1
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 1143 OF 2002
Shri. Shripati Hari Barkale ]
Adult, Occupation-Agriculture ]
Alabad, Tal Kagal, District Kolhapur ]... Petitioner.
Versus
1 State of Maharashtra ]
[summons to be served on the learned]
Additional Government Pleader
ig ]
appearing for State of Maharashtra ]
under order XXVII, ]
Rule 4, of the Code of Civil Procedure ]
Code 1908] ]
]
2 Special Land Acquisition Officer No.12]
Old Rajawada, Kolhapur ]
[summons to be served on the learned]
Additional Government Pleader ]
appearing for State of Maharashtra ]
under order XXVII, ]
Rule 4, of the Code of Civil Procedure ]
Code 1908 ] ]
]
3 Divisional Commissioner, ]
Pune Division, Pune ]
[summons to be served on the learned]
Additional Government Pleader ]
appearing for State of Maharashtra ]
under order XXVII, ]
Rule 4, of the Code of Civil Procedure ]
Code 1908 ]...Respondents.
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2
WITH
WRIT PETITION NO. 2319 OF 2010
1 Shri Babaso Hyachand Manoli ]
Adult Occ :- Agriculturist ]
Residing at Alabad, ]
Tal Kagal, District Kolhapur ]
]
2 Shri Abdulmajid Hyachand Manoli ]
Adult Occ :- Agriculturist ]
Residing at Alabad, ]
Tal Kagal, District Kolhapur ]
]
3 Shri Najirahmad Hyachand Manoli ]
Adult Occ :- Agriculturist
ig ]
Residing at Alabad, ]
Tal Kagal, District Kolhapur ]... Petitioners.
Versus
1 State of Maharashtra ]
[summons to be served on the ]
Learned Government Pleader ]
appearing for State of Maharashtra ]
under order XXVII, ]
Rule 4, of the Code of Civil Procedure ]
Code 1908 ] ]
]
2 The District Collector, ]
District Kolhapur ]
[summons to be served on the ]
learned Government Pleader ]
appearing for State of Maharashtra ]
under order XXVII, ]
Rule 4, of the Code of Civil Procedure ]
Code 1908 ] ]
]
3 Special Land Acquisition Officer ]
Non12, Old Rajwada, Kolhapur ]
District : Kolhapur. ]...Respondents.
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3
WITH
WRIT PETITION NO. 1139 OF 2002
Shri. Dattu Hari Barkale ]
Adult, Occupation-Agriculture ]
Alabad, Tal Kagal, District Kolhapur ]... Petitioner.
Versus
1 State of Maharashtra ]
[summons to be served on the learned]
Additional Government Pleader ]
appearing for State of Maharashtra ]
under order XXVII, ]
Rule 4, of the Code of Civil Procedure ]
Code 1908] ]
]
2 Special Land Acquisition Officer No.12]
Old Rajawada, Kolhapur ]
[summons to be served on the learned]
Additional Government Pleader ]
appearing for State of Maharashtra ]
under order XXVII, ]
Rule 4, of the Code of Civil Procedure ]
Code 1908 ] ]
]
3 Divisional Commissioner, ]
Pune Division, Pune ]
[summons to be served on the learned]
Additional Government Pleader ]
appearing for State of Maharashtra ]
under order XXVII, ]
Rule 4, of the Code of Civil Procedure ]
Code 1908 ]...Respondents.
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4
WITH
WRIT PETITION NO. 1141 OF 2002
Shri. Adinath Ratnappa Utture ]
Adult, Occupation-Agriculture ]
Alabad, Tal Kagal, District Kolhapur ]... Petitioner.
Versus
1 State of Maharashtra ]
[summons to be served on the learned]
Additional Government Pleader ]
appearing for State of Maharashtra ]
under order XXVII, ]
Rule 4, of the Code of Civil Procedure ]
Code 1908] ]
]
2 Special Land Acquisition Officer No.12]
Old Rajawada, Kolhapur ]
[summons to be served on the learned]
Additional Government Pleader ]
appearing for State of Maharashtra ]
under order XXVII, ]
Rule 4, of the Code of Civil Procedure ]
Code 1908 ] ]
]
3 Divisional Commissioner, ]
Pune Division, Pune ]
[summons to be served on the learned]
Additional Government Pleader ]
appearing for State of Maharashtra ]
under order XXVII, ]
Rule 4, of the Code of Civil Procedure ]
Code 1908] ]...Respondents.
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5
WITH
WRIT PETITION NO. 1142 OF 2002
Smt Shamunisa Najirkhan Inamdar ]
Residing at Alabad, Tal Kagal ]
District Kolhapur ]
Through the Power of Attorney Holder ]
Shri Ayubkhan Najirkhan Inamdar ]
age about 35 years, Occ : Agriculture, ]
Residing at Alabad, ]
Tal : Kagal, District Kolhapur ]... Petitioner.
Versus
1 Special Land Acquisition Officer No.12]
Old Rajawada, Kolhapur ]
[summons to be served on the learned]
Additional Government Pleader ]
appearing for State of Maharashtra ]
under order XXVII, ]
Rule 4, of the Code of Civil Procedure ]
Code 1908 ] ]
]
2 State of Maharashtra, ]
[summons to be served on the learned]
Additional Government Pleader ]
appearing for State of Maharashtra ]
under order XXVII, ]
Rule 4, of the Code of Civil Procedure ]
Code 1908] ]...Respondents.
WITH
WRIT PETITION NO. 1144 OF 2002
Shri. Chandrakant Adinath Utture ]
Adult, Occupation-Agriculture ]
Alabad, Tal Kagal, District Kolhapur ]... Petitioner.
Versus
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6
1 State of Maharashtra ]
[summons to be served on the learned]
Additional Government Pleader ]
appearing for State of Maharashtra ]
under order XXVII, ]
Rule 4, of the Code of Civil Procedure ]
Code 1908] ]
]
2 Special Land Acquisition Officer No.12]
Old Rajawada, Kolhapur ]
[summons to be served on the learned]
Additional Government Pleader ]
appearing for State of Maharashtra ]
under order XXVII, ]
Rule 4, of the Code of Civil Procedure ]
Code 1908 ] ]
]
3 Divisional Commissioner, ]
Pune Division, Pune ]
[summons to be served on the learned]
Additional Government Pleader ]
appearing for State of Maharashtra ]
under order XXVII, ]
Rule 4, of the Code of Civil Procedure ]
Code 1908 ] ]...Respondents.
