ROOPAN RAVINDRA DHOT... v. UNION OF INDIA, THRO...

Bhadrawati, District Chandrapur seek a direction, to the respondents 3 and 4 to acquire the same and to grant appropriate compensation in that regard and also compensation of Rs. 5 lakhs each towards damages or in the alternative to remove material dumped on the land of the petitioners and to grant a clear access to their above mentioned fields. It also seeks compensation of Rs.5.00 Crores by way of an amendment permitted by the order dated 30.8.2022 and various other reliefs.

3. It is the contention of Mrs. Sirpurkar, learned Counsel for the petitioners that though the respondents 3 and 4, claim to have acquired the aforesaid lands, under the notification 18.10.2011 (page 17) which was issued in exercise of the power under Section 9(1) of the Coal Bearing Areas (Acquisition and Development) Act 1957 (hereinafter for the sake of brevity referred to as the CBA), however, in fact, there was no such acquisition at all, on account of the fact that the aforesaid survey numbers were not included in the said notification for which she invites our attention to the plot Nos. of village Naglone, as enumerated in the schedule to the said notification

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(p20) which only includes plot/survey Nos. 61/1, 61/2, 61/3 and 61/4. She therefore, submits that the action on part of the respondents in excavating the entire surrounding area has led to obstruction of the approach way of the petitioners to the aforesaid lands owned by them and as also caused dumping of the overburden on the said lands, thereby rendering them infertile and unusable for agricultural activity on account of which the petitioners are also entitled for grant of compensation for having been deprived the use of their own land on account of the aforesaid activity by the respondents 3 and 4.

4. Mr. Dharmadhikari, learned Senior Counsel for respondent Nos. 3 and 4, submits, that since the notification dated 18.10.2011 also indicates boundary description, it has to be presumed that the entire area within the boundaries stands acquired and therefore, mere non mention of the aforesaid survey numbers in the Notification dated 18.10.2011 would be of no consequence. He further submits, that it is a settled position of law that boundaries prevail over a plot number and therefore, on this ground also, the above

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proposition as canvased by him needs to be upheld. For this he relies upon Raghuvir Kashinath Kerkar Vs. Drakshyani Vishwanath Kerkar, 2023 SCC OnLine Bom. 2146 (Para 52). He however, fairly does not dispute the proposition that if the lands of the petitioners are to be acquired then they would be entitled for compensation and so also to all the benefits of the policies as are applicable in this regard. It is however his contention that since the land already stood vested on account of the notification dated 18.10.2011, the subsequent sale and gift deeds of the year 2015 would not confer any right upon the present petitioners, to claim any compensation or for that matter any benefit of any policy which may be in-vogue. It is also his contention by inviting our attention in the table to the schedule to the notification dated 18.10.2011 (p20) that the area is indicative on account of the fact that what is stated therein is an approximation of the total area within the boundaries. It is also contended that no objection u/s 8 of the CBA has been filed by the petitioners nor any claim for any compensation u/s 13(7) has been made. He therefore, submits that on

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account of the above position, since the lands of the petitioners are covered under the notification dated 18.10.2011, there is no merit in the petition, which is required to be dismissed with costs.

5. Mr. Ghurde, learned AGP does not dispute, that the petitioners are the owners of the lands of survey 61/5A, 61/5B, 61/5C, 61/5D, on the basis of the above mentioned saledeeds and gift deeds. He therefore, submits, that since title to the aforesaid lands has been derived by the instant documents, all that needs to be seen is whether these lands are covered by the notification dtd. 18.10.11.

6. On 30.8.2022, while granting leave to amend, the following position was recorded:

Heard learned Counsel for the parties.

2. Leave to amend the prayer clause in the Petition is granted. Amendment be carried out within a period of two weeks from today and amended copy of the Petition be served upon the Respondents. The Respondents are at liberty to file reply, if any, to the amended portion within a period of two weeks thereafter.

