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2013 DIGILAW 106 (BOM)

Sham Dharma Dagle v. State of Maharashtra

2013-01-15

A.P.BHANGALE, A.S.OKA

body2013
JUDGMENT A.S. OKA, J. 1. Rule. The learned AGP waives service for the Respondents. Considering the narrow controversy involved, this Writ Petition is taken up for final disposal. 2. According to the case of the Petitioners, the land bearing Gat No.528/2, admeasuring 3 Hectares and 21 Ares together with 30 Ares of Pot Kharaba situated at Pimpalad, Taluka and District – Nashik was notified for acquisition under the Land Acquisition Act, 1894 ( hereinafter referred to as “the said Act”). According to the case of the Petitioners, the notice under Section 12(2) of the said Act was received on 31st January 2000 and an application under Section 18 of the said Act was made on 1st March 2000. As the Petitioner was not informed about the fate of the Application, on 21st July 2004, the third Petitioner wrote a letter dated 21st July 2004 to the fourth Respondent for sending the reference to the Court. Similar letters were written by the Petitioner No.5. By communication dated 7th April 2008, the fourth Respondent informed the fifth Petitioner that the reference application was filed on 1st March 2000 appear to have been disposed of on 5th February 2002. The said Petitioner was called upon to seek further information from the office of the fourth Respondent. The challenge in this Petition is to what is set out in the communication dated 13th November 2009 (Exhibite to the Petition) issued by the office of the District Collector, Nashik, stating that the copies of the documents sought by the Petitioners including a copy of the order dated 5th February 2002 disposing of the reference application cannot be made available as the same were not available. The Special Land Acquisition Officer has filed a reply dated 3rd December 2012 to this Petition to which a copy of the communication dated 5th February 2002 has been annexed. The said communication records that the reference application has been disposed of for want of two procedural compliances. The first one was of non-filing of a copy of the award under Section 11 of the said Act and the award statement and the second ground was that neither the Court fee was paid nor the caste certificate of the Petitioners was produced. It is recorded in the said communication that on account of failure to make aforesaid compliances, the reference application has been treated as disposed of. 3. It is recorded in the said communication that on account of failure to make aforesaid compliances, the reference application has been treated as disposed of. 3. The learned counsel appearing for the Petitioners submitted that at no stage, any communication was made to the Petitioners as regards any defect in the application for reference and for the first time, when the affidavit in reply was filed to the Petition, the petitioners became aware of the contents of the letter dated 5th February 2002 which was annexed to the affidavit-in-reply. He pointed out that in the impugned communication, the stand taken is that the record of the application for reference is not available. He, therefore, submitted that time may be granted to the Petitioners to comply with the procedural formalities and the application for reference be revived. The learned AGP opposed the Petition. He submitted that the communication dated 5th February 2002 amounts to rejection of the application for reference and, therefore, the remedy under Subsection (3) of Section 18 of the said Act (as amended by the State of Maharashtra) is available. 4. We have carefully considered the submissions. Perusal of the Petition shows that on 21st July 2004, a communication was addressed to the Special Land Acquisition Officer by one of the Petitioners stating therein that the reference application filed on 1st March 2000 was pending and the same has not been forwarded to the Reference Court. As the said application was not accepted, the third Petitioner who tried to tender the application made an endorsement thereon that the said application was not accepted by the Special Land Acquisition Officer and, therefore, the same was being forwarded to the District Collector, Nashik by post. Another communication annexed to the Petition at Exhibit –C is dated 7th April 2008. In the said communication which was issued on the basis of the Application made under the Rights to Information Act 2005, the Public Information Officer informed the fifth Petitioner that the reference application was filed on 1st March 2000 and was disposed of on 5th February 2002. It is further recorded that the other necessary details can be obtained by contacting the Public Information Officer. It is further recorded that the other necessary details can be obtained by contacting the Public Information Officer. Therefore, on 17th October 2008, the Advocate for the Petitioners made an application to the District Collector, Nashi as well as to the Special Land Acquisition Officer, Nashik, seeking copies of the various documents including a copy of the order dated 5th February 2002. The impugned communication dated 13th November 2009 has been issued in response to the said application