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2019 DIGILAW 859 (BOM)

Vinayak Krishnarao Waghdhare v. Union of India

2019-03-28

R.K.DESHPANDE, S.M.MODAK

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JUDGMENT: R.K.Deshpande, J. Heard Shri A.S.Kilor, learned counsel for the petitioners, Shri V.A.Thakare, learned AGP for the respondent no.2 and Shri A.A.Kathane, learned counsel for respondent no.3 2. In exercise of the power conferred by sub-section (1) of Section 3-A of the National Highways Act, 1956, certain lands were acquired for building (widening) of National Highway no.7, including the Kamptee-Kanhan bypass on the stretch from Kilometers 689.00 to Kilometers 723.00 Mansar - Nagpur in Nagpur district. It was published in local newspapers "Dainik Lokmat" in Marathi and "Dainik Hitavada" in English on 04.04.2005. Subsequently, a Declaration in Gazette Notification under Section 3-D of the said Act was issued to acquire the lands, on 28.06.2005. It is claimed by respondent no.2 - the Deputy Collector - Land Acquisition Officer in the affidavit that such declaration was also published in "Dainik Lokmat" in Marathi and "Dainik Hitavada" in English on 03.04.2008. 3. The petitioners claim release of the lands owned by them from acquisition, which are part of Khasra Nos.241/4 to 241/7. In the 7/12 extracts their lands are shown to be mutated in the name of the Union of India through its National Highway No.7. This is also challenged. The petition also claims compensation to the tune of Rs.Ten lakhs for each piece of the land illegally acquired. 4. Shri Anil Kilor, learned counsel appearing for the petitioners, has urged that the Notification issued under Section 3-A of the Act referred to above does not include Land Khasra Nos.241/4 to 241/7 owned by the petitioners, though these lands appear in the Notification issued under Section 3-D of the Act along with the names of the petitioners. Relying upon the decision of the Apex Court in the case of Competent Authority Vs. Barangore Jute Factory and others, (2005) 13 SCC 477 , it is urged that the Notification under Section 3-A of the said Act is totally vague and it does not conform to the requirements of sub-section (1) therein, giving the brief description of the land. He submits that except mentioning the plot numbers neither the names of the owners are mentioned in such Notification nor exact area or portion or sub-division sought to be acquired out of the Khasra numbers owned by the petitioners is described. He submits that except mentioning the plot numbers neither the names of the owners are mentioned in such Notification nor exact area or portion or sub-division sought to be acquired out of the Khasra numbers owned by the petitioners is described. He submits that the Apex Court has in such a situation held that the Notification becomes invalid on the ground that it fails to meet the statutory requirements and even if the possession is taken, the same cannot be said to be legal and valid. 5. Shri Anil Kilor submits that there cannot be any objection for acquisition of the lands owned by the petitioners but, the petitioners are pressing before this Court for determination of market value of the lands owned by them, as on the date of taking actual physical possession by the respondents. Hence, we take it that the relief to set aside the acquisition is not pressed. 6. The learned AGP Shri Thakare for the State and the learned counsel Shri Kathane for the National Highway Authorities strongly opposed the claim made by the petitioners and submit that the Notification under Section 3-A of the said Act specifically gives Khasra no.241 having area of 1.083 hectare R proposed to be acquired. According to them, even if it is assumed that the petitioners are the owners of Khasra Nos.241/4 to 241/7, the total area acquired remains 1.083 hectare R and it cannot, therefore, be said that the Notification is liable to be set aside on the ground of it being vague. It is also stated in the affidavit filed that the notices issued on 23.04.2010 and 28.08.2014 are combined notices under Sections 3-E and 3-H of the said Act, calling upon the petitioners to receive the compensation awarded and to take possession of the lands owned by them. 7. We have gone through the Notification under sub-section (1) of Section 3-A of the said Act, which includes Khasra No.241 of village Kandri admeasuring 1.083 H. R land proposed to be acquired. It is not the case that Khasra No.241 of village Kandri exists independently of Khasra Nos.241/4 to 241/7. The Notification does not give the details of the sub divisions of this field Khasra No.241. The names of the owners are also not mentioned. It is not the entire land comprised in Khasra No.241 which is acquired. 8. It is not the case that Khasra No.241 of village Kandri exists independently of Khasra Nos.241/4 to 241/7. The Notification does not give the details of the sub divisions of this field Khasra No.241. The names of the owners are also not mentioned. It is not the entire land comprised in Khasra No.241 which is acquired. 8. Perusal of the Declaration under Section 3-D of the said Act shows that the name of one Vijay Bhagwan Shendukar as the owner of Khasra No.241/1A having total area of 2.66 hectare R land, out of which the acquired land is 1.0830 H.R. One Vishwabharti Sahakari Gruhanirman Sanstha, Nagpur, is shown to be the owner of Khasra no.241/1B admeasuring 1.20 H.R., Shashikala Govindlal Mohta is shown to be the owner of Khasra No.241/1C admeasuring 1.21 H.R., Balkrushna Gopalrao Thomane is shown to be the owner of Khasra No.241/2 admeasuring 1.21 H. R; Kishor Laxmanrao Panjare is shown to be the owner of Khasra No.241/3, area 0.81 H.R. and the four petitioners at Sr. Nos.1 to 4 are shown to be the owners of Khasra Nos.241/4 to 241/7. However, the columns in the notification as to the portion of area of these Khasra numbers are left blank, thereby creating an impression that these lands are not acquired. 