WP/931/2011-Group 1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 931 OF 2011 Rameshwar Paraji Pol & Others ..Petitioners VERSUS The State of Maharashtra & Others ..Respondents WITH WRIT PETITION NO.992 OF 2011 Balasaheb Vishwanath Nirval & Others ..Petitoners VERSUS The State of Maharashtra ..Respondents WITH WRIT PETITION NO.1004 OF 2011 Ramkishan Ashroba Mogre & Others ..Petitoners VERSUS The State of Maharashtra & Others ..Respondents ... Advocates appearing for : Petitioners : Shri A.B.Kale Respondents 1 to 3 : Shri S.N.Kendre, AGP Respondent 4 : Shri U.K.Patil ... CORAM : D.B.BHOSALE & S.B.DESHMUKH, JJ. Dated : June 10, 2011 ORDER : ( PER S.B.DESHMUKH,J.) :- 1. We have heard learned counsel for the parties. WP/931/2011-Group 2 2. These three Writ Petitions involve common questions of facts and law and therefore, by consent, they are being heard and disposed of by this common order. 3. In Writ Petition No.931 of 2011 there are about nineteen petitioners. In Writ Petition No.992 of 2011 there are about five petitioners and in Writ Petition No.1004 of 2011 there are about fourteen petitioners. There is no dispute amongst the parties regarding claim of the petitioners in this group of Writ Petitions that they are holding the specific agricultural lands which are subject matter of the acquisition. There is also consensus amongst the parties in relation to the specifc area to be acquired by the respondents. For this precise reason, we, in this judgment, are not detailing the survey / gut numbers and area of the lands to be acquired by the respondents. 4. The grievance of the petitioners in this group of Writ Petitions is in respect of non publication of notification under Section 4(1) of the Land Acquisition Act, 1894 ("said Act"). Learned counsel appearing for the petitioners submits that notification under Section 4(1) has been published in the Maharashtra Government Gazette. He did not dispute publication of notification under Section 4(1) in two daily news papers in the locality. However, it is submitted on behalf of the petitioners by the learned counsel that the publication of the substance of Section 4(1) notification was not made by the respondents. According to him, three WP/931/2011-Group 3 modes of publication of notification under Section 4(1) have not been adhered to by the respondents. He, therefore, submits that notification under Section 4(1) is illegal and entire acquisition proceeding stands vitiated. (emphasis supplied). 5. With the assistance of learned counsel for the parties, we have noticed the prayers made in this group of Writ Petitions. We have noticed that the Writ Petitions have been filed by the petitioners on 5.1.2011. The Writ Petitions were taken up before this Court for admission on 10.2.2011. On that date, this Court issued notice, which was accepted by the learned Assistant Government Pleader on behalf of respondents 1 to 3. This Court directed status quo in respect of possession of the subject lands as on that date. The final award has been issued by the respondents on 26.4.2010. We have considered, the date of publication of notification under Section 4(1) in Maharashtra Government Gazette and two news papers both of which are indisputably in regional language of the State. We have noticed the date of publication of notification under Section 4 (1), the date on which an attempt was made to serve notice under Section 4(1) personally on the petitioners, the date on which they instituted Civil Suits challenging the said notice / acquisition and the date of Section 6 notification. This all happened in 2007. We have further noticed as to how work of the project has been hampered till this date. The petitioners now in 2011 have challenged the notifications under Section 4(1) and Section 6(2) of the said Act mainly on WP/931/2011-Group 4 the ground that the substance of these notifications were not given at convenient places in the locality. The State has filed reply affidavit and have categorically stated that these notifications were given at convenient places in the locality. It is against this backdrop, though prima facie, we were of the opinion that these petitions deserve to be dismissed on the ground of delay and laches, since the learned counsel for the petitioners insisted that he would like to argue on merits and on the questions of law, which according to him, deserve consideration. Hence, we shall now proceed to consider the challenges raised by the petitioners in this group of Writ Petitions. 6. We have seen the status of respondents 2 and 3 in this group of Writ Petitions. On behalf of respondents 2 and 3, affidavit in reply is filed. This is sworn in by one Shri Shamrao Gunaji Wagatkar, Deputy Collector, Land Acquisition, Parbhani. 7. In our opinion, Section 52-A of the said Act, as applicable to the State of Maharashtra, is relevant. We deem it appropriate to reproduce Section 52-A (amendment brought on statute book, as applicable to the State of Maharashtra) as under; "52A, Notwithstanding anything contained in the foregoing provisions of this Act - (1) The State Government may, by notification in the Official Gazette, direct that all or any of the powers WP/931/2011-Group 5 conferred or duties imposed on it or on the Commissioner, by or under this Act may, subject to such restrictions and conditions, if any, as may be specified in the notification be exercisable also by the Collector. (2) a Collector may, subject to the general or special orders of the Government, delegate any of his powers of functions under this Act to any officer not below the rank of a Tahsildar or to a Land Acquisition Officer specially appointed by the Government in this behalf." 