WITH
WRIT PETITION NO. 2663 OF 2009
1 Shri Sheetal Appasaheb Utture ]
Age 32 years, Occ : Agriculturist ]
Residing at : Alabad ]
Tal : Kagal, District : Kolhapur ]
]
2 Shri Balkrishan Maruti Barkale ]
Age 42 years, Occ : Agriculturist ]
Residing at : Alabad ]
Tal : Kagal, District : Kolhapur ]
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7
3 Shri Mohammad Pasha Abdul Desai ]
Age 56 years, Occ : Agriculturist ]
Residing at : Alabad ]
Tal : Kagal, District : Kolhapur ]
]
4 Shri Ashok Bapu Chaugule ]
Age 55 years, Occ : Agriculturist ]
Residing at : Alabad ]
Tal : Kagal, District : Kolhapur ]
]
5 Shri Ashok Bandu Khandekar ]
Age 50 years, Occ : Agriculturist ]
Residing at : Alabad ]
Tal : Kagal, District : Kolhapur ]
ig ]
6 Shri Gundu Arjun Kamathe ]
since deceased through his legal heir ]
Shri Nana Gundu Kamathe ]
Age 60 years, Occ : Agriculturist ]
Residing at : Alabad ]
Tal : Kagal, District : Kolhapur ]
]
7 Shri Mahadeo Gundu Kharade ]
Age 67 years, Occ : Agriculturist ]
Residing at : Alabad ]
Tal : Kagal, District : Kolhapur ]
Through the Power of Attorney Holder]
Shri Dhanji Mahadeo Kharade ]
Age 35 years, Occ : Agriculturist ]
Residing at : Alabad ]
Tal : Kagal, District : Kolhapur ]
]
8 Shri Dadu Kondiba Khandekar ]
Adult, Occ : Agriculturist ]
Residing at : Alabad ]
Tal : Kagal, District : Kolhapur ]
Through the Power of Attorney Holder]
Shri Ramchandra Dagadu Chougule ]
Adult, Occ : Agriculturist ]
Residing at : Alabad ]
Tal : Kagal, District : Kolhapur ]
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8
9 Mrs.Hausabai Vishnu Barvekar ]
Adult, Occ : Agriculturist ]
Residing at : Alabad ]
Tal : Kagal, District : Kolhapur ]
Through the Power of Attorney Holder]
Shri Sandeep Dhondiram Sarawade ]
Age 22 years, Occ : Agriculturist ]
Residing at : Alabad ]
Tal : Kagal, District : Kolhapur ]
]
(All through Power of Attorney Holders viz ]
Shri Balaso @ Balkrishan Maruti Barkale ]
Viz. Petitoner No.2 and Shri Dhanaji ]
Mahadeo Karade viz. Petitioner No.7 above ]... Petitioners.
Versus
1 State of Maharashtra ]
[summons to be served on the ]
Learned Government Pleader ]
appearing for State of Maharashtra ]
under order XXVII, ]
Rule 4, of the Code of Civil Procedure ]
Code 1908] ]
]
2 The District Collector, ]
District Kolhapur ]
[summons to be served on the ]
Learned Government Pleader ]
appearing for State of Maharashtra ]
under order XXVII, ]
Rule 4, of the Code of Civil Procedure ]
Code 1908 ] ]
]
3 Special Land Acquisition Officer No.12]
Old Rajwada, Kolhapur Dist.Kolhapur ]
[summons to be served on the ]
Learned Government Pleader ]
appearing for State of Maharashtra ]
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9
under order XXVII, ]
Rule 4, of the Code of Civil Procedure ]
Code 1908] ]...Respondents.
WITH
WRIT PETITION NO. 2720 OF 2010
1 Shri Annaso Santaram Chougale ]
since deceased ]
Shri Prakash Annaso Chougle ]
Age 39 years, Occ : Agriculturist ]
Residing at : Alabad ]
Tal : Kagal, District : Kolhapur ]
ig ]
2 Shri Tukaram Santaram Chougale ]
since deceased ]
Shri Sanjay Tukaram Chougale ]
Age 42 years, Occ : Agriculturist ]
Residing at : Alabad ]
Tal : Kagal, District : Kolhapur ]
3 Shri Vasant Santaram Chougle ]
Age 65 years, Occ : Agriculturist ]
Residing at : Alabad ]
Tal : Kagal, District : Kolhapur ]
]
4 Shri Dnyandev Santaram Chougale ]
since deceased ]
Shri Vinayak Dnynadev Chougale ]
Age 25 years, Occ : Agriculturist ]
Residing at : Alabad ]
Tal : Kagal, District : Kolhapur ]... Petitioners.
Versus
1 State of Maharashtra ]
[summons to be served on the ]
Learned Government Pleader ]
appearing for State of Maharashtra ]
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10
under order XXVII, ]
Rule 4, of the Code of Civil Procedure ]
Code 1908] ]
]
2 The District Collector, ]
District Kolhapur ]
[summons to be served on the ]
Learned Government Pleader ]
appearing for State of Maharashtra ]
under order XXVII, ]
Rule 4, of the Code of Civil Procedure ]
Code 1908 ] ]
]
3 Special Land Acquisition Officer No.12]
Old Rajwada, Kolhapur Dist.Kolhapur ]
[summons to be served on the ]
Learned Government Pleader ]
appearing for State of Maharashtra ]
under order XXVII, ]
Rule 4, of the Code of Civil Procedure ]
Code 1908] ]...Respondents.