9. We find that even there is no consistency in the Notifications under Sections 3-A and 3-D of the said Act. Though Section 3-A of the said Act Notification neither does give names and the owners of sub-divisions, the Declaration under Section 3-D of the said Act include it. The exact area or sub-division is in the Declaration which is missing in the Notification. In the absence of inclusion of the Khasra numbers or names of the petitioners or the exact area of sub-divisions, in the Notification under Section 3-A of the said Act, the petitioners could not get an opportunity to raise an objection and hearing under Section 3-C of the said Act. 10. In the absence of inclusion of the Khasra numbers or names of the petitioners or the exact area of sub-divisions, in the Notification under Section 3-A of the said Act, the petitioners could not get an opportunity to raise an objection and hearing under Section 3-C of the said Act. 10. In the decision of the Apex Court, in the case of Competent Authority (cited supra), it is held in paragraph 16 as under: "Having held that the impugned notification regarding acquisition of land is invalid because it fails to meet the statutory requirements and also having found that taking possession of the land of the writ petitioners in the present case in pursuance of the said notification was not in accordance with law, the question arises as to what relief can be granted to the petitioners. The High Court rightly observed that the acquisition of land in the present case was for a project of great national importance, i.e. the construction of a national highway. The construction of national highway on the acquired land has already been completed as informed to us during the course of hearing. No useful purpose will be served by quashing the impugned notification at this stage. We cannot be unmindful of the legal position that the acquiring authority can always issue a fresh notification for acquisition of the land in the event of the impugned notification being quashed. The consequence of this will only be that keeping in view the rising trend in prices of land, the amount of compensation payable to the land owners may be more. Therefore, the ultimate question will be about the quantum of compensation payable to the land owners. Quashing of the notification at this stage will give rise to several difficulties and practical problems. Balancing the rights of the petitioners as against the problems involved in quashing the impugned notification, we are of the view that a better course will be to compensate the land owners, that is, writ petitioners appropriately for what they have been deprived of. Interests of justice persuade us to adopt this course of action". This decision of the Apex Court has been followed by the Division Bench of this Court at Aurangabad in Writ Petition No.4974/2016 (Rajkumar Bhagatram Rajdeo Vs. The National Highway Authority of India and others) decided on 15.02.2018. 11. Interests of justice persuade us to adopt this course of action". This decision of the Apex Court has been followed by the Division Bench of this Court at Aurangabad in Writ Petition No.4974/2016 (Rajkumar Bhagatram Rajdeo Vs. The National Highway Authority of India and others) decided on 15.02.2018. 11. In view of the law laid down by the Apex Court and this Court, the Notification under Section 3-A of the Act issued on 16.02.2005 becomes invalid on the ground of its vagueness. 12. We have gone through the notices issued to the petitioners after the award was passed. The notices dated 23.04.2010 and 28.08.2014 are essentially under Section 3-H of the said Act after the award was passed, inviting the petitioners to receive the compensation. These are not the notices under Section 3-E of the said Act for possession. 13. We have specifically asked three questions to the learned counsel appearing for the respondents: (i) to give us the date of issuance of notice of possession under Section 3-E of the said Act; (ii) the date of receipt of such notice by the petitioners along with acknowledgments and (iii) the evidence of taking over the possession of the lands owned by the petitioners in accordance with the procedure prescribed under Section 3-E of the said Act. The learned counsels are unable to answer these questions and concede to the position that there is no acknowledgment of taking possession of the lands at any point of time, available in the record. 14. In view of the fact that the petitioners have no objection for acquisition of their lands, it is not necessary for us to set aside the Notification under Section 3-A and the Declaration under Section 3-D of the National Highways Act, 1956, but, will have to adopt the same mode, as has been adopted by the Apex Court and this Court in the decisions (cited supra). It is not in dispute that over the lands owned by the petitioners, there is no construction of highway but, these lands are meant for the maintenance of highway amenities and landscaping and the petitioners are in possession of it. 15. In the result, this writ petition is partly allowed. The award passed is set aside in respect of the lands owned by the petitioners. 15. In the result, this writ petition is partly allowed. The award passed is set aside in respect of the lands owned by the petitioners. The respondents are directed to determine the compensation payable in respect of the lands owned by the petitioners, as per the market value of it as on the date of taking over possession of lands in accordance with Section 3-E of the said Act. The petitioners have assured us to co-operate for handing over possession of the lands to the respondents, as and when they are called upon in writing. 16. Rule is made absolute accordingly. No costs.