3. On 9th March, 2021 following order came to be passed. " This Petition is pending since 2018. The Petitioners, who are the owners of the lands situated at village Naglon, are making a grievance in respect of the mining activities of the Respondent Nos.3 and 4 and pray for directions to

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the Respondent-Authorities to acquire the lands of the Petitioners and to pay compensation to them and also for a direction to the Respondent Nos.2 and 3 to remove the material stated to be dumped on the lands of the Petitioners and to clear the access to the Petitioners' lands. 2. It is the contention of the Respondent Nos.3 and 4 that the mining activities are being carried out on the lands acquired by the Respondent Nos.3 and 4 and the issue of access does not arise as the Petitioners have separate access to their lands. 3. While the issue regarding title and acquisition would be decided, the immediate issues, such as providing access and clearing the material dumped, needs to be looked into on an emergent basis, more particularly in view of the affidavit-inreply filed by the Respondent No.2 on 22 October 2020. The Sub Divisional Officer, Warora, on behalf of the Respondent No.2 - District Collector, Chandrapur, has stated in the affidavit-in - reply as under : "7. It is submitted that the Sub Divisional Officer Warora, Chandrapur on 20.10.2020 visited the land and found that land in question has become totally marshy and muddy and it cannot be put under normal cultivation. A copy of the report submitted by Sub Divisional Officer, Warora is annexed herewith and marked as Annexure R-2. This has happened because of mining activity and over burden of soil put towards the South side of the said land. It was found that one nala has been diverted from mining side towards north side of the land and the said nala meets with another nala which is coming from north-west side of the land. The land in reference is between the over burden of south side and nala of north side. Due to soil flowing in rainy season the approach road to the land of the petitioners has become marshy and muddy and inaccessible to the Petitioners. It appears that the said land could not be cultivated due to the change in morphology because of water stagnation which happened due to mining activities." 8. It is submitted that the petitioner and the respondent No.4 WCL can get the land measured by making appropriate application as per

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law to the Deputy Superintendent of land record Bhadrawati so that exact location and map of the land can be provided. It is submitted that the respondent Nos.3 and 4 acquiring body may pay compensation to the petitioner for acquiring remaining land admeasuring 4.45 HR or in the alternative construct approach road going towards the land of the petitioners as the said lands which would come under the approach road have been acquired by WCL and are belonging to WCL…..".

The Respondent No.2 has noted the position as above but has taken no steps. It cannot be that only a factual position is pointed out to the Court with no follow up action.

4. We place the responsibility of taking action/finding solution in respect of the above issue on the Respondent No.2 - District Collector, Chandrapur. The District Collector, Chandrapur will take note of the above-mentioned affidavit filed on his behalf by the Sub Divisional Officer, Warora, and place before the Court the suggestions/solutions that the District Collector, Chandrapur deem appropriate, within a period of three weeks. If necessary, subject to other pressing commitments, the District Collector may consider visiting the site.

5. To enable the Respondent No.2 - District Collector, Chandrapur, to file an affidavit on the above aspects, stand over to 30 March 2021." 4. The aforesaid order was not complied with and, therefore, on 3 rd January, 2022 another order was passed, which reads thus : " Heard. 2. We have gone through the order dated 9 th March, 2021 and also the reply filed on 15 th April, 2021 by respondent No.2 - District Collector, Chandrapur. The reply apparently disobeys the directions given by this Court in the order dated 9 th March, 2021. While this Court had expected respondent No.2 to play a proactive role in getting the land acquired by WCL and due compensation paid to the petitioners, the expectation is apparently shattered by the stand taken by respondent No.2 in the said reply.

