2013(2) ALL MR 832
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(AURANGABAD BENCH)

R.M. BORDE AND U.D. SALVI, JJ.

Digambar S/O. Jaiwanta Langote & Ors.Vs.The State Of Maharashtra & Ors.

Writ Petition No.9700 of 2010

9th January, 2013

Petitioner Counsel: Mr. M.V. Deshpande
Respondent Counsel: Mr. S.D. Kaldate,Mr. S.G. Sangle

Maharashtra Project Affected Persons Rehabilitation Act (1999), Ss.2(1), 13(3), 10, 14 - Maharashtra Resettlement of Project Displaced Persons Act (1976), S.14(4) - Acquisition of agricultural land for interstate project - Declaration of affected zone and benefitted zone by Commissioner, mandatory - Petitioners affected persons within the meaning of Act - Subsequent acquisition of remaining land for resettlement of project required to be resettled in the benefitted zone - Commissioner not declared affected and benefitted zone - In the absence of such declaration proceedings for acquisition of land cannot be initiated - As proceedings itself is illegal even though award is passed, award liable to be quashed.

In the instant matter acquisition of agricultural property is for the purposes of resettlement of project affected persons. Petitioners are affected persons within the meaning of Act since their lands have been acquired, on earlier occasion, for the same irrigation project. Since purpose of acquisition is for resettlement of project affected persons, the provisions of Act are mandatorily required to be followed. It is an admitted position that there is no publication of notification as required u/s. 13 of Act declaring affected zone and benefitted zone. In the absence of declaration of benefitted zone, properties of the agriculturists cannot be acquired, for the resettlement purpose. As per sec 14 (4) persons from affected zone are required to be resettled in the benefitted zone, in the absence of declaration of affected zone and benefitted zone as required proceedings for acquisition cannot be inititated. Although award is passed, since initiation of proceedings itself is illegal and in breach of provisions award is liable to be quashed directly.

(2011) 10 SCC 714, 2012(4) ALL MR 464 (S.C.), 2011 ALL SCR 2762, 1996 (11) SCC 501, 1996 (6) SCC 445 Ref. to. [Para 17,19]

Cases Cited:
J & K Housing Board and another Vs. Kunwar Sanjay Krishan Kaul & others, (2011) 10 SCC 714 [Para 14]
Kulsum R. Nadiadwala Vs. State of Maharashtra & others, 2012(4) ALL MR 464 (S.C.)=(2012) 6 SCC 348 [Para 15]
A.P.Industrial Infrastructure Corporation Ltd. Vs. Chinthamaneni Narasimha Rao & Ors., 2011 ALL SCR 2762=AIR 2011 SC (Civil) 2301 [Para 16]
Municipal Corporation of Greater Bombay Vs. Industrial Development Investment Co.(P) Ltd., 1996 (11) SCC 501 [Para 16]
State of Rajasthan & others Vs. D.R.Laxmi & others, (1996) 6 SCC 44 [Para 16]


JUDGMENT

-R. M. Borde, J. :- Rule. Rule made returnable forthwith and heard finally by consent of learned Counsel for respective parties.

2. Instant writ petition is presented by eleven agriculturists challenging the award passed by Sub Divisional Officer and Land Acquisition Officer, Degloor on 31.03.2010.

3. The impugned award is passed in respect of lands belonging to petitioners situate at village Bhendegaon Khurd, Tq.Mukhed, District Nanded, which are required for the purposes of resettlement of project affected persons.

4. It is not disputed that on earlier occasion, agricultural lands belonging to petitioners situate at village Bhendegaon Khurd have been acquired for submergence under Lendi Project by declaring the award on 30.11.2005. It is not a matter of dispute that Lendi Project is an Inter-State Project jointly executed by the State of Maharashtra and State of Andhra Pradesh. In view of acquisition of lands belonging to the petitioners for Lendi Irrigation Project, they are "affected persons" within the meaning of provisions of Maharashtra Project Affected Persons Rehabilitation Act, 1999. The subsequent acquisition of remaining lands belonging to the petitioners for resettlement of project affected persons of the same project is a matter of challenge in this petition.

