1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.391 OF 2009 1) Mohan s/o Gangadharrao Sirsat, Age-38 years, Occu:Agri., 2) Balasaheb s/o Gangadharrao Sirsat, Age-34 years, Occu:Agri., Both R/o-Fawadewadi, Tq-Renapur, District-Latur. ...PETITIONERS. VERSUS 1) The Collector, Beed, District-Beed, 2) The State of Maharashtra, Through Special Land Acquisition Officer, Jaikwadi Project No.4, Ambajogai, District-Beed. 3) Godawari Marathwada Patbandhare Vikas Mahamandal, Through its Executive Engineer, Latur Medium Project Division, Latur, District-Latur. ...RESPONDENTS. ... Shri.Sandeep S. Deshmukh Advocate for the Petitioner. Shri.R.P. Phatke, Additional Government Pleader for Respondent Nos. 1 and 2. Shri.S.G. Sangle Advocate for Respondent No.3. ... 2 CORAM: NARESH H. PATIL AND K.U. CHANDWAL, JJ. DATE : 26TH NOVEMBER, 2009. ORAL JUDGMENT (PER: NARESH H. PATIL, J.) : 1. Rule. Rule made returnable forthwith. By consent of the learned counsel for the parties, matter is taken up for final hearing at the stage of admission itself. 2. The agricultural lands of the Petitioners were subjected to the land acquisition proceedings. The date of last publication of notification under Section 4 of the Land Acquisition Act was on 18th February, 1999. The last date of publication of declaration under Section 6 of the Land Acquisition Act was 28th February, 2000, whereas the award was published on 4th February, 2003. 3. The Petitioner had withdrawn the amount granted under the award passed by the Special Land Acquisition Officer on 21st June, 2006. The petitioner filed application for making reference under Section 18 of 3 the Land Acquisition Act, which came to be rejected on 16th August, 2006. 4. The Petitioner filed Writ Petition No.455 of 2004 for quashing of the award dated 4th February, 2003 published by the Special Land Acquisition Officer in respect of Renapur Medium Project at village Talegaon (Ghat). The said Writ Petition came to be dismissed by the Division Bench of this Court on 12th April, 2005. 5. The Petitioner preferred Civil Appeal before the Apex Court against the Judgment and order passed by the Division Bench of this Court, bearing Civil Appeal No.1321 of 2007. 6. By the Judgment and order dated 13th March, 2007, the Apex Court allowed the Appeal and quashed the impugned award passed by the Special Land Acquisition Officer. The Judgment and order delivered by the Division Bench of this Court was set aside. 7. The present Writ Petition was filed on 29th August, 2008 by the Petitioners who had earlier filed 4 the above mentioned Writ Petition before this Court and Special Leave Petition before the Apex Court. The Petitioners herein pray for issuance of directions to the Respondents to issue fresh notification under Section 4 of the Land Acquisition Act and for other consequential reliefs. 8. The Respondent No.3 is a acquiring body namely, Godawari Marathwada Patbandhare Vikas Mahamandal. On behalf of Respondent No.3, Assistant Engineer, (Grade- I), Vati Medium Project Sub Division, Ahmedpur, Dist- Latur has filed affidavit in reply to this Petition. In para 8 of the reply, the deponent states that the Petitioners were served with notice under Section 12 (2) of the Land Acquisition Act on 9th March, 2005 and they had withdrawn the amount under the award on 21st June, 2006 and thereafter they filed reference proceedings under Section 18 of the Land Acquisition Act on 23rd September, 2005, which came to be rejected by Respondent No.2 on 16th August, 2006. Therefore, according to the deponent, the prayer of the present Petition would be barred by the principle of constructive res judicata and could not be considered 5 in the proceedings of Writ Petition filed under Article 226 of the Constitution of India. The deponent submits that the Petitioners had not approached with clean hands and concealed material facts in respect of filing of reference proceedings before the Special Land Acquisition Officer and rejection of the same after the Judgment was delivered by this Court in Writ Petition No.455 of 2004 dated 12th April, 2005. 