National Green Tribunal
Prakash Raoji Devgirikar vs State Of Maharashtra Through Collector ... on 5 May, 2022
Item No. 03-05 (Pune Bench)
BEFORE THE NATIONAL GREEN TRIBUNAL
WESTERN zone Bench, PUNE
(By Video Conferencing)
Execution Application No. 09/2019(WZ) IN
Original Application No. 43/2016(WZ)
(Disposed on 07.12.2019)
With
M.A. No. 02/2019(WZ) IN
Original Application No. 43/2016(WZ)
(Disposed on 7.12.2019)
With
Original Application No. 72/2020(WZ)
Prakash Raoji Devgirikar & 12 Ors. ....Applicant(s)
Versus
State of Maharashtra & Ors. ....Respondent(s)
Date of hearing: 05.05.2022.
CORAM: HON'BLE MR. JUSTICE DINESH KUMAR SINGH, JUDICIAL MEMBER
HON'BLE DR. VIJAY KULKARNI, EXPERT MEMBER
Applicant(s): Mr. Suresh Palande, Mr. Dhairyashil Palande, Advocates
Respondent: Ms.Swati Vaidya Pandit, Advocate a/w Divisional
Resettlement Officer, Pune for R-1,3 & 4.
Ms.Madhuri Rahikar, Advocate I/B Mr.Nitin P. Deshpande
Advocate for R-2 & 7.
ORDER
1. Heard Mr. Suresh Palande, Learned Counsel for the Applicant and from the side of Respondent Nos.1,3 and 4, Ms. Swati Vaidya Pandit, and Ms. Madhuri Rahikar, learned Counsel holding brief for Mr. Nitin Deshpande, Senior Advocate for Respondent Nos. 2 and 7.
2. The matter is pending since long as the first order was passed on 22nd August, 2019 and in continuation, the last order was passed on 09.12.2021. The relevant paragraph of the last order is as follows:
"5. The Tribunal has carefully considered the rival submissions and the material placed before it. In the light of the fact the list of Gunjalwadi -Project Affected Persons numbering 47 is given in Annexure-B to E.A.No.09 of 2019, there may not be any difficulty on their part to appear before the Deputy Collector, (Rehabilitation) of the Collectorate, Pune Page 1 of 8 and accordingly, a suggestion has been made to the learned Counsel appearing for the Applicant to make their appearance before the said officials on a particular date, so that there may be the possibility of reconciliation and solving the difficulties being faced by the Applicants.
6. The learned Counsel appearing for the Applicants would fairly submit that it is possible for him to make the physical presence of all the 47 persons with necessary identification proofs on dates fixed by this Tribunal so that further steps can take place.
7. In the light of fair submissions made by the learned Counsel appearing for the Applicants, the Tribunal fixes the date of personal appearance of 47-Applicants given in Annexure-B to E.A.No.09 of 2019 between 16/01/2022 to 21/01/2022 and all the 47-Applicants have to carry necessary identification proofs such as Aadhaar Card, Voter Identify Card, Driving License if any and Janta Bank Account Pass-book or any other proof issued by the Statutory Authorities and at their appearance, the Deputy Collector, (Rehabilitation) Pune, is directed to look into their grievances in the hearing which would take place between 16/01/2022 to 21/01/2022 and file an affidavit as to the result of the said hearing."
3. In pursuance of the said order Respondent Nos.3(the same affidavit be read as the affidavit of Respondent Nos.1 and 4 also as prayed by Respondent No.3 orally) have filed a compliance affidavit dated 04.05.2022, saying therein that out of 47 Project Affected Persons (PAPs)/Applicants, whose details are given in Annexure-B of the present EA and only 29 Applicants have submitted their requisite documents for allotment of land as per requirement along with due Application and out of those 29 Applicants, 13 are holding excess land i.e. more than 16 acres (after the acquisition of their land for the purpose of Gunjalwadi Project) or who have not paid 65% amount as per provisions of the Maharashtra Project Affected Persons Rehabilitation Act,1999 (to be referred in short as 'Act of 1999'). Some of the Applicants are stated to have submitted certificates issued by the Agricultural Officer and the remaining land holding by them is not cultivable, hence the office is scrutinizing such cases. Similarly, with respect to other Applicants, the facts have been narrated in the said affidavit but it is highlighted that 7 PAPs who were found eligible by them, asked for change in the earlier allotted land or they required additional land as per their number of family members. The said request was scrutinized and it was found that they were eligible as per Page 2 of 8 their requirement where after answering Respondent issued letters to them about choice of land in village Ambale, Talua Shirur, District Pune.
