Judgment:
R.M. Savant, J.
1. Rule, with the consent of the parties made returnable forthwith and heard.
2. By this petition filed under Article 226 of the Constitution of India, the petitioners are invoking the writ jurisdiction of this Court to challenge the acquisition of their lands for what is known as 'Sangamwadi Minor Irrigation Project'. The said project when completed will irrigate about 905 hectares of land in the draught prone areas like Ahmedpur, Nilanga, Ausa, Udgir and Chakur of Latur district which have been identified as such for the purposes of the draught prone area programme. The present site wherein the said project is being undertaken has been chosen after carrying out a technical evaluation such as water availability, topography, economic feasibility, the cost of rehabilitation, etc.
3. The challenge to the project has had a chequered history inasmuch as Writ Petition No. 3613of 2000 came to be filed in this Court challenging the said project at the threshold. The said writ petition was dismissed by a Division Bench of this Court by order dated 27-9-2000.
Thereafter, another Writ Petition No. 4092 of 1999 came to be filed by some of the petitioners abovenamed challenging the administrative approval dated 10-5-1999 granted by the State Government. The said writ petition also came to be dismissed by a Division Bench of this Court observing that 'judicial intervention in such matters may not be right'.
4. In so far as the order dated 27-9-2000 passed in Writ Petition No. 3613 of 2000, the petitioners therein carried the matter to the Apex Court by way of Special Leave Petition (Civil) No. 4364 of 2001. The Apex Court considering the counter affidavit filed on behalf of the authorities, disposed of the said Special Leave Petition by its order dated 12-10-2001 with the following observations -
The respondents shall not evict the tenure holders without due course of law and also after making further provision of relief and rehabilitation.
5. The instant petition has been filed by 12 petitioners of village Sangamwadi. The acquisition in question has admittedly culminated in the declaration of Award dated 28-6-2006. The petitioners, therefore, are in fact challenging the said Award passed after following the gamut of process as contemplated under the Land Acquisition Act, 1894 for short the said Act. A perusal of the averments made in the petition discloses that the said Award has been challenged, inter alia, on the ground that the provisions of Section 5A of the said Act have been breached inasmuch as the objections raised by the petitioners have not been considered and no personal hearing has been granted to the petitioners. The Award is also questioned on the ground that it has not been declared within the time prescribed i.e. a period of two years of the declaration under Section 6 of the Land Acquisition Act.
6. On behalf of the respondents, affidavits have been filed by the Special Land Acquisition Officer as well as the acquiring body i.e. the Respondents No. 2 and 3 to the petition dealing with the claims and contentions raised in the petition. The affidavit of the Respondents No. 2 and 3 also discloses the manner in which the persons who are affected by the project are being rehabilitated.
7. It appears that the petitioners had applied on 30-9-2006 for a certified copy of the Award passed in respect of the lands of the petitioners. The said application was preferred by the Advocate of the petitioners and a certified copy of the same was furnished to to the petitioners on 19-10-2006. The copy of the Award furnished to the petitioners is the re-corrected final Award dated 12-10-2006. The said Award dated 12-10-2006 contains the same dates as regards the Section 4 Notification and Section 6 declaration except that there is a variance in the date regarding the publication of the Section 6 declaration in the village. In so far as certified copy of the Award furnished to the petitioners is concerned, the said date as regards publication in the village is 21-2-2004 whereas the date in the other Awards and the record of the authorities is 30-6-2004. Based on the said discrepancy, submissions were advanced on behalf of the petitioners that the final Award declared on 28-6-2006 was beyond the period of limitation of two years prescribed under the Land Acquisition Act. The petitioners have not carried out any amendment in the petition to raise a challenge to the acquisition proceedings on the basis of the said certified copy obtained by them and it is only by way of affidavit in rejoinder that the said certified copy was placed on record by the petitioners. Though no amendment to the pleadings was carried out by the petitioners we proceeded to examine the submissions made on behalf of the petitioners based on the said certified copy so as to satisfy ourselves as regards the legality of the acquisition in question.
8. On behalf of the petitioners, the learned Counsel Shri A. B. Kale, appearing for them made the following submissions -
(I) The learned Counsel submitted that the Section 6 declaration was not issued within one year of the issuance of Section 4 Notification as contemplated under the said Act and, therefore, the said land acquisition proceedings were vitiated.