WITH
WRIT PETITION NO. 2725 OF 2010
1 Shri Kiran Vitthal Chougle ]
Age 32 years, Occ : Agriculturist ]
Residing at : Alabad ]
Tal : Kagal, District : Kolhapur ]
]
2 Shri Baburao Vitthal Chougle ]
Age 55 years, Occ : Agriculturist ]
Residing at : Alabad ]
Tal : Kagal, District : Kolhapur ]
3 Shri Bajirao Vitthal Chougale ]
since deceased ]
Smt.Janabai Bajirao Chougale ]
Age 45 years, Occ : Agriculturist ]
Residing at : Alabad ]
Tal : Kagal, District : Kolhapur ]
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11
]
4 Shri Mahadev Vitthal Chougale ]
Age 42 years, Occ : Agriculturist ]
Residing at : Alabad ]
Tal : Kagal, District : Kolhapur ]
]
5 Shri Hindurao Vitthal Chougale ]
Age 35 years, Occ : Agriculturist ]
Residing at : Alabad ]
Tal : Kagal, District : Kolhapur ]
]... Petitioners
Versus
1
State of Maharashtra
[summons to be served on the
]
]
Learned Government Pleader ]
appearing for State of Maharashtra ]
under order XXVII, ]
Rule 4, of the Code of Civil Procedure ]
Code 1908] ]
]
2 The District Collector, ]
District Kolhapur ]
[summons to be served on the ]
Learnedl Government Pleader ]
appearing for State of Maharashtra ]
under order XXVII, ]
Rule 4, of the Code of Civil Procedure ]
Code 1908 ] ]
]
3 Special Land Acquisition Officer No.12]
Old Rajwada, Kolhapur Dist.Kolhapur ]
[summons to be served on the ]
Learned Government Pleader ]
appearing for State of Maharashtra ]
under order XXVII, ]
Rule 4, of the Code of Civil Procedure ]
Code 1908] ]...Respondents.
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12
WITH
WRIT PETITION NO. 2894 OF 2001
1 Shri Madhukar Shankar Mutnale ]
adult, ]
Occ : Agriculturist ]
Residing at : Senapati Kapshi ]
Tal : Kagal ]
District Kolhapur ]
]
2 Shri Narayan Ramchandra Ghorpade ]
adult, ig ]
Occ : Agriculturist ]
Residing at : Senapati Kapshi ]
Tal : Kagal ]
District Kolhapur ]
]
3 Shri Appasaheb Baburao Rachoti ]
adult, ]
Occ : Agriculturist ]
Residing at : Senapati Kapshi ]
Tal : Kagal ]
District Kolhapur ]
]
4 Shri Anant Ishwara Shinge ]
adult, ]
Occ : Agriculturist ]
Residing at : Senapati Kapshi ]
Tal : Kagal ]
District Kolhapur ]
]
5 Shri Santosh Surendar Saundatte ]
adult, ]
Occ : Agriculturist ]
Residing at : Senapati Kapshi ]
Tal : Kagal ]
District Kolhapur ]
]
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13
6 Shri Chandrakant Laxman Saundatte ]
adult, ]
Occ : Agriculturist ]
Residing at : Senapati Kapshi ]
Tal : Kagal ]
District Kolhapur ]
]
7 Shri Ramchandra Maruti Naik ]
adult, ]
Occ : Agriculturist ]
Residing at : Senapati Kapshi ]
Tal : Kagal ]
District Kolhapur ]
]
8 Shri Vijay Narayan Bhangore
ig ]
adult, ]
Occ : Agriculturist ]
Residing at : Senapati Kapshi ]
Tal : Kagal ]
District Kolhapur ]
]
9 Shri Shivaji Maruti Nawale ]
adult, ]
Occ : Agriculturist ]
Residing at : Senapati Kapshi ]
Tal : Kagal ]
District Kolhapur ]
]
10 Shri Maruti Linkappa Naikwade ]
adult, ]
Occ : Agriculturist ]
Residing at : Senapati Kapshi ]
Tal : Kagal ]
District Kolhapur ]
]
11 Shri Babasaheb Shankar Mutnale ]
adult, ]
Occ : Agriculturist ]
Residing at : Senapati Kapshi ]
Tal : Kagal ]
District Kolhapur ]
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14
12 Shri Raosaheb Annasaheb Patil ]
adult, ]
Occ : Agriculturist ]
Residing at : Senapati Kapshi ]
Tal : Kagal ]
District Kolhapur ]
]
13 Smt.Akkabai Malgunda Patil ]
adult, ]
Occ : Agriculturist ]
Residing at : Senapati Kapshi ]
Tal : Kagal ]
District Kolhapur ]
ig ]
14 Shri Vaibhav Tattyasaheb Patil ]
adult, ]
Occ : Agriculturist ]
Residing at : Senapati Kapshi ]
Tal : Kagal ]
District Kolhapur ]
]
15 Smt.Shankutala Tattyasaheb Patil ]
adult, ]
Occ : Agriculturist ]
Residing at : Senapati Kapshi ]
Tal : Kagal ]
District Kolhapur ]
]
16 Shri Chandrakant Vijay Tashildar ]
adult, ]
Occ : Agriculturist ]
Residing at : Senapati Kapshi ]
Tal : Kagal ]
District Kolhapur ]...Petitioners
Versus
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15
1 State of Maharashtra ]
[summons to be served on the learned]
Additional Government Pleader ]
appearing for State of Maharashtra ]
under order XXVII, ]
Rule 4, of the Code of Civil Procedure ]
Code 1908] ]
]
2 The Divisional Commissioner, ]
Pune Division, Pune. ]
[summons to be served on the learned]
Additional Government Pleader ]
appearing for State of Maharashtra ]
under order XXVII, ]
Rule 4, of the Code of Civil Procedure ]
Code 1908 ] ]
]
3 Special Land Acquisition Officer No.12]
(Old Rajwada, Kolhapur) ]
[summons to be served on the learned]
Additional Government Pleader ]
appearing for State of Maharashtra ]
under order XXVII, ]
Rule 4, of the Code of Civil Procedure ]
Code 1908] ]...Respondents.