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Respondent No.2 in paragraph No.6 of the reply has stated something about the position of law (this is on the backdrop that this position of law is known to everyone) and then has stated that respondent No.2 is not an Authority to acquire the land under "the said Act", which is the Coal Bearing Areas (Acquisition and Development) Act, 1957 and that the appropriate Authority for acquisition of the petitioners' land is respondent Nos.3 and 4 i.e. WCL. For such kind of position, now being taken by respondent No.2, neither the petitioners nor this Court would require any advice and that too from respondent No.2, the District Collector, Chandrapur. This Court, by placing responsibility of taking action/finding solution in respect of the issue raised in this petition upon respondent No.2, wanted respondent No.2 to assist the cause of justice by coming out with his own suggestions and solutions so that the issue involved in the petition could be resolved to the satisfaction of all the stakeholders. But instead of giving any suggestions and solutions, respondent No.2 has only spoken about the position of law and his inability to do anything in the matter by saying that he is not the Authority to acquire the land and the appropriate Authority is the WCL. 3. We must say it here that no one had expected respondent No.2 to act as an Authority to acquire the land and no one could have said that respondent No.2 should take steps for acquisition of the land and what was expected by this Court from Respondent No.2, he being the representative of the State Government at the district level and also guardian of rights and welfare of the citizenry of his district, to coordinate between the petitioners and WCL and try to workout an amicable settlement or some solution acceptable to everybody. But that is not done by respondent No.2. 4. In fact, in the first half, when this case came up for hearing, learned AGP appearing on behalf of respondent No.2 wanted to take some time for seeking instructions, but this Court then made a request to her to get in touch with District Collector, Chandrapur for placing before this Court his suggestions, but the learned

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AGP did not contact the District Collector, Chandrapur thinking that the latest affidavit filed by respondent No.2 was sufficient in the matter. In fact, this affidavit, according to us, prima facie violates the directions given by this Court and in ordinary course of circumstances would warrant issuance of notice for initiation of contempt proceedings against the District Collector, Chandrapur, but before doing that, now we would like to give one more opportunity to respondent No.2 to comply with the directions issued by this Court on 9 th March, 2021 and this is being done at the request of the learned AGP. 5. Meanwhile, we also request learned Counsel Shri Kartik Shukul for respondent Nos. 3 and 4 to seek appropriate instructions from Respondent Nos.3 and 4. 6. Stand over to 17 th January, 2022." 5. The documents placed before us indicate that pursuant to the order dated 3rd January, 2022, there were meetings and communications between the Respondents. The additional affidavit has been filed by Respondent Nos.3 and 4 mentioning therein that the property in issue i.e. Plot No.61/5 falls within the existing acquired boundary as well as within the notified area and within the notified boundary of Plot No. 61 (composite). The total area including Plot No. 61 (composite) as shown in the acquisition plan dated 24th May 2011 has been already acquired vide notification dated 22nd October, 2011. It is then submitted that the land having been already acquired, the Respondent Nos. 3 and 4 have principally agreed to pay compensation at par with other land owners to the legitimate owners who held the land prior to the date of Section 9 (1) Notification i.e. prior to 22nd October, 2011. Thereafter the provisions of Coal Bearing Areas (Acquisition and Development) Act, 1957 are referred, to submit that once the land is notified under Section 9(1), the rights, title, interest and physical possession of land vests absolutely with the Central Government and, therefore, any division of the subjected land and alteration of boundaries is bad in law and not tenable.

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6. Thus, the modified stand is now taken by the Respondent Nos.3 and 4 that the property in issue has already been acquired and it falls within the notified boundary of the plot No. 61 (composite). It is also the case of the Respondent Nos.3 and 4 that the Petitioners, after notification dated 22nd October, 2011, could not have purchased the property in issue in view of the provisions of the Coal Bearing Areas (Acquisition and Development) Act, 1957.

