Eurotex Industries & Exports v. State of Maharashtra
2013-03-08
A.P.BHANGALE, A.S.OKA
body2013
DigiLaw.ai
A. S. OKA, J. By this petition under Article 226 of the Constitution of India, the petitioner has challenged the acquisition proceedings in respect of lands bearing R. Survey Nos. 377/1 to 377/6 and R.S. No.329/1 situated at Village Kasaba Kagal, Taluka Kagal, District Kolhapur. The challenge in this petition is to the declaration dated 27th August, 2011 under Section 6 of the Land Acquisition Act, 1894 (hereinafter referred to as the said Act of 1894) as well as to the Award dated 22nd September, 2011 made under Section 11 of the said Act of 1894. Learned counsel appearing for the petitioner has urged two grounds in support of the petition. The first ground is that no opportunity of being heard in accordance with Section 5A of the said Act of 1894 was made available to the petitioner. His submission is that an opportunity of personal hearing has not been granted. He pointed out the individual notices issued on 18th September, 2008 under Section 4(1) of the said Act of 1894 fixing the date of hearing as 30th September, 2008. He submitted that 30th September, 2008 was admittedly a public holiday and there was no further date of hearing fixed by the Collector. Inviting our attention to the affidavit dated 6th August, 2012 filed by the Deputy Collector, Kolhapur he urged that a factually wrong stand has been taken that the enquiry under Section 5A was held on 30th September, 2008. He stated that the stand taken in the affidavit on 14th December, 2012 filed by the Special Land Acquisition Officer No.6, is completely different. He pointed out that the stand taken therein is that 30th September, 2008 was declared as a holiday and, therefore, intimation was given to all concerned that enquiry under Section 5A shall be held on 1st October, 2008. He submitted that the stand taken in the said affidavit is that on 1st October, 2010, the petitioner filed objections and the petitioner did not pray for personal hearing. He submitted that the inconsistent stand taken in the two affidavits shows that an opportunity of hearing under Section 5A of the said Act of 1894 was not provided to the petitioner and hence, the acquisition proceeding stands vitiated. 2.
He submitted that the inconsistent stand taken in the two affidavits shows that an opportunity of hearing under Section 5A of the said Act of 1894 was not provided to the petitioner and hence, the acquisition proceeding stands vitiated. 2. The learned counsel appearing for the petitioner submitted that in the notification under Section 4(1) of the said Act of 1894 instead of Survey No.377/5 (part), Survey No.344/5 was mentioned. The same was corrected by the first Corrigendum dated 8th December, 2008. He pointed out that the said Corrigendum was lastly published on 9th December, 2008. He pointed out that a second Corrigendum was published subsequently. The last date of publication of the second Corrigendum is 20th June, 2009. He pointed out that even in the notification dated 24th August, 2009 under Section 6 of the said Act of 1894, the same mistake was repeated by incorporating Survey No.344/5 instead of Survey No.377/5. He pointed out that a Corrigendum was ordered to be issued on 24th May, 2011 for replacing Survey No.344/5 by Survey No.377/5. He urged that the said correction will not relate back to the date of issuing the first declaration under Section 6 and, therefore, the declaration under Section 6 issued after a lapse of two years from the last date of publication of notification under Section 4(1) is illegal and, therefore, the proceedings of acquisition as regards land bearing Survey No.377/5 has lapsed. The learned counsel appearing for the petitioner relied upon the decision of the Apex Court in the case of Anil Kumar Gupta vs. State of Bihar and Ors. [2012(2) SCALE 644]. He relied upon another decision of the Apex Court in the case of Mohan and Another vs. State of Maharashtra and others [ (2007) 9 SCC 431 ] : [2007(3) ALL MR 326 (S.C.)] in support of his contention that acquisition has lapsed. Lastly, in support of the contention that the requirement of Section 5A is mandatory, he placed reliance on a decision of the Apex Court in the case of Rambhai Lakhabai Bhakt vs. State of Gujarat and others (1995) 3 SCC 752 . 3. The learned A.G.P submitted that the contention that the Corrigendum issued to declaration under Section 6 cannot relate back to the original date of declaration, has not been specifically canvassed in the Memorandum of Petition.
