2001(3) ALL MR 313


Yakub Khan Haji Harunkhan Girkar Vs. The State Of Maharashtra & Ors.

Writ Petition No. 2264 of 1989

7th June, 2001

Petitioner Counsel: Shri. M. U. PANDEY
Respondent Counsel: Shri. C. R. SONAWANE

Land Acquisition Act (1894), S.5A r/w S.4(1) - Acquisition proceedings - Validity - No hearing U/S.5A given to owner before acquisition - Moreover two notices U/S. 4(1) issued - No evidence that notices served - In circumstances, acquisition proceedings set aside. (Paras 4,6,7)


D. B. BHOSALE, J. :- Leave to amend granted. Heard Mr. M. U. Pandey for the petitioner and Mr. C. R. Sonawane for the respondent Nos. 1 and 2. The petitioner has challenged the acquisition of his land bearing Survey No.15, Hissa No. 8A admeasuring 9 Ares and Hissa No.7, admeasuring 34.5 Ares, i.e. 43.5 Ares together, both situated at Village Jamsande, Kavale Wadi, Taluka Devghad, District Sindhudurg, for the constructions of Government Rest House. The challenge in Writ Petition is mainly on two grounds that an opportunity of being heard as contemplated under section 5A of the Land Acquisition Act, 1894 (for short 'Act of 1894') has not been offered to the petitioner and that there was no notice to the petitioner under section 4 (1) of the Act of 1894, pertaining to Survey No.15, Hissa No.7 admeasuring 34.5 Ares. The petitioner has also alleged malafides contending that this acquisition was initiated at the behest of local M.L.A.

2. The Acquisition Proceedings was initially initiated by issuing notice under section 4(1) on 19th February, 1986, in respect of Survey No.15, Hissa No. 8A admeasuring 9 Ares, the land owned by the petitioner. The petitioner had filed the objections to the said notice dated 19th February, 1986, principally contending therein that the land was not suitable for the construction of Government Rest House in village Jamsande since there already exist one Government Rest House at Devgadh, which is the Taluka Head Quarter and it will be waste of Government money in constructing the Rest House at Small Village Jamsande. The petitioner was informed by the office of the Commissioner, Konkan Division by his letter dated 15th June, 1988, that they have allowed objections of the petitioner and withdrawn the acquisition. However, the copy of the order was not supplied to the petitioner. Within two months thereafter a fresh notice under section 4 (1) in respect of Survey No.15, Hissa No. 8A admeasuring 9 Ares was once again issued on 29th August, 1988. Although the notice was making reference only to 9 Ares out of Hissa No.8A, in the body of the notice, area mentioned was 43.5 Ares, without giving details of the land out of which they proposed to acquire land, more than 9 Ares. Once again the petitioner filed his objection in writing in the office of Talati Jamsande on 26th September, 1986. The petitioner raised several objections and further made reference to the decisions of the Commissioner who after due consideration had withdrawn the acquisition. Thereafter it appears that section 6 notification was published by the Commissioner, Konkan Division on 13th March, 1989.

3. It has come on record that the petitioner had also filed the Regular Civil Suit No. 141 of 1985 in the Court of the Civil Judge, Senior Division, Sindhudurg for a permanent injunction to restrain the respondent No.1 from disturbing his peaceful possession in respect of land bearing Survey No.15, Hissa No. 8A. The Ad-interim injunction was refused by the Trial Court, hence the petitioner filed Writ Petition No. 4796 of 1985 for interim injunction, pending hearing and final disposal of the said suit. On 18th November, 1985, this Court allowed the Writ Petition and directed the Trial Court to dispose of the injunction application within one month and the parties were directed to maintain status quo till then with further directions not to effect any more construction on the suit land. After remand, the injunction order was granted by the Trial Court which was running till the disposal of this Suit on 31st January, 2001. The Civil Judge, Senior Division, Sindhudurg by his Judgment and Order dated 31st January, 2001, partly allowed the suit filed by the present petitioner and the respondent No.1 has been perpetually restrained from obstructing the peaceful possession of the petitioner. In the said Suit, it has been held to be proved that the suit property is in possession of the petitioner and other co-owners, who were defendant Nos.2 to 8 in the said suit. It is further held that the respondent No.1 has failed to prove that they have actually received the possession of the suit property in pursuance to consent agreement dated 28th November, 1984, executed between Respondent No.2 and defendant Nos.2 to 5 i.e. respondent Nos.3 to 6 in the present petition. The petitioner has contended that neither the petitioner nor his father were parties to the consent agreement. We are informed by the parties appearing in the present petition that so far the Judgment and decree passed in the aforesaid Civil Suit dated 31st January, 2001, has not been carried in the appeal.