9. In para 13 of the affidavit in reply, the deponent states that: "13. The deponent submits that, the directions as sought by the petitioners are not sustainable as the petitioners had acquiesced the award dated 4.2.2003 by their conduct hence estopped. The petitioners had exhausted the remedy under Section 18 of the L.A. Act and had preferred the Reference Petition therefore the claims raised in this petition are barred by the principles of constructive res judicata. The 6 Petitioners having participated throughout the proceedings can not at such belated stage seek directions, after failing to achieve the desired results and as such the principles of approbation and reprobation will cover the filed. The deponent submits that the petitioners have concealed the fact of filing of the reference from this Hon'ble Court and Hon'ble Supreme Court. The Petitioner cannot be allowed to blow hot and cold simultaneously." 10. The learned counsel Shri Deshmukh appearing for the Petitioners submits that after quashing of the award passed by the Special Land Acquisition Officer, by the Apex Court, it was incumbent on the part of the Respondents to initiate fresh acquisition proceedings under the provisions of the Land Acquisition Act as the land of the Petitioners was already subjected to the acquisition proceedings. Several representations were made to the responsible authorities and 7 ultimately as nothing moved with the authorities, the Petitioners had to approach this Court. The learned counsel appearing for the Petitioner refuted the allegations of suppression of facts, as in the submissions of the counsel, the Respondents were parties before the Supreme Court and had filed replies therein and the matter was contested on merits. Reliance was placed by the counsel appearing for the Petitioner on the Judgment in the matter of Hamza Haji vs. State of Kerala and another, reported in 2006 A.I.R. S.C.W., Page 4168. It was submitted that the grounds which are being raised by Respondent No.3 herein, amounts to seeking review of the order passed by the Apex Court, which could not be done at this stage in the present proceedings. 11. The learned counsel Shri Sangle appearing for Respondent No.3 submitted that principles of estoppel and waiver would be applicable to the facts of the present case. The Petitioner has been unfair in not disclosing true facts before this Court. There are suppression of material facts by the Petitioners and therefore the Petition deserves to be dismissed on 8 that ground alone. The learned counsel Shri Sangle, in support of his submissions, placed reliance on the following Judgments: i) Prasun Roy vs. The Calcutta Metropolitan Development Authority and another, reported in A.I.R. 1988 Supreme Court, Page, 205, ii) M/s. Prestige Lights Ltd. vs. State Bank of India, reported in 2007 A.I.R. S.C.W. Page 5350, iii) K.D. Sharma vs. Steel Authority of India Ltd. and others, reported in 2008 A.I.R. S.C.W. Page 6654. 12. Shri. Sangle, the learned counsel appearing for Respondent No.3 further submitted that the Petitioners land was subjected to the acquisition proceedings and accordingly an award was passed by the Special Land Acquisition Officer on 4th February, 2003. The Petitioners had withdrew the amount granted under the 9 award. The Petitioners filed application for making reference under Section 18 of the Land Acquisition Act, which came to be rejected. In other words, the counsel submits that the acquisition proceedings in respect of the land of the Petitioners are already concluded hence, there is no question of initiation of fresh acquisition proceedings in respect of the land of the Petitioners. Some dispute was also raised regarding date of taking the possession of the land and in respect of the fruit bearing trees as claimed by the Petitioners. 13. The learned Additional Government Pleader Shri Phatke submitted that in view of the order passed by the Apex Court, the natural consequence would be to initiate fresh land acquisition proceedings, which would have to be initiated as the Petitioners land was already subjected to acquisition proceedings and construction of the dam was already executed and completed. 14. We have perused the relevant record placed before us and the Judgments cited by the respective counsel 10 before us. We would not expand the scope of this Petition though number of issues are raised in this proceeding. The question before this Court is that in view of the order passed by the Apex Court by setting aside the award passed by the Special Land Acquisition Officer, whether fresh acquisition proceedings in view of the provisions of the Land Acquisition Act are required to be initiated or not. There is no dispute on the point that the present Respondents were parties to the Special Leave Petition. The matter was contested on merits. It is submitted that the Respondents filed affidavit in reply before the Apex Court. 