1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 544 OF 2009 Bapurao s/o Chapala Rathod and others ...Petitioners Versus The State of Maharashtra and others ...Respondents ..... Mr. M.M. Joshi, advocate for the petitioners Mr. S.K. Tambe, A.G.P. for respondents 1 to 4 Mr. N.K. Chaudhari, advocate for respondent No. 5 Mr. V.D. Salunke, advocate for respondents 8 to 10 ..... CORAM: A.M. KHANWILKAR & S.S. SHINDE, JJ. DATED: 2ND MARCH, 2010 PER COURT:- 1 Heard counsel for the parties. The grievance, which has been brought before this Court is about unsuitability of the plot allotted to the petitioners so as to rehabilitate the petitioners in lieu of the petitioners’ lands acquired for lower Dudhana project. The petitioners have been offered plot No.123 of Patoda (Bk), which is now converted into Gat No.190 and is situated in Mantha Taluka. Considering the grievance made by the petitioners, on 21.1.2010, we passed the following order;- “Having perused the reply affidavit filed by the District Rehabilitation Officer, in particular Para. Nos. 4 and 5 thereof, it is not possible to accede to the relief claimed by the petitioners in terms of prayer clause (B) & (C). In as much as, it is now matter of 2 record that land Gat Nos. 334 and 335 are the private lands, and are yet to be acquired. The petitioners' claim can be considered against the said lands only after the acquisition proceedings in relation to the said lands is finally concluded and possession obtained by the Government. Realising this position, the Counsel for the petitioners states that in that case the petitioners may be content with the alternative relief claimed in terms of prayer clause (D). 2. Insofar as the alternative relief is concerned, according to the learned A.G.P., except the land which is already offered to the petitioners, there is no other land available with the Authority where the petitioners can be accommodated. He submits that no land is available either near Kedarwakdi Tanda as well as at Mantha adjacent to the State Highway which is the claim of the petitioners. In view of this submission, Counsel for the petitioners was asked to take instructions as to whether the petitioners are willing to wait till some other land would become available to the Authority for allotment to the petitioners. For this purpose, the matter is required to be adjourned at the request of the petitioners. Stand over to 04-02-2010. 3 Petition be listed under caption "directions".” 2 The matter proceeded further on 4.2.2010, when we passed the following order;- “1 Heard counsel for the parties. The grievance of the Petitioners is that they are being offered land in lieu of the their land which has been acquired for Lower Dudhna Project, being Survey No.123 from village Patoda, which it is stated across the 3 Bar by the learned A.G.P., is in Taluka- Partur and not in Taluka-Mantha as is mentioned in the affidavit. 2 According to the Petitioners, the land which has been offered to the Petitioners by way of rehabilitation, is not suitable and is within the belt of submergence level as it is adjacent to the dam. The Respondents, on the other hand on affidavit, have stated that the said plot bearing Survey No.123 at village Patoda, Taluka-Partur is located at higher level and there is no possibility of it being exposed to submergence as is contended. 3. In view of the divergent stand taken by the parties about the topography and the location of the plot in question, in our view, the appropriate course is to direct the Judicial Magistrate, First Class at Taluka- Partur to submit report in this behalf. On the basis of that independent report, the grievance of the Petitioners can be examined, if required. The Judicial Magistrate, First Class, Partur shall submit report on or before 18th February, 2010. Place this Petition on 22nd February, 2010 under the caption "Directions". 4. Copy of this order be communicated to the concerned Judicial Magistrate, First Class, Partur by the Office expeditiously, if necessary, by Fax, E-mail or by deputing special messenger.” 