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Mr. Ashok Narayan Lande vs State Of Maharashtra Through … on 13 July, 2018

wp.10129.2017.doc

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION

WRIT PETITION NO. 10129 OF 2015

Mr Ashok Narayan Lande ]
Aged 54 years, Occup:- Business ]
Resident of Landewadi ]
Bhosri, Pune 39 ] …Petitioner

vs
State of Maharashtra ]
Through Special Land Acquisition Officer, ]
Special Zone No.2, Pimpri Pune Having Office ]
at Sant Tukaram Nagar, Municipal Market ]
Building Second Floor, Pimpri ]
Pune 411 018 ] …Respondent.

…..
Mr Uday Warunjikar for the Petitioner.
Mrs Pushpalata N. Diwan for the Respondent.
…..

CORAM : K.K.TATED
B.P.COLABAWALLA, JJ.

RESERVED ON : 2 JULY, 2018
PRONOUNCED ON : 13 JULY, 2018.

JUDGMENT [ Per B. P. Colabawalla, J. ]:

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1. This Petition has been filed under Article 226 of the

Constitution of India challenging an award dated 24th September,

2015 and the notice issued under Section 12(2) read with Section 16

of the Land Acquisition Act, 1894 (for short “the old Land Acquisition

Act”).

2. It is the case of the Petitioner that he is the owner of land

admeasuring 9 Gunthas of City Survey No. 3328 situated at Bhosari

(hereinafter referred to as “said property”). It is his case that in

respect of said property a resolution came to be passed by the Local

Town Planning Authority, namely, Pimpri Chinchwad Municipal

Corporation and Resolution No. 417 was introduced for school

purpose. This property was sought to be acquired under the

provisions of the Maharashtra Regional Town Planning Act, 1966

(for short the “MRTP Act”).

3. It is the case of the Petitioner that insofar as the said

property is concerned, already construction had been made by the

Petitioner on the said property. Not only that, according to the

Petitioner, the Shops Act License had been obtained by the persons

who are occupying the said structures and the structure that was

constructed on the said property by the Petitioner has been assessed

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and property tax has been paid for the same by the present

Petitioner. There are several other details set out in paragraph Nos.6

to 9 of the Petition in relation to the said property.

4. It is the Petitioner’s case that in these circumstances, he

was surprised to receive the communication dated 24th September,

2015 which was styled as a notice under Section 12(2) read with

Section 16 of the old Land Acquisition Act. The name of the

Petitioner is shown at Sr.No. 16 in the said notice. In the said

communication it was stated that an award has been passed by virtue

of which an area admeasuring 500 square meter of C.T.S. No. 3328

had been acquired and the date of handing over possession was fixed

on 14th October, 2015. It is being aggrieved by this communication

that the present Petition has been filed.

5. The challenge to acquisition is on several grounds as set

out in the Writ Petition. However we shall only deal with grounds

argued and raised before us by Mr. Warunjikar. The first ground that

was raised by Mr Warunjikar, learned counsel for the Petitioner was

that by operation of the provisions of Section 24(2) of The Right to

Fair Compensation and Transparency in Land Acquisition,

Rehabilitation and Resettlement Act, 2013, (for short the “New Land

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Acquisition Act”) the entire acquisition proceedings had lapsed, and

therefore, consequently the award dated 24th September, 2015 also

had to fall along with the notice that was issued on the same date

under Section 12(2) read with Section 16 of the old Land Acquisition

Act. On a plain reading of section 24(2) we are unable to agree with

this submission of Mr. Warunjikar. Section 24(2), on an ex-facie

reading, has absolutely no application to the facts of the present case.

Section 24(2) categorically states that, notwithstanding anything

contained in sub-section (1), in case of land acquisition proceedings

initiated under the old Land Acquisition Act, where an award under

section 11 of the said Act has been made five years or more prior to

the commencement of the said Act, but physical possession of the

land has not been taken or compensation has not been paid, the said

proceedings shall be deemed to have lapsed and the appropriate

Government, if it so chooses, shall initiate proceedings for such land

acquisition afresh in accordance with the provisions of the New Land

Acquisition Act.

