1 wp-9463-11.sxw dgm IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.9463 OF 2011 Mukund Marutirao Kadam and ors. .... Petitioners vs CIDCO, Navi Mumbai and ors. .... Respondents Mr. Shriram S. Kulkarni for the petitioners. Mr. G.S. Hegde for respondents 1 and 2. Mr. V.S. Gokhale, AGP for respondents 3 to 5. CORAM: D. K. DESHMUKH & ANOOP V. MOHTA, JJ. DATE : December 08, 2011 P.C.: The Petitioners claim to be persons whose lands were acquired for Koyna Project. According to them, they were allotted lands at various villages for their rehabilitation. A Notification under Section 4 of the Land Acquisition Act was issued on 10 July 2006 proposing to acquire the lands for New Bombay Project. Urgency clause was made applicable. Therefore, enquiry under Section 5A was dispensed with. 2 wp-9463-11.sxw A Notification under Section 6 acquiring these lands was issued on 2 August 2007. An award was made on 19 March 2008. It appears that at that time the Petitioners filed two Writ Petitions in this Court being Writ Petition No.2047/2008 and Writ Petition No.3689/2008. It appears that in those Petitions, two grievances were made; (i) that the rehabilitation of the Petitioners as persons whose lands have been acquired for Koyna Project have not been completed; and (ii) acquisition of the lands by the aforesaid Notification and the Award was also challenged. Those Petitions were disposed of by a Division Bench of this Court by order dated 12 August 2010. Perusal of that order shows that an affidavit was filed by the State Government stating that the question of rehabilitation of persons who are affected by Koyna Project has been referred to a Committee and appropriate decision in that regard would be taken. The Court directed the State Government to decide the issue of rehabilitation of the Koyna Project affected persons. 2 So far as the challenge to the Notification for acquisition of the land is concerned, from the order it appears that this Court did not consider the validity or otherwise of the acquisition notification. However, a direction was made for deciding the application filed by 3 wp-9463-11.sxw the Petitioners under Section 48. The application of the Petitioners filed under Section 48 for deleting the land from acquisition is decided by the Additional Commissioner. By his order dated 31 March 2011 the application has been rejected. 3 The present Petition has been filed again challenging the Notification by which the land has been acquired. A direction is sought for completion of the process of rehabilitation. The order passed under Section 48 is also challenged. 4 So far as the question of rehabilitation of the Petitioners is concerned, we asked the learned counsel appearing for the Petitioners to show from the documents produced in the Petition as to how much land of the Petitioners was acquired for Koyna Project and as per law, how much land the Petitioners were entitled to be allotted as Koyna Project Affected Persons. The learned counsel invited our attention to the averments in paragraphs 5, 6 and 7 of the Petition. Those averments refer to two memorandums, one is dated 10 December 1958 and the other is dated 19 December 1963. They also refer to a chart at Exhibits “C” and “C-1”. But neither the averments nor the memorandums nor the chart show as to how much land the 4 wp-9463-11.sxw Petitioners individually were entitled to allotment in law as Project affected persons of Koyna Project. Therefore, in the absence of such relevant material being placed on record, in our opinion, no specific direction can be issued for allotment of any more land to the Petitioners for their rehabilitation. A general direction has already been issued by this Court to the State Government to complete the process of rehabilitation of persons who are affected by Koyna Project. It is stated in the Award that a contempt petition was filed by some persons because the State Government did not complete the process of rehabilitation within the time allowed by the High Court and that on an application made by the State Government that time limit has been extended. We have nothing to say about the general directions issued by the Court for rehabilitation of those persons affected by Koyna Project, but so far as the Petitioners are concerned, the Petitioners have not made out a case in this Petition that in law they were entitled to any extent of land as persons affected by Koyna Project and that in law they should be allotted any more land. No direction in that regard therefore can be issued. 4 So far as challenge to the acquisition Notification is concerned, settled law is that challenge to acquisition cannot be made after an 5 wp-9463-11.sxw award has been made. It appears that challenge to acquisition was made when Writ Petition Nos.2407/08 and 3689/08 were filed in this Court, but the Court did not decide that challenge, however, directed decision on an application under Section 48. In our opinion, in view of order dated 12 August 2010 the Petitioners cannot re-agitate their challenge to the acquisition notification. The learned counsel for the Petitioners urge that by the order dated 12 August 2010 the Division Bench has kept all contentions to the Petitioners open. In our opinion observation in the order that relates to the application filed by the Petitioners under Section 48 which was directed to be decided by the appropriate Authority. An application under section 48 can be made only on the assumption that acquisition of the land is valid for deletion of the land from acquisition. The person who is claiming that the acquisition itself is invalid may not be able to maintain that application under Section 48. The very fact that the Court directed the Authority to decide the application under Section 48 means that the Court did not find any substance in the challenge to the Notification issued under the Land Acquisition Act for acquisition of the land. In any case, the land was being acquired for the New Bombay Project and, therefore, public purpose for which the land was being acquired is incapable of being challenged. 6 wp-9463-11.sxw 5 So far as the challenge to the order passed by the Additional Commissioner under Section 48 is concerned, it appears from the order of the Additional Commissioner that the principal ground on which it was claimed that the land should be deleted from acquisition is that the land was allotted to the Petitioners as persons who are affected by Koyna Project. The Additional Commissioner, in our opinion, has rightly observed that the mere fact that the land was allotted to the Petitioners as the persons affected by the Koyna Project cannot be the reason for deleting the land from acquisition if the land is actually needed for a public purpose. 6 Taking overall view of the matter, therefore, we do not find any substance in the Petition. The Petition therefore is rejected. 7 At the request of the Petitioners, despite rejection of the Petition, it is directed that the parties shall maintain status-quo as of today for a period six weeks from today. (ANOOP V. MOHTA, J.) (D. K. DESHMUKH,J.)