1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.3476 OF 2009 Pandurang s/o Rakhamaji Rakade died thorugh L.Rs. 1) Pandharinath s/o Pandurang Rakade Age: 66 Yrs., occu. Agril. r/o Bharadi, Tq. Sillod, Dist. Aurangabad. 2) Kashinath s/o Pandurang Rakade Age: 61 Yrs., occu. Agril. r/o Bharadi, Tq. Sillod, District Aurangabad. - PETITIONERS VERSUS 1) The State of Maharashtra Through the Secretary Revenue & Forest Department Mantralaya, Mumbai.32. 2) The Divisional Commissioner, Aurangabad Division, Aurangabad. 3) The Land Acquisition Officer, & Collector, Aurangabad. 2 District Aurangabad. - RESPONDENTS ***** Mr.SV Gangapurwala, Adv. h/for Mr.NG Kale, Adv. for Petitioners; Mr.VD Rakh,AGP for Respondents. ----- CORAM : NARESH H. PATIL & K.U.CHANDIWAL, JJ. DATE : 8th December, 2009. JUDGMENT (PER: K.U.CHANDIWAL,J.) 1) Rule. Rule made returnable forthwith. By consent of parties heard finally. 2) The petitioners challenged the Award in respect of 2 hectares land out of block No.362 situate at village Bharadi, Tq. Sillod, District Aurangabad, as the proceedings are lapsed in view of Section 11A of the Land Acquisition Act, 1894 (for short, the Act). 3) There is a chequered history of litigation between the parties. However, for the purpose of orders in the matter, it is put in condensed form. 4) Admittedly, Notification under Section 3 4(1) of the Land Acquisition Act was issued on 27.2.1986. It was published in the newspaper on 15.3.1986. The declaration/Notification under Section 6 of the Act was published in the newspaper on 5.3.1987 and in the Gazette on 30th April, 1987. 5) Regular Civil Suit No.230/1987 was filed by the present petitioners, in which there were prohibitory orders, effective from 20.12.1988. The said injunction was tested in Misc. Civil Appeal No. 26/1989 by the State on 1st February, 1989 before the learned Additional District Judge, Aurangabad and by order dated 19.2.1990, the prohibitory orders against the State came to be set aside. This order in Misc. Civil Appeal No. 26/1989 was again questioned in Writ Petition No. 1251/1990, in which on 11.6.1990 this Court granted interim relief in terms of prayer clause (C), consequently, the land acquisition proceeding was stayed. The said writ petition was dismissed on 12.12.2001. However, liberty was granted to the petitioners to invoke powers in terms of Section 48(1) of the Act for withdrawal of the acquisition proceedings since the petitioners were found to be in possession of the land. The Commissioner was directed to decide such application, if made, within a period 4 of six months. 6) The petitioners approached the Divisional Commissioner, Aurangabad in terms of Section 48(1) of the Act on 11.2.2002 and specifically challenged the acquisition proceedings having lapsed in terms of mandate of Section 11A thereof. The learned Additional Commissioner on 6.8.2002 dismissed the petition and even observed that the petitioners are not entitled to get the benefit of Section 11-A of the Act since there was intermittent court proceedings and State was injuncted from prosecuting the acquisition proceedings. 7) The petitioners then approached the Hon’ble Minister for Revenue in Revision dated 27.8.2002. The matter was stayed by order dated 6.12.2002 to the extent of parting of possession of the land. 8) On 24.3.2003, the Sub Divisional Officer, Sillod passed an Award in terms of Sections 11 and 12 of the Act. However, the grievance of the petitioner is, he has failed to follow the mandatory requirement to issue notices under Section 12(2) of the Land Acquisition Act. 5 9) The Revision before the Hon’ble Minister for Revenue came for hearing and it was rejected on 12.1.2009. The said order was challenged on 16.3.2009 before this Court. 10) During the proceedings in the present writ petition, the petitioners learnt of passing of the Award and consequently, they effected necessary amendment by filing a civil application. 11) Now, the petitioners, to reiterate, are challenging the land acquisition proceedings, as provision of Section 11A of the Act and its explanation bars such award being beyond limitation. 12) The State after notice has filed its affidavit in reply through Baburao s/o Mariba Kamble, Sub Divisional Officer, Sillod, District Aurangabad. The factual matrix, as stated above, is not in dispute. The land of the petitioners was to be acquired for the purpose of extension of Gaothan. 13) The chronological events, recorded herein above, illustrate that there was stay in terms of orders passed by the learned Civil Judge, Senior Division, Aurangabad for 19 months 6 and 21 days, since it was vacated by the District court, in Writ Petition, stay was granted, which was for 3 months and 24 days and the writ petition was disposed of on 12.12.2001. 14) Section 11A with proviso and explanation thereto read as under : 11A. The Collector shall make an award under section 11 within a period of two years from the date of the publication of the declaration and if no award is made within that period, the entire proceeding for the acquisition of the land shall lapse: Provided that in a case where the said declaration has been published before the commencement of the Land Acquisition (Amendment) Act, 1984 (68 of 1984), the award shall be made within a period of two years from such commencement. Explanation - In computing the period of two years referred to in this section, the period during which any action or proceeding to be taken in pursuance of the said 7 declaration is stayed by an order of a Court shall be excluded.]” 15) Taking these aspects into consideration, it is more than clear that after excluding the period of court proceedings, since there being stay by the order of the court, the period of passing of Award dated 24.4.2003 is beyond two years from the date of publication of the declaration dated 5.3.1987. 16) In this scenario of the matter, the petitioners are justified in seeking to quash the Award as it is beyond statutory period. The impugned Award is, therefore, quashed and set aside. 17) Needless to mention the State’s power to follow fresh proceedings to acquire the land is unbridled. 18) Rule is made absolute in the aforesaid terms with no order as to costs. sd/- sd/- (K.U.CHANDIWAL) (NARESH H. PATIL) JUDGE JUDGE bdv/wp3476.09 fldr.2.12.09