Bombay High Court
Appasaheb Narayan Chaudhari And ... vs The State Of Maharashtra And Others on 9 September, 2021
Equivalent citations: AIRONLINE 2021 BOM 3493
Author: Ravindra V. Ghuge
Bench: Ravindra V. Ghuge, S. G. Mehare
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(1)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.5591 OF 2018
1. Mr Appasaheb Narayan Chaudhari,
Age : 60 years, Occup. - Agri.,
R/o Nandurkhi (Bk), Ta. Rahata,
District Ahmednagar
2. Mr Sopan Madhav Dabhade,
Age : 65 years, Occup.Agril.,
R/o Nandurki (Bk), Ta. Rahata,
District Ahmednagar ..PETITIONERS
VERSUS
1. The State of Maharashtra,
Through its Secretary,
Revenue and Forest Department,
Mantralaya, Mumbai - 32
2. The Collector, Ahmednagar
3. Sub-Divisional Officer,
Shirdi, Ta. Rahata, Dist. Ahmednagar
4. Shirdi Nagarpanchayat, Shirdi,
Ta. Rahata, Dist. Ahmednagar
5. Maharashtra Jeevan Pradhikaran,
Through its office - Tarakpur,
Ahmednagar,
Dist. Ahmednagar
Mr V.D. Sapkal, Senior Advocate, instructed by Mr S.R. Wakale, Advocate
for petitioners;
Mr S.B. Yawalkar, A.G.P. for respondent nos.1 to 3;
Mr V.D. Hon, Senior Advocate, instructed by Mr A.V. Hon, Advocate for
respondent no.4;
Mr D.P. Bakshi, Advocate for respondent no.5
CORAM : RAVINDRA V. GHUGE
AND
S. G. MEHARE, JJ.
DATE : 9th September, 2021
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(2)
ORAL JUDGMENT (Per Ravindra V. Ghuge, J.)
1. Rule. Rule made returnable forthwith and heard finally by the consent of the parties.
2. The petitioners have putforth prayer clauses (B) and (C) as under:-
"(B) To direct respondents No.1 to 4 to initiate acquisition proceedings in respect of land Gut No.8 to the extent of 86 Are, Gut No.217 to the extent of 54 Are and land Gut No.218 to the extent of 66 Are situated at village Nandurki (Bk) Ta.
Rahata, District Ahmednagar by issuing appropriate writ of appropriate writ, order or direction in the nature of writ or as the case may be.
(C) To direct respondent No.1 to 4 to initiate acquisition proceedings and complete the same by passing award and grant compensation in respect of land Gut No.8 to the extent of 86 Are, Gut No.217 to the extent of 54 Are and land Gut No.218 to the extent of 66 Are situated at village Nandurki (Bk) Ta. Rahata, District Ahmednagar by issuing appropriate writ of appropriate writ, order or direction in the nature of writ or as the case may be."
3. Petitioner no.1 is the owner and possessor of land Gat No.8 to the extent of 1 Hectare and 95 R and petitioner no.2 is the owner of land Gat No.218/1 to the extent of 49 R as well as land Gat No.217 to the extent of 1 Hectare and 12 R. Prior to the Shirdi Nagar Panchayat, it was the Shirdi Grampanchayat. The then Grampanchayat took possession of the lands ::: Uploaded on - 20/09/2021 ::: Downloaded on - 11/10/2021 20:31:07 ::: wp5591.18 (3) of the petitioners for construction of a storage tank so as to supply water to the residents of the said area. A water pipeline was also laid. Such work was executed through respondent no.5, which constructed the tank and laid down the pipeline and then handed over the entire completed project to the Grampanchayat, vide a handing over note.
4. The petitioners started complaining about the unauthorized acquisition of their land vide the following complaints/representations:-
a) Letter to the Sarpanch, dated 02.02.1984;
b) Letter to the Sarpanch, dated 09.09.1987;
c) Letter to the Administrator of the Nagar Palika, Shirdi, dated
20.06.1990;
d) Letter to the Chief Officer, Shirdi Nagar Palika, dated 11.12.1992;
e) Letter to the Chief Officer, Nagar Panchayat, dated 12.8.1999;
f) Letter to the Chief Officer, Shirdi, dated 16.09.2000;
g) Letter to the Chief Officer, Shirdi Nagar Panchayat, dated
18.08.2004;
h) Letter to the Chief Officer, Shirdi Nagar Panchayat, dated
03.03.2008; and
i) Letter to the Chief Officer, Nagar Panchayat, Shirdi, dated
02.05.2013
5. The petitioners then filed an application dated 11.01.2016 under the Right to Information Act to the Chief Officer, Shirdi Nagar Panchayat, ::: Uploaded on - 20/09/2021 ::: Downloaded on - 11/10/2021 20:31:07 ::: wp5591.18 (4) seeking information as to who has taken over their land and whether there was any acquisition process undertaken. It is undisputed that the names of the petitioners were entered in the 7/12 extract. Despite the notice under the Right to Information Act, there has been no reply by the Nagar Panchayat and no information was divulged.