3 Pursuant to the direction given to the C.J.J.D. and J.M.F.C. Partur, he has submitted report upon physical verification of the property to be allotted to the petitioners. His report dated 15.2.2010, 4 reads thus:- “HIGH COURT DIRECTION Outward No. 110 /2010 MOST URGENT Court of Civil Judge (J.D.) and J.M.F.C. Partur District Jalna Dated: 15.2.2010 To, The Hon’ble Assistant Registrar High Court of Judicature at Bombay, Bench at AURANGABAD THROUGH: THE HON’BLE PRINCIPAL DISTRICT AND SESSIONS JUDGE, JALNA Subject: Submission of report as directed by the Hon’ble High Court of Judicature at Bombay, Bench at Aurangabad in Writ Petition No. 544 of 2009, Bapurao Rathod and others. Vs. State and others. Reference: 1) Hon’ble High Court Letter No. Civil/Writ Petition No. 4550/2010 dated 8.2.2010 2) Hon’ble District Court letter No. Judicial/503/2010 dated 8.2.2010. Respected Sir, With reference to the subject cited above, I have the honour to submit most respectfully that in view of the directions of the Hon’ble High Court I personally visited to the Lower Dudhana Dam and land bearing survey No.123 of Mouja Patoda (Bk), which has been offered by the State to the petitioners for the purpose of rehabilitation in presence of Talathi of Patoda (Bk) namely Shri M.A. Chaus, Naib 5 Tahsildar (Revenue), Taluka Mantha, Shri B.K. Jadhav, Section Engineer, Lower Dudhana Project, Selu Division, Shri S.S. Katkar and Section Engineer, Lower Dudhana Project, Selu Division Shri S.V. Deshmukh. Perused the record of Survey No.123 including 7/12 extracts and Pherphar. 2 It is submitted that land bearing Survey No.123 of Patoda (Bk) is now converted into Gat No.190 and it is in Mantha Taluka. 3 It is noticed that land S. No.123 of Patoda (Bk) is at a distance of about 3 kilometers from Lower Dudhana Dam towards northern side. Said land is situated towards east of north-south road which is prepared to approach the dam from Mantha side. Level of this land Survey No.123 is seen approximately 5 meters appear to that of the present level of water in Lower Dudhana Dam. As this land is at upper level to the water level in the dam no any percolation of water is noticed within the circle of about 2.5 kilometers radius treating this land as center. 4 Upper layer of about 2.00 to 2.5 feet of land S. No.123 is of black soil. From the drainage available by the side of the land adjacent to the north-south road approaching towards the dam, it is noticed that there is a layer of soft metal (Murum) below the upper layer of black soil. 5 New Kedar Wakadi Gaothan is at a distance of about 1 kilometers from this land Survey No.123 towards northern side and Mantha is at a distance of about 10 kilometers from this spot towards the same side. Village Patoda is at a distance of about 5 kilometers from this land towards east. Partur is at a distance of about 35 kilometers from this land Survey No.123 of Patoda (Bk). 6 Submitted with respect. Yours faithfully, Sd/- (H.L. Manwar) Civil Judge, J.D., & J.M.F.C. Partur” 4 After considering the report of C.J.J.D. and J.M.F.C. Partur, we have no hesitation in taking a view that there is no substance in the grievance made by the petitioners about suitability of the land offered to them. Counsel for the petitioners however, submits that some other land may be allotted to the petitioners. It is not possible to countenance this submission having regard to the statement made before us that no other land in Mantha Taluka is available for allotment so as to rehabilitate the petitioners. We see no reason to doubt the correctness of the said statement made across the bar as well as the stand taken in the reply affidavit filed by the District Rehabilitation Officer, Jalna dated 7.12.2009. Taking over all view of the matter, we find that there is no substance in this petition 5 Counsel for the petitioners, however made a last attempt to pursuade us to take a view that land offered to the petitioners is not inconformity with the provisions of Maharashtra Project Affected Persons Rehabilitation Act, 1999, in particular Section 13(3) thereof. 7 No such grievance is found in the petition as originally filed. Counsel for the petitioners submits that this ground became available to the petitioners in view of the stand taken by the respondents in the reply affidavit filed to oppose this petition. Assuming that the submission is correct, it is noticed that reply affidavit has been filed long back in the month of December, 2009. It is only today at the end of hearing when this Court expressed its tentative opinion during the course of argument, this submission has been advanced before us. It is not possible to entertain this submission. 6 Besides the report of the C.J.J.D. and J.M.F.C., learned A.G.P. has placed before us final map issued under the signature of Executive Engineer, which indicates that distance between Gat No.123 and new Kedarwadi rehabilitation Gaothan is only 400 meters. The report submitted by the Judicial Officer indicates that the plot allotted to the petitioners is accessible by the road. Understood thus, there is no substance in the grievance made before us, including regarding violation of provisions of Section 13 of the Act, 1999. Hence, this petition is dismissed. ( S. S. SHINDE. J.) (A. M. KHANWILKAR, J.) rlj/