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2012 DIGILAW 257 (BOM)

Ramesh v. State of Maharashtra

2012-02-03

B.R.GAVAI, SUNIL P.DESHMUKH

body2012
Judgment GAVAI, J. 1. Rule. Rule made returnable forthwith and heard finally, with the consent of the parties. 2. In response to the orders passed by this Court on 20.1.2012, Shri Ganesh Eknath Misal and Shri P. N. Thakre, who are respondent Nos. 2 and 3 in the petitions, are personally present. We were required to summon their presence, since we found that in spite of notice dated 10.10.2011, the said respondents neither appeared in person, nor through counsel. 3. When the said respondents, who are the authorities of the State, are served with notices by this court, it is their duty to appear and assist the Court in administration of justice. 4. Be that as it may. Since both the respondents have tendered their unconditional apology, we do not wish to proceed against them and we discharge the notices issued to them. 5. The petitions arise out of peculiar facts. Possession of the lands of the petitioners was taken for medium irrigation project as back as in the year 1993. However, the awards came to be passed only in the year 1998. Since the petitioners are entitled to rental compensation, in accordance with the Government Resolutions dated 1.12.1972 and 2.4.1979, they made representations to the respondents-authorities on 22.7.2010. As the representations were not decided, the petitioners have approached this court. 6. The petitions are opposed by the State, on the ground that though the possession of the lands is taken in the year 1993 and the awards are passed in the year 1998, the petitioners had approached the Government for rental compensation only in the year 2010 and, therefore, the petitions are liable to be rejected, on the ground of delay. Reliance is placed on an order passed by the Division Bench of this Court in Writ Petition No.7872 of 2009, on 8.7.2010. 7. Smt. Gondhalekar, the learned A.G.P., submits that, in view of the view taken by the co-ordinate Bench of this Court, petitions are required to be rejected. 8. By now, it is settled principle of law that an order dismissing the petition in limini does not operate as ratio decidendi, and to operate a judgment and order as ratio decidendi, the Court is required to consider the facts before it and law applicable to facts and the decision therein, after considering factual and legal position. 8. By now, it is settled principle of law that an order dismissing the petition in limini does not operate as ratio decidendi, and to operate a judgment and order as ratio decidendi, the Court is required to consider the facts before it and law applicable to facts and the decision therein, after considering factual and legal position. In that view of the matter, we are not inclined to accept the submission of the learned A.G.P. that the order passed by the co-ordinate bench of this court on 8.7.2010 in Writ Petition No.7827 of 2009, would dis-entitle the petitioners to the relief claimed in the petitions. 9. By now, it is well settled principle of law that though a right to property is no more a fundamental, it is recognized to be a constitutional right. Reliance in this respect could be placed on the judgments of the Apex Court in the cases of Hindustan Petroleum Corpn. Ltd. vs. Darius Shapur Chenai (2005) 7 SCC 627 and Bharat Petroleum Corportion Ltd. vs. Maddula Ratnavalli (2007) 6 SCC 81 . 10. Firstly, it is the State, which has committed an illegality. Even the State is not empowered to take possession of a citizen's land without following due process of law. The State is expected to follow the provisions under the Land Acquisition Act, while acquiring the lands of a citizen. Even in case of urgency, the State cannot take possession of the land without following the provisions under Section 17 of the Land Acquisition Act. 11. Secondly, to take possession of citizens' land dehors the provisions of law and then to contend that they are not entitled to rental compensation, does not lie in the mouth of the State, which is expected to be a model litigant. 12. Apart from that, a Division Bench of this Court, in Bhagwats/o Nathu Patil vs. State of Maharashtra, 2009 (3) Mh.L.J. 413 , has construed the aforesaid government resolutions dated 1.12.1972 and 2.4.1979 and held that the citizens, whose lands are acquired, would be entitled to the benefits in terms of the aforesaid Government Resolutions. 13. In that view of the matter, we find that the present petitions deserve to be allowed. 14. Accordingly, all the petitions are allowed. 13. In that view of the matter, we find that the present petitions deserve to be allowed. 14. Accordingly, all the petitions are allowed. Respondent No. 2 shall decide the applications made by the petitioners for grant of rental compensation in the light of Government Resolutions dated 1.12.1972 and 2.4.1979, as construed by this Court in the case of Bhagwatvs. State of Mah. (supra). The decision shall be taken within a period of two months from today. On determination of rental compensation by Respondent No. 2, as aforesaid, Respondent No. 3 shall make actual payments to the petitioners within a period of three months thereafter, by crossed Demand Drafts. Petitions stand disposed of in above terms. Rule made absolute, accordingly.