8. After publication of notification under Section 4(1), some errors were noticed by respondents 2 and 3. The corrigendum accordingly was published in the Government Gazette dated 20.6.2007. Exhibit R-2 is the copy of the corrigendum placed on record by the affiant. It is contended in this affidavit in reply that Section 4(1) notification was published in two daily news papers having circulation in the locality and both of them are in regional language. Two paper clippings have been placed on record. Copy of the Government Gazette, wherein Notification under Section 4(1) has been published, is also placed on record. According to affiant, apart from these two modes of publication of notification under Section 4(1), substance of notification under Section 4(1) was by way of public notice was tried to be served on the petitioners but the petitioners have refused to accept the service. Procedure contemplated under the Act has been completed and final award WP/931/2011-Group 6 accordingly was passed on 26.4.2010. The affiant supports the procedure adopted for acquisition of the lands for the project in question. 9. On behalf of respondent No.4 - acquiring body, an affidavit is filed. This is sworn in by one Satyaprem Parsewar, Sub Divisional Officer, Parbhani. It reveals from this affidavit in reply that the notification under Section 4(1) was published in two news papers, namely; Daily Zunjar Neta and Daily Godateer, both in regional languages of the State. He has placed on record the publication of the notification under Section 4(1) in the Government Gazette. A statement is made in this affidavit that notice under Section 4(1) was tried to be served on the petitioners through Talathi concerned. This has been refused by the petitioners. Refusal of the petitioners to accept the notices, according to affiant, can be considered as service of the notice to the petitioners. It is further revealed from this affidavit in reply that the project in question i.e. Lower Dudhana Project was initiated somewhere in 1992-93. State Government got inclusion of the said project in the Central Government's Scheme known as "Accelerated Irrigation Benefitted Programme." The Central Government had granted 25% financial assistance to the project from the year 2005-06. An amount of Rs.1349.50 Crores for this project has been sanctioned and out of that amount Rs. 264.75 Crores is expected by the State Government. The State Government had already spent an amount of Rs.842.98 Crores till January 2011 on this project. As per the financial sanction of the Central WP/931/2011-Group 7 Government, the entire project requires to be completed prior to March 2013 by the State Government. If this is not achieved, according to affiant, the financial assistance granted / given by the Central Government will be converted into a loan. According to affiant, the project is one of the big irrigation projects in the State of Maharashtra and around 53,379 Hectares of land from Parbhani and Jalna districts will come under the irrigation. Apart from irrigation, domestic water also will be supplied to the various villages and talukas which are in dire requirement of the same. The length of left bank canal is 69 kms. and length of right bank canal is 48 kms. From the let bank canal, the land to the extent of 24,599 Hectares will come under irrigation, whereas land to the extent of 19,886 Hectares will come under irrigation from the right bank canal. According to this affiant, the tender process of construction of right bank canal is already completed and the actual work has already been started except the portion of the petitioners' lands to the extent of 1.25 kms. This court has directed status quo on 10.11.2011 in relation to possession of the petitioners' land to be taken over by the respondents. The grievance is raised that if status quo order is continued, the acquiring body will be not in a position to construct right bank canal to the extent of 1.25 kms. which is in the territory of Parbhani district. (emphasis supplied). 10. Learned counsel appearing for the petitioners principally contended that it is a case of non compliance of Sections 4 and 6 of the WP/931/2011-Group 8 Act which vitiates the entire proceedings of the acquisition initiated and completed by the respondents by passing the final award. Per contra, learned counsel appearing for the respondents have supported the procedure adopted by the respondents for initiation and passing final award in relation to the acquisition of lands in this group of Writ Petitions. 11. We have given thoughtful consideration to the submissions advanced on behalf of the parties. Publication of Section 4(1) notification in the Maharashtra Government Gazette and in two daily news papers circulating in the locality, is not disputed by the petitioners. The principal grievance is regarding publication of the substance of Section 4(1) of notification i.e. public notice to be given at convenience places in the said locality. Thus, we have to consider and decide the grievance of the petitioners i.e. one of the modes of publication of Section 4(1) notification on the background of the facts and circumstances and material brought on record by the parties. Another grievance of the petitioners is in respect of declaration under Section 6(2) of the said Act. 12. Considering the contentions raised on behalf of the parties, in our opinion, following two questions arose for our determination :- (A) Whether the petitioners can claim and maintain that there is failure of causing public notice of the substance of such notification under Section 4(1) and declaration under Section 6(2) of the Act to be given at convenience places in the locality ? WP/931/2011-Group 9 (B) Whether acquisition in the case on hand is invalid ? 13. Since the acquisition in the case on hand is from State of Maharashtra, Sections 4(1) and 6(2) as applicable to the State of Maharashtra are reproduced herein below : "4. Publication of preliminary notification and powers of officers thereupon. - (1) Whenever it appears to the appropriate Government that land in any locality is needed or is likely to be needed for any public purpose or for a company a notification to that effect shall be published in the official Gazette and in two daily newspapers circulating in that locality of which at least one shall be in the regional language and the Collector shall cause public notice of the substance of such notification to be given at convenient places in the said locality the last of the dates of such publication and the giving of such public notice, being hereinafter referred to as the date of publication of the notification. " (emphasis supplied). 