1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 2842 OF 2007 1. Laxman s/o Govind Hawale, Age : 40 Years, Occu. : Agril., R/o Murshadpur (Ghat), Po : Pothra, Tq. & Dist. Beed. 2. Baburao S/o Wamanrao Hawale,, Age : 72 Years, Occu. : Agril., R/o As above. 3. Rajaram S/o Dhondiram Hawale, Age : 42 Years, Occu. : Agril., R/o As above. 4. Rajesaheb S/o Sukhdev Hawale, Age : 45 Years, Occu. : Agril., R/o As above. 5. Dharmaraj S/o Vithoba Hawale, Age : 45 Years, Occu. : Agril., R/o As above. 6. Sundarrao S/o Ananta Hawale, Age : 30 Years, Occu. : Agril., R/o As above. 7. Bapu S/o Rangnath Hawale, Age : 40 Years, Occu. : Agril., R/o As above. 8. Subhash S/o Baburao Hawale, Age : 45 Years, Occu. : Agril., R/o As above. 2 9. Pandurang S/o Waman Hawale, Age : 70 Years, Occu. : Agril., R/o As above. 10. Rukhminibai W/o Ashruba Hawale, Age : 70 Years, Occu. : Agril., R/o As above. .. .. .. PETITIONERS Versus 1. The State of Maharashtra 2. The Divisional Commissioner, Aurangabad. 3. The District Collector, Beed. 4. The Special Land Acquisition Officer, Jaikwad Project, Division Beed, Dist. Beed. 5. The Chief Engineer, Irrigation Department Sinchan Bhawan, Jalna Road, Aurangabad. 6. The Executive Engineer, Irrigation Dept. Beed, District Beed. 7. The Superintending Engineer, Irrigation Deptt., Sub Division, Parli Vaijnath, District Beed. 8. Udhav S/o Limbaji Surase, Age : 38 Years, Occu. : Agril., R/o Kumbhari, Tq. and District Beed. .. .. .. RESPONDENTS 3 WITH WRIT PETITION NO.4300 OF 2007 1. Kalyan S/o Laxman Hawale, Age : 55 Years, Occu. : Agriculture, R/o Village Murshadpur, Tq. and District Beed. 2. Sheshrao S/o Pandurang Hawale, Age : 43 Years, Occu. : Agril., R/o Village Murshadpur, Tq. and District Beed. 3. Vikas S/o Rajaram Hawale, Age : 28 Years, Occu. : Agril., R/o Village Murshadpur, Tq. and District Beed. .. .. .. PETITIONERS Versus 1. The State of Maharashtra 2. The Divisional Commissioner, Aurangabad. 3. The District Collector, Beed. 4. The Special Land Acquisition Officer, Jaikwad Project, Division Beed, Dist. Beed. 5. The Chief Engineer, Irrigation Department Sinchan Bhawan, Jalna Road, Aurangabad. 6. The Executive Engineer, Irrigation Dept. Beed, District Beed. 4 7. The Superintending Engineer, Irrigation Department, Sub Division, Parli Vaijnath, District Beed. 8. Udhav S/o Limbaji Surase, Age : 38 Years, Occu. : Agril., R/o Kumbhari, Tq. and District Beed. .. .. .. RESPONDENTS Shri A. B. Kale, Advocate for the Petitioners. Shri K. G. Patil, A.G.P. for the Respondent Nos. 1 to 4. Shri T. B. Bhosale, Advocate for the Respondent Nos. 5 to 7. Shri N. L. Jadhav, Advocate for the Respondent No. 8. CORAM : B. R. GAVAI, AND N. D. DESHPANDE, JJ. DATE : 31ST AUGUST, 2009. ORAL JUDGMENT [Per B. R. Gavai, J. ] : 1. Rule. Rule made returnable forthwith. Heard by consent. 2. By way of present petition, the petitioners are seeking to challenge the proceeding of land acquisition for the purpose of construction of water storage tank at village Pothra and Murshadpur. Though, in both these petitioners, the petitioners had initially sought a direction for changing the site of Satra Potra water storage tank, 5 subsequently, the petitioners have given up the said challenge, in view of earlier round of litigations which went up to Apex Court. The petitioners have now restricted their claim for challenging the declaration issued by the respondent No. 2 under Section 6 of the Land Acquisition Act (which is hereinafter referred as the Said "Act") and subsequent land acquisition proceedings. 3. The basic challenge raised by the petitioners is that, the notification issued under section 4 was not issued in accordance with section 4 of the said "Act". Shri Kale learned counsel appearing for the petitioners submits that, the notification under Section 4 is required to be published by following three modes, firstly the Government Gazette, secondly by publishing a notice in two widely circulated local news papers, out of which one is required to be in vernacular and thirdly by publishing a substance of the notification on village Chawadi. It is submitted that, the notification in the Government Gazette is published on 21st July, 2005, the publication in the local news paper is dated 04th September, 2005 and 03rd September, 2005. The publication on village Chawadi by panchanama is allegedly done on 12th August, 2005. Shri Kale learned counsel for the petitioners submit that, in fact, there has been no publication on village Chawadi on 12th August, 2005, however, subsequently record has been fabricated to show that there was village chawadi publication. 