AJN 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.3173 OF 2009 Ganesh Sambaji Adsul & Anr. ... Petitioners Vs. The State of Maharashtra & Ors. ... Respondents Mr. V.A. Sugdare i/b P.P. Gujar for the petitioners. Ms. M.P. Thakur, A.G.P. for the State. Ms. Nayana Gurav, District Rehabilitation Officer, Satara is present in the Court. CORAM : SMT. RANJANA DESAI & A.A. SAYED, JJ. DATED : 31ST AUGUST, 2009. P.C.:- 1. Rule. The respondents waive service. By consent of the parties, taken up for final hearing and disposal forthwith. 2. By this petition filed under Article 226 of the AJN 2 Constitution of India, the petitioners are challenging the acquisition of agricultural land bearing Gat No.447, Old Survey No.86 admeasuring 4 Hectare, 34 Are at Village Taradgaon, Taluka Phaltan, District Satara (for convenience, “the said land”). The petitioners have prayed that the said acquisition proceedings being illegal, be quashed. 3. Respondent 2 is the Divisional Commissioner, Pune. Respondent 3 is the Collector, Satara. Respondent 4 is the Special Land Acquisition Officer. Respondent 5 is the District Rehabilitation Officer, Satara. Respondent 6 is the Sub-Divisional Officer, Phaltan. 4. The petitioners are the heirs of one Namdeo Rajaba Mali-Adsul, original owner of the said land. The case of the petitioners needs to be shortly stated. In the year 1999, the original owner received notice under Section 4 of the Land Acquisition Act intimating to him that about 3 Hectre 77 Are land from the said land is required to be acquired for the rehabilitation and resettlement of the Nira-Devghar Project AJN 3 affected persons. The original owner filed his objections before respondent 4. On 15/9/1999, respondent 5 informed him that the said land is under Nira Deoghar benefited zone on which slab of 70 Are is applicable. Original owner by his application dated 20/9/1999 expressed his readiness to hand over 70 Are. On 5/3/2001, respondent 6 issued fresh notice under Section 4(1) of the Land Acquisition Act. On 16/3/2001, the original owner filed his objections. On 8/5/2001, respondent 6 issued notice to the original owner asking him to remain present for Section 5-A inquiry. The original owner filed his objections. On 2/8/2001 declaration under Section 6 of the Land Acquisition Act was published. On 3/1/2002, the original owner filed Application No.17 of 2002 under Section 48 of the Land Acquisition Act praying for reconsideration of acquisition proceedings. On 29/7/2002, respondent 2 dismissed the objections raised by the original owner. Being aggrieved by this order, the original owner filed revision application before the Minister of State (Rehabilitation). On 15/8/2003, respondent 6 passed Award under Section 11 of the Land Acquisition Act AJN 4 and acquired the said land for rehabilitation of Nira Deoghar Project affected persons. The Minister of State (Rehabilitation) called for certain information in the revision which was pending before him. The Tahsildar submitted his report on 9/9/2004 that the Bahirdeo Devasthan is not a registered Public Trust; that pursuant to the 32-G proceedings, on 17/9/1969, Namdeo Rajaba Mali/Adsul predecessor of the petitioners had become owner of the said land and that as per the Maharashtra Project Affected Rehabilitation Act, 1986, 70 Are slab is applicable on the said land. On 28/7/2004, respondent 6 issued notice under Section 12(2) of the Land Acquisition Act informing the original owner to remain present for payment of compensation for the acquisition of 3 Hectare 77 Are land. 5. On 16/9/2004, respondent 2 by his letter addressed to the Executive Officer, Revenue & Forest Department, Mantralaya, stated that the original owner was the tenant of the Bhairdeo Devasthan and pursuant to Section 32-G proceedings, he had purchased the said land on 17/9/1969 AJN 5 and a separate Khata No.2032 was created. The Minister for State (Rehabilitation) remanded the matter to respondent 2. 6. On 4/2/2009, respondent 2 dismissed the objections raised by the original owner. It is in these circumstances, the petitioners who are in possession of the said land have approached this court apprehending dispossession. They have prayed for quashing of the acquisition proceedings. 7. We have heard learned counsel for the petitioners and learned A.G.P. Learned counsel for the petitioners submitted that the petitioners have applied the wrong slab. This is admitted in the affidavit in reply and, hence, the acquisition proceedings should be quashed excluding 70 Are land. 8. Affidavit in reply is filed by Ms. Nayana Kashinath Bondarde, District Rehabilitation Officer, Satara. In this affidavit, the mistake committed by the respondents is AJN 6 admitted. We may quote the relevant paragraph. “3. I state that the record reveals that the Petitioner’s Predecessor Shri. Namdev Rajaram Mali was agricultural tenant with respect to the land bearing S.No. 86 and Gat No.447 situate at Taratgaon, Tal. Phaltan, Dist. Satara. It appears that in pursuance to the 32 G proceedings, he purchased this land as an agricultural tenant and ultimately on 19th May, 1969, the agricultural lands Mamlatdar issued 32 M Certificate in his favour. It is no doubt true that with this Certificate, the original landlord seized to be the owner of the said land and this land, by bona fide mistake, was wrongly taken into account in the slab of Bahirdeo Deosthan Land. I have perused the record of this case and the notings which are relied upon by the Petitioner, do indicate that the Petitioner’s land was wrongly calculated in the Khata of Deosthan Land and the State Government could at the most acquire 70 Are land belonging to the Petitioner if the correct slab was applied.” 9. Since the respondents have admitted the mistake, in our opinion, the acquisition proceedings will have to be set aside except to the extent of 70 Are. In this connection, we may make a reference to the judgment of the Division AJN 7 Bench this court (V.G. Palshikar & V.M. Kanade, JJ.) dated 23/7/2004 in Patangrao Sadashiv Yadav v. District Resettlement Officer, Satara in Writ Petition No.940 of 2000. In that case also, the respondents had committed similar mistake and the District Resettlement Officer recommended the deletion of the land in question from the acquisition proceedings. However, the deletion was not done. This court quashed the said acquisition proceedings by observing that the Additional Commissioner committed an error of law which is apparent on the face of the record. This court observed that the individual holding of the petitioners being less than 8 Acres, the land in question could not have been acquired under the provisions of the Maharashtra Resettlement of Project Affected Persons Act, 1976. This court observed that the possession receipt shows that merely symbolic possession of the land was taken. In the peculiar facts and circumstances of the case, acquisition proceedings were set aside. In this case also, only symbolic possession is taken by the respondents. Actual possession is with the petitioners. Ms. Nayana AJN 8 Gurav, District Rehabilitation Officer, Satara is present in the court. She has confirmed this fact. In the circumstances, we have no hesitation in following the course adopted by this court in Patangrao Yadav’s case (supra). In the peculiar facts and circumstances of the case, the rule is made absolute in terms of prayer clauses (c) and (e) excluding land admeasuing 70 Are. Needless to say that the compensation amount will be worked out as regards the land admeasuring 70 Are. 10. The petition is disposed of. [SMT. RANJANA DESAI, J.] [A.A. SAYED, J.]