WITH
WRIT PETITION NO. 2896 OF 2001
Shri Manohar Jyoti Pawar ]
At & Post Baleghol ]
Tal : Kagal, ]
District Kolhapur ]...Petitioner
Versus
1 State of Maharashtra ]
[summons to be served on the learned]
Additional Government Pleader ]
appearing for State of Maharashtra ]
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16
under order XXVII, ]
Rule 4, of the Code of Civil Procedure ]
Code 1908] ]
2 The District Rehabilitation Officer, ]
Kolhapur, ]
[summons to be served on the learned]
Additional Government Pleader ]
appearing for State of Maharashtra ]
under order XXVII, ]
Rule 4, of the Code of Civil Procedure ]
Code 1908 ] ]
]
3 The Divisional Commissioner, ]
Pune Division, Pune.
ig ]
[summons to be served on the learned]
Additional Government Pleader ]
appearing for State of Maharashtra ]
under order XXVII, ]
Rule 4, of the Code of Civil Procedure ]
Code 1908 ] ]
]
4 Special Land Acquisition Officer No.12]
(Old Rajwada), Kolhapur ]
[summons to be served on the learned]
Additional Government Pleader ]
appearing for State of Maharashtra ]
under order XXVII, ]
Rule 4, of the Code of Civil Procedure ]
Code 1908] ]...Respondents.
WITH
WRIT PETITION NO. 2900 OF 2001
1 Shri Vithu Krishna Pawar ]
2 Shri Dyanu Krishna Pawar ]
3 Shri Balwant Krishna Pawar ]
]
At & Post Balikire ]
Tal : Kagal, District Kolhapur. ]...Petitioners.
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Versus
1 State of Maharashtra ]
[summons to be served on the learned]
Additional Government Pleader ]
appearing for State of Maharashtra ]
under order XXVII, ]
Rule 4, of the Code of Civil Procedure ]
Code 1908] ]
]
2 The State Divisional Commissioner, ]
Pune Division, Pune. ]
[summons to be served on the learned]
Additional Government Pleader
ig ]
appearing for State of Maharashtra ]
under order XXVII, ]
Rule 4, of the Code of Civil Procedure ]
Code 1908 ] ]
]
3 Special Land Acquisition Officer No.12]
(Old Rajwada), Kolhapur ]
District Kolhapur. ]
[summons to be served on the learned]
Additional Government Pleader ]
appearing for State of Maharashtra ]
under order XXVII, ]
Rule 4, of the Code of Civil Procedure ]
Code 1908] ]...Respondents.
Mr. A V Anturkar with Mr. S B Deshmukh a/w Mr. Tanaji
Mathugade for the Petitioners
Mr. C R Sonawane, AGP for Respondent Nos.1 to 3.
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18
CORAM : A. M. KHANWILKAR,
R. M. SAVANT, JJ.
Judgment Reserved on : 21st April 2010
Judgment Delivered on : 07th June 2010
JUDGMENT [ PER R M SAVANT, J] :
1 The above Writ Petition No.1143 of 2002 and the
companion Writ Petitions impugn the Notification dated 26th July
1995 issued under the Maharashtra Project Affected Persons
Rehabilitation Act, 1986, (herein after referred to as “the Act of 1986”
for brevities sake), by which notification the slab applicable for the
project in question was changed from 3 hectares 23 ares to 1 hectare
61 ares for the acquisition of the lands in the benefited zone. The
Petitions also challenge the declaration dated 14th December 2001
issued under Section 6 of the Land Acquisition Act, (herein after
referred to as “The L.A. Act” for brevities sake), that the lands which
are the subject matter of the above Petitions are sought to be acquired
for the rehabilitation of the project affected persons of the Chikotara
project.
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19
2 The facts necessary to be cited for adjudication of the
above Petitions can be stated thus :-
Writ Petition No.1443 of 2002 would be treated as a lead
matter and the facts in the said Petition would be referred to for the
sake of convenience.
The Petitioner claims to be the owner of the property
bearing Gat No.127 [part] admeasuring 28 ares, situated at village
Alabad, Tal.Kagal, District Kolhapur. The lands in the said village
Alabad fall within the benefited zone of the irrigation project known
as the Chikotara project. By virtue of the notification issued under
Section 11(1) of the Act of 1986, the provisions of the said Act of
1986 have been made applicable to the Chikotara project. The said
notification issued under Section 11(1) has been issued and published
in the Government Gazette on 15th September 1990. In terms of the
scheme of the said Act of 1986, the notices under Section 13(2) of the
said Act of 1986 were issued by the Collector of Kolhapur on 20th
September 1993, 22nd November 1993 and 3rd December 1993. The
said notices were inter-alia for the purpose of identifying the area of
the benefited zone, affected zone and the slab applicable. After
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20
following the procedure under subsection (2) of Section 13, a
notification was published under Section 13(1) of the Act of 1986 on
4th March 1994. In terms of the said notification, the area of the
affected zone was mentioned as 261 hectares and the area of the
benefited zone was mentioned as 7887 hectares and 75 ares and in so
far as the slab is concerned, the slab of 3 hectares 34 ares mentioned
in Part II of the Schedule was made applicable to the said Chikotara
project for the purpose of acquisition of land in the benefited zone.
Thereafter another notification under subsection (1) of
Section 13 dated 26th July 1995 came to be issued on 26th July 1995
which was also published in the Government Gazette on the same
day. By the said notification, the slab of 1 hectare and 61 ares
mentioned in Part II of the Schedule to the said Act of 1986 was made
applicable for the purpose of acquisition of the land in the benefited
zone.
3 In terms of the scheme of acquisition of land, a
notification under Section 4(1) of the L.A. Act came to be issued on
21st September 2000. After following the gamut of processes
mentioned in the L.A. Act, declaration under Section 6 came to be
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21
issued on 14th December 2001 which was published in the
Maharashtra Government Gazette on 19th December 2001.
Thereafter notices under Sections 9(3) and 9(4) of the L.A. Act came
to be issued to the Petitioner on 15th January 2002. As mentioned
herein above the notification under Section 13(1) of the Act of 1986
dated 26th July 1995 and the declaration under Section 6 dated 14th
December 2001 issued under the L.A. Act qua the lands of the
Petitioners, which have been impugned in the above Petition and the
companion matters.