5. It is to be noted that petitioners themselves are affected persons since their village falls into "affected Zone". Their remaining lands are again subjected to acquisition for resettlement of project affected persons. Petitioners, themselves, in view of acquisition of their lands for the said Irrigation Project, fall within the category of "affected persons" and are required to be resettled in the benefitted Zone, however, their remaining lands are subjected to acquisition without taking care to resettle them. The notification under Section 4 of the Land Acquisition Act was issued on 09.11.2006 in the Official Gazette and after following procedure prescribed under Land Acquisition Act, award came to be passed on 31.03.2010.

6. The award passed by the Land Acquisition Officer is challenged mainly on the ground that the State of Maharashtra has not issued the notification as required under Section 13(1) of the Act No.11 of 2001 declaring affected and benefitted Zones. In view of provisions of Section 14(4) of Act No.11 of 2001, for the purposes of rehabilitating affected persons from the affected Zone under the Irrigation Project including those under any irrigation project, the Commissioner may acquire land from holding in the benefitted zone of the project according to the slab declared in the notification under sub-section (1) of Section 13 and may also acquire, where necessary, land from any other villages or areas, as it may deem fit. In the instant matter, since the Commissioner has not declared affected and benefitted zones, as required under Section 13(1) of the Act No.11of 2001, the whole proceedings of acquisition are vitiated.

7. The State of Maharashtra published a notification under Section 11(1) of the Maharashtra Resettlement Of Project Displaced Persons Act, 1976 in the Official Gazette dated 13.11.1987 declaring that the provisions of the said Act shall apply to Lendi Major Irrigation Project in Mukhed Taluka, District Nanded, from the date of issuance of Notification. The list of villages likely to be in the affected and benefitted zones of the Lendi Major Irrigation Project was also published. Village Bhendegaon Khurd falls under the category of affected Zone. Section 11 of the Act of 1976 reads thus:

11. Application of Act to Project: (1) If the State Government is of opinion that it is necessary or expedient in the public interest so to do, for the resettlement of of displaced persons, it may, by notification in the Official Gazette, declare that the provisions of this Act shall apply in relation to the Project specified in the notification; and thereupon, the provisions of this Act shall apply to such Project. The notification shall also specify the villages or areas which are likely to be in the affected or benefitted zone.

(2) The declaration shall also be published in the villages or areas which are likely to be in the affected and benefitted zone by beat of drum or otherwise, and by affixing a copy of the notification in some prominent place or places in the zones, and in the village chavdi, and in the office of the panchayat, if any, and also in the office of the Resettlement Officer.

8. Since village Bhendegaon Khurd falls within affected zone of the Irrigation Project, on previous occasion i.e. in view of declaration of award dated 30.1.2005, agricultural lands belonging to petitioners were acquired for submergence. It is to be noted that village Bhendegaon Khurd is not included in the benefitted zone even by notification dated 13.11.1987 published under the provisions of Act of 1976.

9. It would be worthwhile to refer to the provisions of Maharashtra Project Affected Persons Rehabilitation Act, 1999 (Act No.11 of 2001), since, in the instant matter, challenge raised is to the award published on 31.03.2010 and since proceedings are initiated after enforcement of Act No.11 of 2001, provisions of said Act would be attracted. The acquisition under the impugned award is undoubtedly for the purposes of rehabilitation of project affected persons. It is also not a matter of dispute that petitioners themselves are affected persons within meaning of provisions of the Act. Section 2(1) defines "affected zone", in relation to a project, means the area declared under section 13 to constitute the area of affected zone under that project. "Affected person" is defined under Section 2(2), thus:

2(2). "affected person" means-

(a) an occupant whose land in the affected zone (including land in the gaothan) is acquired under section 14 for the purposes of a project;

Explanation:- For the purpose of this sub-clause, where any agricultural land is recorded in the relevant village records in the name of one of the brothers as a Karta or Manager of a Hindu Joint family, then every brother (or son or sons of any deceased brother all together as one unit) who has a share in the lands, whether his name is recorded in such village record or not, shall be treated as affected person.