7. To our mind, the stand taken by the Respondent Nos.3 and 4 is known to the Respondent Nos.3 and 4 to be not tenable. Admittedly, in the Notification dated 24th May, 2011, survey number 61 (composite) is not included. What is included is survey Nos. 61/1, 61/2, 61/3 and 61/4 but not Survey No. 61/5. Even otherwise having heard both sides and having put certain queries, what transpires is that the Survey No. 61/5 is not the part of the Notification dated 24th May, 2011 and is thus not acquired under the law. There is no dispute that the amount of compensation has not been offered by the Respondent Nos.3 and 4 to the previous owner so also the Petitioners. The learned Counsel Mr. Shukul has made a statement that Respondent Nos.3 and 4 will be happy to pay the amount of compensation to the Petitioners, if the previous owner has no objection. However, upon enquiry, he has stated that the Respondent Nos.3 and 4 of their own have not offered such compensation to the Petitioners or previous owners.

8. We have taken note of previous orders and the modified stand taken by the Respondent Nos.3 and

4. We have requested Mr. Shukul to take instructions from the Respondent Nos.3 and 4 as to whether they intend to acquire the land in issue, to which, upon instructions, he submits that the Respondent Nos.3 and 4 would not acquire the land as it is not required.

9. This stand is taken by the Respondent Nos.3 and

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4 knowing fully well that the land in issue has become uncultivable because of the marshy and muddy position of the ground. The Petitioners have no approach road to go to their field and that alternative road is not feasible. According to the Respondent No.2 there is no better solution available than to acquire the Petitioners' land by the Respondent - WCL. In fact, in the meeting dated 7/1/2022, the General Manager of the Respondent Nos.3 and 4 informed the Respondent No.2 - Collector that the process of acquisition of the land in issue will be completed in two months. Despite such status, the Respondent Nos.3 and 4 have now taken a stand that the Petitioners' land is not required and, therefore, the WCL would not acquire the land. This stand, in our view, amounts to exploitation of the Petitioners.

10. In view of above, we have shown our inclination to direct the Respondent Nos.3 and 4 to remove the material dumped upon the Petitioners' land within seven days, to which the learned Counsel Mr. Shukul urged to expand the time limit. We have then requested Mr. Shukul to take instructions from the Respondent Nos.3 and 4 as to how much time would it take to remove the dumped material, but while doing so, we have also opined that more the time sought would indicate the quantum of material dumped upon the Petitioners' land. Mr. Shukul took instructions and reverted back with a statement that the boundaries of the property in issue i.e. Survey No.61/5 will have to be demarcated and the exact location of the land will have to be identified by the concerned and thereafter the Respondent Nos.3 and 4 will issue tender for removal of the dumped material.

11. The changed stand, in our view, speaks volumes about conduct of the Respondent Nos.3 and 4. On the point of identification of land, Mr. Pathan, the learned AGP has drawn our attention to the reply filed by the Respondent No.2. In paragraph No.4 following pleadings have been made : " It is submitted that, during the course of

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visit it is observed that, Survey Nos.61/5A, 61/5B, 61/5C and 61/5D are located in the middle positions of other subdivisions of Survey Nos. 61/1, 61/2 and 61/3. It is further observed that, the boundaries of Survey Nos.61/5A, 61/5B, 61/5C and 61/5D are as below : a) On East side = Survey No.61/1. b) On West side = Survey No.61/4. c) On South side = Survey No.64 and d) On North side = Nala. The copy of map showing the four boundaries of the Petitioners' land is annexed as Annexure-R-2 herewith this reply."

12. He has then referred to the Spot Inspection Report dated 17th March, 2021. The General Manager, Western Coalfields Limited, Respondent No.2 - Collector, Chandrapur, Sub Divisional Officer, Warora, Tahsildar, Bhadrawati, Deputy Superintendent of Land Records, Warora etc. have inspected the spot. The learned AGP would submit that the Respondent Nos.3 and 4 are, therefore, fully conversant with the location of the land in issue. Mr. Shukul, however, would maintain that the Survey No.61/5 requires measurement and proper identification for removal of the material.

