BABURAO TAVNAPPA MAHAJAN Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE above two petitions raise identical questions and, therefore, are heard together and disposed of by a common order. By Writ Petition No.5083 of 1988 the petitioner has prayed for a declaration that the acquisition proceedings right upto passing of the Award be quashed and set aside and for declaration that the Respondents are not entitled to acquire the land under the provisions of the Land Acquisition Act as the lands sought to be acquired were for the resettlement of the project affected persons. Identical prayers are made in Writ Petition No.5084 of 1988. The facts relating to both the petitions are identical. We shall, therefore, only deal with facts of Writ Petition No.5083 of 1988. Briefly stated, they are as follows : The petitioner is the owner and in possessi-on of Gat No.189 and 1698 respectively of village Madilge, Taluka Bhudargad, District Kolhapur. On 28th February 1983 a notific-ation was issued by the Respondents under Section 4 of the Land Acquisition Act whereby the Respondents sought to acquire the lands of the petitioner and the public purpose mentioned therein was resettlement of project affected persons i.e. persons affected by the Patgaon Dam. The said Notification was published in Government Gazette on 14th April 1983. Section 5A hearing was given. Thereafter, Section 6 declaration was made on 12th March 1986, however, published on 17th April 1986. Even an award has been passed an 11th March 1988. Without prejudice to the present petition, as the petitioners were allowed to agitate the matters as far as adequacy of the compensation was concerned, Section 18 References were filed and the same are pending. On the filing of the present petitions, further proceedings have been stayed and the petitioners are still in possession of the lands in question.

(2.) ON behalf of the petitioners Mr.Rege, learned Counsel appearing for them stated that although in respect of Writ Petition 5084 of 1988 there is an affidavit in reply, there is none as far as Writ Petition No.5083 of 1988 is concerned and in the said affidavit in reply as against main contention of the petitioners raised in the petition regarding the lapsing of acquisition on account of Section 6 Notification having been published after more than 3 years, the explanation given is that the last date to be taken in respect of Section 4 should be the date of publication in the Tahsil or village Chavdi and the last date would be 25th June 1983, that according to the Respondents would save limitation. Mr.Rege in this behalf submit-ted that Section 4 was amended only in 1984 and the amendment came into force in September 1984, amending inter alia Section 4. According to him, as far as Section 4 Notific-ation is concerned, the relevant date which should be taken into consideration would be the date on which the same was published i.e.14th April 1983 and as far as Section 6 Notification is concerned, the date of declarat-ion has to be taken as the date on which the same was published which date according to him was 17th April 1986. This was however disputed by Mr.D'gama.

(3.) MR .Rege next submitted that although the lands in question were acquired under the provisions of the Land Acquisition Act, they were undoubtedly acquired for a public purpose for resettlement of project displaced persons and the acquiring authorities were bound to take into consideration the extent of holdings of the persons whose lands are acquired. It was his submission that in respect of both the petitioners their land holding were less than 8 acres and was thus exempted from, acquisition under the provisions of the Maharashtra Resettlement of Project Affected Persons Act, 1976. It was his further submission that as can be seen from the averments made in the petitions and from the documents annexed to the petitions that in respect of the petitioner in Writ Petition No.5083 of 1988 a compromise decree had taken place and in respect of the petitioners in Writ Petition No. 5084 of 1988 oral partition had taken place by virtue thereof their holdings had gone down below 8 acres and this is the factor which should have been taken into consideration but has not been taken into consideration. Thus according to him, the acquisition was bad in law. Mr.D'gama on the other hand submitted, relying on the affidavit in reply filed in Writ Petition No.5084 of 1988, that the stand taken by the Respondents was that the said compromise decree and oral partition was an act between the parties and cannot be construed as a decision of a Compet-ent Court or Authority. Although we do not accept this submission fully as compromise decree has been passed in fact by a Court of competent jurisdiction, the fact remains that the suit in respect of which compromise decree was filed was only in 1978 much after coming into operation of the said Settlement Act. Therefore, obtaining of the compromise decree by itself cannot be free from doubt. As a result of compromise decree mutations were effected on 14th March 1979 obviously the same was done in order to avoid application of the provisions of the Settlement Act. Moreover, at the time of Section