2013(6) ALL MR 207
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

D.Y. CHANDRACHUD AND MRIDULA BHATKAR, JJ.

The State Of Maharashtra & Ors.Vs.Shantaram B. Nawale (Deceased) & Ors.

Civil Application No.209 of 2013,Writ Petition No.263 of 2012

22nd August, 2013

Petitioner Counsel: Mr. Nitin Deshpande
Respondent Counsel: Mr. G.S. Godbole,Mr. Pralhad Paranjpe,Mr. G.H. Potnis,Ms. Pallavi H. Potnis

Maharashtra Project Affected Persons Rehabilitation Act (1999), S.16(2)(a) - Land acquisition - Right to alternate land - Waiver - Land acquisition for submergence in Bhama Askhed Project - Some of project affected persons communicated to Special Land Acquisition Officer that they were not desirous to obtain alternate land - It would not amount to waiver of such valuable right unless notice of entitlement to get alternate land issued to them. (Para 9)

Cases Cited:
Mahadu Rambhau Bendure Vs. State of Maharashtra, W.P. Nos.1668-1669/2013, Dt.20/3/2013 [Para 4]
Baban Kondiba Kadam Vs. State of Maharashtra, PIL 221 of 2009 [Para 5]
Pradip Kumar Chatterjee Vs. State of West Bengal, (1977) 2 Cal. LT 4 HC [Para 7]
Ram S. Deshmukh Vs. State of Maharashtra, W.P. 8385/2010, Dt.2/5/2011 [Para 8]


JUDGMENT

DR. D. Y. CHANDRACHUD, J. :- The prayer in the Civil Application is for modification of an order dated 17 July 2012 passed by a Division Bench consisting of Hon'ble Mr.Justice S.A. Bobde (as His Lordship then was) and Hon'ble Mrs. Justice Mridula Bhatkar and for an extension of time for issuance of a notice under Section 16(2)(a) of the Maharashtra Resettlement of Project Affected Persons Act, 1999 by a period of six months.

2. The Division Bench delivered a judgment dated 17 July 2012 on a batch of matters where the Petitioners were owners of agricultural lands which were acquired for the Bhama Askhed Project. The Division Bench observed that it was not disputed that: (i) The lands were acquired by the State Government for submergence in the Bhama Askhed Project; (ii) The Petitioners were not given any notice by the Collector informing them of their entitlement to get alternate land; and (iii) The Petitioners were not given notice under Section 16(2)(a) of the Act. The Petitioners were denied a right to get alternate land on the ground that they had not deposited sixty-five per cent of the amount of compensation within a time limit of forty five days. The Petitions were disposed of with the following directions:

"(i) The Collector, Pune, shall give a notice to the Petitioners under Section 16(2)(a) of the Maharashtra Project Affected Persons Rehabilitation Act, 1999 for grant and allotment of land. The notice shall be given by Registered Post A.D. or by hand delivery within a period of one month from today.

(ii) It will be open to the Petitioners to communicate their willingness to accept the grant of land within a period of 45 days from the date of receipt of such notice from the Collector.

(iii) The Petitioners shall also deposit with the Collector, Pune, 65% of the amount of compensation received by them for the land acquired from them or the likely cost of the land granted to them, whichever is less, at the time of payment of such compensation to the Petitioners."

3. A Civil Application has been taken out by the State. The ground in the Civil Application is that a search has revealed that some of the Petitioners "had given up their right to claim lands" and that at the time of the payment of compensation, it seems from the record that the offer of payment of sixty-five per cent compensation for obtaining alternate land was given to each project affected person and his statement was recorded whether or not he is willing to deposit the amount. It has been stated that in the project, 111 project affected persons deposited sixty-five per cent of the amount while the rest had given a statement to the effect that they do not want alternate land and 315 such statements were found in the record of the Special Land Acquisition Officers. On this ground, it has been prayed that the order of the Division Bench dated 17 July 2012 be modified and an extension of time for issuance of notices under Section 16(2)(a) be allowed.

4. The Learned AGP has relied upon an order passed by the Division Bench consisting of Hon'ble Mr.Justice A.S. Oka and Hon'ble Mrs.Justice Mridula Bhatkar on 20 March 2013 in Mahadu Rambhau Bendure vs. State of Maharashtra Writ Petition 1668 of 2013 with Writ Petition 1669 of 2013. While disposing of that batch of Petitions, the Division Bench had granted liberty to the District Resettlement Officer to examine whether the Petitioners there, were project affected persons as claimed by them and whether they are entitled to the allotment of lands under the Act. The DRO was directed to decide this issue after furnishing an opportunity of being heard. Moreover, the District Collector was directed to verify as to whether notices under Section 16(2)(a) had been served. The Division Bench had issued the following directions:

