Bombay High Court
Veerchand Anna Valwade And Anr. vs State Of Maharashtra And Ors. on 12 December, 2001
Equivalent citations: AIR2002BOM197, (2002)1BOMLR775, AIR 2002 BOMBAY 197, (2002) 1 ALLMR 698 (BOM), 2002 (1) ALL MR 698, (2002) 1 LACC 635, 2002 (1) BOM LR 775, 2002 BOM LR 1 775
Author: R. M. Lodha
Bench: R.M. Lodha, D.B. Bhosale
JUDGMENT R. M. Lodha, J.
1. An interesting question which arises in this writ petition is whether once the land has been acquired for the purposes of resettlement of project affected persons from the holding of the land holder under the Land Acquisition Act and the Maharashtra Resettlement of Project Displaced Persons Act, 1976 is it open to the concerned authorities to further acquire the land from the holding of such land holder for resettlement of project affected persons of the same project.
2. The aforesaid question arises from the following facts and circumstances :--
The petitioners were holding various pieces of agricultural land within village Kavathepiran, Taluka Miraj, District Sangli. Vide notification dated 30th November, 1982, provisions of the Maharashtra Resettlement of Project Displaced Persons Act, 1976 (for short 'Act of 1976') were made applicable to various villages in Sangli district including the village Kavathepiran where petitioners' holding is situated. In the said notification, the villages which were likely to be affected were specified and so also the benefited zone. By the said notification it was also declared that the provisions of Section 11 of the Act of 1976 shall apply to Warna Irrigation Project. By notification dated 27-2-1996 issued under Section 4(1) of the Land Acquisition Act, the petitioners agricultural land bearing survey No. 531 admeasuring 1 Hectare 25 Ares and survey No. 1976 admeasuring 0 Hectare 49 Ares was proposed to be acquired for the resettlement of Warna Project affected persons. The copy of the said notice under Section 4(1) was also served upon the petitioners and in response thereto the petitioners requested the authorities to acquire the requisite land but of single survey Instead of two different places of land. The petitioners voluntarily suggested the respondents to acquire the requisite land out of survey No. 531 admeasuring 1 Hectare 74 Ares, eastern side for the said purpose. The acquiring authorities inspected the land and as suggested by the petitioners acquired the land admeasuring 1 Hectare 74 Ares from survey. No. 531 and actual possession was taken. The compensation for acquisition of the said land was also paid to the petitioners. The acquisition of land admeasuring 1 Hectare 74 Ares out of survey No. 531 was, thus, completed in all respects by passing of the award dated 31-3-1989 arid the said land vested in the State Government free from all encumbrances. It appears that thereafter by notification dated 7th November. 1990 Issued under Section 4(1) of the Land Acquisition Act, further land of the petitioners, particularly 23 Ares from survey No. 1940. 70 Ares from survey No. 1941 and 81 Ares from survey No. 1976 (in all 1 Hectare 74 Ares) was proposed to be acquired. The petitioners after having been served with the said notice under Section 4(1), appeared before the concerned Land Acquisition Officer and raised objection that their land having al-ready been acquired earlier from out of survey No. 531, their further lands cannot be acquired from their holding for the same purpose again and accordingly, requested the authorities to delete the petitioners' land from the proposed acquisition. The objection raised by the petitioners was overruled and notification under Section 6 dated 20th November, 1990 of the Land Acquisition Act was published and thereafter notices under Section 9(3)(4) were issued. Aggrieved by the action of the respondents in acquiring petitioners further land admeasuring 1 Hectare 74 Ares from out of survey Nos. 1940, 1941 and 1976 the petitioners have filed the present writ petition.
3. On behalf of the respondents, an affidavit in reply has been filed wherein it is stated that petitioners' land admeasuring 23 Ares out of survey No. 1940, 70 Ares out of survey No. 1941 and 81 Ares from survey No. 1976 situate at village Kavathe-piran is being acquired for the purpose of resettlement of project affected persons by the Warna project. The details of the proceedings of acquisition have been seated right from issuance of notification under Section 11 of the Act of 1976 till the passing of the award and possession being obtained on 27th May, 1991. As regards the previous acquisition of petitioners' land admeasuring 1 Hectare 74 Ares out of Gat No. 531 for the self-same purpose of resettlement of project affected persons by the Warna project, it is stated in reply that the said land is of inferior quality and no project affected person has come forward to accept this land and therefore, the said land is being given back to the petitioners and the other land of the petitioners has been acquired.
4. The petitioners have filed rejoinder and denied that the land earlier acquired from out of survey No. 531 is of inferior quality land as alleged by the respondents. The petitioners stated that prior to acquisition of the said land out of Gat No. 531, the petitioners have been raising crops of Jawar, Sunflower, Tobacco etc. over the said land.