3. The learned A.G.P submitted that the contention that the Corrigendum issued to declaration under Section 6 cannot relate back to the original date of declaration, has not been specifically canvassed in the Memorandum of Petition. He submitted that it was purely an inadvertent mistake in the declaration under Section 6 which was corrected and, therefore, the same will relate back to the date of the original declaration. He relied upon the decision of Apex Court in the State of Tamil Nadu and Another vs. Mahalakshmi Ammal and Others (1996) 7 SCC 269 . He submitted that an opportunity of personal hearing at the time of enquiry under Section 5A of the said Act of 1894 was made available to the petitioner. However, the petitioner failed to take benefit of the said opportunity. 4. We have carefully considered the submissions. The first issue is regarding noncompliance of Section 5A of the said Act of 1894. It is true that in the first affidavit of the Deputy Collector of Land Acquisition dated 6th August, 2012, a stand has been taken that the enquiry under Section 5A was held on 30th September, 2008. However, in the subsequent affidavit dated 14th December, 2012, the Special Land Acquisition Officer has stated that 30th September, 2008 was declared as a holiday and intimation was given to the concerned parties that the date of hearing was postponed to 1st October, 2008. It is stated in the affidavit that the objections dated 30th September, 2008 were tendered by the petitioner on 1st October, 2008. It is contended that an opportunity of personal hearing was granted to the petitioner, but the petitioner did not avail of the same. 5. There is no rejoinder filed by the petitioner to the second affidavit. Exhibit "J" to the petition is a copy of the objections dated 30th September, 2008. In the petition, it is not disclosed that the objections were filed on 1st October, 2008. However, the statement in the affidavit of the Special Land Acquisition Officer that the objections were tendered by the petitioner on 1st October, 2008 has not been denied by the petitioner by filing a rejoinder. In fact, in paragraph 2 of the said affidavit, the Special Land Acquisition Officer stated that at the time of tendering the written objections, the personal hearing was not sought on behalf of the petitioner.
In fact, in paragraph 2 of the said affidavit, the Special Land Acquisition Officer stated that at the time of tendering the written objections, the personal hearing was not sought on behalf of the petitioner. The notice under Section 4(1) of the said Act of 1894 dated 18th September, 2008 specifically records that hearing will be given to the petitioner by the said Special Land Acquisition Officer who has filed affidavit on 14th December, 2012. Thus, it is apparent that on 1st October, 2010, the petitioner filed objections to the notice under Section 4(1) of the said Act of 1894. It is not the case of the petitioner that the representative of the petitioner who presented the objections sought personal hearing. It is not the case of the petitioner that any time subsequent to the filing of objections, the petitioner called upon the Special Land Acquisition Officer to give a personal hearing. Therefore, in the facts and circumstances of the case, we hold that an opportunity of being heard was made available to the petitioner and in fact the objections in writing filed by the petitioner were taken on record. Therefore, we see no merit in the first challenge. 6. As far as Notification under Section 4(1) of the said Act of 1894 is concerned, in the original Notification, there was an error. Instead of referring to Survey No.377/5, a reference was made to Survey No.344/5. The area of Survey No.377/5 has been correctly mentioned as 0.43 Ares. We may note here that even in the individual notice under Section 4(1) which was issued on 18th September, 2008, the correct Survey number i.e. 377/5 (part), has been incorporated. In fact, objections in writing have been submitted by the petitioner on 1st October, 2008 referring to Survey No.377/5 (part). 7. Affidavit-in reply dated 14th December, 2012 discloses that a Corrigendum for correcting the said error was issued on 8th December, 2008, which was lastly published on 9th December, 2008. The last date of publication of original Notification under Section 4(1) of the said Act of 1894 is 22nd September, 2008. Original declaration under Section 6 was published in Government Gazette on 10th September, 2009. Hence, the said declaration is issued well within the period of two years from the last date of publication of the original Notification under Section 4(1) of the said Act of 1894. 8.
