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JOAQUIM VICTOR FERNANDES., CARANZALEM V/S STATE OF GOA, THR. ITS CHIEF SECRETARY, SECRETARIAT & OTHERS, decided on Monday, November 13, 2017.
[ In the High Court of Bombay (Goa Bench), Writ Petition No. 1095 of 2016. ] 13/11/2017
Judge(s) : N.M. JAMDAR & MS. NUTAN D. SARDESSAI
Advocate(s) : Nitin Sardessai, Senior with Mr. L. Raghunandan. P. Faldessai, Additional Government .
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    Oral Judgment: (N.M. Jamdar J.)1. Rule. Rule made returnable forthwith. Respondents waive service. Taken up for final disposal.2. By this petition the petitioner have sought a relief based on Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition Rehabilitation and Resettlement Act 2013 seeking a declaration that the acquisition proceedings in respect of the property in question have lapsed.3. The property which is subject matter of this petition is plot No.34 admeasuring 486 square metres situated in Dona Paula in Survey No.248/1 of village Taleigao Goa. A notification under Section 4 of the Land Acquisition Act was issued on 8 July 1965. A declaration under Section 6 of the Land Acquisition Act was issued on 2 May 1968. Award was passed by the Deputy Collector and Special Land Acquisition Officer on 28 March 1969.4. It is a case of the Petitioner that the Property Survey No. 248/1 3 20WP1095 of 2016 dtd 13/11/2017 originally belonged to Ms. Maria Monserette. The Survey No.248/1 was developed and sub-divided into various plots and plot No.34 was purchased by the Petitioner on 24 December 1980. According to the Petitioner when the Petitioner started construction of a bungalow and the construction reached ground plus one level a notice was issued by the authorities that the Petitioner had made some encroachment. Pursuant to the notice an inquiry was held by the Deputy Collector and Sub-Divisional Officer registered as Case No. LND/ENC/D.Paula/11/2000. The inquiry subsequently terminated against the Petitioner.5. In the meanwhile in view of the enactment of Right to Fair Compensation and Transparency in Land Acquisition Rehabilitation and Resettlement Act 2013 the Petitioner made a representation that the acquisition proceedings initiated pursuant to the notification under Section 4 dated 8 July 1965 have lapsed since the possession of the land was never taken by the State. Since this request was not considered the Petitioner has filed the present petition. Reply affidavit has been filed by the Respondent-Authority.6. Mr. Nitin Sardessai the learned Senior Advocate appearing for the Petitioner submitted that the original owner was always in possession and possession of the land was never taken from the original owner. Further since the date the Petitioner has come in possession of the property also the State has not taken possession of the property. He submitted that the acquisition proceedings were initiated in the year 1968 for the construction of office building and police quarters and till date there no such construction has come up. He relied upon an admission made by the Executive Engineer Works Division (PWD) in the proceedings before the Deputy Collector to the effect that the possession of the suit plot was earlier with the predecessors and it is now with the Petitioner. It was contended that the Engineer also admitted that the suit plot is fenced and construction has came out after 2006. The learned Senior Advocate for the Petitioner relied on Balwant Narayan Bhagde v/s. M.D. Bhagwat and Ors (1976 1SCC 700) Sita Ram Bhandar Society New Delhi V/s. Lieutenant Governor Govt. of NCT Delhi & Ors (2009 10 SCC 501)and Banda Development Authority Banda V/s. Moti Lal Agarwal & Ors. (2011 5 SCC 39)to submit that a particular methodology has to be followed for taking possession acquisition of land by the State and no evidence has been placed on record by the Respondent–State regarding taking possession of the property in question. He submitted that since possession of the suit property is not taken the acquisition proceedings deemed to have lapsed.7. Mr. P. Faldessai the learned Additional Government Advocate submitted that the possession of the property was taken in subsequent acquisition proceedings which has culminated into an Award dated 11 April 1972. He submitted that the compensation has been paid to the Petitioner and therefore Section 24(2) of the Act of 2013 is not applicable. He also submitted that the Petitioner has approached the Court with gross delay since the award is of the year 1969. The Petitioner is an encroacher and the Sale Deed also shows several lacunae and therefore at the Petitioner's behest the Petition should not be entertained. The learned Government Advocate submitted that the admission of the Engineer cannot be given much importance considering the context of the proceedings. The learned Additional Government Advocate submitted that no case is made out by the Petitioner and the petition be dismissed.8. We have considered the rival contentions. The Section 24 of the Act 2013 reads thus:“24. Land acquisition process under Act No. 1 of 1894 shall be deemed to have lapsed in certain cases.—(1) Notwithstanding anything contained in this Act in any case of land acquisition proceedings initiated under the Land Acquisition Act 1894 (1 of 1894) —(a) where no award under Section 11 of the said Land Acquisition Act has been made then all provisions of this Act relating to the determination of compensation shall apply; or(b) where an award under said Section 11 has been made then such proceedings shall continue under the provisions of the said Land Acquisition Act as if the said Act has not been repealed.