SHIVGONDA BALGONDA PATIL Vs. DIRECTOR OF RESETTLEMENT

JUDGEMENT

(1.) This writ petition and a number of other petitions, which are before us, are from persons in the benefited zone of the Warana Irrigation Project whose lands are sought to b acquired for the rehabilitation of persons displaced by the project. In all these writ petitions, the virus of Maharashtra Resettlement of Project Displaced Persons (Amendment and Validation ) Act, 1985 is challenged. A number of writ petition which challenged the virus of the said Amendment and Validation Act, 1985 on the same grounds as are urged in these petitions were considered by a Division Bench of this Court in the case of (Dhulgonda Dada Patil v. Special Land Acquisition Officer No. 15)1, reported in A.I.R. 1989 Bom. 286. The Division Bench has upheld the validity of the said Amendment and Validation Act of 1985. The Division Bench has observed in this judgment in para 10 that under sub-section (1) of section 4 of the Amendment and Validation Act, the final declarations made under section 15(3) of the principal Act before the commencement of the said Amendment and Validation Act, are validated and cured. The said Validation covers cases where declarations under section 15 have been made but they are not in accordance with the requirements of the unamended sections 14 and 15 of the said Act. The Division Bench has emphasised the language of the latter part of section 4(1) of the Amendment Act, "no such declaration shall be called in question in any Court of law merely on the ground that the provisions of section 13 and 14 of the principal Act have not been complied with, in part or in whole, or that an opportunity of being heard was not given to the persons affected by such declaration or that no further enquire was made by the State Government, before making such declaration", in support of its conclusion.

(2.) In the present case, the first contention raised by the petitioners relates to the declaration made under section 15 of the Maharashtra Resettlement of Project Displaced Persons Act, 1976 which was made on 29th May, 1982 i.e., before the Amendment and Validation Act. According to the petitioners, the declaration under section 15 is not in accordance with law because in the declaration, the area of land under the benefitted zone of the Project is not set out. This submission is factually incorrect because the declaration does set out in extenso the names of 104 villages which are to constitute the benefitted zone of the Project although the actual area occupied by these villages is not stated. The petitioners have further submitted that the declaration under section 15 in question unnecessarily mentions the area which is to be acquired against each of these villages when the section does not require this area to be mentioned. It is difficult to understand how mentioning of any additional information in the declaration makes the declaration bad in law. Any way in view of the judgment of the Division Bench in the case of Dhulgonda Dada Patil (supra) and the reasons set out therein it is not open to the petitioners to challenge the said notification after the enacting of Maharashtra Resettlement of Project Displaced Persons (Amendment and Validation ) Act, 1985.

(3.) The next submission made by the petitioners is to the effect that if one looks at the said notification under section 15 of the said Act, the area which is to be acquired from the benefitted zone is 3114 Hectares and 39 areas. As against this, the area of the affected zone is only 1581 Hectares and 1 are. The petitioners, therefore, contend that the land which is sought to be acquired is far in excess of the requirements; and on that ground also the petitioners are entitled to relief. In Writ Petition No. 1247 of 1985 i.e., in Dhulgonda D. Patil's case (supra) the respondents had filed an affidavit in which the respondents have set out their practical experience relating to such acquisitions. Because of the slab system, which is prescribed under the said Act for acquisition of lands from the benefited zone, it has been found that out of the lands which are so notified for acquisition, after any enquiry under section 5-A of the Land Acquisition Act, only about 25 per cent of such land is in fact available for acquisitio. Seventy five percent of the originally notified land is required to be left out of consideration. This discrepancy arises on account of the fact that the land revenue records were not up-to-date in 1978, which is the date when the notification under section 11 of the Maharashtra Resettlement of Project Displaced Persons Act, 1976 was first issued in respect of this project. (This notification is dated 2-11-1978). The revenue record as of 1978 reflects the position of holdings as of 1975-76. The intervening transactions of partition, sale, gift etc., were not reflected in the record because it takes about 3 to 4 years fro communciation of this information from the Sub-Registrar's Office to the Talathi who makes changes in the revenue record. Therefore, during this intervening period of 3 years, if any partitions or transfer have taken place and the holdings of persons in the benefitted zone have changed, these have to be taken into consideration for the purpose of acquiring land from these persons in the benefited zone. If the holding is reduced below the minimum prescribed under Schedule A of the Act, it has to be released. In these circumstances, notifying 3114 H. of land from the benefitted zone for acquisition as against the requirements of 1581 H. of the affected zone, does not appear to be excessive. In addition, in Writ Petition No. 2967/89, which is also before us along with this writ petition, a common affidavit has been filed by the respondents in which the respondents have given further facts relating to the acquisition of lands from the benefited zone of the Warana Irrigation Project. The affidavit sets out that it was contemplated that if the entire 3114 H. of land can be acquired, then out of this land, 1688 Hs from 34 villages was to be utilised for the resettlement of Dudhaganga Project affected persons while about 1700 Hs was to be utilised for the Warana Project affected persons. Out of these 1700 Hs of land initially ear-marked for the Warana Project affected persons, the Government has so far acquired 727 Hs from the benefitted zone of the Warana Project in Kolhapur District. Only 355 Hs of land is so far distributed to the project affected persons. 196 Hs. could not be distributed because this land was of inferior quality and was rejected as unsuitable. In addition 176 Hs of land though acquired could not be distributed because of stay orders obtained from the High Court in various cases. Of the remaining land yet to be acquired, in all 881 Hs of land in 655 writ petitions is not available for distribution for project affected persons from the Warana Project. In addition 256 Hs of land is yet to be acquired from the benefitted zone of Warana Project and even if this land is acquired, it will not be sufficient for completing resettlement of affected persons. This is because under Government Resolution dated 20-4-1987 it has been specified that agricultural land which is to be given to project affected persons should be within a radius of 8 kms. from the new Gaothan as far as possible. Looking to this state of acquisition proceedings in respect of lands to be acquired from the benefited zone of the Warana Project and looking to the fact that 75 per cent of land which is sought to be acquired is ultimately deleted by the Commissioner on account of valid representations made by the concerned holders, it does not seem that the notified land will prove to be in excess of the actual requirements after all the claims are investigated. At least the material before us is inadequate for so concluding.