Original declaration under Section 6 was published in Government Gazette on 10th September, 2009. Hence, the said declaration is issued well within the period of two years from the last date of publication of the original Notification under Section 4(1) of the said Act of 1894. 8. A Corrigendum2 to the Notification under Section 4(1) was issued on 15th June, 2009 which was lastly published on 20th June, 2009. The Corrigendum-l was issued to the Notification under Section 6 on 24th May, 2011 which was lastly published on 9th November, 2009. The said Corrigendum was for incorporating Survey No.377/5 in place of Survey No.344/5. Thus, the Corrigendum was issued well within 2 years from the last date of publication of the Corrigendum2 to the Notification under Section 4(1). In the present case, the petitioner was all along aware of the correct Survey No.377/5 (part), as the petitioner has referred to the said Survey number in the written objections dated 30th September, 2008 filed to the Notification under Section 4(1). 9. In the case of State of Tamil Nadu and Another [2007(3) ALL MR 326 (S.C.)] (supra), certain survey numbers in particular the village were not covered by Notification under Section 4(1) of the said Act of 1894. A Corrigendum was published for incorporating the said survey numbers. It will be necessary to make a reference to paragraph 8 of the said judgment which reads thus: "8. It is true that the Government having realised that the lands were initially notified to be acquired but did not cover the survey numbers being situated in the adjacent villages, the errata notification was published and included to lands in Survey Nos.2/5, 2/11 and 2/12. Once errata was published, it dates back to the date of initial Section 4(1) notification, namely, 26-6- 1978. It cannot be considered to be a fresh notification issued under Section 4(1). It is not in dispute that the respondents, in fact, filed their objections to the notice issued under Section 5-A and Rule 3 of the rules made by the State Government. Shri Sivasubramanium, is unable to place before us the nature of the objections raised by the respondent - petitioners. But the fact remains that the respondents had the opportunity and, in fact, they did participate in Section 5-A enquiry.
Shri Sivasubramanium, is unable to place before us the nature of the objections raised by the respondent - petitioners. But the fact remains that the respondents had the opportunity and, in fact, they did participate in Section 5-A enquiry. Therefore, the declaration made under Section 6 does not get vitiated." (underline supplied) In the facts of the present case, the Survey No.377/5 (part) was not introduced for the first time by the Corrigendum to Notification under Section 6, but the same was introduced by a Corrigendum to the Notification under Section 4(1) of the said Act of 1894 of which the petitioner was aware as reflected from the written objections filed by the petitioner. Even in the personal notice under Section 4(1) addressed to the petitioner, the correct survey number was incorporated. What was corrected by the Corrigendum to the Notification under Section 6 of the said Act was purely an inadvertent error. In view of the observations of the Apex Court in the aforesaid case, the said correction will relate back to the date of original declaration under Section 6. As far as the decision in the case of Mob an and another (supra) is concerned, the Apex Court was interpreting Section 11 (A) of the said Act which provides that if Award under Section 11 is not made within the stipulated period from the date of declaration under Section 6 of the said Act, the entire proceedings of acquisition shall lapse. Therefore, in the facts of the present case, the Corrigendum issued to the declaration under Section 6 will relate back to the date of original declaration under Section 6 of the said Act and, therefore, it cannot be said that declaration under Section 6 was not issued within the time specified in the said Section. 10. Hence, on both grounds, the petition must fail and accordingly, we pass the following order: ORDER (I) The Writ Petition is rejected. (II) The ad interim relief granted on 8th May, 2012 will continue to operate for a period of six weeks from today. Petition dismissed.