(2) Notwithstanding anything contained in sub-section (1) in case of land acquisition proceedings initiated under the Land Acquisition Act 1894 where an award under the said Section 11 has been made five years or more prior to the commencement of this Act but the physical possession of the land has not been taken or the compensation has not been paid the said proceedings shall be deemed to have lapsed and the appropriate Government if it so chooses shall initiate the proceedings of such land acquisition afresh in accordance with the provisions of this Act:Provided that where an award has been made and compensation in respect of a majority of land holdings has not been deposited in the account of the beneficiaries then all beneficiaries specified in the notification for acquisition under Section 4 of the said Land Acquisition Act shall be entitled to compensation in accordance with the provisions of this Act.”9. The three parameters are indicated under Section 24(2). Firstly that the Award should be five years prior to the date of commencement of the Act of 2013. The Act of 2013 was brought an effect on 1 January 2014. Thus five years prior to 1 January 2014. Second parameter is that the compensation is not paid. Thirdly the possession of the land is not taken. In the case of Delhi Development Authority V/s. Sukhabir Singh and others (AI 2016 SC4275)the Apex Court has held that it is enough for the operation of Section 24(2) if either of the two conditions are satisfied that is non-payment of compensation or not taking possession of the property. If either of these conditions are satisfied the Section 24(2) comes into force by operation of law.10. Since the award is dated 28 March 1969 the first parameter is established. As far as the payment of compensation is concerned it is the case of the State that the compensation was paid to the predecessors in title of the petitioner. Mr. Sardessai has not been able to controvert this assertion of the Respondent-State. Therefore we will have to proceed on the premise that the compensation was paid. However in view of the decision of the Apex Court in Delhi Development Authority another ground is available to the Petitioner to seek a declaration under Section 24(2) that is not taking possession which we will now examine.11. The Petitioner in the petition has categorically asserted that the Petitioner is in possession of the property in question. It is asserted that the possession of the land was never taken by the Government from the predecessors of the Petitioner. The predecessor of the Petitioners sub-divided the larger property in plots. It is asserted Petitioner purchased the property the Petitioner has continued in possession of the plot. It is not in dispute that at present there is a construction put up on the plot. It is also not in dispute that there is no office building or police quarter as far as the plot in question is concerned. In addition to the assertion on oath by the Petitioner the Petitioner has also relied on the admission of the Engineer of the PWD in proceedings before the Deputy Collector. The Engineer while giving evidence stated as under: “It is correct that possession of the suit plot was earlier with the predecessor and title of the opponent and form 1980 it is with the opponent. It is correct that the suit plot is fenced. It is correct that construction has come on this plot but after 2006.” In view of the assertions of the Petitioner on oath the existence of the Petitioner's construction on the plot non-existence of the public utility for which the acquisition proceedings were initiated and the admission of the Engineer it was necessary for the State to produce on record cogent material in furtherance of its claim that the possession of the Plot was taken.12. The petition was being adjourned from time to time. A final opportunity was given to the State to file reply on 22 August 2017. Thereafter on 30 October 2017 following order was passed:“The Petitioner is before this Court seeking a benefit of Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition Rehabilitation and Resettlement Act 2013. The persons whose land is acquired is entitled to the benefit of Section 24(2) if the Award is given prior 5 years of commencement of the Act i.e. 1 January 2014 and that compensation is not paid or possession is not taken. It is the case of the Petitioner that the Award is 5 years prior to 1 January 2014 and that though compensation may have been paid to the predecessor the possession of the land is not taken from the predecessor of the Petitioner and the Petitioner continues to be in possession.2. The learned Senior Counsel for the Petitioner relies on decisions of the Apex Court in the cases of Balwant Narayan Bhagde vs. M.D. Bhagwat and Ors (1976) 1 SCC 700 Sita Ram Bhandar Society New Delhi vs. Lieutenant Governor Govt. of NCT Delhi & Ors (2009) 10 SCC 501 and Banda Development Authority Banda vs. Moti Lal Agarwal & Ors. (2011) 5 SCC 394 to contend that a particular methodology is laid down as to how the State would take possession of the open piece of land which will be by way of possession receipt or by a Panchanama if the occupier/land owner does not cooperate. In the affidavit in reply filed by the Respondent-State no material such as Panchanama or possession receipt is placed on record. On the contrary our attention is drawn to the statement made by the Engineer of the Respondent- State that the Petitioner was always in possession of the land.3. We give the Respondent-State one more opportunity to place the material as indicated by the Apex Court on record failing which we will be constrained to accept the case of the Petitioner on the factual aspect of possession.4. S.O. to 13 November 2017 to be listed at the bottom of the daily board for final disposal. No additional material has been placed before us by the Respondent – State nor any additional reply is filed even though the petition was listed for final disposal.13. The question therefore arises is whether we can conclude on the basis of the material produced before us that the possession of the plot in question is taken by the Respondent-State. 