5. There appears to be no dispute that on the date the notification under Section 11 of the Act of 1976 was published in the Maharashtra Government Gazette, the total, holding of the petitioners land was 7 Hectares 56 Ares. It is also not in dispute that after the notification under Section 11 of the Act of 1976 was published on 30th November, 1982, the procedure contemplated under Sections 13, 14 and 15 of the Act of 1976 was duly followed and accordingly, notification under Section 14(1) of the Act of 1976 was published on 22-2-1983 and notification under Section 15 of the Act of 1976 was published on 27th June, 1983. After the entire procedure upto Section 15 was followed, notification under Section 4(1) of the Land Acquisition Act was issued on 27-2-1986 proposing acquisition of the land admeasuring 1 Hectare 74 Ares from the holding of the petitioners out of survey No. 531 admeasuring 1 Hectare 25 Ares and survey No. 1976 admeasuring 49 Ares. The petitioners, in response thereto, requested the concerned authority to acquire the total land admeasuring 1 Hectare 74 Ares from one survey of the petitioners' holding instead of two different survey numbers and after the inspection was got done by the concerned authority, the acquiring authority agreed to acquire the land admeasuring 1 Hectare 74 Ares from petitioners' holding out of survey No. 531. The possession thereof was, thus, given by the petitioners' to the acquiring authority and after compliance of the requisite procedure by publication of notification under Section 6 and the award, the acquisition of land of 1 Hectare 74 Ares from petitioners' holding out of survey No. 531 was completed in all respects by 31-3-1989.
6. At this stage, we may first deal with the defence set up by the respondents that the acquisition of land admeasuring 1 hectare 74 Ares earlier from petitioners' holding out of survey No. 531 is not suitable being of inferior quality and that the respondents intend to deliver the possession of the said land to the petitioners. The said stand of the State Government shows Ignorance and lack of knowledge of the provisions of Land Acquisition Act by the acquiring authority. The Land Acquisition Act does not permit the State Government to deliver back the acquired land which has vested in the State free from all encumbrances after possession has already been taken by the State Government Section 48 of the Land Acquisition Act, 1894 empowers the State Government to withdraw from the acquisiton of any land of which possession has not been taken save and except the situation covered under Section 36. In other words, once the possession has been taken over by the State Government pursuant to the acquisition proceedings, it is not open to the Government to withdraw from the acquisition. How could State Government or for that matter the acquiring authority even think of delivering back the possession of land admeasuring 1 Hectare 74 Ares of survey No. 531 to the petitioners when the acqutsition of the said land has been completed in all respects and possession has been taken by the Government on the specious plea that the said land is of inferior quality and projected affected persons have not shown their inclination to take that land. The acquisition of land admeasuring 1 Hectare 74 Ares from the petitioners' holding out of survey No. 531 is final and irreversible and there is no question of the said land being delivered back to the petitioners even If it is assumed to be of inferior quality.
7. The respondents, having thus acquired the land admeasuring 1 Hectare 74 Ares from petitioners' holding out of survey No. 531 for resettlement of project affected persons of Warna project, the question now arises whether it was legally open to the respondents to issue fresh acquisition proceedings for acquiring further land admeasuring 1 Hectare 74 Ares from petitioners' remaining holding out of survey Nos. 1940. 1941 and 1976. It would be advantageous here to refer to the provisions of the Act of 1976 at this stage. Section 2 defines various expressions including "affected zone", "benefited zone", "displaced persons", "holding" and the "project". The affected zone" in relation to a project means the lands declared under Section 15 to constitute the area of the affected zone under that project. The "benefited zone" in relation to a project means the lands declared under Section 15 to constitute the area of benefited zone under that project. As per the defination in the Act. "displaced person" means any occupant who due to acquisition of the land in the affected zone for the purposes of a project has been displaced from such land or any agricultural labourer. The "holding" means the total land held by a person as an occupant or tenant of as both. Section 11 of the Act empowers the State Government to apply the provisions of the Act of 1976 for resettlement of displaced persons due to such project. In the notification the Government has to specify the villages or areas which are likely to be affected in the benefited zone. Once the notification under Section 11 is issued, by virtue of Section 12. restriction is imposed on transfer or sub-division or partition of land on benefited zone as provided therein. Upon the publication of notification under Section 11, as provided under Section 13 the resettlement officer is required to assess the extent of land from which persons are likely to be displaced and the extent of land which was to be available for the grant to displaced person. In fact, Section 13 elaborately provides for the assessment of extent of land from which person/persons has/have been displaced and the extent of land available for resettlement and collection of certain Information with