6. The learned Senior Advocate then submits that, probably under a wrong legal advice, these petitioners approached the Civil Court by preferring Regular Civil Suit No.209 of 2016 seeking an injunction against the Shirdi Nagar Panchayat. The application seeking temporary injunction under Order XXXIX, Rule 1 of the Code of Civil Procedure was rejected by order dated 05.08.2016 concluding that, as the land was in the possession of the Grampanchayat, there could be no injunction. An appeal was preferred before the higher Court and the same has also been rejected. The suit is said to have been withdrawn subsequently as the petitioners realized that a suit for simplicitor injunction would not redress their grievance when their land was in possession of the Nagar Panchayat.
7. The learned Advocate representing respondent no.5 Maharashtra Jivan Pradhikaran submits that in 1983, respondent no.5 was the Environmental Engineering Works (EEW). It carried out a project work for the Grampanchayat, Shirdi since a pipeline had to be laid for supplying water to the residents of Shirdi. The said project was completed in 1983 over land approximately ad-measuring 2.21 Hectares. The fifth respondent received an acknowledgment from respondent no.4 by way of ::: Uploaded on - 20/09/2021 ::: Downloaded on - 11/10/2021 20:31:07 ::: wp5591.18 (5) a handing over of the project ( हस्तांतर नोट). Copy of the said note (5 pages) is placed on record, which is marked as "X-1" for identification. The said document consists 25 items indicating the exact work that was done by respondent no.5 for the Shirdi village in Kopargaon Taluka.
8. The learned Senior Advocate representing respondent no.4 submits that it only received the entire project handed over to it by respondent no.5. The Grampanchayat did not initiate steps for acquisition. As the project work was done by respondent no.5, the Grampanchayat cannot be held to be an acquiring body. For all purposes, respondent no.5 will have to be branded as being the acquiring body. Since the Grampanchayat has not taken any steps with regard to taking possession of the land, it cannot be said to be an acquiring body. Reliance is placed on the affidavit-in-reply filed by Shri Satish Ganpat Dighe, Chief Officer, Shirdi Nagar Panchayat, Shirdi, dated 08.01.2019.
9. We have perused the above stated affidavit-in-reply on behalf of the Shirdi Nagar Panchayat. In paragraph 2, it is stated that the then Grampanchayat was in possession of Nandurkhi Budruk village Gat No.8 (P) ad-measuring 0.86 Hectare, Gat No.217 (P) ad-measuring 0.54 Hectare and Gat No.218 (P) ad-measuring 0.66 Hectare. A total land of 2.21 Hectares was admittedly utilised for construction of drinking water tank and it is used for supplying drinking water to the Shirdi town since 1983.
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10. In paragraph 3 of the affidavit, it is stated that the measurement of the land bearing Gat Nos.8, 217 and 218 in the said village Nandurkhi was carried out under Mojani Register No.17/1982 for the purpose of implementing the water supply scheme for Shirdi. 86 R land from Gat No.8, 54 R land from Gat No.217 and 66 R land from Gat No.218 were acquired for the scheme.
11. In paragraph 4 of the affidavit, it is submitted that the Grampanchayat used the land for constructing storage water tank. An overhead water tank was constructed from it's expenditure. The Shirdi Nagarpanchayat laid down the water pipeline and since then, the same is being used for providing drinking water to the Shirdi town.
12. In paragraph 5 of the affidavit, it is submitted that the Grampanchayat constructed a water storage tank and a filtration plant with all equipments supplied by respondent no.5. Huge pipeline was laid so as to supplying the drinking water, to the Shirdi town, that was stored in the overhead water tank. Then, there were about 36,000 people who were beneficiaries of the water supply.
13. It is then submitted in paragraph nos.6, 7 and 8 that respondent no.5 completed the scheme due to the expertise that it had and handed over the scheme to the Grampanchayat. Demand for compensation is raised after a long delay. Now the entire pipeline is being re-laid ::: Uploaded on - 20/09/2021 ::: Downloaded on - 11/10/2021 20:31:07 ::: wp5591.18 (7) considering the growth of the Shirdi town and the petitioners have now woken up to oppose the project initiated by the fourth respondent. If they desire to seek compensation, they should approach respondent no.5.
14. The learned Senior Advocate representing the petitioners has relied upon the judgments delivered by the Honourable Apex Court in Tukaram Joshi & ors. vs. MIDC & ors., (2013) 1 SCC 353 and Vidaya Devi vs. State of Himachal Pradesh, (2020) 2 SCC 569.