4 On behalf of the Respondents three Affidavits in Reply
have been filed. Out of which two have been filed by one Pradip R
Katkar, District Resettlement Officer, Kolhapur which are dated 17th
April 2007 and 28th June 2007 and one has been filed by Dr.Swati
Deshmukh, Special Land Acquisition Officer, No.12, Kolhapur which is
dated 16th April 2007. In the Affidavit in Reply dated 28th June 2007,
it has been mentioned that though the land slab of 3 hectares and 23
ares was made applicable to the said Chikotara project for the
purpose of acquisition of land in the benefited zone, since the land as
per the slab of 3 hectares and 23 ares was not proving to be sufficient
for the purpose of allotment to the rehabilitation of project affected
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22
persons, it was decided to reduce the slab from 3 hectares 23 ares to
1 hectare 61 ares. It has further been stated in the said affidavit that
the State Government granted approval for reduction of the said slab
from 3 hectares 23 ares to 1 hectare 61 ares which was accordingly
communicated to the District Resettlement Officer by a letter dated
30th September 1995. In so far as 2nd notification is concerned, the
said affidavit states that the notification under subsection (1) of
Section 13 of the Act of 1986 was issued on 26th July 1995, reducing
the slab from 3 hectares 23 ares to 1 hectare 61 ares and accordingly
a proposal for acquisition in terms of the reduced slab was submitted
to the Special Land Acquisition Officer on 13th March 1996 for taking
further steps in respect of the acquisition of the lands.
Now coming to the affidavit of Dr. Swati Deshmukh, the
Special Land Acquisition Officer No.12, Kolhapur dated 16th April
2007, the dates and events, encompassing the notification under
Section 4(1), declaration under Section 6, leading to passing of the
Award dated 21st January 2004 have been mentioned. The sum and
substance of the said affidavit is that the said affidavit discloses that
the final award in respect of the lands in question has been passed on
21st Januar 2004 after following the gamut of processes mentioned in
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23
the L.A. Act. Hence indubitably, during pendency of the above
Petitions, the award has been passed in respect of the lands in
question.
5 We have heard Shri A V Anturkar, the learned counsel
appearing for the Petitioners in all the above Petitions and Shri C R
Sonawane, the learned AGP for the Respondent Nos.1 to 3 in all the
above Petitions.
6 On behalf of the Petitioners, it was principally contended
by Shri Anturkar, the learned counsel appearing for the Petitioners,
that the Respondents could not have reduced the slab mentioned in
the notification dated 4th March 1994 which was 3 hectares and 23
ares to 1 hectare 61 ares without following the procedure. The
learned counsel for the Petitioners submitted that though in
subsection (2) of Section 13 of the Act of 1986 there is a reference to
the clauses (a) and (b) only of subsection (1), since the slab
mentioned in clause (c) forms an integral part of the notification
under Section 13(1), the Collector was obliged to issue notices under
Section 13(2) in respect of clause (c) also if any change in the slab
was to be effected. The learned counsel submitted that since the
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objections and suggestions have to be invited in respect of clauses (a)
and (b), it would necessarily follow that if there is a change in the
slab which is covered by clause (c), the Collector is obliged to follow
the procedure prescribed in subsection (2) in effecting the change in
the slab. He further submitted that clauses (a) and (b) though they
are only for the purpose of identifying the lands which come within
the affected zone and benefited zone, it would not be correct to
restrict the procedure envisaged in subsection (2) of Section 13, to
clauses (a) and (b) only, as the slabs applicable, are also an important
facet of the acquisition. The learned counsel submitted that after the
notice under subsection (2) of Section 13, the agriculturist would
know whether he would be affected by the proposed notification or
not under subsection (1) of Section 13 and, therefore, unless the
notice mentions the proposed slab, no agriculturist would know as to
whether he would be affected by acquisition or not and, therefore, a
notice under subsection (2) of Section 13 must be given also in
respect of clause (c) of subsection (1) of Section 13 of the Act of
1986. The learned counsel appearing for the Petitioners, further
submitted that reading of Sections 13(3) and 13(4) provides and
indicates that for changing any parameter in the notification issued
under section 13(1), the procedure contemplated in subsection (2) of
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Section 13 has to be followed. The learned counsel lastly submitted
that if it is construed that Sections 13(3) and 13(4) do not apply to
the modification/change in slab, then the logical corollary would be
that though a change could be effected as regards clauses (a) and (b)
of Section 13(1), the intent of the legislature is clear that no change is
permitted in respect of the slab mentioned in the clause (c) of Section
13(1), i.e. there can be no change in the slab. The learned counsel
therefore submitted that the change in slab effected without following
the procedure is therefore illegal.
7 Shri Anturkar, the learned counsel appearing for the
Petitioners, relied upon a Judgment of the Apex Court reported in
1970(1) SCC 125 in the matter of Narendrajit Singh and another
v/s. The State of U.P. And another. The learned counsel for the
Petitioners also relied upon the Judgment of the Division Bench of
this Court reported in 2004(3) Bom.C.R. 328 in the matter of
Trimbakrao Vithalrao Dhokane v/s. Sate of Maharashtra and ors.
as also the Judgment of the Division Bench of this Court reported in
CDJ 2004 BHC 337 in the matter of Shri Appa Ganpati Jadhav v/s
Special Land Acquisition Officer and ors. in support of his
contention that in the matters of land acquisition strict adherence to
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the procedural requirement is necessary and any deviation would
vitiate the said proceedings and prove fatal.
In so far as the Judgment of the Apex Court is concerned,
in the said case urgency clause was applied. In that case,
notifications issued under section 4 suffered from a very serious
defect inasmuch as the locality wherein the lands were situated was
not specified. The notification merely stated that the lands
mentioned in the schedule were needed. The schedule in its turn
though it contained the headings District, Pargana, Mauza and
approximate area, gave no particulars of the same and all that was
mentioned by way of a note was that the plan of the land might be
inspected in the office of the Collector of Ramur. The said defect was
sought to be rectified by notification under section 6 which was
issued within fortnight after the notification under section 4. The
Apex Court in the fact situation of the said case, observed that any
notification which is the first step to deprive a man of his property
must be strictly construed and the courts ought not tolerate any lapse
on the part of the acquiring authority in the issue of such notification,
if it be of a serious nature. The Apex Court held that the defect in a
notification under section 4(1) cannot be cured by giving full
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particulars in the notification under section 6(1). The Apex Court, in
the fact situation of the said case, therefore, quashed and set aside the
acquisition proceedings on the said grounds.