in which the office of the District Collector, Nashik stated that the reference application was disposed of on 5th February 2002. However, a copy of the said order and other documents cannot be supplied as the same are not available in the file. 5. Perusal of the affidavit-in-reply dated 3rd December 2012 shows that it is not even the case made out by the Special Land Acquisition Officer, National Highway Project, Nashik, that the communication dated 5th February 2002 was served to the Petitioners or any one of them. It is not even the case made out that the Petitioners were called upon to remove office objections in the application for reference. Thus, going by the annexures to the Petition and the reply filed by the Special Land Acquisition Officer, it is obvious that the communication dated 5th February 2002 was never served to the Petitioners. 6. Perusal of the communication dated 5th February 2002 shows that the purported rejection of the application for reference is not on merits but the application for reference was shown as disposed of on account of failure to comply with the office objections. The first objection was regarding the failure to file a copy of the award under Section 11 of the said Act and the award statement. On plain reading of Section 18 of the said Act, there is no such requirement prescribed by the law of filing a copy of the award and the award statement alongwith the reference application. As far as the payment of Court fee is concerned, the learned counsel appearing for the Petitioners has relied upon a decision of the Division Bench of this Court in the case of Sambhaji Manaji Chate and another v. State of Maharashtra and another (2002 LAC 755 (Bombay).. As far as the payment of Court fee is concerned, the learned counsel appearing for the Petitioners has relied upon a decision of the Division Bench of this Court in the case of Sambhaji Manaji Chate and another v. State of Maharashtra and another (2002 LAC 755 (Bombay).. This Court in the said decision held that the amount of Court fee could be remitted and/or deposited even before the reference Court and, therefore, while making a reference to the Court, the Land Acquisition Officer can always pass a conditional order on the application for reference and forward it to the Civil Court. 7. The learned counsel appearing for the Petitioners has placed for perusal of the Court a copy of the reference application bearing endorsement of the Land Acquisition Officer that the application was tendered along with the caste certificate of the Petitioners. 8. Thus, the objections raised on the reference application were totally contrary to the law and are unsustainable. Moreover, the objections were never communicated to the Petitioners and they were never called upon to make compliance with the procedural formalities. Moreover, the communication dated 5th February 2002 was never served to the Petitioners and it was produced for the first time before this Court on 3rd December 2012. 9. Therefore, at this stage, it will be unjust to relegate the Petitioners to the remedy of Revision under Subsection (3) of Section 18 of the said Act ( as amended by the State of Maharashtra). 10. In the reference application, there is a specific assertion that the Petitioners belong to a Scheduled Tribe and therefore, they are entitled to exemption from payment of Court fees. Though the endorsement on the office copy of the application shows that the caste certificate was produced, the Petitioners will produce one more copy of the caste certificate before the Special Land Acquisition Officer. If a copy of the caste certificate is not produced, the Special Land Acquisition Officer can always take recourse to the procedure suggested in the decision of this Court in the case of Sambhaji Manaji Chate (supra). 11. If a copy of the caste certificate is not produced, the Special Land Acquisition Officer can always take recourse to the procedure suggested in the decision of this Court in the case of Sambhaji Manaji Chate (supra). 11. Hence, we dispose of the Petition by passing the following order: ORDER : (a) The communication dated 5th February 2002 is quashed and set aside and the reference application under Section 18 of the Land Acquisition Act, 1894 made by the Petitioners is restored to the file; (b) We direct that the first objection noted in the letter dated 5th February 2002 cannot be raised as it is unsustainable; (c ) It will be open for the Petitioners to file a true copy of the cast certificate within a period of six weeks from today. If the caste certificate is not filed within the stipulated period of six weeks from today or if it is found that the caste certificate is not in order, the Special Land Acquisition Officer, National Highway Project, Nashik shall take recourse to the decision of this Court in the case of Sambhaji Manaji Chate (supra) and pass a conditional order on the reference application as suggested therein; (d) We make it clear that the application for reference shall be referred to the District Court as expeditiously as possible and in any event within a period of three months from today; (e) The Rule is made absolute on above terms; (f) All concerned to act upon an authenticated copy of this order.