13. We may note here that the Petition has been filed in the month of February-2018. The Petitioners have pleaded that the Respondents have acquired the adjoining land of all the three sides of survey No. 61/5, but for the reason best known to them, did not acquire the land owned by the Petitioners. The Petitioners have blamed Respondents for blockage of the pathway, obstruction to cultivation and using the land as a dumping ground. The Petitioners have made several representations dated 29/2/2016, 25/5/2016 and 15/11/2016 in this regard. It is also pleaded that mining work has begun from June 2016 and since then no cultivation has been undertaken on the petitioners' land. Thus the trigger point appears to be 29/2/2016. The above facts are noted, because during the course of argument Mr. Shukul has taken a defence that the present status of the land has been disclosed after

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the interim order dated 9th March, 2021 was passed by this Court.

14. According to us, the litigant like Respondent Nos.3 and 4 ought to have taken note of the pleadings made by the Petitioners and ought to have redressed the grievance of the Petitioners of its own. We do not expect the authorities of WCL to litigate like a private party. The Respondent - WCL has acquired entire land except the Petitioners' land. The location of the Petitioners' land is clearly spelt out in the reply filed by the Respondent No.2. The Officers of Respondent Nos.3 and 4 have inspected the land in issue. Thus, the land in issue is identifiable.

15. We, accordingly pass following directions : (i) The Respondent Nos.3 and 4 shall remove the entire material dumped upon the Petitioners' land, as expeditiously as possible, and in any case, on or before 31st October, 2022. (ii) The Respondent Nos.3 and 4 shall, if required, get the land measured from the appropriate authority and may also take assistance of the Petitioners to identify the land. (iii) The Respondent Nos.3 and 4 shall restore the land to its original status so as to enable the Petitioners to cultivate the land. (iv) The Respondent Nos.3 and 4 shall clear the access to the Petitioners' land, as directed vide order dated 9th March 2021. (v) The Respondent No.2 shall quantify the material dumped upon the land of the Petitioners and submit report to that effect on or before 30th September, 2022. (vi) The Respondent No.2 shall monitor the entire process and submit status Report of the land on or before 14th November, 2022. (vii) We may consider, in due course, granting compensation to the Petitioners in the form of damages considering the stand taken by the Respondent Nos.3 and 4, the period for which the Petitioners' land has been unauthorizedly used by the Respondent Nos.3 and 4, and while fixing the amount of compensation, we may take into account, inter alia, the tender value and the time that would be required to remove the material

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dumped upon the Petitioners' land.

7. Thereafter further time was sought to remove the material. A report on behalf of respondent No. 2 thereafter filed alongwith the Pursis 2.5.2023 Stamp No. 12/23 indicated that the overburden on the land of the petitioners, has been cleared and a clear access had been provided to the lands.

8. Yesterday we have heard the learned counsel for the respective parties extensively. At the outset, it was tried to be contended that the lands of survey 61/5 was not in existence at all on account of which we had called for the original records, from the learned AGP. The revenue records in respect of the land of survey No. 61 (original khasra no. 96) such as P1, P2 Adhikar Abhilekh, 7/12 extracts and the mutation register were made available to us. The original area of survey nos. 96/1 and 96/2 was respectively 14.35 and 16.31 totaling 29.66 acres. In fact Hissa Form No. 4 for village Naglon, records survey No. 61, to be admeasuring 9.70 and 3.00 Hectors i.e. total 12.70 hectors which by the order of the SDO Warora dtd. 26.7.2012 was corrected to 12.25 hectors. There are 4

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sale deeds in respect of the original land of khasra 61

(i) dated 14.4.79 for the area admeasuring 1.21 HR in favour of Pandhari Jairam Dhawas, another saledeed (numbered as 61/2),

(ii) dtd. 28.5.1979 of area 1.41 HR in favour of Ganu Dharma Dhawas (numbered as 61/3)

