1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.2007 OF 2009 1) Parasram so Rambhau Takle Age: 34 Yrs., occu. Teacher 2) Bhagwn s/o Karbhari Jayabhaye Age: 34 Yrs., occu. Teacher. 3) Vijaykumar s/o Uddhavrao Wayal Age: 30 Yrs., occu. Teacher. 4) Digambar s/o Ashruba Vidhate Age: 38 yrs., occu. Teacher. 5) Shivaji s/o Kisanrao Deshmukh Age: 36 Yrs., occu. Teacher 6) Shivaji s/o Ashruba Vidhate Age: 35 Yrs., occu. Teacher. 7) Shahu s/o Ramrao Nevre Age: 35 Yrs., occu. Teacher. 8) Uddhav s/o Shamrao Ingale Age: 36 Yrs., occu. Teacher. 9) Sanjay s/o Kathaluappa Chincholkar Age: 37 Yrs., occu. Teacher. 10) Kailas s/o Santrarao Markat Age: 33 Yrs., occu. Teacher. 11) Janardhan s/o Namdeorao Wayal Age: 61 Yrs., occu. Pensioner, 12) Digambar s/o Kishanrao Wayal Age: 37 Yrs., occu. teacher. 13) Narayan s/o Ganpat Gore 2 Age: 52 Yrs., occu. Teacher. 14) Uddhav s/o Dajiba Ingale Age: 34 yrs., occu. Teacher. 15) Subhash s/o Vishnupant Jayabhaye Age:37 Yrs., occu. Teacher. 16) Wamanrao s/o Abasaheb Gore Age: 53 Yrs., occu. Teacher. 17) Ganesh s/o Sitaram Saraf Age: 38 yrs., occu. Agril. 18) Ganesh s/o Gangadhar Avachar Age: 33 Yrs. occu. Teacher 19) Sow. Dakshina w/o Nagnath Gore Age: 40 Yrs., occu. Agril. 20) Sampat s/o Datrao Borade Age: 53 Yrs., occu. Agril. Above all r/o Mantha, Tq. Mantha, Dist. Jalna. - PETITIONERS VERSUS 1) The State of Maharashtra Through the Secretary, Rehabilitation Department, Mantralaya, Mumbai. 2) The Collector, Jalna. 3) The Special Land Acquisition Officer, Minor Irrigation Project, Jalna. 4) Godawari Marathwada Irrigation Development Corporation, Aurangabad, through its Executive Engineer, Lower Dudhana Project Division, Selu, 3 District Parbhani (intervenor) - RESPONDENTS ***** Mr.NS Deshpande, Advocate for Petitioners; Mr.VH Dighe,AGP for Resp.Nos. 1 to 3; Mr.AP Chavare, Advocate for Resp.No.4. ----- CORAM : NARESH H. PATIL & K.U.CHANDIWAL, JJ. DATE : ___ DECEMBER, 2009. JUDGMENT (PER: K.U.CHANDIWAL,J.) 1) Rule. Rule returnable forthwith and heard finally by consent of the parties. 2) On 29th September, 2008, the petitioners objections in terms of Section 5-A of the Land Acquisition Act, 1894 (for short, the Act) to the acquisition of their lands for rehabilitation of village Nansi by Respondent no.2 was turned down. The petitioners were heard on 30.08.2008 on their objection/application to Section 4 Notification dated 28.12.2007 which was published in Government Gazettee on 10.1.2008. The notices were despatched on 8.2.2008. According to the 4 petitioners, in terms of Section 5-A of the Act, the Respondent No.2-Collector, Jalna, was required to forward his recommendation to the State Government for final decision. However, the Respondent no.2 usurped the powers of the State Government and decided the objection himself, in utter disregard to the statutory provisions contemplated in terms of Section 5-A of the Act. Hence, this writ petition. 3) In similarly placed situation, the land- holders arising out of the same acquisition proceedings, had challenged the action of the State Government for Nimna Dudhana Prakalp and for rehabilitation of village Nansi by Writ Petition No. 436 of 2009, wherein the petitioners had indeed raised identical ground of non- compliance of Section 5-A of the Land Acquisition Act by the learned Collector. The Division Bench of this Court by order dated 31st March, 2009 negatived the contentions of the other landholders. The Division Bench observed in 5 paragraph 2 as under : “2. We have perused the provisions of the Maharashtra Project Affected Persons Rehabilitation Act, 1999, and find that under Section 14(4) of the Act, the Government may acquire any land which it thinks is suitable for rehabilitating the project affected persons. Whether the land of the petitioners is less suitable than the lands which they contend, ought to have been acquired by the Government, is a decision for the Government to take. The experts’ body has opined that the lands which have been acquired are most suitable for the purpose of rehabilitating the project affected persons. We, therefore, do not see any reason to interfere in the matter. The petitions are therefore rejected.” 4) This order was challenged by those petitioners before the Apex Court in Special Leave Petition (Civil) Nos. 15738-15739 of 2009 (Manikrao Tulshiram and Ors. Vs. The State of 6 Maharashtra and Ors.). The Apex Court by order dated 30th July, 2009 dismissed the SLP observing, no ground is made out for interference under Article 136 of the Constitution. Hence, how far same question can be further agitated also needs consideration. 