6. Declaration that land is required for a public purpose. - (1) ............................................. WP/931/2011-Group 10 (2) Every declaration shall be published in the Official Gazette, and in two daily newspapers circulating in the locality in which the land is Situate of which at least on, shall be in the regional language, and the Collector shall cause public notice of the substance of such declaration to be given at convenient places in the said locality (the last of the date of such publication and the giving of such public notice, being herein after referred to as the date of publication of the declaration), and such declaration shall state the district or other territorial division in which the land is situate, the purpose for which it is needed, its approximate area, and where a plan shall have been made of the land, the place where such plan may be inspected. " 14. Section 4(1) of the said Act clearly shows the purpose of publication of the notification. It is two fold; firstly; to ensure that the adequate publicity is given so that land owners and persons interested will have an opportunity to file their objections under Section 5A of the said Act and secondly; to put the land owners / occupants on notice that the Government officers will be entering upon the property for carrying on the activities enumerated in Section 4(2) of the said Act. Section 4(1) has been brought on statute book by way of amendment in the year 1984. It was Amending Act 68 of 1984. Section 4(1) was amended introducing the additional requirement relating to publication of the notification in two daily news papers circulating in the locality. The purpose of requiring such news paper publication is to give a wide publicity to the notification WP/931/2011-Group 11 as possible. State Gazettes have their own limitations. They do not have a wide circulation in rural areas. Causing public notice of the substance of the notification at convenient places in the locality would give notice only in a specific pockets in the concerned locality. The Legislature, therefore, provided for publication in two news papers (of which, at least one in the regional language) to have a wider reach. This is so held by the Honourable Supreme Court in the matter of M.P.Housing Board Vs. Mohd. Shafi [(1992) 2 SCC 168]. We shall reproduce paragraph 8 of the said judgment, herein below :- "8. The object of issuing a notification under Section 4 of the Act is two-fold. First, it is a public announcement by the Government and a public notice by the Collector to the effect that the land, as specified therein, is needed or is likely to be needed by the Government for the "public purpose" mentioned therein; and secondly, it authorizes the departmental officers or officers of the local authority, as the case may be to do all such acts as are mentioned in Section 4(2) of the Act. The notification has to be published in the locality and particularly persons likely to be affected by the proposal have to be put on notice that such an activity is afoot. The notification is, thus, required to give with sufficient clarity not only the "public purpose" for which the acquisition proceedings are being commenced but also the "locality" where the land is situate with as full a description as possible of the land proposed to be acquired to enable the "interested" persons to know as to which land is being acquired and for what purpose and to take further steps under the Act by filing objections etc., since it is open WP/931/2011-Group 12 to such persons to canvass the non- 659 suitability of the land for the alleged "public purpose" also. If a notification under Section 4(1) of the Act is defective and does not comply with the requirements of the Act, it not only vitiates the notification, but also renders all subsequent proceedings connected with the acquisition bad." (emphasis supplied). This view has been referred to and followed by the Honourable Supreme Court in the case of Special Deputy Collector Vs. J. Sivaprakasam [(2011) 1 SCC 330]. 15. The nature of the notice under Section 4(1) of the Act is material. The Honourable Supreme Court has considered the difference between the actual, implied and constructive notice within the scope of Section 4(1) of the said Act. It is held that the acquiring authority need not prove actual notice of the proposal to acquire under Section 4(1) of the said Act to the person challenging the acquisition. The purpose of publication of public notice provided in Section 4(1) of the Act is to give notice of the proposal of acquisition to the persons concerned. It is held by the Supreme Court in the case of Special Deputy Collector, Land Acquisition (supra) as under :- "31. The acquiring authority need not prove actual notice of the proposal to acquire under Section 4(1) of the Act, to the person challenging the acquisition. As the purpose of publication of public notice provided in Section 4(1) of the Act is to give notice of the proposal of acquisition to the WP/931/2011-Group 13 persons concerned, such notice can also be by way of implied notice or constructive notice. For this purpose, we may refer to the difference between actual, implied and constructive notices. 1. When notice is directly served upon a party in a formal manner or when it is received personally by him, there is actual notice. 