(iii) dtd 28.5.79 admeasuring 0.81 HR in favour of Ganpati Babuji Gote (numbered as 61/4)

iv) dated 28.5.79 of land admeasuring 4.45 HR by Indirabai in favour of Shridhar Selote. The revenue records indicate the recording of these entries, in the mutation register as well as the 7/12 extracts, as far back as 1979. In fact, the 7/12 register, in respect of survey 61/5 indicates an entry in the name of Namdeo s/o Gangaram Dhawas which was prior in point of time to 19.6.1983 as it stood deleted on that date by mutation entry no. 22. The State has also supported the stand of the petitioners regarding existence of the aforesaid lands. If an arithmetical calculation is done in regard to the area of the original Khasra nos. 96/1 and 96/2 in comparison with the four sale deeds in respect of Survey Nos. 61/1, 61/2, 61/3, 61/4 it would be

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apparent that the original land owners were still left with land admeasuring 4.30 HR approximately which has been sold by them subsequently and has been renumbered as survey 61/5. The respondents 3 and 4 have filed their submissions, on 4.2.2022, in which vide para 4 they have not disputed the existence of the land of survey no. 61/5. All that is being disputed, is that the entitlement of the petitioners for the benefits arising out the said lands as it is being contended that only the erstwhile owners and not the petitioners would be entitled to such benefits on account of the notification u/s 9(1) of the CBA dtd. 18.10.2011 as the aforesaid land, stood included in the said notification.

9. It is therefore, apparent that the existence of the land survey 61/5 (which stands divided into S.No. 61/5A, 61/5B, 61/5C & 61/5-D) now becomes an undisputed position. The transfer of these land into 4 parcels by the aforesaid salededs and gift deeds is also recognized by the respondent No.2 State on account of the entries in the revenue records.

10. It is therefore necessary to consider whether the lands of survey no. 61/5A to 61/5D were included

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in the notification dated. 18.10.2011. A perusal of the notification dated 18.10.2011 (p19) would indicate that not only it describes the approximate total area, which is to be acquired, from the villages of Palsagaon, Shivjinagar, Naglone and Patala, but it specifically mentions the survey numbers of these villages, which are to be acquired. Though boundary description of these villages have been given beneath, in our considered opinion, since specific survey numbers are indicated in the said notification, it cannot be said that all the lands, in the boundaries stand acquired, even if, they are not mentioned by individual survey numbers in the said notification. This is so for the reason, that under Section 4 of the CBA the notification under Section 4(1) has to give brief description of the land and state its approximate area. Section 7(1) of the CBA further mandates, that consequent to the preliminary notification under Section 4(1) and the prospecting done thereafter, if the Central Govt is satisfied that coal is obtainable in whole or any part of the land notified under sub Section 1 of Sec. 4, it may within a period of 2 years from the date of the said notification or such

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further time not exceeding a year in aggregate which is required to be notified in the gazette, give notice of its intention to acquire the whole or any part of the land or of any rights in or over such land as the case may be. Sub-Section 2 of Section 7 further mandates that if no notice to acquire land or any rights in or over such land is given under Sub Section 1 of Section 7 within the period allowed thereunder, the notification issued under Section 4(1), shall cease to have any effect on the expiration of 3 years from the date thereof. Section 8(1) thereafter provides a right to the land owner or a person interested in any land which is the subject of the notification under Section 7 to lodge an objection within 30 days of the notification regarding the acquisition of the whole or any part of the land or of any rights in or over such land, which objection in terms of Section 8(2), has to be made to the competent authority in writing who is then bound to give such objector an opportunity of being heard either in person or by legal practitioner and thereafter, make such enquiry, if any, as the competent authority seems necessary and then thereafter to submit a report to the

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Central Government. Section 9 speaks about declaration of acquisition by the Central Govt. upon being satisfied after consideration of the report under Section 8 that any land or rights in or over such land should be acquired, to make a declaration to that effect. It would therefore, be obvious that for the purpose of making the provisions of Sections 7, 8 and 9 effective, it is necessary, for the notification under Section 4(1) or for that matter under Section 7(1) of the CBA, to ensure that the particular survey number is mentioned therein, for only in such a case, can the owner of the survey number acquire knowledge about the intent to acquire land and thereupon lodge objection, if any. If this is not so, then the entire object and purpose of sec 8, of the CBA would be rendered redundant resulting in an owner of a land being deprived of the statutory right to object under Section 8. We are, therefore, of the considered opinion that the notification under Section 7(1) of the CBA has to include the concerned survey number, which the Central Govt proposes to acquire and failure to include such number in such notification, or in the subsequent declaration under Section 9(1),

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would result in the land which is not so included in the said notifications, being excluded from acquisition.