(II) It was submitted by the learned Counsel that the objections submitted by the petitioners were not considered and were merely brushed aside. It was further submitted that no personal hearing was granted to the petitioners. It was also submitted that the objections raised by the petitioners were rejected by the Special Land Acquisition Officer who was not a competent authority to do so as it is only the State Government who had the power to accept or reject the said objections raised by the petitioners. In support of his submission that on account of violation of Section 5A, the acquisition has been vitiated and is required to be struck down, the learned Counsel for the petitioners relied upon the Division Bench judgments of this Court reported in the matter of and the judgment of the Apex Court reported in
(III) It was submitted by the learned Counsel for the petitioners that it is obligatory on the part of the authorities to take steps for the acquisition in a chronological order and that each stage of acquisition as mandated by the statute is to be followed as otherwise, the acquisition is vitiated and is required to be struck down. For the said purpose, the learned Counsel for the petitioners relied upon
(IV) It was submitted by the learned Counsel for the petitioners relying upon the date of publication of the Section 6 declaration i.e. 21-2-2004 mentioned in the certified copy furnished to the petitioners that the Award declared on 28-6-2006 was beyond the period of two years prescribed under Section 11A of the Land Acquisition Act and, therefore, the acquisition is required to be struck down on the said ground. For the said purpose, the learned Counsel for the petitioners relied upon the judgment of the Apex Court reported in in the matter of
(V) It was also submitted on behalf of the petitioners that the petitioners have not been paid for the trees which were on the lands of the respective petitioners and that there was a discrepancy in the report which was prepared pursuant to the joint measurement carried out. The learned Counsel for the petitioners, therefore, submitted that the petitioners have not been duly compensated for the acquisition of their lands for the project in question.
(VI) It was submitted on behalf of the petitioners that in the instant case there are as many as three Awards bearing different dates which have been declared in respect of the lands in question. This, according to the learned Counsel for the petitioners, was incomprehensible. The learned Counsel for the petitioners, therefore, submitted that the acquisition was vitiated on the aforesaid grounds.
9. On behalf of the Respondents, Shri N. B. Khandare, learned Government Pleader submitted that there is no merit in any of the contentions raised by the petitioners.
10. In so far as the first contention of the petitioners that the Section 6 declaration has not been issued within one year, Shri Khandare submitted that the period of one year has to be computed from the last of the publications made under Section 4 of the said Act. In the instant case, admittedly, the last of the dates i.e. publication of the Notification under Section 4 in the village was on 1-10-2002 and the declaration issued on 23-9-2003 was, therefore, within time. The learned Counsel submitted that what is mandated by the statute is the issuance of the declaration and not publication of the same by any of the modes prescribed by the Land Acquisition Act.
11. The learned Government Pleader submitted that there is a distinction carved out by law between the issuance of declaration and publication of declaration. In so far as Section 6 is concerned, the learned Government Pleader submitted that what is mandated is only the issuance of declaration within one year and for the said purpose, relied upon judgments of the Apex Court reported in wherein the Apex Court has held that the time limit of one year is for making declaration and not for its gazette publication.