Sub-section (6) of Section 2 defines "benefitted zone", in relation to a project, means the area declared under Section 13 to constitute the area of the benefitted zone under that project. Sub-section (10) of Section 2 defines "project", thus:

2(10) "project' means,-

(a) an irrigation project, that is to say, the construction, extension, improvement or development of any work for the supply of water for the purpose of irrigation;

(b) atomic energy and power project, that is to say, construction, extension, improvement or development of any work for the production or supply of electricity or any work conducive to electrical development;

(c) a public utility project, that is to say, any work of construction, extension, improvement or development of public utility including roads, other than irrigation project and power project;

(d) National Park and Sanctuary declared under the provisions of the Wild Life Protection Act, 1972;

(e) an industrial project, that is to say, setting up of production, distribution or service industry or providing any service, in relation to them and includes an industrial Estate;

(f) an University project, that is to say, setting up of any University or any teaching, training institution;

(g) a chemical project, that is to say, extraction, production and processing of chemicals;

(h) a mine project, that is to say, extraction of any mineral from the bed of the earth or river bed;

(i) any composite project of any of the two or more such projects;

and includes any work of construction, extension, improvement or development which is incidental or supplemental to the execution of a project, such as construction of pump house, lift irrigation scheme, colony, etc., and which results in rendering the holders or occupants of land, which may be used for such project, is affected persons and in respect of which a notification is issued under section 11.

10. Sections 10, 13 and 14 are relevant for consideration, which are quoted below:

10. Rehabilitation of affected persons:- (1) The State Government shall in accordance with the provisions made or under this Act and subject to the availability of sufficient land for the purpose, rehabilitate affected persons from the affected zone under an irrigation project, on land in the villages or areas receiving benefit of irrigation from such project.

(2) Nothing in section 14 or any other provisions of this Act or any other law for the time being in force shall prevent the State Government from rehabilitating, in accordance with the other provisions made by or under this Act, as many persons as possible from the affected zone under any other project to which the provisions of this Act apply or not, including those under any irrigation project who have remained to be rehabilitated,-

(a) on land in benefitted zone of any irrigation project or, as the case may be, in other villages or areas, acquired for the purpose under the provisions of section 14; or

(b) on any land from the land pool,

(3) The State Government shall provide civic amenities in the prescribed scale and manner in the new gaothan or in the extended part of any existing gaothan established for the purpose of rehabilitation of affected persons and such amenities shall include the following, namely:-

(a) permanent provision for drinking water, in proportion to the population, by open well, bore well, tube well, piped water supply scheme or by any other mode;

(b) school with playground of appropriate level as prescribed by the Education Department of the State Government with toilets facilities;

(c) construction of Village Panchayat Office and Chavdi or Samaj Mandir;

(d) internal metal roads and asphalted approach road of appropriate standard;

(e) an access to the farm lands of the affected persons, if required;

(f) electric supply along with street lights, and three phase connections, wherever required;

(g) cremation ground with a shed, platform, electric supply, water supply and burial ground, as may be required with an approach road;

(h) open built-up gutters;

(i) financial assistance for individual latrines and public latrines, wherever necessary;

(j) land for cattle stand with a water cistern;

(k) land with pick up shed for Maharashtra State Road Transport Corporation bus services;

(l) land for threshing floor, that is to say, khalwadi;

(m) pasture land (if Government land is available);

(n) developed land for market;

(o) land for future expansion of gaothan;

(p) land for a secondary school and a dispensary or primary health centre, bank, postoffice, garden for children, etc., depending on the population of the new gaothan;

(q) land for registered bodies for public purposes in the old gaothan;

(r) land for play ground.

(4) In addition to the amenities listed above, the State Government shall also provide, to an appropriate standard, in the new gaothan having majority of the affected persons, all such other amenities which existed in the old gaothan.

Provided that, the places of public worship shall not be constructed by the Government, however, the compensation for the places of public worship in the old gaothan shall be awarded to the concerned Public Trust and if the places of public worship do not belong to any public trust, such places of public worship shall be constructed as provided in the Maharashtra Religious Endowments (Reconstruction on Resettlement Sites) Act, 1970.

