1 MSS IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE APPELLATE SIDE APPELLATE SIDE WRIT PETITION NO. 10786 OF 2004 BHAUSAHEB BAPURAO GAVHANE ) residing at Mouje Koregaon Bhima Taluka - Shirur, District Pune) .. PETITIONER VERSUS 1. SPECIAL LAND ACQUISITION ) OFFICER NO. 22, PUNE. ) 2. COMMISSIONER, PUNE DIVISION ) PUNE. ) 3. DEPUTY DIRECTOR OF SETTLEMENT Revenue & Forests Department) Govt. of Maharashtra, Bombay) 4. State of Maharashtra ) .. RESPONDENTS Mr. S. V. Sadavarte for petitioner Mr. P.P. Kakade, AGP Mr. Khilare, Spl. Land Acquisition Officer No. 22, Pune is present in court. CORAM:SMT.RANJANA DESAI & SMT. R. S. DALVI,JJ. DATE ON WHICH THE JUDGMENT IS RESERVED : 8TH FEBRUARY, 2008 DATE ON WHICH THE JUDGMENT IS PRONOUNCED:20th FEBRUARY,2008 JUDGMENT:-(Smt. Ranjana Desai, J.) . The petitioner is a resident of village Koregaon 2 Bhima, Taluka Shirur, District Pune. The petitioner’s case is that the 1st respondent i.e. Special Land Acquisition Officer, Pune ("S.L.A.O." for convenience) initiated acquisition proceedings to acquire land admeasuring 38 Ars out of Gat No. 1422 and 43 Ars out of Gat No. 660 situated at Mouje Koregaon Bhima, Taluka Shirur, Pune. The acquisition proceedings were initiated for the purposes of resettlement of Chaskaman Project affected persons. 2. According to the petitioner, the notification under Section 4 of the Land Acquisition Act ("the said Act" for short) is dated 24/7/88. It was published in the Government Gazette on 8/9/88. As per the said notification, land bearing Gat No. 1422, area admeasuring 80 Ares was notified for the purpose of acquisition. According to the petitioner no individual notice was given to the petitioner, however, his signature in token of having received the notice was taken. According to the petitioner the respondents have not made any inquiry. They have not called for any objections which was mandatory as per Section 5A of the said Act. The petitioner contends that, therefore, he could not file his objections. 3 3. The petitioner’s further case is that he is in possession of old Gat No. 1422 and Gat No. 660, which has come to his share by partition executed between the family members. It is further contended that when the petitioner came to know that old Gat No. 1422 was converted into new Gat No. 852, he made inquiry and he came to know about notification under Section 4 dated 27/7/88. He was not aware whether notification under Section 6 of the said Act had been issued by the respondents or award had been passed in respect of the land which was subject matter of that notification. According to the petitioner as per his knowledge the award was not passed and since there was apprehension that the respondents may forcibly take possession of his land he filed Writ Petition No. 576 of 1998 challenging the notification dated 27/7/88. 4. The said petition was heard on 23/11/98. The respondents filed affidavit-in-reply on the basis of the notification dated 27/7/88. The said petition was allowed and the acquisition proceedings were quashed on the ground that the award was not made within two years from the date of publication of Section 6 Notification. A 4 statement was made by the petitioner’s counsel that Section 6 notification was issued on 3/12/90. This was a wrong statement. Record reveals that Section 6 notification in respect of these proceedings is dated 18/2/89. A concession made by learned counsel for the State was recorded that no award had been made till the date of the judgment i.e. 23/11/98. This court referred to the communication dated 22/8/93 of the S.L.A.O. addressed to the District Rehabilitation Officer and communication dated 18/9/92 addressed to the Collector Pune. This Court observed that these documents show that no award had been made till date. Thus notification dated 27/7/88 and Notification dated 3/12/90 were quashed. The acquisition proceedings were set aside. Certain vital facts were not pointed out to the court. The court was not told that because the petitioner offered alternative land second acquisition proceedings were started and notification dated 27/7/88 is in respect of the first land acquisition proceedings and notification dated 3/12/90 issued under Section 6 of the said Act is in respect of the second acquisition proceedings and Award in respect thereof was passed on 24/1/93 much prior to the judgment of this court dated 23/11/98. 5 5. The petitioner contends that he communicated the decision of this court dated 23/11/98 to the Talathi on 14/6/04 so that necessary entries can be made in 7/12 extract of Gat No. 1422. At that time he learnt that there was an entry of reservation for proposed acquisition of 43 Ares and 38 Ares out of Gat Nos. 1422 and 660. When the petitioner made inquiries he came to know that those entries were made on the basis of Section 4 notification dated 30/12/89. A copy of the said notification is annexed to the petition. 6. According to the petitioner he is in possession of land less than 8 Acres which is the ceiling limit and, therefore, the acquisition proceedings initiated by the respondents are illegal. 