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2012 DIGILAW 977 (BOM)

Bhagwat Narayan Randive v. State of Maharashtra

2012-05-09

A.S.OKA, SUNIL P.DESHMUKH

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Judgment : (A.S. Oka, J.) Heard the learned counsel for the petitioner and the learned AGP for the respondent nos.1 to 3. Rule. The learned AGP waives Rule notice for the respondent nos.1 to 3. Considering the nature of the controversy, it is not necessary to serve notice of Rule to the respondent no.4. Rule is taken up for final hearing. 2. The petitioner claims to be the owner of the land which is more particularly described in paragraph no.3 of the petition. The case made out by the petitioner is that possession of the said land was taken over in the year 1972 even prior to date on which the notification under Section 4(1) of the Land Acquisition Act, 1894 (hereinafter referred to as the said Act) was issued. The case made out in the petition is that the notification under Section 4(1) of the said Act was issued on 18th March, 1990 and notices under Section 9(3)(4) of the said Act were issued on 14th August, 1992. The case made out in the petition is that since the year 1972, the petitioner is out of possession and no compensation has been paid as the award under Section 11 of the said Act has not been made. Reference has been made to a civil suit filed by the petitioner in the Civil Court. The contention raised in the civil suit is that the State Government is not entitled to drop the process of acquisition. The said suit has been dismissed on the ground that the Civil Court had no jurisdiction. 3. The learned counsel appearing for the petitioner submitted that though the acquisition has lapsed in view of Section 11-A of the said Act, the petitioner is deprived of both, his land and compensation. He invited our attention to the judgment and order dated 8th August, 2011 passed by a Division Bench of this Court in Writ Petition No.1372/2009 (Jailing Baburao Linge Vs. The State of Maharashtra and others) and submitted that a direction be issued to complete the acquisition proceedings by making an award. He also invited our attention to the prayers made in the petition by carrying out amendment and especially prayer clause (B-1). 4. The learned AGP appearing for the respondent nos.1 to 3 has tendered reply of the respondent no.2. In the reply, it is not disputed that the acquisition has lapsed. He also invited our attention to the prayers made in the petition by carrying out amendment and especially prayer clause (B-1). 4. The learned AGP appearing for the respondent nos.1 to 3 has tendered reply of the respondent no.2. In the reply, it is not disputed that the acquisition has lapsed. It is, however, pointed out that a decision has been taken to challenge the judgment and order of this Court on which the petitioner is relying upon. 5. We have given careful consideration to the submissions. What is on record is the fact that the notification under Section 4(1) of the said Act was issued on 13th June, 1990 and on 14th August, 1992, notice under Section 9(3)(4) was issued by the respondent no.2. The fact that the notice under Section 9(3)(4) was issued shows that declaration under Section 6 of the said Act was made and published prior to 14th August, 1992. Section 11-A of the said Act reads thus: "11A. Period within which an award shall be made - (1) 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 proceedings 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, 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 declaration is stayed by an order of a Court shall be excluded." 6. Thus, the legal effect of Sub-section (1) of Section 11-A is that the entire proceeding for the acquisition of the land in question shall lapse if the award under Section 11 is not made within a period of two years from the date of publication of declaration under Section 6. In the present case, the proceeding lapsed on completion of period of two years from the date on which declaration under Section 6 was published. The notice under Section 9(3) (4) was issued on 14th August, 1992 and therefore, the declaration under Section 6 must have been published before the said date. In the present case, the proceeding lapsed on completion of period of two years from the date on which declaration under Section 6 was published. The notice under Section 9(3) (4) was issued on 14th August, 1992 and therefore, the declaration under Section 6 must have been published before the said date. In the present case, there is no dispute that award has not been made within a period of two years from the date on which publication of declaration under Section 6 of the said Act has been made. Therefore, there cannot be any dispute that the acquisition has lapsed. 7. The first prayer in the petition is for issuing a direction to the State Government to complete the acquisition proceedings by making an award. For that purpose, reliance was placed on judgment and order dated 8th August, 2011 in Writ Petition No.1372/2003. We have perused the said judgment. We find that the legal effect of Sub-section (1) of Section 11-A of automatic lapsing of the entire acquisition proceedings was not brought to the notice of this Court. Sub-section (1) of Section 11-A is very specific. Failure to make award under Section 11 has the effect of not only invalidating the declaration under Section 6 but the entire proceedings from the stage of notification under Section 4(1) of the said Act lapses. Condition precedent for passing an award under Section 11 is the existence of legal and valid publication of notification under Section 4(1) and publication of declaration under Section 6 of the said Act. In absence of the said notification and said declaration, there is no power vesting in the Collector to declare an award under Section 11 of the said Act. In view of this legal position, the judgment and order dated 8th August, 2011 passed by this Court cannot be read as a binding precedent. Hence, we are unable to issue a writ to complete the acquisition proceeding which has already lapsed. 8. Thus, the sum and substance of the aforesaid discussion is that the acquisition has lapsed. We are not going to the question whether the possession of the land of the petitioner was taken prior to notification under Section 4(1) of the said Act. 8. Thus, the sum and substance of the aforesaid discussion is that the acquisition has lapsed. We are not going to the question whether the possession of the land of the petitioner was taken prior to notification under Section 4(1) of the said Act. However, as the acquisition has lapsed, the logical consequence is that there is no vesting in the State Government and the acquired land will have to be returned to the person from whom the possession thereof was taken over. 9. However, it appears that the acquired land has been already put to use for a public purpose. Therefore, we deem it necessary to grant time to the State Government to initiate fresh acquisition proceedings. As far as the compensation payable from the date of possession till the date of award under Section 11 of the said Act, if any, is concerned, it is for the petitioner to adopt appropriate remedy in that behalf. As possession was allegedly taken over prior to notification under Section 4(1), the compensation on the aforesaid count will be governed by the policy of the State regarding the grant of rental compensation. That will be in addition to compensation payable under the said Act, provided fresh acquisition proceeding is initiated. 10. Hence, we pass the following order: (i) We declare that the acquisition proceedings in respect of the land, more particularly described in paragraph no.3 of the petition, has lapsed. (ii) We, therefore, reject the prayer for directing the State Government to complete the proceedings which were initiated earlier. (iii) We grant time of six months from today to the State Government to initiate fresh acquisition proceedings by issuing notification under Section 4(1) of the said Act. (iv) On failure of the State Government to issue a notification under Section 4(1) of the said Act within the stipulated period of six months from today, the respondent nos.1 to 3 shall restore the possession of the land to the petitioner or to the person from whom the same was taken over. (v) We make it clear that it will be open for the petitioner to adopt appropriate remedy for seeking compensation from the date on which possession of the land was taken over till the date of award under Section 11 of the said Act, which may be made in fresh acquisition proceedings, if initiated. (v) We make it clear that it will be open for the petitioner to adopt appropriate remedy for seeking compensation from the date on which possession of the land was taken over till the date of award under Section 11 of the said Act, which may be made in fresh acquisition proceedings, if initiated. (vi) Rule is made partly absolute on above terms with no order as to costs.