6. What is clear is that for section 24(2) of the New Land

Acquisition Act to apply, the Award has to be passed at least five

years before the New Land Acquisition Act came into force. As

mentioned earlier, the award in the present case was made on 24th

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September, 2015. It was not an award that was made / published five

years prior to coming into force of the New Land Acquisition Act.

This being the case, Section 24(2), at least prima facie has absolutely

no application.

7. Be that as it may, even assuming for the sake of argument

that Section 24(2) were to apply in the present case, we find that this

issue is squarely covered by a Full Bench Judgment of this Court in

the case of Mehtab Laiq Ahmed Shaikh Vs State of Maharashtra.1

In this Full Bench Judgment, this Court has held that Section 24(2)

of the New Land Acquisition Act provides a different time frame and

lapsing of acquisition on default and it cannot be applied to an

acquisition initiated under Sections 125 to 127 of the MRTP Act. It

has held that the MRTP Act has not undergone any change from its

character as a complete Code. According to the Full Bench, Section

24(2) of the New Land Acquisition Act will apply only if the

acquisition proceedings are “initiated” under the old Land Acquisition

Act and would not apply if they are initiated under Sections 125 to

127 of the MRTP Act. In the facts of the present case, admittedly the

acquisition is under the provisions of the MRTP Act. In these

circumstances and in view of what has been held in the Full Bench

1 2017 (6) Mh.L.J. 408
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Judgment of this Court, it is quite clear that the reliance placed by

Mr. Warunjikar on section 24(2) to contend that the acquisition

proceedings have lapsed is wholly misconceived. We, therefore, have

no hesitation in rejecting this argument.

8. Mr Warunjikar, then, next submitted that in the facts of

the present case since the award was not passed under Section 11 of

the old Land Acquisition Act, by the time the New Land Acquisition

Act had come into force, the proceedings under the old Land

Acquisition Act should be deemed to have lapsed. In view of the fact

that the old Land Acquisition Act was repealed by coming into force

of the New Land Acquisition Act, the Respondent could not have

invoked the provisions of the old Land Acquisition Act, was the

submission. He further submitted that in the facts of the present

case notices were issued under Section 9(3) (4) of the old Land

Acquisition Act on 6th April, 2005. According to Mr Warunjikar, they

were not taken to its logical conclusion and for this reason also the

acquisition proceedings had lapsed. He further submitted that when

the award was passed, namely, on 24th September, 2015, the

provisions of the New Land Acquisition Act had already come into

force and were, therefore, applicable. This being the case no award

could have been passed by resorting to any provisions under the old

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Land Acquisition Act.

9. We find this argument to be wholly unmeritorious.

Section 114 of the New Land Acquisition Act deals with repeal and

saving. It categorically states that the Land Acquisition Act, 1894 is

hereby repealed. Sub-Section 2 of Section 114 clearly stipulates that

save as otherwise provided in the New Land Acquisition Act, the

repeal under sub-section (1) shall not be held to prejudice or affect

the general application of Section 6 of the General Clauses Act, 1897

with regard to the effect of repeals. Section 6 of the General Clauses

Act, 1897, deals with effect of repeal and reads thus:

“6. Effect of repeal.–Where this Act, or any Central Act or
Regulation made after the commencement of this Act, repeals any
enactment hitherto made or hereafter to be made, then, unless a
different intention appears, the repeal shall not–

(a) revive anything not in force or existing at the time at
which the repeal takes effect; or

(b) affect the previous operation of any enactment so repealed
or any thing duly done or suffered thereunder; or

(c) affect any right, privilege, obligation or liability acquired,
accrued or incurred under any enactment so repealed; or

(d) affect any penalty, forfeiture or punishment incurred in
respect of any offence committed against any enactment so
repealed; or

(e) affect any investigation, legal proceeding or remedy in
respect of any such right, privilege, obligation, liability,
penalty, forfeiture or punishment as aforesaid;
and any such investigation, legal proceeding or remedy may
be instituted, continued or enforced, and any such penalty,

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forfeiture or punishment may be imposed as if the repealing
Act or Regulation had not been passed.”