4. The Applicants have not paid 65% of the amount even received by them for acquisition of their land as well as total extent of holding of affected persons after such grant would exceed economic holding, provided by the Rules made under the Act of 1999 for disposal of Government land.
5. As a counter to that, Mr. Suresh Palande, Learned Counsel for the Applicants has filed affidavit dated 05.05.2022, wherein it is stated that Respondent No.3/Rehabilitation Officer has kept these cases pending since 2016 despite the number of orders/directions issued by this Tribunal. Vague affidavits without making actual rehabilitation are being filed by the Deputy Rehabilitation officer, which could be reflected by the averments that they are still scrutinizing the papers of PAPs and are yet to take decision in case of the majority of Applications. The main objection that has been raised is with respect to disqualifying from the eligibility on the ground that the Applicants have not paid 65% amount of the compensation which has been received by them for acquisition of their land would exceed more than 16 acres.
6. Reliance has been placed by the Applicant on Section 16 sub Section (2) of the Maharashtra Project Affected Persons Rehabilitation Act, 1999 has been made. For the sake of convenience it is reproduced below:
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 percent. 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 person.Page 3 of 8
7. Thereafter he argued that wrong interpretation has been made of the above section because 65% amount of the compensation received for the land by the PAPs or of the price of the land acquired for them, whichever is less, is supposed to be deposited in the present case. In the present case, there is no Notice issued to PAPs offering them allotment of land, hence calculation of payment of 65% amount is not possible to be made.
8. He has also drawn attention to the order dated 14th January 2013, of Hon'ble Bombay High Court in Writ Petition No.3758 of 2011, wherein paragraph-4 of the said order following is held::
" 4. In view of this factual position, it cannot be disputed that the present petition will be governed by a decision of this Court dated 2nd May,2011 in Writ Petition No.8385 of 2010 and other connected petitions. Therefore, the petition will have to be disposed of by passing the following order.
"ORDEER"
(i) The Collector, Pune shall issue a notice to the Petitioners under Section 16(2)(a) OF THE SAID ACT for grant and allotment of land. The notice shall be served by Registered Post A.D.or by hand delivery within a period of one month from today. It will be open to the petitioner to communicate the willingness to accept the grant of land within a period of 45 days from the date of receipt of such notice from the Collector. The Petitioner shall also deposit with the Collector 65% of the amount of compensation received by him for the land acquired from him or the likely cost of land granted to him, whichever is less, at the time of payment of such compensation to the petitioner. "
9. The said order was again challenged in Review before the Hon'ble Bombay High Court and Review was disposed of by order dated 27th October, 2016 with the following directions:
" 16. We dispose of the Review Petition by passing following order:
ORDER
(i) We direct the Deputy Collector (Resettlement), Pune to examine the case of the Petitioners/Respondents herein with a view to ascertain whether they are project affected persons as claimed by them and whether they are entitled to allotment of lands under the provisions of the Maharashtra Project Page 4 of 8 Affected Persons Rehabilitation Act, 1999 or under similar enactments;
(ii) We direct the Respondents/original Petitioners to appear before the Deputy Collector (Resettlement), Pune on 3 January 2017 at 8/12 ::: Uploaded on - 23/12/2016 ::: Downloaded on - 05/05/2022 15:47:05 ::: k 9/12 10 civ rev petn st 34787.15 as.doc 12.30 p.m. The Respondents/original Petitioners will produce necessary documents in their custody along with a Representation. If the Respondents/original Petitioners herein are not in possession of all the documents, the Deputy Collector (Resettlement), Pune shall grant time of three months to them to produce the relevant documents from the date fixed for appearance;
(iii) In the event, the Respondents/original Petitioners produce evidence to show that their Application for grant of heirship certificate/succession certificate/probate/letters of Administration is pending, on being satisfied that such Application is pending, the Deputy Collector (Resettlement), Pune shall extend the time of three months provided in this order and shall grant a reasonable time to enable the Respondents/original Petitioners to obtain necessary grant from the concerned Court;
(iv) We direct the Deputy Collector (Resettlement), Pune to consider documents and to pass an order recording brief reasons. The order shall be passed within a period of three months from the date on which time granted to the Respondents/original Petitioners to produce documents expires. A copy of the order passed by the Deputy Collector (Resettlement) Pune shall be served upon the Respondents/ original Petitioners;