15. In the representation made by the Petitioners to the Collector on 28th August, 2007 the Petitioners contended that: " The applicants further states that, as the possession was already taken by authorities and project was already completed. the applicants have with drawn awarded compensations 11 whichever was granted in final award under protest. As the S.L.A.O. has granted inadequate compensation in earlier award the applicants have filed the reference under Section 18 of the Land Acquisition Act and same is pending. But in view of the order passed by Hon'ble S.C. the award was quashed, therefore, it is clear that, the authorities have not acted as per the provisions of law and they have committed several irregularities and therefore you are responsible for the same." " That, the Hon'ble Supreme Court has quashed the award by its judgment and order dated 13.03.2007 but till this date you have not started the fresh procedure for acquisition this amounts a step towards contempt of Hon'ble Supreme Court. Therefore, you are requested to initiate the 12 acquisition proceedings with immediate effect so as to avoid further delay and consequences." 16. In the light of the representations filed and in the light of the contentions raised in the representations made to the Collector, we do not find that the Petitioner suppressed necessary, material facts from the authorities and/or from this Court. 17. In view of the Judgment and order passed by the Apex Court, there is no dispute that the land acquisition proceedings initiated in respect of the land of the Petitioners which culminated into passing of the award by the Special Land Acquisition Officer, were quashed and set aside. There is no dispute on the point that the Petitioners' land was subjected to acquisition proceedings and the same was acquired and utilized for the purposes of construction of dam. In view of the order passed by the Apex Court, we are of the opinion that passing of the award by the Special Land Acquisition Officer and rejection of the Petition filed by the Petitioner for referring matter under 13 Section 18 of the Land Acquisition Act to the Civil Court would not have any bearing on the case of the Petitioners to their detriment and prejudice. In other words, the consequent fall out of the order passed by the Apex Court would be that the fresh acquisition proceedings in accordance with the provisions of the Land Acquisition Act will have to be initiated by the Respondents in respect of the subject lands of the Petitioners. 18. The learned Additional Government Pleader submitted that so far the Respondent No.3 has not forwarded any proposal in respect of the initiation of the land acquisition proceedings which would prompt the State to issue notification under Section 4 of the Land Acquisition Act. 19. In the submissions of the counsel appearing for Respondent No.3, the acquiring body in the light of their stand reflected in the affidavit in reply, did not take any steps for submitting a proposal with the State and the acquiring body is of the opinion that the acquisition proceedings in respect of the said 14 land were already completed and the Petitioners have acquiesced in the land acquisition proceedings. We are not convinced with the submissions advanced by the learned counsel appearing on behalf of the Respondent No.3. We are not convinced with the stand adopted by the Respondent No.3 for with-holding the further steps towards the initiation of fresh acquisition proceedings in respect of the subject land. 20. We are, therefore, of the view that in the light of the facts of the case and more precisely in view of the Judgment delivered by the Apex Court in Civil Appeal No.1321 of 2007 and the fact that the Petitioners land was already subjected to land acquisition proceedings, fresh steps will have to be taken for initiation of the proceedings for acquisition of the lands under the provisions of the Land Acquisition Act. We therefore, direct the Respondents to take necessary steps in respect of initiation of fresh proceedings relating to acquisition of the subject lands of the Petitioners within a period of six months from today. 15 21. We clarify that we have not addressed any other issue or claim raised by the Petitioners or Respondents in the proceedings of this Petition. 22. Rule made absolute on the terms indicated above. [K.U. CHANDIWAL, J.] [NARESH H. PATIL,J.] asb/NOV09/wp391.09