Jailing v. The State of maharashtra

Shri V.S. Tanwade, advocate for the petitioner. Shri S.V. Kurundkar, Addl. G.P. for respondent/State. ..... ..RESPONDENTS (CORAM : SMT. NISHITA MHATRE AND M.T. JOSHI, JJ. Judgement reserved on : 29th July, 2011 Judgement pronounced on : 8th August, 2011 JUDGMENT (PER SMT. MHATRE, J.)

1. Rule. Rule made returnable forthwith, by consent. 2 wp1372.09

2. By the present Petition, the petitioner seeks a direction against the respondents to pay him compensation for acquiring his land bearing Gat No. 160 to the extent of 1 H 29 R situated at village Sarola (Bk), Tq. and Dist. Osmanabad together with interest, solatium and other consequential benefits.

3. The petitioner is an agriculturist, whose land was acquired, partly, in the year 1969-70 for the Sanja-Kamegaon Road. A notification under Section 4(1) of the Land Acquisition Act, 1894 (hereinafter referred to as "the Act") was published in the year 1972. However, no steps were undertaken thereafter and it, therefore, lapsed. A fresh notification was issued on 18th March, 1990 under Section 4(1) of the Act, which was published in the daily news paper. A copy of the notification was also issued to the petitioner personally on 13th June,

1990. Thereafter, a declaration under Section 6(2) of the Act was published on 13th November, 1991 in the local news papers and later a notice under Section 9(3) and 9(4) of the Act was issued to the petitioner on 14th August, 1992. The petitioner, thereafter, submitted his claim for compensation before the Land Acquisition Officer. According to him, no steps were taken by the Authorities to inform him of the progress of the land acquisition proceedings. He claims to have made several representations to the Special Land Acquisition Officer and other Officers concerned. According to him, although the possession of his land was taken by the State for construction of the road in the year 1969-70, no award has been passed under Section 11 3 wp1372.09 of the said Act, as yet. He, therefore, submits that he is entitled to payment of compensation, solatium and interest.

4. An affidavit has been filed by the Sectional Engineer, Public Works Division No.1, Osmanabad on behalf of the respondent no.5. He has averred that due to drought in Maharashtra in 1968, the Government initiated a scheme to ensure that the persons were employed on a daily wages for the construction of roads, which were already in existence. He has stated that the road which the petitioner speaks of was in existence as a cart track road and it was that road, which has been laid during the drought period between 1968 to 1972.

5. The learned Addl.G.P. relied on the judgement of the Supreme Court in the case of "State of Maharashtra V/s Digambar" reported at AIR 1995 S.C. 1991 to fortify his submission that the petitioner is not entitled to any relief as there is an inordinate delay on his part in approaching this Court. He submitted hat hough it is the petitioners's contention that his land was acquired in 1969-1970 he has filed the present petition after 40 years and therefore was not entitled to compensation. He pointed out that the Supreme Court has deprecated the practice of granting compensation for acquisition of lands after such a long period of time. According to him, the aforesaid judgement of the Supreme Court was rendered in a similar case where such projects were undertaken by the State to provide employment to small agriculturists and agricultural labour, who were suffering because of 4 wp1372.09 acute scarcity due to the drought in the State. The Supreme Court after considering the special circumstances in which such developmental works were undertaken and the fact that the possession of the land was taken away from the agriculturists in the year 1972, held that they were not entitled to the relief claimed for compensation as the petitioners had approached the High Court under Article 226 of the Constitution of India, belatedly. The learned Addl.G.P. has relied more specifically on the observations in para 24 of the judgement.

6. The allegation of the respondent before the Supreme Court i.e. the agriculturist was that the possession of his land to the certain extent was taken away by the State in the year 1971-72, for the large scale scarcity relief works undertaken by the State in that area. Despite requests made by him to the State and various agencies, no payments had been made to him in respect of this land, which was taken away from him without his consent. The Court observed that such an allegation was not sufficient to hold that the respondent i.e. the writ petitioner before the High Court had properly and satisfactorily explained the undue delay of 20 years, which had occurred between the alleged taking over of the possession of his land and the date of filing of the Writ Petition before the High Court. The Court observed that the undue delay of 20 years on the part of the agriculturist, in invoking the High Court's extraordinary jurisdiction under Article 226 of the Constitution of India, for grant of compensation for his land, would suggest that his land was not taken without his consent and if it was, in 5 wp1372.09 fact, taken without his consent, he had acquiesced in such action of the State and had waived his right for compensation for its acquisition. Mr. Kurundkar, the learned Addl. G.P. strenuously urged that this judgement of the Supreme Court applies squarely to the facts in the present case.

7. We are not impressed by this submission of Mr. Kurundkar, the learned Addl. G.P.. The facts before the Supreme Court and the facts before us, are different. In the present case, the State had set in motion its machinery to acquire the petitioner's land. Although, initially, a notification issued under Section 4(1) of the Act was dropped, a fresh notification was issued under the same Section on 18th March, 1990. Thereafter, a notification was also issued under Section 6 and later under Section 9 of the said Act. There is no explanation from the State, as to why the acquisition proceedings were dropped. The question of acquiescence or waiver of the petitioner's right in the present case does not arise as the State itself had decided to acquire the land from the petitioner and had issued the notifications under the Land Acquisition Act. There is no dispute that the petitioner's land was one of the lands acquired for the project undertaken by the State i.e. the Sanja-Kamgaon road. Therefore, the submission of the learned Addl.G.P. that the petitioner had acquiesced in the possession of his land being taken over by the State, is untenable.

8. The only issue is whether the petitioner has approached this 6 wp1372.09 Court belatedly when no action was taken by the State even after issuance of the notices under Section 9 in 1992. Under Section 11 A of the Land Acquisition Act, the Award is expected to be passed within two years of the acquisition proceedings being commenced, else the acquisition lapses. Thus, the award ought to have been passed by

9. The submission of Mr. Kurundkar, the learned Addl. G.P. that the road existed earlier and it was only changed from a cart track road to a road for vehicular traffic, is also without merit. Assuming a cart track road did exist earlier, the fact that the petitioner's land was acquired for relaying the road is not disputed. The State is liable to pay compensation for such acquisition.

10. In our opinion, therefore, the State in the present case has acted unreasonably and illegally by taking over the possession of the land of the petitioner, initiating acquisition proceedings and not letting it culminate in an award. Had the State wanted to drop the acquisition proceedings, it ought to have informed the petitioner, who was under the bonafide belief that his land was being acquired when he was divested of the possession and that he would be compensated for the same in accordance with the Land Acquisition Act. The State cannot be permitted to take over possession of the land of a citizen without compensating him. Apart from this, several representations had been sent by the petitioner to the State and its Officers, for declaring the 7 wp1372.09 award, however, the State has chosen to remain silent on the same. Left with no alternative, the petitioner has approached this Court.

11. The Petition is, therefore, allowed. The respondents shall pass an award under Section 11 A of the Land Acquisition Act within three months from today. Rule is made absolute, accordingly. (M.T. JOSHI, J.) (SMT. NISHITA MHATRE, J.) ga s/wp1372.09