7. It is also the contention of the petitioner that in any case the acquisition proceedings initiated by the respondents are completely illegal and against the provisions of the said Act as held by this court in Writ Petition No. 576 of 1998. It is also contended that there was a partition between family members in the year 1978 i.e. prior to Section 4 notification. Therefore, on that 6 count also the acquisition is bad in law. It is further contended by the petitioner that as per Section 5A of the said Act, personal hearing is required to be given to the petitioner. Failure to give personal hearing is fatal and that renders acquisition proceedings illegal. 8. The petitioner further contends that he is in actual possession of 1 Hector 74 Ares and the authorities have without giving the petitioner opportunity of being heard illegally reserved the old Gat No. 1422 and Gat No. 660 and entry to that effect has been recorded in 7/12 extract. The petitioner further contends that Section 4 notification dated 30/12/89 which was published in the Government Gazette of 11/1/90 was never served on him. It is submitted that in view of the challenge to earlier notification and order passed by this court dated 23/11/98 the entries made on the basis of subsequent notification are illegal. The petitioner has, therefore, filed this petition praying that notification issued under Section 4 of the said Act dated 30/12/89 and notification under Section 6, if issued be quashed and set aside. 9. We have heard Mr. Sadawarte, learned counsel 7 for the petitioner. He has reiterated the averments made in the petition. We have also heard learned AGP. Affidavit-in-reply is filed by Suresh Dattatray Jadhav, Deputy Collector, LAQ, Pune. We have perused the same. 10. Land Acquisition Officer Shri Khilare is also present in the court. He has brought the entire record of the proceedings. We have perused the entire record. 11. From the affidavit-in-reply it appears that proceedings to acquire the land admeasuring 80 Ares out of Gat No. 1422 situated in village Koregaon Bhima were initiated for the purposes of Chaskaman Project affected persons. Notification under Section 4 of the said Act was issued on 22/7/88. It was published in the Government Gazette on 8/9/88. The petitioner’s land bearing Gat No. 1422 area admeasuring 80 Ares was notified. Individual notice under Section 4 (1) of the said Act was prepared and sent to the petitioner. He has signed in token of having received the notice. The petitioner’s signature was taken in the register maintained by the office. We have perused the said register and, we find that this statement 8 made by Shri Khilare is correct. 12. The affidavit further states that date of enquiry under Section 5A was fixed on 5/11/88. On that day the petitioner submitted his objections. He stated that he had given a statement that land admeasuring 37 Ares out of Gat No. 1422 and land admeasuring 43 Ares out of Gat No. 660 be acquired. That was not done. The objections of the petitioner were considered by the Divisional Commissioner. Thereafter notification under Section 6 of the said Act was prepared on 18/2/89 and it was published in the Government Gazette on 23/2/1989. Land admeasuring 80 Ares out of Gat No. 1422 was temporarily deleted from acquisition and this fact was stated in the said notification. 13. The petitioner then offered an alternative proposal of acquisition of the land to the Divisional Commissioner, which was finalized. This is evident from the letter dated 5/5/89 which is on record. In view of the fact that the petitioner had offered alternative land, a notification under Section 4 of the said Act was prepared on 30/12/89 and was published in the Government Gazette on 11/1/90 wherein 43 Ares out of Gat No. 660 and 38 9 Ares out of Gat No. 1422 were notified vide Mutation Entry No. 1611 dated 4/4/90. The individual notice under Section 4(1) of the said Act was prepared on 28/1/90 and sent to the petitioner. Enquiry under Section 5A of the said Act was fixed on 2/3/90. The notice was served on the petitioner and the petitioner has signed in token of having received the same in the register maintained by the office. The petitioner did not submit any objection obviously because he had himself offered the alternative land. This fact was noted in the register maintained in the office. Thereafter notification under Section 6 of the said Act was prepared on 3/12/90 and it was published in the Government Gazette on 27/12/90. The individual notice under Section 9(1) (2) of the said Act was prepared on 15/1/91. It was sent to the petitioner. The individual notice to handover possession of the land was also sent to the petitioner. The petitioner has signed in token of having received the same in the register maintained by the office and on the office copy of the individual notice. The award was declared on 24/1/93. 14. In the affidavit it is further stated that 10 statement of the distribution of compensation of the award clearly shows that the award was declared. Notices were issued under Section 12(2) of the said Act only to the land owners whose lands were taken possession of. Date for payment of compensation was fixed on 18/2/93. The petitioner filed Writ Petition No. 576 of 1998 challenging the first notification under Section 4 dated 27/7/98. That writ petition was disposed of on 23/11/98. This court set aside the notification dated 27/7/88 issued under Section 4 of the said Act and notification under Section 6 dated 3/12/90. The acquisition was challenged on the ground that the award was not made within two years from the date of publication of Section 6 notification prepared on 3/12/90 and published in the Government Gazette on 27/12/90. 