(5) The expenditure on all such amenities in sub-sections (3) and (4) above shall be part of the cost of the project.

(6)(a) In all Class III and Class IV category of services under the establishment of the State Government Departments, public sector undertakings, local self government, government aided institutions and co-operative societies specified under section 73A of the Maharashtra Co-operative Societies Act, 1960 there shall be not less than five per cent priority quota for the employment of nominees of the affected persons.

(b) The beneficiary persons, societies, companies, factories, sugar-factories, spinning-mills, assisted by the State Government in the form of matching share contribution etc., shall provide employment to not less than five per cent of the cadre strength of Class III and Class IV or equivalent of non-technical employees to the nominees of the affected persons;

Provided that, the above priority shall be treated as preference among the open and different reservation categories in pro-rata manner.

(c) The Collector shall maintain a register showing the recruitment position in the District and ensure removal of the backlog in recruitment of the nominees of the affected persons. However, at any recruitment, the percentage of the persons so required from amongst the nominees shall not exceed fifty.

13. Declaration of areas in affected or benefitted zones- (1) As soon as may be practicable, the Collector shall give a public notice inviting objections or suggestions in respect of the lands within his District and falling under clauses (a) and (b) of sub-section (3) of this section, by publishing in the manner specified in sub-section (2) of section 11 and also in the Official Gazette and in one daily newspaper in Marathi language with wide circulation in the local area comprising such village in areas of the affected and benefitted zones.

(2) Any person interested in the land in such areas may submit objections or suggestions, if any, to the Collector within 30 days from the date on which such public notice is published by beat of drums in the village or area concerned, or the date on which it is published in the newspaper as aforesaid, whichever is later, and the Collector, shall with all reasonable despatch, forward any objections or suggestions so made together with his report in respect thereof to the Commissioner and on considering the report and the objections and suggestions, if any, the Commissioner may pass order as he deems fit.

(3) The Commissioner shall, not later than three years in case of major irrigation projects and not later than one year in case of other projects from the date of publication of notification under section 11, shall by nomination in the Official Gazette, and also by publication of such notification in the manner provided in sub-section (2) of section 11, declare

(a) the extent of area which shall constitute the area of affected zone under the project,

(b) the extent of the area of benefitted zone under the project if the project is an irrigation project;

(c) which of the slabs mentioned in the Part II of Schedule shall apply to such project for the purpose of acquisition of land in the benefitted zone;

Provided that, it shall be lawful for the Commissioner to notify the affected zone and the benefitted zone by separate notifications.

(4) The project authority shall furnish to the Collector detailed map of at least 25 per cent, of the area of the benefitted zone in case of a major irrigation project and 100 per cent, of the area in case of other projects within one year from the date of notification under section 11.

(5) If, at any time during the course of execution of a project, the project authority is satisfied that any change in the areas mentioned in the notification under sub-section (3) is necessary, it shall communicate such change with reasons and the plans and particulars relating to the change to the Commissioner through the Collector.

(6) On receipt of the communication under sub-section (5) and the report of the Collector, if any, Commissioner may, after considering the reasons given by the project authority and in the report, if any, of the Collector and making such enquiry, if any, as he thinks fit, make such change in the manner laid down in sub-sections (1), (2) and (3).

(7) On publication of the notification as provided for in sub-section (3) or (6), as the case may be, the restrictions laid down in sub-section (1) of section 12 shall not apply to lands which are not included in the benefitted zone or the affected zone of the project in the villages notified under sub-section (1) of section 11.

14. Power to purchase or acquire land for purposes of this Act, - (1) The Commissioner or the Collector authorised by him by general or special order in this behalf may purchase or exchange any land required for carrying out the purposes of the Act:

Provided that, the amount paid for the purchase of the land under this sub-section shall be approximately equal to the amount of compensation payable for the land had it been acquired in accordance with the provisions of sub-section (2).

(2) Subject to the provisions of this section, the Commissioner may for carrying out the purposes of this Act, also compulsorily acquire land under the Land Acquisition Act, 1894 and the acquisition of any land for any of the said purposes shall be deemed to be a public purpose within the meaning of that Act.