12. The learned Government Pleader in so far as the alleged violation of the Section 5A is concerned, submitted that the villagers of Sangamwadi had constituted themselves into a Samasta Sangamwadi Gaokari Mandal which was an association established by the villagers to contest the acquisition proceedings and who are represented by petitioner No. 1 Navnath s/o. Kashinathappa Biradar. By Notice dated 3-9-2002 issued to the said Navnath Biradar, the petitioners were asked to remain present on the site in question. The petitioners Nos. 1 to 4, 5, 9 and 10 were personally present on site. The petitioner No. 1 Navnath claiming to represent all the land owners was also personally present but did not ask for any personal hearing. Therefore, according to the learned Government Pleader, it would not lie in the mouth of the petitioners now to contend that they were not granted any personal hearing. In support of his contention, the learned Government Pleader relies upon a judgment of the Division Bench of this Court reported wherein it is held by the Division Bench that it is not obligatory on the Land Acquisition Officer to give personal hearing to a citizen in an enquiry under Section 5-A of the Land Acquisition Act when the citizen does not demand personal hearing though such an opportunity was offered to him and also the judgment of the Division Bench of this Court reported in 1985 Mah.L.R. 266 in the matter of Ramrao Kishanrao Deshpande v. State of Maharashtra and Anr., wherein a similar view was taken. The learned Government Pleader further submitted that it was also not incumbent on the Special Land Acquisition Officer to grant a hearing in view of the fact that the petitioners had filed their objections after almost five months of the issuance of the Section 4 Notification which was issued on 13-9-2002 whereas the objections were filed on 9-2-2003. For the said purpose, the learned Government Pleader relied upon a Division Bench judgment of this Court reported in. In so far as the consideration of the petitioners objections are concerned, the learned Government Pleader submitted that the Special Land Acquisition Officer had prepared a report and submitted the same to the Divisional Commissioner who is the competent authority in view of the Maharashtra Amendment, to take a final decision as regards the said objections and the Divisional Commissioner by his order dated 22-9-2003 rejected the said objections. The learned Government Pleader, therefore, submitted that there is no substance in the said contentions of the petitioners. In so far as the grievance of the petitioners that the proper procedure chronologically has not been followed, the learned Government Pleader submitted that it is only after the gamut of processes as envisaged under the Land Acquisition Act that the first final Award came to be declared on 28-6-2006. The learned Government Pleader submitted that the petitioners having waited for the Award to be passed would now be disentitled to call in question the acquisition on the ground that the procedure has not been followed.
13. In so far as the point raised by the petitioners as regards the Award being passed beyond the period of two years as prescribed by the said Act the learned Government Pleader submitted that except the certified copy furnished to the petitioners wherein the date of the last of the publication under Section 6 is mentioned as 21-2-2004 in all other Government record, the date of last of the publications under Section 6 is 30-6-2004 and, therefore, first final Award passed on 28-6-2006 was within a period of two years prescribed under the Land Acquisition Act. In so far as the discrepancy in the said two dates is concerned, i.e. the date of the last of the publication under Section 6 as mentioned in the certified copy furnished to the petitioners and the date mentioned in all other copies and the record of the Government which is 30-6-2004 the learned Government Pleader submitted that an additional affidavit has been filed wherein the letter dated 20-8-2007 of the record keeper who had prepared the certified copy has been annexed in which letter it has been stated by the said person by Special Land Acquisition Officer on the basis of the said letter dated 20-8-2007 has stated that some mischief seems to have taken place when the copies were taken for xeroxing to an outside agency. It has further been mentioned by the Special Land Acquisition Officer that disciplinary proceedings are proposed against the said Parit for giving the said certified copy containing the said date. The learned Government Pleader, therefore, submitted that the petitioners could not rely upon the said certified copy containing the said date as otherwise the original Award as well as the Government record contains the date 30-6-2004. The learned Government Pleader drew our attention to the panchanama carried out on 30-6-2004 of the publication of the Section 6 declaration in the village. The learned Government Pleader, therefore, submitted that taking the said date 30-6-2004 into consideration, the Award passed on 28-6-2006 was well within time.
14. In so far as the petitioners contention that three Awards have been passed, the learned Government Pleader submitted that the final Award was declared on 28-6-2006. However, on account of the corrections the corrected Award dated 15-9-2006 came to be declared and thereafter on account of the representations of the petitioners dated 11-10-2006 recorrected final Award dated 12-10-2006 came to be declared. The learned Government Pleader submitted that the declaration of three Awards was on account of the representation of the petitioners themselves and, therefore, the petitioners cannot take advantage of the said fact. In any event, according to the learned Government Pleader, the said fact does not vitiate the acquisition proceedings as under Section 13A of the said Act, the Special Land Acquisition Officer is well within his powers to correct the Award.
15. The learned Government Pleader lastly submitted that the petition filed at this point of time i.e. after the declaration of the Award calling in question the acquisition proceedings was not maintainable. The learned Government Pleader for the said purpose relied upon the judgment of the Apex Court reported in the name Parit that he had prepared the said certified copy without comparing it with the original. In the said additional affidavit, the in which the Apex Court dismissed a writ petition filed after a period of nine years challenging the Notification under Sections 4, 6 and 9 of the Rajasthan Land Acquisition Act on the grounds of delay and laches. The judgment of the Apex Court reported in wherein the Apex Court held that a writ petition filed long after the issuance of Section 4 Notification and Section 6 declaration and during the pendency of the Reference under Section 18 should not be entertained. The learned Government Pleader also relied upon the judgment of the Apex Court reported in wherein Apex Court held that a writ petition challenging the acquisition proceedings long after passingof the Award and vesting of the land in the State was not maintainable. On behalf of the Respondents Nos. 2 to 4 that is the acquiring body, the learned Counsel Shri S.G. Sangle adopted the submissions made by the learned Government Pleader.