"(a) We direct the fourth Respondent to examine the cases of the Petitioners and to ascertain whether the Petitioners are project affected persons as claimed by them and whether are entitled to allotment of lands under the provisions of Maharashtra Project Affected Persons Rehabilitation Act, 1999;

(b) For this purpose, we direct that the Petitioners shall appear before the fourth Respondent (the District Resettlement Officer, Pune) on Monday, the 16th April 2013 at 12.30 p.m. It will be open the the Petitioners to produce all the necessary documents before the said authority;

(c) We direct the District Resettlement Officer, Pune to ascertain whether the petitioners are project affected persons as claimed by them and whether they are entitled allotment of the lands under the said Act. The District Resettlement Officer shall give an opportunity of being heard to the petitioners and shall allow the petitioners to file necessary documents. Thereafter, the District Resettlement Officer shall pass orders recording brief reasons;

(d) The District Resettlement Officer shall pass orders accordingly within a period of two months from the date of appearance fixed under this order. District Resettlement Officer shall serve copies of the orders to the petitioners or their advocate. He shall forward copies of the orders to the Collector along with his reports;

(e) If the fourth Respondent records a finding that the Petitioners are project affected persons and are entitled to allotment of suitable lands under the said Act, the District Collector shall verify whether the notices under section 16(2)(a) of the said Act have been served to the Petitioners;

(f) If the record relating to the service of notices cannot be found within a period of four weeks from the date on which the reports in terms of clause (d) is received by the Collector from the fourth Respondent, the Collector shall proceed on the footing that the notices under Section 16(2)(a) of the said Act have not been served to the Petitioners;

(g) Only if the notices under Section 16(2)(a) of the said Act are not served to the Petitioners, within a period of eight weeks from the expiry of the period of four weeks fixed for tracing out the record relating to notices, the Collector shall issue notices to the Petitioners in accordance with Section 16(2) (a) of the said Act;

(h) It will be open for the Petitioners to communicate their willingness to accept the grant of land within a period of 45 days from the date of the receipt of such notices from the Collector;

(i) On the Petitioners showing willingness, they shall deposit 65% of the amount of compensation received by them for the lands acquired from them or the likely cost of the land, whichever is less, at the time of payment of such compensation to the Petitioners. The deposit shall be made in accordance with the provisions of the said Act;

(j) On deposit as aforesaid made by the Petitioners in accordance with law, further process of allotment of lands to the Petitioners shall be completed by the Collector as expeditiously as possible;

(k) Rule is made partly absolute in the above terms in both the Petitions;

(l) Parties to the Petitions shall act upon the authenticated copy of this judgment and order."

5. On 28 June 2013, another Division Bench while disposing of a PIL in Baban Kondiba Kadam vs. State of Maharashtra, PIL 221 of 2009 had directed that the procedure which was prescribed in the order dated 20 March 2013 by the Division Bench should also be applied to the applications which were to be submitted by the project affected persons of the Chaskaman Dam Project.

6. Essentially, the case of the State in the Civil Application for modification is that in cases where the project affected persons had informed the Special Land Acquisition Officer that they do not desire to obtain alternate land, at the time when the compensation was disbursed, the project affected person must be deemed to have forfeited his right to the alternate land. Hence the review.

Section 16(2) of the Act of 1999 provides as follows:

"16(2) An affected person eligible for the grant of land or plot under sub-section (1) shall forfeit his right to get the same if -

(a) he fails to communicate his willingness to accept the grant of land or plot made to him, to the Collector within a period of forty-five days from the date of receipt by him of a notice in that behalf from the Collector; or

(b) he fails to deposit with the Collector, towards occupancy price of the land, sixty-five per cent of the amount of compensation which he has received for his land which is acquired from him in the affected zone or, of the likely cost of the land to be granted to him under sub-section (1), whichever is less, at the time of payment of such compensation to such affected persons."

7. Section 16(2) provides for the circumstances in which the entitlement of the project affected person, who is eligible for the grant of land under sub-section (1), shall stand forfeited. Forfeiture of an entitlement visits the land holder with serious civil consequences. When the legislature has provided for the statutory conditions on which a forfeiture can be made, a forfeiture can be justified only on those conditions and strictly subject to the fulfillment of the conditions laid down in the enactment. Sub-section (2) of Section 16 envisages in clause (a) that an affected person, who is eligible for the grant of land, would forfeit his right upon a failure to communicate his willingness to the Collector to accept the grant of the land or plot made to him within a period of forty-five days from the date of receipt of a notice in that behalf from the Collector. In other words, what clause (a) postulates is, in the first instance, that a notice must be issued under clause (a) by the Collector. Moreover, the notice must indicate to the affected person of the grant of land or plot which has been made to him. Unless such a notice is issued to the project affected person, there would be no occasion for the affected person to obtain knowledge of the fact that such a grant has been made. In the absence of a notice of the nature referred to in clause (a), there would be no occasion to treat the affected person as having failed to communicate his willingness to accept the grant of land or plot made to him. A failure to communicate willingness postulates that the person is made aware of his entitlement and of the grant which was made to him. The requirements of Section 16(2)(a) must, therefore, be strictly observed since a deprivation of the entitlement to the allotment of alternate land results in the forfeiture of a valuable right. Even otherwise, it is a well settled principle of law that in order to constitute a waiver of a legal right, there must be a clear and unequivocal and decisive act on the part of the party. (See the judgment of the Calcutta High Court in Pradip Kumar Chatterjee vs. State of West Bengal. (1977) 2 Cal. LT 4 HC). A waiver as defined in the Black's Law Dictionary is the intentional or voluntary relinquishment of a known right. This principle was adopted in clause (a) of sub-section (2) of Section 16.