(3) The Commissioner may acquire lands included in a gaothan in the affected zone as far as practicable according to the provisions of Part I of the Schedule.

(4) For the purpose of rehabilitating affected persons from the affected zone under an irrigation project, including those under any irrigation project, who have remained to be rehabilitated, on land, the Commissioner may acquire land from holding in the benefitted zone of the project according to the slab declared in the notification under sub-section (1) of section 13 and may also acquire, where necessary, land from any other villages or areas, as it may deem fit.

(5) All lands acquired under this section shall form part of the land pool.

(6) An affected person who is entitled but does not want alternative land in the benefitted zone shall be paid fifty per cent, amount of the value of the land offered to him, such value having been worked out on the basis of the true market value estimated in the prescribed manner on the basis of the land rates determined and issued, at the relevant time, in the form of Annual Statement of Rates, by the Chief Controlling Authority under the Bombay Stamp (Determination of True Market Value of Property) Rules, 1995, framed under the Bombay Stamp Act, 1958.

11. It is the contention of petitioners that there is no declaration as required under Section 13(3) of the Act declaring the villages forming part of affected and benefitted Zones. It is not controverted by the Respondents that there is no such declaration as required under the Act. Sub-section (3) of Section 13 makes it mandatory for the Commissioner to publish a notification in the Official Gazette in the manner provided in sub-section (2) of Section 11 declaring (a) extent of area which shall constitute the area of affected zone under the project; and (b) the extent of the area of benefitted zone under the project if the project is an irrigation project. In the instant matter, although provisions of Rehabilitation Act are made applicable to the Lendi Inter-State Irrigation Project, there is failure on the part of the Commissioner to publish a mandatory declaration specifying the areas forming part of affected zone and benefitted zone. Section 14 provides for power to purchase or acquire land for the purposes of Rehabilitation Act. In view of provisions of sub-section (4) of Section 14, lands falling under the benefitted zone, can be compulsorily acquired for the purpose of rehabilitating the affected persons from the affected zone under an Irrigation Project.

12. In the instant matter, paradoxically, petitioners themselves are affected persons from the affected zone and their remaining agricultural properties are being acquired for resettlement of project affected persons without issuing a declaration as mandated by sub-section (3) of Section 13 of the Act. The scheme of the Act provides that the affected persons shall be rehabilitated in the benefitted zone, however, in the instant matter, petitioners, who are themselves affected persons, are being robbed off for their remaining agricultural properties rendering them landless. It is expected of the State to make provision for rehabilitation of the project affected persons i.e. petitioners, however, paradoxically in the instant matter, petitioners, themselves, are being rendered landless by acquisition of their remaining agricultural properties, which, in itself, do not form part of benefitted zone. At best, even if there is a declaration under sub-section (3) of Section 13, village shall have to be included in the affected zone. There is inherent lacuna in pursuing acquisition proceedings, which goes to the root of the matter rendering whole acquisition proceedings illegal.

13. It is urged by Respondents that proceedings are initiated under the Land Acquisition Act and since award has been declared, no cognizance of the grievance made by petitioners can be taken in the writ petition. It is to be noted that although for acquisition of the property, provisions of Land Acquisition Act are invoked, the purpose for acquisition is resettlement of project affected persons. It cannot be overlooked that provisions of Maharashtra Act No.11 of 2001 are attracted and unless mandatory requirements of Act No.11 of 2001 are fulfilled, proceedings under the Land Acquisition Act, for acquiring the agricultural properties for the purposes of rehabilitation, cannot be initiated at all.

14. A reference is made to the judgment in the matter of J & K Housing Board and another Vs. Kunwar Sanjay Krishan Kaul & others, reported in (2011) 10 SCC 714. In the reported matter, requirement of publication of notification under Section 4(1) of the Land Acquisition Act was not complied with, as such, the Supreme Court has adopted a view that such notification would be void and the acquisition proceedings taken in pursuant thereto would also be void. In paragraph 29 of the judgment, the Apex Court has observed thus:

"29 In Syed Hasan Rasul Numa, this Court considered the dictum laid down by Subba Rao, C.J., in Khub Chand. The following conclusion is relevant: (Syed Hasan Rasul case, SCC pp. 407-08, para 13 ..