14. Two learned Judges of the Apex Court in the Case of Banda Development Authority Banda v/s. Motilal Agarwal and others took a review of the case law regarding the mode of taking possession by the State Government. The Apex Court laid down that no hard and fast rule can be laid down as to what act would constitute taking the possession of the acquired land. However it was emphasized that if the acquired land is vacant the authorities concerned have go to the spot and prepare a Panchanama which ordinarily is to be considered as sufficient to constitute taking of possession. If crops are standing on the acquired land or building or structure exists in such case authority concerned has to give notice to the person who occupied or the person who is cultivating the land. In the case of Sita Ram Bhandar Society New Delhi V/s. Lieutenant Governor Government of NCT. Delhi and others 5 the Apex Court held that for taking possession of large track of land a Panchanama is one of the methods of taking possession. Both these decisions reiterated the view taken by three judge Bench of the Apex Court in the case of Balwant Narayan Bhagde v/s. M.D. Bhagwat and Others. As stated earlier considering the totality of the circumstances and the admission of the Officer the State was obliged to produce the Panchanama and/or possession receipt to show that possession was taken.14. It was orally sought to be contended by the learned Additional Government Advocate that the record was not be available but this is not the case of the respondent- State. On the contrary the State has 5 2009 10 SCC 501 filed a reply where the deponent has asserted that report is based on the records. No where in the reply it is stated that the record and proceedings are lost. It is therefore clear to us that no such record exists simply because the possession was never taken from the predecessor of the Petitioner or from the Petitioner. Once this position is established mandate of Section 24(2) comes into the force as it is a deeming provision.15. As regard the contentions of the learned Additional Government Advocate that the possession of the suit plots was taken pursuant to the Award dated 11 April 1972 is concerned there is no merit and is contrary to reply of the State. Admittedly there is no reference to the plot in question in the Award dated 11 April 1972. In the reply filed by the State it is asserted that the plot in question was not acquired pursuant to the Award of 11 April 1972 since it already formed a part of the 1968 acquisition proceedings and the Award dated 28 March 1969. Therefore based on the Award of 11 April 1972 it cannot be contended that the State had taken possession of the property in question pursuant to the 1968 acquisition proceedings which related specifically to the plot in question. It is also been pointed out to us by Mr. Sardessai that 1972 Award contains a specific endorsement of possession is taken however in Award in question there is no such endorsement.16. There is no merit in the contention of the State on the ground of delay. The right to seek the declaration under Section 24(2) arose for the first time on 1 January 2014. The lacunae sought to be pointed out in the Sale Deed is a matter between the original owner and the Petitioner. Once the factual ingredient stand established before us as stated earlier by operation of law Section 24(2) comes into effect. As regards Petitioner having encroached on some area it is an independent enquiry.17. As far as the other reliefs prayed for in the petition namely a direction to restrain the Respondent from interfering with the possession of the property and setting aside the orders of the Administrative Tribunal Mr. Sardessai the learned Senior Advocate states that those are not been pressed in the present petition and appropriate proceedings considering the effect of grant of declaration would be instituted. We therefore restrict this petition for consideration of a declaration under Section 24(2) qua the Award dated 28 March 1969 alone. It is open for the Petitioner to take appropriate proceedings in light of the declaration regarding lapsing of acquisition which proceedings if adopted by the Petitioner will be considered on their own merits.18. In view of the discussion above we allow the Writ Petition by declaring that the acquisition proceedings pursuant to Award dated 28 March 1969 relating to Plot No.34 situated at Dona Paula in Survey No.248/1 stand lapsed. We make it clear that we have not gone into the question of encroachment or otherwise which we have to be considered in the light of the declaration that has been given. Rule is made absolute in above terms. No order as to costs.