CHANDRAKANT ADINATH UTTURE Vs. STATE OF MAHARASHTRA & ORS.
Supreme Court of India (Division Bench (DB)- Two Judge)
Appeal (Civil), 1346 of 2016, Judgment Date: Feb 15, 2016
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 1346 OF 2016
(Arising from S.L.P. (C) No.20678/2010)
CHANDRAKANT ADINATH UTTURE … APPELLANT (S)
VERSUS
STATE OF MAHARASHTRA & OTHERS … RESPONDENT (S)
WITH
CIVIL APPEAL NO. 1348 OF 2016
(Arising from S.L.P. (C) No. 20816/2010)
AND
CIVIL APPEAL NO. 1350 OF 2016
(Arising from S.L.P. (C) No.22455/2010)
J U D G M E N T
KURIAN, J.:
Leave granted.
The Maharashtra Project Affected Persons Rehabilitation Act, 1986
(hereinafter referred to as “the Act”) is a piece of legislation intended
for rehabilitation of persons affected on implementation of certain
projects in the State of Maharashtra on the lands acquired from the zones
benefitted by the projects. The Act is applicable to all irrigation
projects of which the area of the affected zone exceeds 50 Hectares or the
area of the benefitted zone exceeds 200 Hectares or where a gaothan is
affected. The State Government is also entitled to make the Act applicable
to other projects as well to which the Act is applicable. The affected zone
is defined as the area declared under Section 13 of the Act to constitute
the extent of the area affected under a particular project. Benefitted zone
means the area declared under Section 13 of the Act to constitute the area
of the benefitted zone under the project. Rehabilitation under the scheme
of the Act of the affected persons is done mainly by acquiring lands coming
under the benefitted zone. In the present case, it is the Chikotra project.
Under Section 13 of the Act, the State Government has to make a declaration
of areas in affected and benefitted zones and also the extent of land to be
acquired in the benefitted zone is as per the slabs mentioned in Part II of
the Schedule. As far as extent of area constituting the affected zone under
the project and the extent of area constituting the benefitted zone is
concerned, it is clearly provided under Section 13(2) of the Act that a
public notice inviting objections or suggestions is to be issued. After
considering the objections and suggestions only, a notification under
Section 13 (1) of the Act could be published in the official gazette and by
other modes of publication as provided under the Act.
In the instant case, there is no dispute on that procedure. The dispute is
in a narrow compass. In the gazette notification originally published, the
slab under Part II was Slab III whereunder there is no acquisition in case
the holding in the benefitted zone is not more than 3 Hectares and 23 Ares.
Under all slabs, larger the holding, proportionately larger is the
acquisition. After publishing the notification under Section 13 with Slab
III on 04.03.1994, another notification was published on 26.07.1995
changing the slab under Part II from Slab III to Slab I wherein the
exemption from acquisition is only where the size of holding is not more
than 1 Hectare and 61 Ares. Under Slab I (if the size of the benefitted
holding is more than 1 Hectare and 61 Ares but not more than 2 Hectares and
42 Ares, the area to be acquired is that in excess of 1 Hectare and 61 Ares
(the exempted area under Slab I) but not more than 40 Ares). If the size of
the holding is more than 2 Hectares and 42 Ares and not more than 3
Hectares and 23 Ares (the exempted size of the holding under Slab III), the
area to be acquired is the area in excess of 2 Hectares and 2 Ares but not
more than 80 Ares.
The simple question is, in case there is a change in slab or area to be
acquired, after the publication of the first notification, should there be
a notice to those whose lands will be acquired on account of the change in
the slab.
The High Court in the impugned judgment dated 07.06.2010, has taken the
view that the public notice for hearing under Section 13 of the Act need
only be in respect of the lands in the affected zone and benefitted zone
and there is no requirement under the Act or under law, for notice when
there is a change in the slab, and hence, the appeals.
Being a pure question of law, it is not necessary to delve deep into the
facts and yet we shall refer to a few dates.
Notices under Section 13(2) of the Act inviting objections with respect to
lands in the affected and benefitted zones were published on 20.09.1993,
22.11.1993 and 03.12.1993. After considering the objections, the
notification under Section 13(1) of the Act was issued and published in the
gazette on 04.03.1994. There were around 500 project affected khatedars and
the land estimated for the rehabilitation was around 653 Hectares. As per
the notified Slab III, exempted size of holding being upto the extent of
3.43 Hectares, the land available for acquisition was only around 179
Hectares, as per the respondent. However, if the slab was changed from Slab
III to Slab I, the land available for acquisition would be around 548
Hectares. It was hence and in that context, another notification was
published on 26.07.1995 changing the slab from Slab III to Slab I.
According to the appellants, though there is no requirement under Section
13 of the Act for a notice and hearing while issuing a notification for the
first time under Section 13(1) of the Act, when there is a change in the
slab reducing the exempted area, the affected persons are entitled to
notice.