regard thereto. Under Section 14, the State Government upon receipt of the copy of the assessment under Section 13 from the resettlement officer after holding such enquiry shall provisionally declare by notification in the official Gazette in respect of the affected zone and benefited zone and after hearing the persons affected and suggestions received from various authorities and further enquiry finally declare by notification in the Official Gazette showing the affected zone and benefited zone. Section 16 of the Act of 1976 empowers the State Government to acquire the land for the purposes of the said Act. It is now well settled that if a declaration is made under Section 11(1) of the Act of 1976 that the provisions of the said Act shall be applicable to the project, the procedure contemplated under Sections 13 to 15 has to be followed and for acquisition of the land, recourse has to be taken to the provisions of the Land Acquisition Act and the provisions of the Act of 1976 have to be complied with. In other words, the procedure prescribed under the Act of 1976 becomes applicable only when a declaration is made under Section 11(1) of the Act of 1976. However, in a situation where no notification under Section 11 is issued, the Government is free to take recourse to the provisions of the Land Acquisition Act, 1894 to resettle the persons who are displaced as a result of any project. The Full Bench of this Court in Ganpat Balwant Pawar v. Special Land Acquisition Officer No. 7. Krishna Dhom Project, 1984 Mah. LJ 752 : (AIR 1984 Bom 382) expressed the same opinion and it would not be out of place to reproduce paragraphs 26 and 27 of the said report, Paragraphs 26 and 27 of Ganpat Balwant Pawar read thus --
"26. It cannot be said that the provisions of the Resettlement Act prohibits the State Government from having recourse to the provisions of the Land Acquisition Act. The contrary view to be found in the judgment of the Division Bench is, with great respect, inconsistent with the clear language and the scheme contained in Chapter III of the Resettlement Act. It is open to the Government to decide to resettle persons who have been displaced as a result of a project at any time it seems desirable. For example. If a project has been completed, say three or four years ago, and there are persons yet to be resettled, it is always open to the Government to take such action as it deems fit to resettle those persons. One of the actions that can be taken is to provide lands to them by acquiring the same under the provisions of the Land Acquisition Act. It is only when, in anticipation of a project or simultaneously with the starting of a project, the State Government issues a declaration as envisaged in Section 11(1) of the Act that the other provisions of the Act come Into play. It is only in such cases that the State Government is under an obligation to follow the procedure prescribed under this Act to achieve the stated object of resettling "as many displaced persons as possible."
27. We may now Indicate our conclusions in this regard :--
It is not correct to say that after 11th of March 1977 resettlement of persons displaced as a result of any project cannot be done except in accordance with the provisions of the Maharashtra Resettlement of Project Displaced Persons Act, 1976. The procedure prescribed under the Resettlement Act becomes applicable only when a declaration is made under Section 11(1) of that Act that the provisions of the said Act shall be applicable to a project. Such a declaration will follow only after the formation of the opinion by the State Government that it is necessary or expedient in the public interest to make such a declaration.
When such a notification is not issued or has not been issued, the Government is free to take recourse to the provisions of the Land Acquisition Act, 1894 to resettle the persons who are displaced or will be displaced as a result of any project.
When there is no notification under Section 11(1) of the Resettlement Act. there is naturally no obligation upon the State Government to resettle persons because the provisions of this Act are not followed and payment of compensation to the affected persons may be enough for the land acquired from them under the provisions of the Land Acquisition Act. When there is a notification, the obligation is only to follow the procedure for resettling "as many displaced persons as possible." The obligation is relating to the procedure to be followed."
8. Since fn the present case, admittedly, notification was issued by the State Government under Section 11 of the Act of 1976 on 30th November, 1982 and notifications under Sections 14(1) and 15 were issued on 22-2-1983 and 27-6-83, acquisition of the land under project affected area has to be in accordance with the provisions of the Act of 1976. Sub-section (4) of Section 16 provides in an unequivocal terms that for the purpose of resettling the displaced persons on land, the State Government may acquire land from the holdings in the benefited zone or from any village or area expressed in Section 10 according to the provisions of part II of schedule A. Part II or schedule A provides the area that may be acquired based on the size of the holding. Part II of schedule A is reproduced as under :--
SCHEDULE A PART II Size of the holding Area to be acquired (in Hectares)
(a) Not more than 3 Hectares and 23.75 Ares (8 acres).
NIL
(b) More than 8 Hectares and 23.75 Ares (8 acres) and not more than 4 Hectares and 85.62 Ares (12 acres).
The area in excess of 3 Hectares and 23.75 Ares (8 Ares) but not more than 80.94 Ares (2 Ares)
(c) More than 4 Hectares and 85.62 Ares (12 acres) and not more than 6 Hectares and 47.49 Ares (16 acres).