4. We do not intend to consider in depth the merits of the case for reason that we are allowing first objection raised by the petitioner namely that the petitioner was not heard under section 5A by the respondent No.2. The respondents have filed as many as five affidavits from time to time in the present petition. The first affidavit was filed on behalf of respondent No.2 by one Mohan Soma Nikam, Awal Karkun, from the office of the Special Land Acquisition Officer on 27th July, 1989. In this affidavit, it has been specifically stated that on 28th September 1988, when the enquiry proceedings under section 5A were fixed, the petitioner remained absent, and therefore, his written objections submitted through one Jafarkhan Haji Harun Khan i.e respondent No.4 in the petition, were considered and accordingly Form "D" was submitted to the Commissioner, Konkan Division, Bombay on 23rd January, 1989, and it is thereafter section 6 notification was published. Our attention was invited to the affidavit filed on behalf of the respondent Nos. 1 and 2 on 27.4.2001. In that affidavit, the respondent No.2 has stated in para 9 that the petitioner was given fullest hearing and after hearing the petitioner, the notification under section 6 was published. It is apparent on the face of record that the respondent No.2 has made contradictory statement in the aforesaid two affidavits. Section 5A contemplates that the Collector shall give the objector an opportunity of being heard in person or by pleader and shall, after hearing all such objections and after making such further enquiry, if any, as he thinks necessary, either make a report in respect of land notified under section 4 (1). The affidavit filed on 27th April, 1988, is not clear as to when notice of hearing of objection was issued and the hearing was given to the petitioner in response to the notice under section 4(1) dated 29th August, 1988. The said affidavit makes detailed reference to the hearing given after notice under section 4(1) issued on 19.2.1986, which was subsequently withdrawn. The learned AGP also could not give satisfactory reply on the issue of hearing under section 5A. In view thereof we are of the considered view that the petitioner was not given opportunity of being heard as contemplated under section 5A of the Act of 1894.

5. Coming to the second issue advanced by the petitioner we find that the petitioner has annexed at Ex.B, the notice received by him under section 4(1) of the Act of 1894 dated 29th August, 1988. In the said notice there is specific reference to the land being acquired which reads thus :

Survey No. Hissa No. Area Assessment Hissa
15 8A 0.9.0 ----- 82

Undisputedly, reference to 43.5 Ares in the body of the notice does not give the particulars of land, such as Survey No., Hissa No., area etc. and hence it cannot be held that the notice under section 4(1) dated 29th August, 1988 annexed at Ex.F is in respect of land admeasuring 43.5 Ares. In the affidavit of respondent Nos. 1 and 2, filed by one Shri. Mohan Nikam on 27th July, 1989, the reference is made to section 4(1) notice dated 29.8.1988, which is annexed as Ex.1 to the said affidavit. The notice at Exhibit-1 makes reference to the land other then one which is referred to in the notice at Ex.F to the petition. The reference to the land in the notice at Ex.1 to the affidavit dated 29.8.1988 of the Government reads thus :

Survey No. Hissa No. Area Assessment Hissa
15 7 0.34.5 ----- 3.1/4/58

6. The learned counsel appearing for the State, even after making reference to the affidavits filed on behalf of respondent Nos.1 and 2 could not explain the aforesaid two notices under section 4(1) and could not positively point out whether the notice annexed to the affidavit dated 27.7.1989, at Ex.1 was even served on the petitioner. We perused the affidavits, and two notices under section 4(1) of the Act of 1894. The notice dated 29.8.1988, annexed to the affidavit dated 27.7.1989 in respect of land bearing Survey No.15, Hissa No.7, admeasuring 34.5 Ares does not appear to have ever been served on the petitioner. It is also not made clear, whether two separate notices were issued under section 4 (1) in respect of Hissa No.8A and 7 of Survey No.15. If yes, why ? After withdrawing the initial notification under section 4(1) of the 1894 Act, the respondents do not appear to have followed the procedure laid down under the provisions of 1894 Act. In view thereof, we are of opinion that if the respondent Nos.1 and 2 are at all interested in acquiring land bearing Survey No.15, Hissa No.7 & 8A admeasuring 43.5 Ares together, they should give notice under section 4 of the said Act to that effect to the petitioner and opportunity to raise objections and hearing as contemplated under section 5A thereof. In view of this we do not wish to go into other objections raised by the petitioner in the instant petition.

7. We allow the writ petition and set aside the acquisition proceedings initiated by the respondents Nos. 1 and 2 in respect of Survey No.15, Hissa No.8A and 7, admeasuring 43.5 Ares, together situated at village Jamsande, Taluka Devghad, District Sindhudurg. The respondent Nos.1 and 2 are at liberty to initiate fresh proceedings if they require the land for the purpose for which they made an attempt to acquire the petitioner's land. The learned A.G.P. appearing for the petitioner submitted that the Government would take atleast six months time to consider whether they would like to acquire the land in question and to issue fresh notification and therefore, till that time the petitioner be directed to maintain status quo with regard to the land in question where respondent No.1 claim to have made improvements by spending good amount for construction till plinth level and digging a borewell. The learned counsel for the petitioner accepted that his client would maintain status quo with respect to this land and these structures for a period of six months from today. In the circumstances Writ Petition is allowed with liberty to the respondents while recording the statements by both sides as above. Rule is made absolute accordingly, with no orders as to costs.

Writ to go down at the earliest.

Authenticated copy may be made available to the parties.

Petition allowed.