2. If from the facts it can be inferred that a party knew about the subject matter of the notice, knowledge is imputed by implied notice. For example, if the purpose of the notice is to require a party to appear before an authority on a particular date, even though such a notice is not personally served on him, if the person appears before the authority on that date or participates in the subsequent proceedings, then the person can be said to have implied notice. 3. Notice arising by presumption of law from the existence of certain specified facts and circumstances is constructive or deemed notice. For example, any person purchasing or obtaining a transfer of an immovable property is deemed to have notice of all transactions relating to such property effected by registered instruments till the date of his acquisition. Or, where the statute provides for publication of the notification relating to a proposed acquisition of lands in the Gazette and newspapers and by causing public notice of the substance of the notification at convenient places in the locality, but does not provide for actual direct notice, then such provision provides for constructive notice; and on fulfillment of those WP/931/2011-Group 14 requirements, all persons interested in the lands proposed for acquisition are deemed to have notice of the proposal regarding acquisition. " 16. Learned counsel appearing for the petitioners took us to copy of the final award placed on record on behalf of respondents 2 and 3 (Exhibit R-3). In item No.2, Maharashtra Government Gazette and date is mentioned. In item No.3 names of two papers in the regional languages namely; Zunjar Neta and Godateer and dates of publication are mentioned. Below that Village Panchayat is mentioned. However, there is no date. Learned counsel appearing for the petitioners emphatically submitted that third mode of publication of notice under Section 4(1) i.e. the Collector shall cause public notice of the substance of such notification to be given at convenient places in the said locality has not been complied with. With the assistance of the learned counsel for the parties, we have seen copy of Exhibit R-3 and original award which is made available to us by the learned counsel appearing for respondents. It is true that date of such panchanama is not there. However, in our opinion, mere absence of date in the case on hand, cannot be said to be detrimental to the respondents which leads to vitiate the entire acquisition proceeding. In our opinion, in the case on hand, there are two affidavits filed on behalf of respondents 2 to 4 which we have referred to herein above. In these affidavits, statements have been made that notice under Section 4(1) was tried to be served to the petitioners, however, they have refused the notices. In support of this statement on oath, WP/931/2011-Group 15 reports of the Village Officer - Talathi & Tahsildar have been placed on record. In our opinion, in the case on hand, publication of notification under Section 4(1) stands complied with by all three modes. In relation to contention raised on behalf of the petitioners regarding declaration under Section 6(2), we have examined the original document placed on record. We have examined the order passed by the learned Divisional Commissioner - competent authority, from the original file. It would be appropriate at this stage to make reference to a statement of affiants, in their affidavit filed on behalf of respondents 2 and 3, that all the steps required to be taken under the provisions of the said Act were taken. We have also noticed further statement that suggestions / indications of later dt. 2.2.2010 given by the Commissioner / President of Redressal Committee were considered. It is a declaration made by the Divisional Commissioner. Learned counsel appearing for the respondents took us to the affidavits and material placed on record. Copy of the final award i.e. Exhibit R-3 is also perused by us. In our opinion, respondents cannot be said to have committed an error. 17. Reliance is placed by learned counsel for the petitioners on the decision in the case of Somendra Singh Vs. State of UP [AIR 2007 SC 1675]. We have gone through the same. The modes of publication under Section 6(2) of the said Act have been reiterated by the Honourable Supreme Court in this case. We have seen the facts listed by the WP/931/2011-Group 16 Honourable Supreme Court in this judgment. We were taken to paragraph No.16 of the said judgment by the learned counsel for the petitioners The Honourable Supreme Court has held that there is no option left with any one to give up or waive any mode as laid down under Section 6(2) of the said Act. In our opinion, the facts in the case on hand are altogether different. The ratio of this judgment does not help the petitioners. The learned Division Bench of this Court has considered Sections 4,6 and 11A of the said Act in the case of Ramrao Pralhadrao Deshmukh Vs. State of Maharashtra [2008 (1) ALL MR 234] on the background of the facts brought before this Court. The learned Division Bench of this Court considering the material on record, observed some discrepancies in two panchanams in respect of pasting of declaration at village Chavdi and panchanama regarding declaration by beat of drums in the village. There in that case, this Court has arrived at a conclusion that panchanams on different dates are drawn with a view to bring the proceedings within the limitation and an endeavour appears to have been made while creating the record to see that the proceedings are not vitiated on account of non observance of time frame as provided by Section 11-A of the said Act. In our opinion, the reliance on this judgment on behalf of the petitioners is mis-placed. Another judicial pronouncement relied upon on behalf of the petitioners is also pertaining to Sections 4,6 and 11A of the said Act which is in the case of Prakash Vishwanath Khute and others Vs. Special Land Acquisition Officer [ 2006(6) ALL MR 245]. We have seen paragraph No.8 WP/931/2011-Group 17 of the said judgment. In our opinion, this judgment also does not help the petitioners on the