8. Clause (b) of Sub-section (2) of Section 16 contemplates a forfeiture upon a failure of the affected person to deposit with the Collector towards occupancy price of the land, sixty-five per cent of the amount of compensation which he has received for the land which is acquired from him in the affected zone or, of the likely cost of the land to be granted under sub-section (1) at the time of payment of such compensation to such affected persons. The provisions of sub-section (2) have been interpreted in the judgment of the Division Bench of this Court in Ram Shankar Deshmukh vs. State of Maharashtra Writ Petition 8385 of 2010 together with connected batch of matters decided on 2 May 2011. The Division Bench has observed as follows:

"The statutory provisions are very clear and therefore limitation stipulated in sub-section (2) of section 16 of the Act will begin to run only after the Collector serves a notice upon the land losers as provided in section 16(2)(a). The learned AGP sought to contend that 65% amount is required to be deposited at the time when the land loser received compensation as provided under clause (b) of section 16(2). It is not possible to accept the above contention for the simple reason that the land loser will come to know about the entitlement to get alternate land only when he receives the notice in that behalf from the Collector as specifically provided under clause (a) of subsection (2). Hence, it has to be held that for a land loser to forfeit his right to get alternate land under the provisions of the above Act, mere non deposit of 65% of the compensation at the time of receiving the compensation is not sufficient unless the land loser was given the notice under section 16(2)(a) by the Collector in the first place. In view of the above discussion, the petitions are allowed."

We are in respectful agreement with the view which has been adopted by the Division Bench in the judgment of the Learned Chief Justice. For a land loser to forfeit his right to get alternate land, mere non deposit of sixty-five per cent of the compensation at the time of receiving compensation is not sufficient unless, in the first place, a notice was issued under Section 16(2)(a).

9. In the order of the Division Bench dated 17 July 2012, the Court has observed that the original Petitioners were not issued with any notice by the Collector informing them of their entitlement to get alternate land. Moreover, it was not disputed that the original Petitioners were not given notice under Section 16(2)(a). Though over one year has elapsed after the order of the Division Bench, this factual assertion has not been disputed. No statement to the contrary is contained in the Civil Application. In this view of the matter, the fact that no notice has been issued under Section 16(2)(a) cannot be in dispute. The only ground in the Civil Application is that some of the project affected persons had communicated to the Special Land Acquisition Officer that they are not desirous to obtain alternate land. This, in our view, would not amount to a waiver of the valuable right which is conferred by the Resettlement Act of 1999 since the forfeiture of that right can only take place strictly in accordance with the provisions of Sub-section (2) of Section 16. The Special Land Acquisition Officer is not the authority designated under the law to scrutinize an application for the grant of alternate land under the Resettlement Act of 1999. The Act of 1999 has enacted a scheme which inter alia provides for the manner in which the forfeiture of an entitlement can take place. Unless a notice has been issued under Section 16(2)(a), there would be no occasion for the erstwhile land holder to know of the grant which has been made of the alternate land. It is only upon issuance of a notice under Section 16(2)(a) that the time to deposit sixty-five per cent of the amount of compensation would begin to run. It is only thereafter that the issue of forfeiture would arise.

10. Hence, in our view, and based on the earlier orders of the Division Benches which have been noted above, the only clarification of the directions that were issued by the Division Bench is that in the course of the implementation of the directions issued by the Division Bench on 17 July 2012, it would be open to the DRO to duly verify as to whether the land holders are project affected persons as claimed by them. Their entitlement to the allotment of land under the Act of 1999 shall now be considered and decided in accordance with law having due regard to the observations in this order within a period of six weeks from today. Necessary orders shall be passed by the DRO during the aforesaid period, and if they are found to be so entitled consequential action shall be taken no later than within four weeks thereafter.

11. The Civil Application is accordingly disposed of. There shall be no order as to costs.

Ordered accordingly.