15. It is then averred in the affidavit that draft copy of the award submitted by the respondent to the Collector for approval shows the publication of the notification under Section 6 of the said Act at village Chawdi on 25/1/91. It is further stated that in computing the period of two years referred to under Section 11A of the said Act, the period during which any action or proceeding to be taken 11 in pursuance of the said declaration is excluded. Since the notification under Section 6 of the said Act was published at village Chawdi on 25/1/91 and the award was declared on 24/1/93 i.e. on or before 25/1/93 there is compliance with provision of Section 11A of the said Act. 16. After going through the affidavit and the record of the case, we find that the first acquisition proceedings commenced on 27/7/88 with Section 4 notification. Section 6 notification in respect of the said land acquisition proceedings was prepared on 18/2/89 and was published in the Government Gazette on 23/2/89. The petitioner submitted proposal for acquisition and offered alternative land. Therefore, a second notification under Section 4 of the said Act was prepared on 30/12/89 and was published in the Government Gazette on 11/1/90 in respect of the land which was offered by the petitioner. This notification under Section 6 in respect of acquisition proceedings is dated 3/12/90./ It was published in the Government Gazette on 27/12/90 and on 25/1/91 in village Chawdi and Award was declared on 24/1/93. 17. Judgment of this court dated 23/11/98 records, 12 that a concession was made by learned AGP that no award had been made till the date of the judgment. Notification under Section 4 which is referred to therein pertains to the first acquisition proceedings and notification under Section 6 referred to therein pertains to the second acquisition proceedings. We are surprised as to how such a concession could have been made that no award was made till 23/11/98. So far as second acquisition proceedings are concerned Mr. Khilare has gone on record to say that award was made on 24/1/93. If that was so, it was the duty of learned AGP to point out this fact to the court on 23/11/98 when this court declared its judgment. However, learned AGP made a concession that no award has been made. 18. We are extremely unhappy about the conduct of the petitioner. The record shows that he was served with all notices and he has signed in token of having received the notices. He has himself offered the alternative land. The said letter is on record. Pursuant to his offer the second acquisition proceedings were initiated. In the circumstances, it is not open for him to take up the contention that notices were not served or that 13 his objections were not considered. We are distressed to note that there is no whisper in the petition that the petitioner had offered alternative land, that fresh notices were issued and that award was declared. 19. We find from the record that everything is done in accordance with law. The award was declared as far back as on 24/1/93. Payment of compensation was made in the year 1993 and thereafter in the year 2004, the petitioner has come with a prayer that notification issued under Section 4 dated 30/12/89 and notification under Section 6 be quashed and set aside. By making a wrong statement he has got notification under Section 6 issued in respect of second acquisition proceedings quashed and set aside. This conduct itself disentitles the petitioner from getting any relief from this court. State has not made any effort to get order dated 23/11/98 passed by this court reviewed. In any case on merits we also do not find any substance in the petitioner’s case as we have already stated respondents have followed the required procedure. Award was declared on 24/1/93 i.e. within a period of two years from the date of publication of Section 6 notification. 14 Section 6 notification was published on 25/1/91. So far as objection regarding ceiling limit and partition etc. are concerned, having himself offered the land to the authorities, it is not open for the petitioner to raise those points now. 20. In the circumstances, we find that there is no substance in the petition. We repeat that conduct of the petitioner disentitles him from getting any relief. No case is made out for interference in our writ jurisdiction. 21. The petition is dismissed with costs. JUDGE JUDGE 15 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE WRIT PETITION NO. 10786 OF 2004 DATE ON WHICH THE JUDGMENT IS RESERVED : 8TH FEBRUARY, 2008 DATE ON WHICH THE JUDGMENT IS PRONOUNCED:___ FEBRUARY, 2008 Submitted for approval. THE HON’BLE (SMT.) JUSTICE RANJANA DESAI: 16 THE HON’BLE (SMT.) JUSTICE R. S. DALVI: 1. Whether Reporters of Local Papers ) be allowed to see the Judgment? ) 2. To be referred to the Reporters or) not? ) 3. Whether Their Lordships wish to ) see the fair copy of the Judgment?) 4. Whether this case involves a ) substantial question of law as to ) the interpretation of the ) Constitution of India, 1950 or any) Order made thereunder? ) 5. Whether it is to be circulated to ) the Civil Judges? ) 6. Whether the case involves an impor- tant question of law and whether) a copy of the judgment should be ) sent to Nagpur, Aurangabad and Goa) Offices? )