16. We have considered the rival contentions. In so far as the challenges raised by the petitioners in respect of the various stages of acquisition are concerned, we are of the view that there is no merit in any of the contentions raised on behalf of the petitioners.
In so far as the issuance of declaration under Section 6 is concerned, as held by the Apex Court it is not the publication of the declaration under Section 6 but the issuance of the declaration which is the material event. In the instant case, the declaration issued is well within the period of one year prescribed by the said Act and, therefore, there is no merit in the said contention of the petitioners.
17. As regards the breach of Section 5A of the Land Acquisition Act is concerned, it would be pertinent to note that the villagers had constituted themselves into an association and were represented by petitioner No. 1 in respect of the acquisition of their lands. A notice of hearing, therefore, was addressed to the petitioner No. 1 to remain present on site on the date mentioned in the said notice. The petitioner No. 1 Navnath and other petitioners remained present on site but did not ask for any personal hearing. Therefore, as held by two Division Benches of this Court in the judgments cited supra, the Special Land Acquisition Officer was not obliged to grant them a personal heaering. In so far as the objection raised by the petitioners are concerned, the same were considered by the Special Land Acquisition Officer who by his order dated 25-2-2003 rejected the same and forwarded the same to the Divisional Commissioner who is the competent authority to take a decision either to accept or reject the said objections. The Divisional Commissioner by his order dated 23-9-2003 rejected the said objections and, therefore, we are of the view that there is compliance of the provisions of Section 5A of the said Act. In so far as the petitioners contention that the acquisition has not proceeded in a chronological order as envisaged under the said Act, in our view, the challenge raised by the petitioners at this point of time after the declaration of the Award cannot be countenanced. It is not as if the petitioners were not aware of the acquisition proceedings. In fact, the petitioners have represented against the Section 6 declaration but did not take step to question the Section 6 declaration if they were so aggrieved by it. Having not done so, in our view, it would not be open for the petitioners to raise the said issue at this point of time.
18. In so far as the declaration of the three Awards is concerned, admittedly, the first final Award was declared on 28-6-2006. However, on account of the corrections a corrected Award was declared on 15-9-2006 and thereafter on account of the representation of the petitioners dated 11-10-2006, again a re-corrected final Award dated 12-10-2006 came to be passed. In our view, the said fact by itself does not vitiate the land acquisition proceedings as the Special Land Acquisition Officer is within his powers to correct the Award under Section 13A of the said Act. Therefore, we do not find any force in the submission of the learned Counsel for the petitioners that the acquisition proceedings have to be set aside on the said ground.
19. We find considerable merit in the submission of the learned Government Pleader that the challenge to the acquisition proceedings at this point of time after the Award has been declared on the basis that there has been non compliance and violation at the intermediary stages of the acquisition, in our view, cannot be countenanced as has been held by the Supreme Court in the judgment reported in A.I.R. 1974 S.C. 2085 supra and the judgment of the Supreme Court reported in (1996) 11 S.C.C. 698 wherein the Apex Court has held that a petition challenging acquisition long after passing of the Award, vesting of the land was held not maintainable. A useful reference could also be made to the judgment of the Apex Court reported in and especially para 17 thereof which is reproduced hereinunder:
17. In any event, after the award is passed no writ petition can be filed challenging the acquisition notice or against any proceeding thereunder. This has been the consistent view taken by this Court and in one of recent cases This Court observed as below :