15. In Vidaya Devi (supra), the Honourable Apex Court has held in paragraph nos.11 to 15 as under:-
"11. In the present case, the Appellant being an illiterate person,who is a widow coming from a rural area has been deprived of her private property by the State without resorting to the procedure prescribed by law. The Appellant has been divested of her right to property without being paid any compensation whatsoever for over half a century. The cause of action in the present case is a continuing one, since the Appellant was compulsorily expropriated of her property in 1967 without legal sanction or following due process of law. The present case is one where the demand for justice is so compelling since the State has admitted that the land was taken over without initiating acquisition proceedings, or any procedure known to law. We exercise our extraordinary jurisdiction under Articles 136 and 142 of the Constitution, and direct the State to pay compensation to the Appellant.::: Uploaded on - 20/09/2021 ::: Downloaded on - 11/10/2021 20:31:07 :::
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12. The State has submitted that in 2008 it had initiated acquisition proceedings in the case of an adjoining land owner viz. Shri Anakh Singh pursuant to a direction given by the High Court in C.W.P.No.1192 of 2004. The State initiated acquisition only in the case where directions were issued by the High Court, and not in the case of other land owners whose lands were compulsorily taken over, for the same purpose, and at the same time. As a consequence, the present land owner has been driven to move the Court in their individual cases for redressal.
13. In view of the aforesaid facts and circumstances of the present case, the Respondent-State is directed to pay the compensation on the same terms as awarded by the Reference Court vide Order dated 07.07.2015 in Anakh Singh's case (i.e. Land Reference No.1 of 2011 RBT No.01/13) alongwith all statutory benefits including solatium, interest, etc. within a period of 8 weeks, treating it as a case of deemed acquisition. An Affidavit of compliance is directed to be filed by the State before this Court within 10 weeks.
It is informed that an appeal has been preferred by Ravinder Singh s/o Anakh Singh & Ors. being RFA No.35 of 2016 which is pending before the High Court of Himachal Pradesh at Shimla.
Taking note thereof, if an appeal is filed by the present appellant within 8 weeks from the date of compensation being paid to her by the State, the appeal will be treated to be within limitation, and would be decided on its own merits in accordance with law.::: Uploaded on - 20/09/2021 ::: Downloaded on - 11/10/2021 20:31:07 :::
wp5591.18 (9) The Respondent State is directed to pay legal costs and expenses of Rs.1,00,0000/ to the present appellant.
14. The Appeals are accordingly allowed. The Orders dated 11.09.2013 and 13.05.2014 passed by the High Court are set aside.
Ordered accordingly."
16. The view taken by the Honourable Apex Court in Tukaram Joshi (supra) has crystallised. The Honourable Apex Court dealt with the case of the widow Vidaya Devi (supra) who had claimed the compensation, for the loss of land for a public project, after half a century. It was concluded that forcible expropriation of private property of an illiterate widow from a rural area by the State without following any lawful procedure and without payment of compensation, cannot be ignored only on the ground of delay and laches. The dispossession of the appellant in 1967 impinged her fundamental right guaranteed under Article 31 (as it stood in 1967) and she could not be deprived of her land without just and fair compensation. Delay and laches in a matter which has the trappings of a continuous/recurring cause of action, would shock judicial conscience of the Court if such delay and laches are pitted against the right to property thereby depriving a citizen of this country a lawful right.
17. It is apparent before us from the pleadings of the parties and especially the affidavit-in-reply filed by the Shirdi Nagar Panchayat that respondent no.5 was a Department of the State of Maharashtra which had the expertise in implementing such projects/schemes. The services of the ::: Uploaded on - 20/09/2021 ::: Downloaded on - 11/10/2021 20:31:07 ::: wp5591.18 (10) said Department were utilized by the Grampanchayat, admittedly, for laying down the pipeline. After the project was swiftly completed, in less than a year, respondent no.5 delivered the scheme to respondent no.4. In our view, respondent no.4 being a civic authority, is under an obligation to ensure that civic amenities are provided to the citizens of the said place. It is the sovereign function of respondent no.4 to extend civic amenities to the people residing in the Shirdi area. As such, as the scheme was brought into effect by respondent no.5 and handed over to respondent no.4, the former performed the work on executing a project and handing over of such project to the actual beneficiary, which is respondent no.4.
18. In view of the above and considering the law laid down by the Honourable Apex Court in Vidaya Devi (supra), this petition is allowed in terms of prayer clauses (B) and (C). Respondent nos.1 to 4 shall initiate expeditious steps for acquisition of the land which has been utilized for the project, by following the due procedure laid down in the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013.
19. We, therefore, direct respondent no.4 to prepare the proposal for acquisition, on or before 15.10.2021 and shall ensure that the said proposal reaches the District Collector of Ahmednagar District by the said date. Respondent no.5 would extend co-operation to respondent no.4 insofar as documents, if called for. After 15.10.2021, we are giving an outer limit upto 15.09.2022 for the authorities to ensure that the acquisition ::: Uploaded on - 20/09/2021 ::: Downloaded on - 11/10/2021 20:31:07 ::: wp5591.18 (11) process is complete and the award is delivered.
20. Rule is made absolute in the above terms.
21. There shall be no order as to costs.
(S. G. MEHARE, J.) (RAVINDRA V. GHUGE, J.)
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