In order to appreciate the contention, we have to analyse the scheme of the
Act under Sections 13 and 14 of the Act dealing with the declaration of
areas in the affected and benefitted zones and the Schedule. Sections 13
and 14 read as follows:
“Section 13: Declaration of areas in affected or benefitted zones
(1) The State Government shall, by notification in the Official Gazette and
also by publication of such notification in the manner provided in sub-
section (2) of section 11, declare-
(a) the extent of area which shall constitute the area of affected zone
under the project;
(b) if the project is an irrigation project, the extent of area which shall
constitute the area of benefitted zone under the project;
(c) which of the slabs mentioned in Part II of the Schedule shall apply to
such project for the purpose of acquisition of land in the benefitted zone.
(2) Before publishing a notification under sub-section (1), the Collector
shall give a public notice inviting objections or suggestions in respect of
the lands falling under clauses (a) and (b) of sub-section (1), by
publishing in the manner specified in sub-section (2) of section 11 and
also in the Official Gazette and in one daily newspaper in the Marathi
language circulating in the local area comprising such villages and areas
of affected and benefitted zone. Any person interested in the land in such
areas may make, objections or suggestions, if any, to the Collector within
30 days from the date on which such public notice is published by beat of
drum in the village or area concerned or the date on which it is published
in the newspaper as aforesaid, whichever is later; and the Collector shall,
with all reasonable dispatch, forward any objections or suggestions so made
together with his report in respect thereof to the State Government and on
considering the report and the objections and suggestions, if any, the
State Government may pass such order as it deems fit.
(3) If at any time during the course of execution of a project, the project
authority is satisfied that any change in the areas mentioned in the
notification under subsection (1) is necessary, it shall communicate such
change with reasons and the plans and particulars relating to the change to
the State Government through the Collector.
(4) On receipt of the communication under sub-section (3) and the report of
the Collector, if any, the State Government may after considering the
reasons given by the project authority and in the report, if any, of the
Collector and making such enquiry, if any, as it thinks fit, make such
change in the manner laid down in sub-sections (1) and (2).
Section 14: Power to acquire land for purposes of this Act
(1) The State Government or the Collector authorised by it by general or
special order in this behalf may enter into an agreement with any person
for the purchase or exchange of any land required for carrying out the
purposes of this Act:
Provided that, the amount paid under an agreement under this sub-section
shall not be less than the amount of compensation payable for the land, had
it been acquired in accordance with the provisions of sub-section (2).
(2) Subject to the provisions of this section, the State Government may for
carrying out the purposes of this Act, also compulsorily acquire land under
the Land Acquisition Act, 1894 (I of 1894); and the acquisition of any land
for any of the said purposes shall be deemed to be a public purpose within
the meaning of that Act.
(3) The State Government may also acquire lands included in a gaothan in
the affected zone as far as practicable according to the provisions of Part
I of the Schedule.
(4) For the purpose of rehabilitating affected persons from the affected
zone under an irrigation project, including those under any irrigation
project who have remained to be rehabilitated, on land, the State
Government may acquire land from holdings in the benefitted zone of the
project according to the slab declared in the notification under sub-
section (1) of section 13 and may also acquire, where necessary, land from
any other villages or areas, as it may deem fit.
(5) All lands acquired under this section shall form part of the land
pool.”
Slab I and Slab III in Part II under the Schedule, to the extent relevant,
read as follows:
|“Size of holding |Area to be acquired |
|(1) |(2) |
|Slab I |
|(a) Not more than 1 Hectare |(a) NIL |
|and 61 Ares. | |
|(b) More than 1 Hectare and 61 |(b) The area in excess of 1 |
|Ares and not more than 2 |Hectare and 61 Ares but not |
|Hectares and 42 Ares. |more than 40 Ares. |
|(c) More than 2 Hectares and 42 |(c) The area in excess of 2 |
|Ares and not more than 3 |Hectares and 2 Ares but not |
|Hectares and 23 Ares. |more than 80 Ares. |
|(d) More than 3 Hectares and 23 |(d) The area in excess of 2 |
|Ares and not more than 3 |Hectares and 42 Ares but not |
|Hectares and 4 Ares. |more than 1 Hectare and 21 |
| |Ares. |
|xxx xxx xxx |
|Slab III |
|(a) Not more than 3 Hectares and|(a) NIL |
|23 Ares. | |
|(b) More than 3 Hectares and 23 |(b) The area in excess of 3 |
|Ares and not more than 4 |Hectares and 23 Ares but not |
|Hectares and 4 Ares. |more than 40 ares. |
|xxx xxx |
|xxx” |
Under Section 13 of the Act, before the State Government makes a
notification in the official gazette declaring the extent of area
constituting affected and benefitted zones and the slab under Part II of
the Schedule, the Collector has to give a public notice under Section 13(2)
of the Act inviting objections or suggestions in respect of the lands
falling under the affected zone and benefitted zone. The mode of
publication is gazette and daily newspaper in Marathi having circulation in
the respective areas. The Collector has to forward a report on the
objections or suggestions made by the persons interested in the lands
coming under the affected or benefitted zone and the State Government has
to pass appropriate orders on the report on the objections and suggestions.