In so far as the Judgment of the Division Bench of this
Court reported in 2004 (3) Bom. C.R. 328 is concerned, the Division
Bench has held that unless person interested in the land which has
been notified under section 4(1) of the L. A. Act, is given opportunity
of being heard, the authority cannot proceed further. The Division
Bench held that the heart of section 5-A of the Act is the hearing of
the objections and under sub-section (2) personal hearing is
mandatorily provided and it does not depend upon demand for
personal hearing. Since the Petitioner in that case was not given an
opportunity of hearing before making recommendations to the
Commissioner for approval of the draft notification under section 6 of
the Act, the said declaration under section 6 was quashed and set
aside and the authorities were directed to hear the Petitioner as
contemplated under section 5-A of the Act and thereafter to proceed
with acquisition.
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Now coming to the Judgment of the Division Bench of this
Court reported in CDJ 2004 BHC 337 on which reliance was placed
by the learned counsel for the Petitioners, this was a case where a
declaration under section 11 of the Resettlement Act, 1976 was
already made when the said Act was in force and a particular slab
from Part II of Schedule was already applied namely of 8 acres for
acquiring land from the benefited zone for the resettlement of the
project affected persons of Urmodi Major Irrigation Project.
Thereafter Rehabilitation Act, 1986 came into force. Section 26 of the
Rehabilitation Act, of 1986 which is the Repeal and saving clause
saved actions taken under the Resettlement Act, 1976. A notification
under section 13(1) of the said Act was issued on 1st December 1998.
Similar notification was issued on the same date applying the slab of
2 H. 42 Rs. of Part II of the Schedule. The argument of the Petitioner
in the said case was that the procedure under Section 13(2) of the
Rehabilitation Act 1986 was not followed, and hence, no notification
under Section 13(1) could have been issued and therefore there could
not be any acquisition under the L.A. Act. The notifications under
sections 4 and 6 of the L.A. Act were therefore challenged on the said
grounds. The said argument of the Petitioner was negatived by the
Division Bench by holding that since the declaration under section 11
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had already been made under the Resettlement Act 1976 and in view
of section 26 of the Rehabilitation Act of 1986, the said action being
saved there was no requirement to issue a notification under section
13(2) inviting objections and suggestions and hence there was
compliance of Section 13 of the Act of 1986. The notification issued
under section 4 and the declaration under section 6 in that case were
therefore upheld by the Division Bench.
8 On behalf of the Respondents, Shri Sonawane, the learned
AGP, submitted that the Act of 1986 has been made applicable to the
Chikotara project and the notification has accordingly been issued
under Section 11(1) of the Act 1986. The learned AGP submitted that
the notification under Section 13(1) of the Act of 1986 dated 4th
March 1994 was issued after following the procedure for the same by
inviting objections and suggestions under Section 13(2). The learned
AGP submitted that the said notification inter alia specified the
affected zone and the benefited zone and fixed the slab as 3 hectares
23 ares, considering the land that is required for rehabilitation of the
persons affected by the said project. The learned AGP further
submitted that the lands which come within the affected and
benefited zones are the determining factors for application of a
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particular slab. He therefore submitted that it is on the said basis that
the authorities chose one of the slabs mentioned in the Schedule of
the Act of 1986. The learned AGP submitted that in the instant case,
initially the slab of 3 hectares and 23 ares was thought to be
appropriate considering the requirement of lands in the benefited
zone, however in terms of the said slab the land was falling short of
the requirement for the resettlement of the project affected persons of
the said Chikotara project, therefore, according to the learned AGP
the slab was lowered to 1 hectare 61 ares which has been approved
by the State Government. The learned AGP submitted that
considering the purport and intent of the Act of 1986, the legislature
has consciously limited the notice to only clauses (a) and (b) of
Section 13(1) of the Act of 1986, as clauses (a) and (b) are the
determining factor and depending on the area, in question, a
particular slab is applied. The learned AGP submitted that accepting
the contention of the Petitioners would amount to reading into the
provision something which Legislature did not contemplate. The
learned AGP submitted that in the instant cases, as mentioned in the
affidavit of Dr.Swati Deshmukh, the final award has been passed on
21st January 2004 during the pendency of the above Petitions.
However, though the final Award has been passed, the Petitioners
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have not chosen to challenge the said acquisition proceedings by
carrying out any amendment to the Petitions. The learned AGP
submitted that this Court should not interfere in the acquisition
proceedings in its writ jurisdiction under Article 226 of the
Constitution of India.
9 We have heard the learned counsel for the parties and
bestowed our anxious consideration to the rival contentions.
10 In the context of the issue which arises viz. whether for a
change in the slab mentioned in the notification issued under Section
13(1), procedure under Section 13(2) of the Act of 1986 is required
to be followed. In the context of the said issue, it would be relevant to
refer to Section 13 of the said Act of 1986 which is reproduced herein
under :-
“13. (1) The State Government shall, by
notification in the Official Gazette and also bypublication of such notification in the manner
provided in sub-section (2) of section 11,
declare—-
(a) the extent of area which shall
constitute the area of affected zone under the
project ;
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(b) if the project is an irrigation
project, the extent of area which shall
constitute the area of benefited zone under the
project;
(c) which of the slabs mentioned in
Part II of the Schedule shall apply to such
project for the purposes of acquisition of land
in the benefited zone.
(2) Before publishing a notification
under sub-section (1), the Collector shall give
a public notice inviting objections or
suggestions in respect of the lands falling
under clauses (a) and (b) of sub-section (1),
by publishing in the manner specified in sub-
section (2) of section 11 and also in the
Official Gazette and in one daily newspaper in
the Marathi language circulating in the local
area comprising such villages and areas of
affected and benefited zone. Any person
interested in the land in such areas may make,
objections or suggestions, if any, to the
Collector within 30 days from the date on
which such public notice is published by beat
of drums in the village or area concerned or
the date on which it is published in the
newspaper as aforesaid, whichever is later; and
the Collector shall, with all reasonable
despatch, forward any objections or
suggestions so made together with his report
in respect thereof to the State Government and
on considering the report and the objections
and suggestions, if any, the State Government
may pass such order as it deems fit.