(v) If the Deputy Collector (Resettlement), Pune is satisfied that the Respondents/original Petitioners are the project affected persons or legal representatives of the project affected persons and/or otherwise are entitled to allotment of a land, the State shall ensure that the Collector or appropriate authority of the State immediately issues a notices to the Respondents/original Petitioners under clause (a) of sub-
section (2) of section 16 of the Maharashtra Project Affected Persons Rehabilitation Act, 1999. Notices shall be issued either by RPAD and/or by hand delivery;
(vi) It will be open for the Respondents/original Petitioners to communicate their willingness to accept the grant of a land within a period of 45 days from the date of receipt of such notices from the Collector/Competent Authority;
(vii) The Respondents/original Petitioners shall deposit with the Collector (Resettlement), Pune, 65% amount of the compensation received by them or their predecessors 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 Respondents/original Petitioners; Page 5 of 8
(viii) The operative part of the order in the Writ Petition shall stand deleted. The operative part will stand substituted by this order;
(ix) Needless to add that adjudication will be made by the Deputy Collector (Resettlement), Pune in the light of the discussion made in this order. We clarify that the Respondents/Original Petitioners will not be required to produce evidence to show that an Application under sub- section (1) of section 16 of the said Act has been made either by them or by their predecessors. We also clarify that even assuming that the Respondents/original Petitioners or their predecessors in title have made statements before the Land Acquisition Officer stating that they are not interested in allotment of alternate land, such statements shall not amount to waiver of their right of allotment of land by way of Rehabilitation;
(x) If an order is made by the Deputy Collector (Resettlement), Pune, holding that the Respondents/Petitioners are not project affected persons only on the ground that they have not produced requisite documents, it will be open to them to submit their requisite documents within a maximum period of six months from the date of communication of the order to them. If within such time, they produce the relevant documents, their cases shall be reconsidered by the Deputy Collector (Resettlement), Pune. We also make it clear that there will not be any question of giving any further opportunity to produce the documents after expiry of the aforesaid period of six months.
(xi) Review Petition stands disposed of on above terms. "
10. Thereafter attention is drawn to the letter dated 12.08.2018 of Additional Collector, Pune filed before the Tribunal in O.A No.43 of 2016, wherein it is mentioned that;
"Order, Land Gat No.341,240 and 218 are 1 H,93 R situated at Antooli, Tal.Velhe, Dist-Pune owned by Shri.Baban Sakharam Thakar was acquired for Gujawadi Project. Applicant has stated that, 65% compensation amount of acquired land is yet not deducted. Applicant has also claimed for land as per number of family members.
Issue regarding non-deduction of 65% of compensation is pending in Supreme Court in SLP in Thitewadi project Diary No.37861/17 (WP No.10016/14) and Chaskaman Project Diary No.37701/17 (PIL No.171/13)."Page 6 of 8
11. After having drawn attention to these documents, it was argued that it shows that the Respondents are not inclined to decide the Applications of the PAPs by ensuring their rehabilitation as per their entitlement because they await the decision of the Hon'ble Apex Court although there is no stay order passed by Hon'ble Apex Court.
12. It is not clear as to whether the Hon'ble Apex Court has passed any order in the said WP No.10015/2014 (SLP diary No.37861 of 17), therefore Respondents Nos.1,3 and 4 are directed to file an affidavit on next date to the effect as to whether any order has been passed by the Hon'ble Apex Court in the said WP mentioned above.
13. We are of the view that the criteria which has been adopted by the Respondent Nos.1,3 and 4 of eliminating Respondents from criteria of eligibility is not clear because they have not given details of land belonging to them and additional land which is proposed to be allotted to them and as to how the same exceeds the eligible land limit of 16 acres. Therefore, this Tribunal requires them to come up with clarity by filing affidavits by the next date positively.
14. Ms. Swati Pandit, learned Counsel for Respondent Nos. 1, 3, and 4 has prayed that twenty (20) days' time may be allowed to give reply to the affidavit filed today by learned Counsel for the Decree-Holder/Applicants, the same is allowed.
15. The affidavit which is directed to be filed by Respondent Nos.1,3 and 4, a copy of the same shall be provided to the learned Counsel for the Applicants at least five (5) days in advance.
List 30th May,2022.
Dinesh Kumar Singh, JM Dr. Vijay Kulkarni, EM Page 7 of 8 May 05, 2022.
Execution Application No. 09/2019(WZ) IN Original Application No. 43/2016(WZ) (Disposed on 07.12.2019) With M.A. No. 02/2019(WZ) IN Original Application No. 43/2016(WZ) (Disposed on 7.12.2019) With Original Application No. 72/2020(WZ) HK Page 8 of 8