Only after completing the process as above under sub-Section (2) of Section
13 of the Act, a notification of the affected and benefitted zones and the
slab under Part II of the Schedule can be published. Under sub-Section (3),
if, at any time, during the course of execution of a project, in case, any
change in the areas mentioned in the notification under sub-Section (1)
becomes necessary, such change can be made only in the manner laid down in
sub-Sections (1) and (2). As per the first notification under Section 13(1)
of the Act published on 04.03.1994, since the slab was Slab III, there was
no acquisition where the size of the holding in the benefitted zone is not
more than 3 Hectares and 23 Ares; however, as per the subsequent
notification dated 26.07.1995 published under Section 13(1), since there is
a change of slab from Slab III to Slab I, there is acquisition from those
who hold land more than 1 Hectare and 61 Ares. It is certainly a change as
perceived under sub-Section (3) and such a change can be brought out during
the course of execution of a project only in the manner laid down in sub-
Sections (1) and (2) of Section 13 of the Act. The reason is that any
adverse change in the slab would have its impact on the extent on the lands
in benefitted zone. That zone in the process gets reduced. In the instant
case, while publishing the second notification on 26.07.1995, the procedure
under sub-Section (2), admittedly, has not been followed.
It may be seen that the whole purpose of notice under sub-Section (2) of
Section 13 of the Act is to invite objections or suggestions in respect of
the lands falling under the affected or benefitted zone. By change of slab,
as noted above, there is change in the area of the benefitted zone and that
change can be brought out only on following the procedure under sub-Section
(2) after considering the objections and suggestions.
Sub-Section (4) of Section 14 of the Act is also another indicator on the
requirement of notice. The Government is permitted to acquire land even
from any other villages or areas for the purpose of rehabilitating the
affected persons from the affected zone or for rehabilitating those under
any project who have remained to be rehabilitated. Once there is a change
in the notification on the slab reducing the size of exempted holding, the
people thus affected should get a chance to make their objections and
suggestions, so that the Government may consider the report of the
Collector on those objections and suggestions, before issuing a revised
notification under Section 13(1) of the Act.
Learned Counsel for the respondent-State submits that pursuant to the
notifications issued under the Act, further steps, as noted below, have
been taken for acquisition of the land:
|Sl. No. |Date |Particular |
|1. |21.09.2000 |Notification under Section 4 of Land |
| | |Acquisition Act was published in |
| | |Government Gazette. |
|2. | |Notice u/s. 4(1) of the Land |
| | |Acquisition Act was given to the |
| | |petitioner. |
|3. |28.11.2000 |Objections raised by the petitioner |
| | |u/s.5(1) of the Land Acquisition Act |
| | |were heard. |
|4. |14.12.2001 |Declaration u/s. 6 of Land |
| | |Acquisition Act was published in |
| | |Government Gazette. |
|5. |15.01.2002 |The notice u/s.9(3)(4) of the Land |
| | |Acquisition Act was issued to the |
| | |petitioner. |
|6. |21.01.2004 |Final Award has been declared” |
Passing of the award by itself does not mean that any illegality should not
be addressed. In the instant case, the writ petitions were filed when the
declaration under Section 6 of the Act was published, and in any case, it
is submitted by the appellants that they have not been dispossessed so far
and no compensation also has been paid.
Therefore, the High Court is not right in holding that the requirement of
notice on objections and suggestions need only be in respect of the lands
coming under Section 13(1)(a) of the Act (the affected zones) and Section
13(1)(b) of the Act (the benefitted zones). The High Court is right,
however, in holding that no notice is required in respect of the lands
belonging to the slab under Section 13(1)(c) of the Act, when it is issued
for the first time. However, in case there is a change in the slab reducing
the area of exemption from acquisition in the benefitted zone, the
procedure under Section 13 (2) of the Act is required to be followed.
For the above reasons, these appeals are disposed of permitting the
appellants to prefer their objections or submit their suggestions on the
change of slab from Slab III to Slab I before the Collector within one
month from today. The Collector shall make appropriate inquiry on the
objections or suggestions and forward his report to the State Government
within another two months. The State Government shall pass appropriate
orders on the report within another two months. Depending on the orders
thus passed by the Government, the Collector shall revise the awards
already passed, if required. The appeals are allowed to the above extent.
There shall be no order as to costs.
..……………..……………………J.
(KURIAN JOSEPH)
……………..……………………J.
(ROHINTON FALI NARIMAN)
New Delhi;
February 15, 2016.
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