1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY : AURANGABAD BENCH WRIT PETITION NO.6672 OF 2008 Dattatraya Devasthan, Brahman Galli, Mudhole, District Adilabad (Andhra Pradesh) through its Archak Shri Sudhir Govindrao Inamdar, R/o. Mangangali, taluka Dharmabad (through its GPA) Devanna Gangaram Kanlod, - Petitioner versus 1. The State of Maharashtra. 2. The Additional Commissioner, Aurangabad. 3. The Collector, Nanded. 4. The Sub-Divisional Officer, & Land Acquisition Officer, Degloor, dist. Nanded. 5. The Gram Panchayat, Manganali, taluka Dharmabad, district Nanded. - - - Respondents Shri S. B. Talekar, Advocate for the petitioner. Shri K. G. Patil, Asstt. Govt. Pleader for respondents Nos.1 to 4. 2 CORAM : B. R. GAVAI & N. D. DESHPANDE, JJ. Dated : 8th September 2009 ORAL ORDER : [ Per B. R. GAVAI, J. ] 1. By way of present petition, the petitioner challenges the declaration issued under section 6 of the Land Acquisition Act (hereinafter referred to as "the said Act" for short) dated 9-9-2008 in respect of acquisition of land gat No. 138 of village Magnali, taluka Dharmabad, district Nanded. This is second round of the litigation. In an earlier round, petitioner had challenged Notification under Section 4 of the said Act. However, the said petition i. e. Writ Petition No. 4185 of 2007 came to be withdrawn. The petitioner was granted liberty to file an objection under Section 5A of the said Act. It was also directed that if such an objection is raised within a period of one month from the date of the order i. e. 21-7-2008, the same would be treated under Section 5A of the said Act. 2. Subsequently, objection under section 5A of the said Act raised by the petitioner has been considered and rejected. Being aggrieved thereby, the present petition. 3 3. Shri Talekar, learned Counsel appearing on behalf of the petitioner raises following grounds in support of the petition:- (i) That on earlier occasion Government itself had rejected proposal for rehabilitation of the village on the ground that there is no flood situation. (ii) That, in earlier petition, Government itself on affidavit, admitted that it was not necessary to rehabilitate the village. He specifically relies on paragraph 12 of the earlier petition read with para 3 of the affidavit in reply in the earlier petition dated 24-6-2008. (iii) Thirdly, that vide Notification issued in March 1980, the Government has resolved that the religious places should not be acquired under the provisions of the Land Acquisition Act. 4. In so far as ground raised in the petition regarding Government itself rejected earlier proposal is concerned, we have perused communication addressed by the Desk Officer, Revenue and Forest Department on 15-9-1998. It has been stated in the said communication that only 182 villagers (i.e. 48.2 per cent) are 4 coming in the flood zone and, therefore, it is not necessary to rehabilitate the entire village. The said communication further states that if in future there is a flood situation, then the villagers can be shifted to some other suitable place. 5. However, it could be noted that the Village Panchayat itself as way back as on 2-8-1988, which was incidentally chaired by present petitioner, who happened to be a Sarpanch at that time, had resolved to rehabilitate the village to the site in question. Perusal of the said Resolution would reveal that in almost all the houses in the village, the flood water had entered due to which even the grains which were stored in the houses were washed away. It could also be seen that there was unrest amongst villagers and only after the Tahsildar and the then M.L.A. assured the villagers that they would be re-settled, the villagers had pacified. It is further to be noted that even subsequently, vide Resolution dated 8-2-2005, the Gram Panchayat had reiterated its earlier Resolution. thereby requesting for rehabilitating the houses which were coming in the flood zone. In that view of the matter, we find that there is no substance in so far as first ground in the petition is concerned. 5 6. In so far as second ground regarding admission by the State Government in earlier affidavit that the resettlement was not necessary is concerned, the same is also without substance. The averments made in the affidavit or in the petition can not be read in isolation. The perusal of part of para 3 of the affidavit in reply filed by the State which petitioner wants us to read as admission of averments in para 12 of the the petition, would show that the contention in this regard is without substance . What could be seen from para 12 of the petition is that it is averred that there is no river flowing through the village Magnali. It further refers to the decision of the State Government thereby refusing to accord sanction regarding acquisition of the land. 7. However, perusal of paragraph 15 would clearly show that though there is no river flowing adjoining village Magnali but it is stated that in case of heavy rains, water flows through nala which poses threat to the life of the villagers. The said affidavit also clearly states that on the proposal being submitted by the Tahsildar, Dharmabad, the Collector has initiated proceedings for rehabilitation of village Magnali. In the affidavits filed by State Government in earlier petition, so also in the present petition, it has specifically been stated that the land in question is the most 6 suitable land for rehabilitation of the villages which are likely to be affected by floods. 8. It is settled law that this Court does not possess necessary expertise to decide the question as to which land is suitable or unsuitable for rehabilitation purpose. Authorities of the State Government after following due procedure have found the land in question to be suitable for rehabilitation purpose. We do not find any reason to interfere with the said decision arrived at by the State Government. 9. In any case, it is not the case of the petitioner that the land in question is being acquired with some mala fide intention. Neither allegations with respect to mala fide are made in the petition nor any of the persons have been impleaded, alleging mala fides against them. 10. As noted herein above, in the meeting which was held in the year 1988 by Gram Panchayat, it was resolved to recommend present site for rehabilitation purpose. Present power of attorney of the petitioner, who was Sarpanch, had chaired the said meeting. On query, Shri Talekar submits that, at the relevant time, the power 7 of attorney of the petitioner, was not Archak in the temple. It appears that power of attorney of the petitioner, who was Sarpanch in the year 1988, found that the land was necessary for rehabilitation of the villagers who are likely to be affected by the flood. However, it appears that after he was appointed as Archak of the temple to which land belongs, he has changed his stand and now contends that land is not required for rehabilitation. A person cannot be permitted to approbate and reprobate merely because he is no more Sarpanch and now he is Archak of the said temple. 11. In so far as the reliance placed by the petitioner on the Government Resolution dated March 1980, the said Government Circular states that though there is no need to amend the existing Land Acquisition Act to exclude such places of worship etc., it is considered desirable that, keeping in view the sensitivities of the minorities such places of worship etc. are, as far as possible, not acquired for public purposes. It can, therefore, clearly be seen that there is no total prohibition. It is further to be noted that what is sought to be acquired in the present case is not any place of worship but the land belonging to the Trust. It is further to be noted that the actual place of worship is in Adilabad district of State of Andhra Pradesh whereas land which is sought to be acquired is in 8 Nanded district of State of Maharashtra. The contention in this respect is, therefore, without any substance. 12. We find that the petition is devoid of substance and, therefore, same is dismissed. 13. At this stage, Shri Talekar, learned Counsel submits that the petitioner would file an undertaking within one week to the effect that he would handover vacant and peaceful possession of the land in question to the respondent No.3 and, therefore, prays that the possession of the petitioner be protected till end of November 2009 so that petitioner can take benefit of the standing crops. We find request to be reasonable. If the petitioner files an undertaking as stated herein above within a period of one week from today, possession of the petitioner shall be protected till 30th November 2009. The petitioner further makes a statement that after village is re-settled the land in the village would lie vacant and the petitioner be allotted the said land and petitioner would not claim any compensation. We are afraid as to whether such a request would be within the purview of the present petition. However, if the petitioner files any representation to that effect with the State 9 Government, the same would be considered in accordance with law. ( N.D.DESHPANDE, J. ) ( B. R. GAVAI, J. ) pnk/wp667208