1 wp8313.10.sxw ssm IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CIVIL JURISDICTION WRIT PETITION NO. 8313 OF 2010 Sahebrao Bhausaheb Kalate ....Petitioner. Vs. State of Maharashtra & Ors. ...Respondents. Mr. A.V. Anturkar i/by Mr. Sandeep S. Salunkhe for the Petitioner. Mr. V.S. Gokhale, AGP for Respondent Nos. 1 to 3. Mr. S.P. Thorat for Respondent No.4. CORAM :- D.K DESHMUKH AND ANOOP V. MOHTA, JJ. DATE :- 5 DECEMBER, 2011. P.C. :- Rule, returnable forthwith. 2 Heard finally by consent of the learned counsel appearing for the parties. 3 The learned counsel appearing for the Petitioner submits that though in this Petition, he has prayed for quashing acquisition of his land, he is restricting the present Petition only to the aspect of the Respondents taking possession of the land contrary to the provisions of the Land Acquisition Act and that the Petitioner withdraws this Petition in so far as challenge to acquisition and application of urgency clause is concerned with liberty to file a fresh Petition if so advised. 2 wp8313.10.sxw ssm The Petition in relation to acquisition and invoking of the urgency clause is permitted to be withdrawn with the aforesaid liberty. 4 So far as the aspect of possession is concerned as per the affidavit filed by Mr. P.G. Nale, Special Land Acquisition Officer, possession of the land of the Petitioner admeasuring 27 Are from Survey No.1 of Village Wakad, Tq. Mulshi, District Pune was taken on 2 September 2010 pursuant to a notice dated 24 August 2010. A xerox copy of that notice has been produced on record with the affidavit of Shri P.G. Nale. Perusal of that notice shows that it is supposed to have been served on the Petitioner on 25 August 2010 but the endorsement made on that notice does not disclose the name of the person on whom it was served. 5 Section 17(3-A) of the Land Acquisition Act lays down that before taking possession of any land, the Collector shall tender payment of 80% of the compensation for such land estimated by him to the persons interested and entitled thereto. Thus, a notice has to be issued to the person interested in the land of which possession is to be taken and amount of compensation mentioned in Sub-Section (3-A) of Section 17 is to be tendered to such person. Sub-Section (3-A) of 3 wp8313.10.sxw ssm Section 17 does not contemplate service of any notice. Therefore, really speaking the provisions of Section 45 of the Land Acquisition Act will not come into play. From the language of Sub-Section (3-A), it is clear that notice will have to be served on the person interested stating that the amount of compensation which is mentioned in Sub- Section (3-A) is available to him and that he can take it from the Collector. Therefore, this notice will have to be served personally on the person interested. Even assuming that Section 45 of the Land Acquisition Act is applicable then also the notice will have to be served on the person to whom it is addressed and if such a person cannot be found then on any adult male member of his family residing with him. Therefore, in order to show that compensation contemplated by Sub- Section (3-A) of Section 17 was tendered to the landholder, it will have to be held that burden is on the Collector to establish before the Court when challenged that compensation was tendered to the person interested in the land in accordance with law. 6 The learned AGP fairly stated before us that from the material available on record, it cannot be made out as to who received the notice dated 24 August 2010. It is thus clear that possession of the land was taken by the Respondents contrary to the provisions of the Land Acquisition Act and without tendering the amount of 4 wp8313.10.sxw ssm compensation to the landholder-Petitioner. The learned AGP informed that after possession of the land was taken, the land has already been handed over to Respondent No. 4. 7 In our opinion, that will not make any difference. If the State Government has not taken possession in accordance with law, its possession would be unauthorized. Therefore, if the State Government has handed over possession to Respondent No.4, possession of Respondent No.4 would also be unauthorized. In our opinion, therefore, the following order would meet the ends of justice. ORDER i) Respondent Nos. 2 and 3 are directed to restore possession of the land which is subject matter of this Petition to the Petitioner within a period of 4 weeks from today. For that purpose Respondent No.4 shall deliver possession back to Respondent Nos. 2 and 3. ii) Rule is made absolute accordingly. iii) There shall be no order as to costs. (ANOOP V. MOHTA, J.) (D.K.DESHMUKH, J.)