also considered the submissions advanced by learned counsel for the parties, and at the out set, undisputably, Old Survey No. 31 i.e. Gat No. 149, situated at village Nandur Vihire, Taluka Shevgaon, District Ahmednagar is the ancestral property of the petitioner and land to the extent of 1 Hectare 46 Ares out of total area of 7 Hectares 2 Ares was acquired by respondent nos. 2 to 5 by following due procedure i.e. the excess land of prescribed limit of command area and respondent no.3 prepared the map to that effect on 24.3.1975, which is marked at Exh.’A’. 22 Moreover, it is also admitted fact that respondent no.3 recorded the statement of the petitioner on 30.9.19975, which is 16 produced at Exh. ‘B’ (page 12) and petitioner stated therein that he was ready and willing to give his land adjacent to lake from northern side or towards east side (South-North direction), and according to the petitioner, the authorities agreed thereto and thereafter award was passed and also according to the petitioners, respondent no.3 agreed that the petitioner had every right to take the water from canal, since there was no well and farm house in the acquired land. It also appears that since respondent nos. 2 to 5 did not take possession of the acquired land, the petitioner gave representation to respondent no.2 on 17.11.2008 (Exh. ‘D’), and also gave application/representation dated 25.11.2008 to respondent no.4 which is produced at Exh. ‘E’, and petitioner further gave representation to respondent nos. 2 to 5 on 5.12.2008 (Exh. ‘F’), requesting to take the possession of the land as per the statement recorded by respondent no.3 on 30.9.1975. However, since no cognizance of the said repeated representations was taken, hence the petitioner sent legal notice to respondent nos. 2 to 5 on 31.12.2008 (Exh. ‘G’) and thereby stated that the possession of the said land be taken as per the statement recorded by respondent no.3 or the possession of Northern side of the land be taken. 23 On the afore said background, the contentions of 17 respondent no.3 that possession of land admeasuring 1 Hectare 46 Ares out of Gat No. 149/1 of village Nandur Vihire, was taken from the petitioner as per award dated 5.5.1979 under panchanama dated 20.12.1979 and the said land was allotted to respondent nos. 6 and 7 and possession thereof was handed over to them on 14.8.2008 under the possession receipt to that effect and names of respondent nos. 6 and 7 have been entered into records of rights of the said land i.e. 7/12 extract of the said land, by mutation entry no. 1566, do not appear to be digestible. Since it is contended by the petitioner that although panchanama was drawn on 20.12.1979, it was prepared in absence of the petitioner and the actual possession of the land admeasuring 1 Hectare 46 Ares out of Gat No. 149 remained with him only. Hence, he submitted the above referred three representations to respondent nos. 2 to 5 on 17.11.2008, 25.11.2008 and 5.12.2008 respectively, as mentioned hereinabove requesting to take the possession of the acquired land as per his statement dated 30.9.1975 and also sent legal notice to respondent nos. 2 to 5 on 31.12.2008 as aforesaid. 24 Learned counsel for the petitioner also submitted that the entry of the names of respondent nos. 6 and 7 on the 7/12 extract of the land Gat No. 149/1 by mutation entry no. 1566 is a got up entry. 18 Admittedly, the said 7/12 extract and extract of mutation entry no. 1566 are the revenue record and cannot be taken as basis and foundation for the possession of respondent nos. 6 and 7. The said aspect is strengthened by the very document i.e. the panchanama dated 14.8.2008 Exh. ‘P-4’ annexed to additional affidavit in reply filed by respondent nos. 6 and 7 (page 69), which indicates that the land in Gat No. 149/1 was only measured on 14.8.2008, but there is no specific mention in the said panchanama that the land admeasuring 1 Hectare 46 Ares out of Gat No. 149/1 was actually handed over to respondent nos. 6 and 7 on the said date i.e. 14.8.2008. So is the position with the statement dated 14.8.2008 of respondent no. 6, which is produced at Exh. ‘R-2’ along with the additional reply filed by respondent no.3 (page 61), wherein it is stated that land admeasuring 1 Hectare 46 Ares out of Gat No. 149/1 situated at village Nandur Vihire was only measured in pursuance of the application given by respondent no. 6 and boundary marks were made accordingly, but the said statement nowhere reflects that actual possession of the said land admeasuring 1 Hectare 46 Ares out of Gat No. 149/1, situated at Nandur Vihire was handed over to respondent no. 6 on the said date i.e. on 14.8.2008. 25 Pertinently, the petitioner filed his additional affidavit and 19 asserted that although the award was passed in respect of land Gat No. 149 as afore said, till today no possession was taken by respondents authorities from the petitioner and he further stated that as per the statement recorded by the respondents authorities on 30.9.1975, the petitioner is ready to give land admeasuring 1 Hectare 46 Ares from the land from east side (South-North direction), to which the respondents authorities had agreed and the said contention of the petitioner cannot be overlooked and ignored. 26 Accordingly, we are of the considered view that proposition put forth by respondent no.3 and respondent nos. 6 and 7 in respect of handing over of actual possession of the land, admeasuring 1 Hectare 46 Ares out of Gat No. 149/1, situated at village Nandur Vihire, Taluka Shevgaon and allotment thereof by respondent nos. 2 to 5 to respondent nos. 6 and 7, apparently, is not conceivable and acceptable. 27 Besides that, it is pertinent to note that although this court made specific query to learned counsel for respondent no.3 that whether any possession receipt was executed while taking over the possession of land admeasuring 1 Hectare 46 Ares out of Gat No. 149/1, situated at village Nandur Vihire, Taluka Shevgaon, from the 20 petitioner, during the course of arguments and in pursuance of the said query, respondent no.3 filed additional affidavit in reply dated 5.10.2010 and simply stated that office of respondent no.3 issued notice to the petitioner, but the petitioner was not present and in his absence, office of respondent no.3 made panchanama and has taken the possession of the land from Gat No. 149/1 and tendered copy of the said panchanama dated 20.12.1979 on record at Exh. ‘R-1’. It is further stated in the additional affidavit that as per Government policy,