4. Shri Patil learned Assistant Government Pleader appearing for respondent No. 1 to 4 as well as Shri Bhosale learned counsel 6 appearing for the respondent Nos. 5 to 7 (acquiring body) vehemently opposes the petition. It is submitted that, the publication by way of three modes is done in accordance with law. It is further submitted that, most of the persons whose lands were covered under the said notification have received the compensation after awards were passed in their cases. It is submitted that, when the other villagers have accepted the award, it is difficult to believe that, the petitioners were not aware about land acquisition proceedings. 5. Though, the petitioners have also seriously assailed on the ground of non fulfilling the requirement of making and publishing the declaration as required under Section 6 of the said "Act", we do not find it necessary to go into that question, since on perusal of the record, we have come to the conclusion that, the publication of substance of notification at village Chawadi was not done in accordance with law. Perusal of Annexure R-1 of the re-joinder filed by the present petitioners would reveal that, a panchanama is shown to have been executed on 30th August, 2005. The panchanama shows that same panchanama is executed for four villages namely Kumbhari, Potra, Murshadpur and Ambilwadgaon. It is not in dispute that, all these four villages are having different village panchayats. It is difficult to appreciate as to how, by one panchanama there can be proclamation for four villages. Apart from this, it is further seen that, said panchanama shows the date of 30th August, 2005 and the date which is given for the villagers to appear before the Land Acquisition Officer is also 30th August, 2005. The 7 contemporaneous record would also show that, the sarpanch of the village panchayats have addressed a communication to the Land Acquisition Officer stating therein that, the publication of Section 4 notification was never done on village Chawadi. Though, it was tried to contend on behalf of Land Acquisition Officer, that the said date was incorrectly mentioned in the panchanama, it can be seen from the information received by the petitioners under the Right to Information Act from the Land Acquisition Officer, that the date of proclamation on Chawadi is also shown to be 30th August, 2005. It is thus clear that, even accepting that, there was a proclamation on village Chawati, the panchanama itself would show that, the said proclamation was of 30th August, 2005 and on the same date, the objectors were directed to submit their objections. It is thus clear that, the procedure adopted by the respondent/Land Acquisition Officer was totally in contravention of the provisions of the said "Act" and the procedure adopted was of such a nature which deprived the petitioners of their valuable rights to raise objection under Section 5A of the said "Act". It is settled law that, the proceedings of Section 5A of the Said "Act" are not empty formality, but they bestow a valuable right on the person whose land is sought to be acquired to raise a objection. We find that, the petition deserves to be allowed on this short ground. Therefore, we do not propose to go into the other contentions raised by the petitioners. 6. One more thing i. e. to be noted is that, the petitioners after realizing that the project is important for various villages in the vicinity to solve problem of drinking water of villagers residing in 8 these villages, have undertaken to give possession of the land to the land acquisition officer on fresh notification under Section 4 being issued. 7. As a result, the entire acquisition proceeding will have to be held to be vitiated in so far as the present petitioners are concerned. The petitioners have filed undertakings which are taken on record and marked Exhibiit "X" for identification. The petitioners have stated in the undertaking that, they will cooperate with the authorities in the joint measurement as required under Section 3A of the said "Act" and they have also undertaken that on Section 4 notification being issued they would hand over vacant and peaceful possession of their lands to the authorities on or before 30th November, 2009. In view of undertakings filed by the petitioners, we find that, the public interest of having project for drinking water shall also stand fulfilled. 8. In the result land acquisition proceeding initiated vide file No. 34/2004 on the file of Special Land Acquisition Officer, Jayakwadi Project, Beed/respondent No. 4 are quashed and set aside in so far as the present petitioners are concerned. Needless, to state that, the respondent authorities would be free to initiate fresh proceedings for acquisition of land in question in accordance with law. It is needless to state that, after authorities takes possession of the lands of the petitioners, as under taken by the petitioners, all the subsequent proceedings including passing of award and payment of compensation under the said "Act" shall be completed within a 9 period of one year from the date of taking over the possession. 9. Rule is made absolute in above terms. [ N. D. DESHPANDE, J.] [ B. R. GAVAI, J.] bsb/August 09