The area in excess of 4 Hectares and 04.68 Ares (10 acres) but not more than 1 Hectare and 21.41 Ares (3 acres)
(d) More than 6 Hectares and 47.49 Ares (16 acres) and not more than 8 Hectares and 09.37 Ares (20 acres).
The area In excess of 5 Hectares and 26.09 Ares (13 acres] but not more than 1 Hectare and 61.87 Ares (4 acres).
(e) More than 8 Hectares and 09.37 Ares (20 acres) and not more than 9 Hectares and 71,24 Ares (24 acres).
The area In excess of 6 Hectares and 47.49 Ares (16 Ares) but not more than 2 Hectares and 02.34 Ares (5 acres).
(f) More than 9 Hectares 71.24 Ares (24 acres).
All the area In excess of 7 Hectares and 68.90 Ares (19 acres).
Provided that in the case of a holding falling under Clause [b) no land from such holding shall be acquired if the acquisition results in reducing the size of the holding to less than 3 Hectares and 23.75 Ares (8 acres).
9. The entire scheme of the Act of 1976 read with part II of schedule A leaves no manner of doubt that the area of acquired land from the holding as far as practicable has to be in accord with the aforesaid schedule. In the schedule based on the size of the holding, the maximum area that can be acquired has been provided. Larger the holding of a land holder acquisition of the more area of land acquired but of course, subject to the maximum limit provided in the schedule. On the basis of the size of the holding which the land holder hold on the date of the issuance of notification under Section 11. the maximum area from the holding of such land holder as provided in the Schedule can be acquired. In other words, once the land has been acquired from the holding of a person for the purpose of resettlement of project affected person in accordance with part II of Schedule A, the right of further acquisition of land from the holding of such holder for the self-same reason subsequently is exhausted and it is not open to the State Government or the concerned authority to repeatedly acquire the land for rehabiliatation of project affected person from the holding of such land-holder. This appears to be clear the scheme flowing from various provisions of the Act of 1976 which we have already noted above. This may also be viewed from other angle. After the issuance of notification under Section 11 by the State Government applying the provisions of the Act of 1976 to a particular project, the Government has to follow the procedure contemplated under Sections 13 to 15. Thereby the Government or for that matter the authority concerned determines the extent of persons affected and the land required for resettlement and accordingly the acquisition of the land starts and completed. Thus for the purposes of project affected persons upon issuance of notification under Section 11 of the Act of 1976, only once the land can be acquired from the holding of landholder as per the schedule and any further acquisition of land from the holding of same land holder will not be legal.
10. Applying the aforesaid legal position to the facts of the present case, it would be seen that the notification under Section 11 was published by the State Government in the Official Gazette on 30th November, 1982. The final notification under Section 15 about the extent of land from which the persons have been displaced and the extent of land available for resettlement (in other words, declaration of affected zone and benefited zone) was published on 27th June, 1983. Thereafter, notification under Section 4(1) was issued by the concerned-authority on 27-2-86 proposing to acquire the land admeasuring 1 Hectare 74 Ares from out of petitioners land bearing survey Nos. 531 and 1976. In response thereto, the petitioners suggested acquisition of land admeasuring 1 Hectare 74 Ares from out of their land survey No. 531 which was acceded to, notification under Section 6 was published in that regard, possession was taken thereof and award was passed and accordingly, the land admeasuring Hectare 74 Ares from out of survey No. 531 belonging to the petitioners stood vested in the State Government from all encumbrances in the year 1989. The said acquisition of land was in conformity with Item No. (d) of part II of schedule A. Having thus acquired the land from petitioners' holding for resettlement of Warna project affected persons, proceedings for further acquisition of petitioners' land admeasuring 1 Hectare 74 Ares from out of survey Nos. 1940, 1941 and 1976 by issuance of notification under Section 4(1) on 15-3-90. declaration under Section 6 published in the Official Gazette on 26-11-90, the award under Section 11 dated 20th February, 1991 and the entire proceedings of acquisition are totally illegal and cannot be sustained. The respondents acted in utter disregard of provisions of law in proceeding with further acquisition of petitioners' land admeasuring 1 Hectare 74 Ares out of survey Nos. 1940, 1941 and 1976 when already petitioners' land admeasuring 1 Hectare 74 Ares has been acquired from survey No. 531 which stood concluded in all respects by passing of the award dated 31-3-89 and possession already having been taken over much earlier.
11. Consequently, writ petition deserves to be allowed which we hereby order and make the rule absolute by quashing and setting aside the notification dated 7-2-90 Issued under Section 4(1). and notification dated 20th February, 1990 issued under Section 6. As a result of quashing of notifications under Sections 4 and 6, obviously, the award dated 28-2-91 in so far as petitioners' land is concerned cannot stand and is rendered inoperative.
No costs.