13 There is a broad basis for the view that we have taken from the decisions of this Court although on the provisions of other enactment. Section 4(1) of the Land Acquisition Act, 1894 provides for publication of the notification in the Official Gazette and in two daily newspapers circulating in that locality where the land is situated of which at least one shall be in the regional language. Section 4(1) further provides that the Collector shall cause public notice of the substance of such notification to the given at convenient places in the said locality. In Khub Chand v. State of Rajasthan, Subba Rao, C.J., while construing the object and scope of Section 4(1) expressed the view that provisions of the section requiring public notice are mandatory and the legislature thought that it was absolutely necessary that the owner of the land should have a clear notice of the proposed acquisition. It was said that the fact that the owner may have notice of the particulars of the intended acquisition by any other means does not serve the purpose of Section 4 and does not absolve the obligation to follow the method of publication of the notification. It was also observed that the notification issued under section 4(1) without complying with the mandatory direction would be void and the land acquisition proceedings taken pursuant thereto would also be void. This view has been reiterated in a number of subsequent decisions of this Court. In Collector v. Raja Ram Jaiswal most of the earlier decisions have been referred to and the view taken in Khub Chand case has been reiterated."

15. In this context, reference can also be made to a judgment in the matter of Kulsum R. Nadiadwala Vs. State of Maharashtra & others, reported in (2012) 6 SCC 348 : [2012(4) ALL MR 464 (S.C.)], wherein, the Supreme Court directed quashment of notification on account of non compliance of mandatory requirements and further held that entire acquisition proceedings are also null and void.

16. The Respondents, inviting our attention to the judgment of the Supreme Court in the matter of A.P.Industrial Infrastructure Corporation Ltd. V. Chinthamaneni Narasimha Rao & Ors., reported in AIR 2011 SC (Civil) 2301 : [2011 ALL SCR 2762], have contended that once the award is declared and possession of land is taken, challenge to the acquisition proceedings shall not be entertained. It is contended that in several judgments, the Supreme Court has repeatedly held that writ petition challenging the notification for acquisition of land, if filed after possession having been taken, is not maintainable. In this context, reliance is also placed on the judgments in the matter of Municipal Corporation of Greater Bombay Vs. Industrial Development Investment Co.(P) Ltd., reported in 1996 (11) SCC 501 and in the matter of State of Rajasthan & others Vs. D.R.Laxmi & others, reported in (1996) 6 SCC 445.

17. It is to be noted that in the instant matter, acquisition of agricultural property is for the purposes of resettlement of project affected persons. Petitioners, themselves, are affected persons within the meaning of Act No.11 of 2001 since their lands have been acquired, on earlier occasion, for the same Irrigation Project. Since purpose of acquisition is for resettlement of project affected persons, the provisions of Act No.11 of 2001 are mandatorily required to be followed. It is an admitted position that there is no publication of notification as required under Section 13 of Act No.11 of 2001 declaring affected zone and benefitted zone. In the absence of declaration of benefitted zone, properties of the agriculturists cannot be acquired, for the resettlement purpose under the provisions of Maharashtra Resettlement of Project Displaced Persons Act, 1976. It is also to be noted that as provided under Section 14 (4) of the Act, persons from affected zone are required to be resettled in the benefitted zone. In the absence of declaration of affected zone and benefitted zone, as required under the provisions of Act No.11 of 2001, proceedings for acquisition of land cannot be initiated.

18. In the instant matter, although award is passed, since initiation of proceedings itself is illegal and in breach of provisions of Maharashtra Act No.11 of 2001 and since deficiencies go to the root of the matter, there is no alternative except to direct quashing of the award.

19. For the reasons recorded above, writ petition deserves to be allowed and same is accordingly allowed. The award declared by the Sub Divisional Officer and Land Acquisition Officer on 31.03.2010 is quashed and set aside to the extent of acquisition of lands belonging to the petitioners.

20. Rule is accordingly made absolute. In the facts and circumstances of this case, there shall be no order as to costs. Pending Civil Application does not survive and stand disposed of accordingly.

Petition allowed.