5) Mr.Deshpande, learned Counsel, while criticizing the action of the learned Collector, Jalna, invited our attention to the Judgment of the Apex Court in the matter of Essco Fabs Pvt. Ltd. & Anr. Vs. State of Haryana & Anr. - 2009 AIR SCW 1074. The Apex Court has observed in paragraphs 44 and 45, as under : “45 In our judgment, from the above case law, it is clear that normal rule for acquisition of land under the Act is issuance of notification under sub-section (1) of Section 4, hearing of objections under Section 5A and issuance of final notification under Section 6 of the Act. Award will be made by the 7 Collector, notice has to be issued to the land- owners or the person interested and thereafter possession can be taken. Section 17, no doubt, deals with special situations and exceptional circumstances covering cases of `urgency' and `unforeseen emergency'. In case of `urgency' falling under sub-section (1) of Section 17 or of `unforeseen emergency' covered by sub-section (2) of Section 17, special powers may be exercised by appropriate Government but as held by a three Judge Bench decisions before more than four decades in Nandeshwar Prasad and reiterated by a three Judge Bench decision in Mukesh Hans, even in such cases, inquiry and hearing of objections under Section 5A cannot ipso facto be dispensed with unless a notification under sub-section (4) of Section 17 of the Act is issued. The legislative scheme is amply clear which merely enables the appropriate Government to issue such notification under sub- section (4) of Section 17 of the Act dispensing with inquiry 8 under Section 5A if the Government intends to exercise the said power. The use of the expression `may' in sub-section (4) of Section 17 leaves no room of doubt that it is discretionary power of the Government to direct that the provisions of Section 5A would not apply to such cases covered by sub- section (1) or (2) of Section 17 of the Act. 45. In our opinion, therefore, the contention of learned counsel for the respondent authorities is not well founded and cannot be upheld that once a case is covered by sub- section (1) or (2) of Section 17 of the Act, sub-section (4) of Section 17 would necessarily apply and there is no question of holding inquiry or hearing objections under Section 5A of the Act. Acceptance of such contention or upholding of this argument will make sub-section (4) of Section 17 totally otiose, redundant and nugatory. 6) In the instant case, the facts are 9 eloquent. The objection raised by the landholders before the Collector was indeed forwarded by the Collector by his communication dated 29.9.2008 though he has contended that the objection is erroneous and urgent approval to the action of acquisition was expected. However, that by itself will not mean, that the learned Divisional Commissioner did not apply his mind to the respective contentions. By communication dated 5th November, 2008, by the Commissioner Aurangabad Division addressed to the Special Land Acquisition Officer, the action of the learned Collector, including the objection of land holders was entertained and learned Commissioner to proceed in the matter. This is apparently in compliance to Section 5-A of the Land Acquisition Act. 7) Even if the contention that urgency clause is erroneously made applicable is excluded, the fact remains, hearing was given to the respective applicants and the authorities 10 found that their objection was unjust. 8) As stated earlier, this point has already been concluded in Writ Petition No.436 of 2009 dated 27.4.2009 by SLP 15738-15739/09. However, even opening the issue again, we find that the action of the learned Collector or for that purpose learned Commissioner, is not in violation to Section 5-A of the Act. There is apparently application of mind by the appropriate Government. The scope of judicial review in such eventualities is limited. The hearing of objection by the learned Collector was effective and should not be branded to be mere formality. The scope of judicial review to such action of the Governmental authorities would naturally flow, if instances of any illegality or procedural impropriety is highlighted. However, we find that the powers vest in either the learned Collector, Jalna or the learned Divisional Commissioner, Aurangabad, are fairly and reasonably exercised. Rehabilitation of the 11 project affected persons was one of the grounds which was urgently to be attended by the authorities. It was the Governmental decision to acquire the petitioners lands and could not be stated to be at the costs of public exchequer and unnecessary or uncalled for exercise. We do not see any malafides are attached to the action of the authorities. The Writ Petition lacks merit, it is dismissed. Rule discharged. (K.U.CHANDIWAL) (NARESH H. PATIL) JUDGE JUDGE bdv/wp2007.09 fldr.27.11.09