NANDKISHORE SHRIDHAR KAKARNINIYA Vs. STATE OF MAHARASHTRA
LAWS(BOM)-2020-4-32
HIGH COURT OF BOMBAY
Decided on April 03,2020

Nandkishore Shridhar Kakarniniya Appellant
VERSUS
STATE OF MAHARASHTRA Respondents

JUDGEMENT

A.S.CHANDURKAR,J. - (1.) The grievance of the petitioner as raised in this writ petition is to the failure on the part of the respondent Nos.2 and 3 in considering the objection raised by him under Section 5-A of the Land Acquisition Act, 1894 (for short, the said Act) while seeking to acquire land admeasuring 68 sq. meters from plot No.173 for the purposes of extension of road.
(2.) It is the case of the petitioner that he is the owner of plot No.173 which admeasures 2000 sq. ft. The petitioner has constructed a building thereon and is in occupation thereof. On 28/12/2004 the respondent No.3- Special Land Acquisition Officer issued a notice under Section 4(1) of the said Act informing the petitioner that it was proposed to acquire 68 sq. meters from the aforesaid property for extension of a road. The petitioner was called upon to submit his objection if any on or before 28/01/2005. According to the petitioner on 28/01/2005 he submitted his objection to the acquisition of the proposed land. It was sought to be demonstrated that the work of extension of the road could be undertaken without acquiring 68 sq. meters of the petitioner's land as proposed. It is the grievance of the petitioner that he was not granted any personal hearing nor was his objection considered. Thereafter Notification under Section 6 of the said Act came to be published by which the aforesaid land came to be acquired for extension of the road. The petitioner on 03/02/2006 raised another objection to the aforesaid acquisition. Since no cognizance thereof was taken, the petitioner filed the present writ petition. During pendency of the proceedings the Land Acquisition Officer passed his award on 08/11/2006. Hence by amending the writ petition the petitioner has challenged the aforesaid award too.
(3.) Shri A. C. Dharmadhikari, learned counsel for the petitioner submitted that failure on the part of the Land Acquisition Officer in considering the objection raised by the petitioner under Section 5-A of the said Act has resulted in vitiating the subsequent proceedings of acquisition. It was submitted that the requirements prescribed by Section 5-A of the said Act were mandatory in nature and failure to comply with the same resulted in breach of such statutory right as well as violation of the provisions of Article 300-A of the Constitution of India. He submitted that the Honourable Supreme Court has held in clear terms in various decisions that it was mandatory for the Land Acquisition Officer to grant opportunity of hearing when an objection is raised to the proposed acquisition as notified under Section 4(1) of the said Act. It is always open for the land owner to try and convince the Land Acquisition Officer that the acquisition proposed was not for a public purpose as specified in the Notification or that the land proposed to be acquired was not suitable for the particular purpose. On such objection being raised the same was liable to be objectively considered by the Land Acquisition Officer and a recommendation was required to be made as to whether the said land was genuinely required to be acquired. Placing reliance on the decisions in Women's Education Trust and anr. vs. State of Haryana and ors. (2013) 8 SCC 99, Usha Stud and Agricultural Farms Private Limited and ors. vs. State of Haryana and ors . (2013) 4 SCC 210, Surinder Singh Brar and ors. vs. Union of India and ors . (2013) 1 SCC 403, Union of India and ors. vs. Shiv Raj and ors . AIR 2014 SCC 2242 and Kedar Nath Yadav vs. State of West Bengal and ors . AIR 2016 SC 4156. It was thus submitted that failure on the part of the Land Acquisition Officer in not granting any opportunity of hearing to the petitioner for substantiating the objections as raised under Section 5-A of the said Act and failure on the part of the Land Acquisition Officer in making any recommendation whatsoever after referring to the objection resulted in the entire process of acquisition being vitiated.;


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