The admitted position is that pursuant to the notification published under Section 4(1) of the Land Acquisition Act, 1894 (for short 'the Act') in GOR No. 1392 Industries, dated 17-10-1962, total extent of 6 acres 41 cents of land in Madhavram village, Saidapet Taluk, Chengalpatta District in Tamil Nadu was acquired under Chapter VII of the Act for the manufacture of Synthetic Rasiua by Tvi. Reichold Chemicals India Ltd., Madras. The acquisition proceedings had become final and possession of the land was taken on 30-4-1964. Pursuant to the agreement executed by the company, it was handed over to Tvl. Simpson and General Finance Co. which is a subsidiary of Reichold Chemicals India Ltd. It would appear that at a request made by the said company, 66 cents of land out of one acre 37 cents in respect of which the appellants originally had ownership, was transferred in G.O. Ms. No. 816 Industries, dated 24-3-1971 in favour of another subsidiary company, Shri Rama Vilas Service Ltd., the 5th respondent which is also another subsidiary of the company had requested for two acres 75 cents of land; the same came to be assigned on leasehold basis by the Government after resumption in terms of the agreement in G.O. Ms. No. 439 Industries dated 10-5-1985. In G.O. Ms. No. 546, Industries, dated 30-3-1986, the same came to be approved of. Then the appellants challenged the original G.O. Ms. No. 1392 Industries, dated 17-10-1962 contending that since the original purpose for which the land was acquired had ceased to be in operation, the appellants are entitled to restitution of the possession taken from them. The learned single Judge and the Division Bench have held that the acquired land having already vested in the State, after receipt of compensation by the predecessor in-title of the appellants, they have no right to challenge the notification. Thus the writ petition and the writ appeal came to be dismissed. In our view, on the application of the said judgments, the above petition deserves to be dismissed on the said ground. As regards the petitioners challenge to the acquisition on the ground that the petitioners have not been adequately compensated. In our view, if the petitioners are aggrieved by the compensation offered they have adequate remedies under the Act to seek enhancement of compensation.
20. In so far as the discrepancy as regards the date of last of the publications of the declaration under Section 6 mentioned in the certified copy issued to the petitioners which bears the date 21-2-2004 and the date in the original Award and the record of the Government which bears the date 30-6-2004 since the original copy of the said Award bears the date 30-6-2004 as also the other contemporaneous record which bears the same date, we are of the view that in the light of the additional affidavit filed by the Special Land Acquisition Officer the said date i.e. 30-6-2004 would have to be accepted.
21. As mentioned hereinabove, the lands of the petitioners are being acquired for the Sangamwadi Minor Irrigation Project. The said Project will result in the irrigation of about 905 hectares of land in the draught prone areas of Latur district. The commissioning of the said Project is, therefore, of utmost public importance. We are informed at the Bar that lands from 340 persons which includes the petitioners are acquired for the said Project. Out of the said 340 persons, about 310 persons have accepted the compensation. It is only the above 12 petitioners and their relations who number about 30 in all who have not accepted the compensation which is lying with the Special Land Acquisition Officer. We are shown photographs of the work already carried out and also informed at the Bar by the learned Government Pleader as well as Counsel appearing for the acquiring body that the work is nearing completion and except a small portion of the wall of the dam which remains to be constructed as it to be constructed in the land of the petitioner No. 2, the rest of the wall of the dam has already been constructed and an amount of Rs. 17 crores has been expended towards the said Project which includes rehabilitation works. The learned Government Pleader as well as the learned Counsel appearing for the Respondents Nos. 2 and 3 stated that an amount of Rs. 8.31 crores has come from the Central Government under the Accelarated Irrigation Benefit Programme on the condition that the works would be completed by June 2008, as otherwise the said funding would not be available to the Respondents. It is, therefore, submitted that on account of the said fact the matter has assumed some urgency.
22. It is also brought to our notice that the lands in Sangamwadi are within the submergence area whereas the lands in village Shelgaon wherein the petitioners have their houses are not within the submergence area. Therefore, the question of rehabi-litation of the petitioners does not arise. It is further submitted that all those who are entitled to be rehabilitated are rehabilitated as such in compliance of the order of the Apex Court dated 12-10-2001 passed in S.L.P. (Civil) No. 43634/2001.
23. Considering the fact that there is no merit in the challenge to the acquisition as also taking into consideration the nature of the project and the facts as mentioned hereinabove, we do not find this a fit case to exercise our writ jurisdiction under Article 226 of the Constitution of India the petition is accordingly dismissed and Rule discharged with parties to bear their respective costs.
24. At this stage Shri V.D. Sapkal holding for Shri A. B. Kale, learned Counsel for the petitioners prays for continuance of the ad interim relief. Taking into consideration the nature of the project in question and the urgency in its completion, prayer refused.