(3) If at any time during the course of
execution of a project, the project authority is
satisfied that any change in the areas
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mentioned in the notification under sub-
section (1) is necessary, it shall communicate
such change with reasons and the plans and
particulars relating to the change to the State
Government through the Collector.
(4) One receipt of the communication
under sub-section(3) and the report of the
Collector, if any, the State Government may
after considering the reasons given by the
project authority and in the report, if any, of
the Collector and making such enquiry, if any,
as it thinks fit, make such change in the
manner laid down in sub-sections (1) and (2)”
ig (emphasis supplied)
As can be seen, the notification issued under section 13(1)
declares the area of the affected zone under the project, the extent of
area which would constitute the benefited zone and which of the
slabs mentioned in Part II of the Schedule shall apply to such project
for the purposes of acquisition of land in the benefited zone.
Sub-section (2) of Section 13 postulates that before
publishing a notification under sub-section (1), the Collector shall
give a public notice inviting objections or suggestions in respect of the
“lands falling under clauses (a) and (b) of sub-section (1)”, by
publishing the same in the manner specified in sub-section (2) of
Section 11 and also in the Official Gazette and in one daily
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newspaper in the Marathi language circulating in the local area
comprising such villages and areas of affected and benefited zone.
The said objections and suggestions, received by the Collector, shall
be forwarded by him to the State Government with his report and, the
State Government is obliged to pass such orders on such objections
and suggestions as it deems fit.
Sub-section (3) of Section 13 provides that if during the
course of execution of project, the project authority is satisfied that
any change in the “areas” mentioned in the notification under sub-
section (1) is ascribable to clauses (a) and (b) thereof, is necessary, it
shall communicate such change with reasons and the plans and
particulars relating to the change to the State Government through
the Collector.
Sub-section (4) of Section 13 provides that on receipt of
the communication under sub-section (3) and the report of the
Collector, the State Government may after considering the reasons
given by the project authority as also the reasons contained in the
report of the Collector and, after making such enquiry, if any, as it
thinks fit, make such change obviously referable to areas mentioned
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in terms of clauses (a) and (b) of subsection (1) in the manner laid
down in sub-sections (1) and (2) of Section 13.
11 What can, therefore be seen from a reading of the said
Section 13 is that the objections and suggestions are to be invited
only in respect of “areas” mentioned in clauses (a) and (b) i.e. the
extent of area coming in the affected zone and the extent of the area
coming in the benefited zone. A reference to clause (c) is
conspicuously absent for obvious reasons. As the slab which would
be applicable would be contingent upon the extent of the area of the
affected zone and the extent of the area of the benefited zone. They
are, according to us, the determining factors on the basis of which the
slab is fixed by the authorities by choosing one of the slabs mentioned
in the Schedule. A perusal of the Part II of the Schedule would
disclose the various slabs which could be applied to a particular
project considering the lands in the affected zone and the benefited
zone. A perusal of the slabs especially slab-I of Part II of the schedule
which is now made applicable discloses the maximum area that can
be acquired from a person holding the land above the slab mentioned
viz. in the instant case 1 hectare 61 ares. The slabs in that sense are
elaborate and inter-alia stipulate the extent of land that can be
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acquired from the landholders to which a particular slab is made
applicable. The said slabs forming part of the Act of 1986 are
therefore statutory in nature and once a particular slab is made
applicable the State Government is free to acquire the lands above the
said slab restricted to the maximum that can be acquired from the
land holder having a particular holding. Since the requirement of the
land depends upon the extent of the area covered by the affected
zone and the benefited zone, the opportunity, if any, would, therefore,
have to be given if there is a change in the area of the affected or
benefited zone and, therefore, the legislature has consciously
excluded clause (c) from section 13(2) in the matter of inviting
objections and suggestions. The application of a particular slab
mentioned in the Schedule is akin to a legislative action and
therefore, for a change in the slab, in our view, no notice is required
to be issued.
12 It is true, as contended by the learned counsel for the
Petitioners, that vide clauses (a) and (b) of Section 13(1) of the Act of
1986, the lands in the affected and benefited zone are identified,
however, once the extent of the lands are identified which come in the
affected and benefited zone, fixing of the slab is only a sequitur to
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such identification or a ministerial act – as the lands in the benefited
zone are to be acquired and allotted to the project affected persons.
Therefore, the Petitioners’ contention that notices ought to have been
given even in respect of the change in the slab cannot be accepted.
13 The contention of the Petitioners that the words appearing
in section 13(4) viz such change in the manner laid down in sub-
sections (1) and (2) make it abundantly clear that even for a change
in parameters relating to slabs mentioned in the notification under
Section 13(1), the procedure contemplated in sub-section (2) of
section 13 has to be followed, is, in our view, misconceived. As
mentioned herein above, sub-section (2) contemplates that only when
there is a change in the extent of the “areas” mentioned in clauses (a)
and (b) of section 13(1), that a notice would have to be published
under section 13(2) since clauses (a) and (b) are the vital parameters
determining the area to which the proposed acquisition would be
applicable. The legislature has, therefore consciously excluded
clause (c) from the requirements of giving notice under section 13(2),
even if there is a change in the said parameter. As mentioned herein
above, clauses (a) and (b) are really the determinative factors on the
basis of which the slab is to be applied. It is on the basis of the
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extent of the areas covered by clauses (a) and (b) of section 13(1)
that one of the slabs mentioned in the schedule is chosen by the State
Government. Hence even if there is a change in the slab without
there being any change in the parameter of the land covered by
clauses (a) and (b), there is no requirement of issuing notice and
inviting objections and suggestions as the benefited zone remains the
same and the lands have to be acquired from the said benefited zone.
14
As can be seen in the instant case, since the lands which
were acquired from the persons pursuant to the earlier slab fixed viz 3
hectares 23 ares were falling short of the requirement for
rehabilitating the project affected persons of the Chikotara project,
that the authorities moved the State Government for lowering the
slab to 1 hectare 61 ares which proposal the State Government has
sanctioned and the notification under section 13(1) of the Act of 1986
dated 26th July 1995 came to be issued. Therefore, in the instant
case, what has happened is that, there is no change in the benefited
zone, however, the slab has been lowered so that sufficient land
becomes available for rehabilitating the project affected persons of
the said Chikotara project.