10. On a reading of Section 6 of the General Clauses Act,

1897, what becomes clear is that the proceedings that have been

initiated under the old Land Acquisition Act are to be continued and

completed under the provisions of the said Act. This of course is

subject to otherwise being provided in the New Land Acquisition Act

[Section 114(2)].

11. In the facts of the present case, the acquisition was

notified by the District Collector, Pune vide notification dated 23rd

December, 2004 under Section 126(4) of the MRTP Act read with

Section 6 of the Land Acquisition Act, 1894 which was published in

the Government Gazette on 6th January, 2005. Thereafter, as per

Section 9(3) (4) of the old Land Acquisition Act, notices were

issued to the concerned persons on 6th April, 2005 to file suggestions,

objections, if any, in respect of the land to be acquired. This notice

stated that the Government intends to take possession of the land

and the claims to compensation by all interested in such land may be

made to the office of the Collector. Thereafter, the award came to be

passed under Section 11 of the old Land Acquisition Act. This award

is dated 24th September, 2015. This being the case, and looking to
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the provisions of Section 114 of the New Land Acquisition Act (which

deals with repeal) read with Section 6 of the General Clauses Act,

1897, it is quite clear that the acquisition proceedings that were

initiated under the old Land Acquisition Act had to be completed by

taking recourse to the provisions under that Act only and not by

taking recourse to the provisions of the New Land Acquisition Act.

One exception to this can be found in Section 24(1)(a) of the New

Land Acquisition Act which clearly stipulates that where no award

under section 11 of the old Land Acquisition Act has been made, then,

all provisions of the New Land Acquisition Act relating to the

determination of compensation shall apply. In other words, the

exception carved out in Section 24(1)(a) is that where acquisition

proceedings have commenced under the old Land Acquisition Act and

no award has been made under Section 11 of the said Act, then

compensation would still have to be calculated as per the provisions

of the New Land Acquisition Act and not as per the old Land

Acquisition Act. We, therefore, find that the argument of Mr

Warunjikar that the award dated 24th September, 2015, could not

have been passed under Section 11 of the old Land Acquisition Act,

and that the provisions of the New Act were applicable, is wholly

without any substance.

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12. Faced with this situation, Mr Warunjikar sought to

contend that the award passed on 24th September, 2015 was not only

passed under the old Land Acquisition Act but also under the

provisions of the New Land Acquisition Act. In this regard he was at

pains to point out the award which is annexed to the affidavit-in-

reply dated 11th April, 2017 filed by the Special Land Acquisition

Officer. We have gone through this award and we find that this

argument of Mr Warunjikar is wholly misconceived. What this

award rightly states is that the award is made under the provisions

of the Land Acquisition Act, 1894 (old Land Acquisition Act), but the

compensation is calculated as per the provisions of Section 24(1)(a)

of the New Land Acquisition Act and that is why one finds reference

of both the Acts in the award. As mentioned earlier, even though the

proceedings have commenced under the old Land Acquisition Act, if

no award was made under Section 11 of that Act after its repeal, an

award still could be made under Section 11 of the old Land

Acquisition Act, but the compensation ought to be calculated as per

the provisions of the New Act as mentioned in Section 24(1)(a). We,

therefore, find that this argument of Mr Warunjikar that the award is

a composite award is wholly misconceived. We find that the

authority concerned has correctly applied the provisions of the old

Land Acquisition Act for the purposes of passing the award and,

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thereafter, calculated the compensation by applying the provisions of

Section 24(1)(a) of the New Land Acquisition Act.

13. This being the case and in view of the foregoing

discussions, we find no merit in this Writ Petition and it is

accordingly dismissed. However, in the facts and circumstances of

the case, there shall be no order as to costs.

( B.P.COLABAWALLA, J. ) ( K.K.TATED, J. )

Digitally signed
Dhanappa by Dhanappa
Irappa Koshti
Irappa Date:
Koshti 2018.07.19
11:04:46 +0530

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