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2012 Supreme(Bom) 746

High Court of Judicature at Bombay
MOHIT S. SHAH & ROSHAN DALVI
Pravin Kashinath Bhagat & Others
Versus
Collector, District Raigad Having his office at the Collector’s Office & Others
WRIT PETITION NO. 8515 OF 2010
Decided On : 04-04-2012

Advocate Appeared:
For the Petitioners:Ms. Gayatri Singh with Ms. Bhavana Mhatre, Advocates.
For the Respondents:R1, R3, R4 & R6, A.B. Vagyani, AGP, R2, Prashant Chavan with Ms. Shyamali Gadre i/b. Little & Co., Advocates, R7, S.G. Aney, Sr. Advocate a/w. C.S. Balsara & B.H. Antia & H.N. Vakil & Sunil Chavan i/b. M/s Mulla & Mulla & CBC.

Headnote:

LAND ACQUISITION - POWER PROJECT - CHALLENGING NOTIFICATIONS - IRREGULARITIES - ENVIRONMENTAL CLEARANCE - MANGROVES - REHABILITATION PACKAGE - DELAY - PUBLIC HEARING - SUBSTANTIAL COMPLIANCE - ACQUISITION CONFIRMED.

Fact of the Case:

Petitioners, residents of Taluka Alibag, District Raigad, challenged notifications issued under Sections 32 and 33 of the Maharashtra Industrial Development Act, 1961 (MID Act) and Sections 11, 13 and 14 of the Maharashtra Project Affected Persons Rehabilitation Act, 1986 (Rehab. Act) for a Power Project promoted by Respondent No. 7. They claimed that 906 landholders and 500 landless labourers and their families were affected by the acquisition and that they represented 70% of the affected persons.

Finding of the Court:

The Court found that the petitioners had not shown their title to the lands claimed by them, there was a delay in filing the petition, and the irregularities pointed out by the petitioners were curable. The Court also found that the challenge to the Environment Clearance and CRZ clearance was sustainable only with regard to the area under the mangroves.

Issues: 1. Whether the petitioners had shown their title to the lands claimed by them? 2. Whether there was a delay in filing the petition? 3. Whether the irregularities pointed out by the petitioners were curable? 4. Whether the challenge to the Environment Clearance and CRZ clearance was sustainable?

Ratio Decidendi: 1. The Court held that the petitioners had not shown their title to the lands claimed by them, as they had not substantiated their claim of representing 70% of the affected persons with any revenue records. 2. The Court found that the petition was grossly belated, as the rehabilitation packages had already been given to various landholders and the process of acquisition was commenced well before the petition was filed. 3. The Court held that the irregularities pointed out by the petitioners were curable, as they did not show how the clearances and permissions granted to Respondent No. 7 were vitiated. 4. The Court found that the challenge to the Environment Clearance and CRZ clearance was sustainable only with regard to the area under the mangroves, as no development could take place in that area.

Final Decision: The Court rejected the challenge to the notifications issued for the acquisition of land, confirmed the acquisition, and disposed of the petition. However, it directed the respondents not to put up any construction whatsoever in the area under the mangroves and to keep the area clear in accordance with the judgment of the Court in Writ Petition No. 3246 of 2004 dated 6/10/2005. The Court also directed the respondents to reconsider the acquisition in respect of 309 acres of land which was shown to have been acquired in excess of the requirements of Respondent No. 7.

Judgment :-

Roshan Dalvi, J.

1. The petitioners are residents of Taluka Alibag, District Raigad and are stated to be carrying on cultivation of agricultural land in villages Dherand, Mohte, Shahapur and Dhakte Shahapur more specially villages Dherand and Shahapur in Raigad District. These lands have been acquired by the State under Sections 32 and 33 of the Maharashtra Industrial Development Act, 1961 (MID Act) and under Sections 11, 13 and 14 of the Maharashtra Project Affected Persons Rehabilitation Act, 1986 (Rehab. Act) for a Power Project promoted and to be put up by respondent No. 7 and one Reliance Industries.

2. The petitioners claim that 906 landholders and 500 landless labourers and their families in the aforesaid villages have been affected by the said acquisition. The petitioners claim that they represent 70% of the affected persons.

3. The petitioners have challenged notifications dated 9/11/2006, 4/4/2008, 5/4/2008, 5/8/2008, 28/7/2009, 25/9/2009, 26/9/2009 and 18/12/2009 under Sections 32 and 33 of the MID Act and Sections 11 & 13 of the Maharashtra State Resettlement and Rehabilitation Act 1999 (Rehab Act).

4. Tata Power Company Ltd., respondent No.7 is to set up a 1600 MW Coastal Power Plant for which 1200 acres of land is sought to be acquired by the Government as it is a project to be undertaken for public purpose of augmenting the power supply for the city of Mumbai.

5. The respondent No.7 made its application in that behalf dated 18/4/2006. Respondent No.2 on behalf of the State initiated acquisition proceedings under MID Act. Respondent No.7 submitted a Technical Feasibility Report (TFR) in that behalf in April 2006. The report shows the power situation in Maharashtra at that time, the increased demand for the power required by the State, more specially for the city of Mumbai, the power deficit that prevailed at that time and the supply of electrical energy which was to be produced for meeting the increased demand, the planned generation capacity of the existing power situation in the State, the capability of respondent No.7 in meeting the challenge of producing and supplying electrical energy upon establishing the power plant, the feasibility of the project, the availability of land, the procurement of raw materials, environmental aspects and the schedule for the project. The TFR considers various alternative sites and the non-feasibility for their acquisition. The report shows the features of part of the land actually acquired also. That land is shown to be in village Mankule and Dherand. The land actually acquired is in villages Shahapur and Dherand.

6. The petitioners contend that the TFR does not show that the area to be acquired is rich agricultural land which, if required to be acquired, has to be first converted into industrial land which is not done. They also contend that the land sought to be acquired was in green zone being rich agricultural land which was to be converted to industrial use which was not done. They further contend that the land consists of mangroves which is also sought to be acquired for a power project which would destroy the mangroves. They contend that satellite mapping which was mandatorily required to be done upon demarcation of the area considering the Coastal Regulatory Zone (CRZ) Regulations was not done as per the guidelines of this Court in WP No. 3246 of 2006 passed on 6/10/2005. Consequently, the inquiry report on mangroves required to be submitted, after site inspection report and panchanama, was not submitted. The petitioners contend that the land acquired was far in excess of what could be required to be acquired for a 1600 MW power plant covering the aforesaid 2 entire villages of Dherand and Shahapur. The petitioners also contend that this land was not notified as forest land. The petitioners also contend that a Detailed Project Report (DPR) was not submitted in time within the prescribed time as agreed under MOU by respondent No.7.

7. It may be mentioned if t


























































































































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