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15 In so far as the contention of the learned counsel for the
Petitioners that if it is construed that section 13(3) and section 13(4)
do not apply to modification made in respect of change of slab
contemplated by section 13(1)(c), then it would have to be held that
since the legislature has expressly permitted change in the parameters
of the areas mentioned in clauses (a) and (b) of section 13(1) only,
and since no such latitude is available in respect of the change in
parameter mentioned in clause (c) of section 13(1), therefore, the
intention of the legislature is clear namely, that there can be no
change at all in respect of the slab mentioned in clause (c). The said
submission, in our view, cannot be countenanced in the teeth of the
purport and intent of the Act of 1986 whose object primarily is of
rehabilitation of the project affected persons in fact the raison d’etre
of the said Act is the rehabilitation of such persons. As recorded
herein above, the determinative factors are clauses (a) and (b) of
section 13(1) of the Act of 1986 on whose basis the State Government
applies a particular slab. The intention being that adequate lands
become available for rehabilitation of the project affected persons.
May be in a given case, the parameters mentioned in clauses (a) and
(b) do not change, but if the slab applied earlier does not serve the
purpose, then in that event a change in the slab may be warranted. If
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section 13 (2) is to be construed in the manner as contended by the
Petitioners, it would militate against the intent and purport of the said
Act and, would therefore make the provisions of the Act of 1986
nugatory. We, therefore do not find merit in the aforesaid contention
of the Petitioners and accordingly reject it.
It was also faintly sought to be canvassed by the learned
counsel for the Petitioners, that the project in question cannot be
called an irrigation project but a percolation project or that the
benefited zone cannot be called as such, if the benefit of distribution
of water is in future. Though the Petitioners have questioned in the
Petition the project being an irrigation project, the second ground that
the benefited zone cannot be called as such has not been taken in the
Petition. Apart from it, both the said grounds were not canvassed
with any deal of conviction. Be that as it may, the said grounds in our
view are only stated to be rejected considering the nature of the
project and the benefit that is likely to accrue in terms of providing
irrigation to large tracts of land.
16 Another aspect to be considered is that though the above
petitions were admitted, the stay operating in favour of the Petitioners
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41
was only in respect of taking over possession of the lands in question.
There was no stay to the land acquisition proceedings being
completed. As mentioned herein above, the Special Land Acquisition
Officer Dr.Swati Deshmukh has filed an affidavit in which it has been
stated that final award in respect of the land in question has been
passed on 21st January 2004. Though the Petitioners have
approached this Court before the final award being passed, one would
have to bear in mind that the Petitioners have approached this Court
after the declaration under Section 6 was issued and not immediately
after the notification under Section 13(1) dated 26th July 1995 under
the Act of 1986 was issued. In so far as the scheme for acquisition of
land for the projected affected person is concerned, the notification
under section 13(1) is the defining notification if one can use the
said phraseology, inasmuch as it is by the said notification the land
covered by the affected zone, the benefited zone and the slab
applicable are made final. Thereafter the land is acquired by taking
recourse to the provisions of Land Acquisition Act, therefore, in so far
as the present Petitioners are concerned, the notification under
Section 13(1) dated 26th July 1995 in so far as it changes the slab
from 3 hectares 23 ares to 1 hectare 61 ares was the vital notification
and the Petitioners ought to have challenged the said notification with
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reasonable despatch and ought not to have waited till the Section 6
declaration under the L.A. Act was issued. In our view, therefore, the
said fact would also be relevant in the context of considering the
challenge raised by the Petitioners in the instant petitions.
17 A useful reference could be made to the Judgment of the
Apex Court reported in A.I.R. 2000 S.C. 671 in the matter of
Municipal Council, Ahmednagar and another vs. Shah Hyder Baig
and others in which case, the Apex Court turned down the challenge
to the acquisition proceedings in view of the fact that the final award
had been passed and no land acquisition proceedings could be
challenged after the final award had been declared. However, though
the above Petitions have been filed before the declaration of final
award, since the challenge to the notification under Section 13(1) is
long after it has been issued, in our view, considering the scheme of
acquisition, the same analogy, as in the judgment (supra), would
have to be applied and hence the challenge of the Petitioners to the
acquisition of land in question would have to be negatived on the said
ground also.
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18 In so far the Judgment of the Apex Court (Supra) and the
Judgments of the Division Bench reported in 2004(3) Bom.C.R. 328
and CDJ 2004 BHC 337 (Supra), for the view we have taken namely
that there is no requirement of issuing a notification under Section
13(2) if there is a change in the slab, in our view, the said judgments
have no application.
Indeed, in so far as the Judgment of the Division Bench
reported in CDJ 2004 BHC 337 is concerned, though the said
judgment is under the Act of 1986 and in the said case also the slab
was reduced, the fact situation in the said case was totally different
inasmuch the Division Bench was required to consider whether a
notification under Section 13(2) was required to be issued in the
context of the fact that the declaration under Section 11 of the
Resettlement Act, 1976, which was in force at the relevant time, was
already issued. Hence in our view, the said judgment also does not
support the Petitioners case in any manner.
In fact as can be seen from the said judgment, the Division
Bench has observed that to what extent the land is required or not is
best left to the legislature. This was in the context of the fact that the
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slab was reduced by the authorities to 2 H. 42 Rs from the earlier slab
of 8 H. Therefore, the said judgment in fact lends support to the view
that we have taken in the present case.
19 For all the aforesaid reasons, we do not find any merit in
the above Petitions which are accordingly dismissed and Rule
discharged in all the Petitions with no order as to costs.
20 On pronouncement of the Judgment today i.e. 07th June
2010, the learned counsel for the Petitioners applies for time to
approach the Apex Court. However, the learned AGP opposes the said
prayer. Considering the facts and circumstances of the present case,
the operation of this order is stayed for a period of eight weeks from
today.
Sd/- sd/-
(R.M.SAVANT, J.) (A. M. KHANWILKAR, J.)
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