11. The principle that boundaries should prevail over the survey number, would not be attracted in the instant case, as this is not a dispute between two individuals regarding the extent of area held by each one, but is an action, which results, in deprivation of the legal right to own and possess immovable property, which cannot be taken away unless due process of law has been followed, as such a right, has been guaranteed under Article 300A of the Constitution. Since the respondents 3 and 4 specifically admit to the existence of the land of survey no. 61/5 A to D, as indicated above, in case, they wanted to acquire the same, the notification under Section 9(1) of the CBA dated 18.10.2011, ought to have included the said lands, which as indicated above, are not so included. The vesting as contemplated by Section 10 of the CBA would therefore, be restricted to lands which are specifically mentioned by their survey numbers in the notification under Section 9(1) of the CBA and not otherwise.

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12. Mr. Dharmadhikari, learned Senior Counsel for respondent Nos. 3 and 4 has been unable to point out any provisions in the CBA which indicates any restriction for transfer of lands as included in notification under Sections 4(1) and 7(1) of the CBA. The restriction, from transfer, would therefore, be applicable consequent to the publication of notification under Section 9(1) of the CBA and not otherwise.

13. It is therefore, apparent that since the lands of survey Numbers 61/5A, 61/5B, 61/5C, 61/5D are not included in notification under Section 9(1) of the CBA, they have not vested in the Central Government and the petitioners continue to hold title to the same on the basis of the two sale deeds and two gift deeds referred to above.

14. The position has also come on record, that at one point of time, the petitioners were cultivating the said fields, which is also reflected from the entries in that regard, in the 7/12 extract, the original of which is produced for our inspection by the learned AGP, which is from the years 1995-96 to 2016-17 and indicate cultivation by taking rabbi and kharip crops by the

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petitioners. The dumping of overburden upon the said lands by the respondent Nos. 3 and 4, is no longer a matter of dispute in view of the report of the respondent No. 2 filed on record alongwith the Pursis dated 02.5.2023 which indicates, that the material dumped in the petitioners land was measured on 21.9.2022 and came to 2,16,924.73 CuM. Such a huge quantity of overburden running into lakhs of CuM cannot come overnight over the lands and therefore, it will be reasonable to presume that it has been dumped into the lands of the petitioners over a substantial period of time. The clearance of the lands of this overburden is a position which has occurred on 21.9.2022 as per the report by the SDO, Warora which is filed alongwith the Pursis dated 02.5.2023.

15. The above discussion would therefore, indicate that the lands of survey number 61/5A 61/5B 61/5 C 61/5 D, are not the subject matter of the notification dated 18.10.2011 and therefore, continue to be owned and possessed by the petitioners, on account of the removal of the overburden as indicated above, and are not affected by any of the provisions of

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the CBA. This would also indicate to us that for a substantial period of time in view of the report by the SDO alongwith the Pursis dated 2.5.2023, their agricultural cultivation was obstructed on account of the overburden dumped by the respondents 3 and 4 upon the said lands.

16. Though it is sought to be contended by the learned Counsel for the petitioners that the acquisition of the aforesaid lands, could be directed by adverting to Section 82 in Chapter XI of the RTFFLR Act, it is however apparent, that the RTFFLR Act is not applicable to acquisitions under the CBA, in view of the fact that the said enactment is included at Sr. 11 in the IVth Scheduled of the RTFFLR Act. Though Dr. Sirpurkar, learned Counsel for the petitioner had adverted to two communications by the Government of India in the Department of Ministry of Coal dated 04.10.2018 and 30.03.2018 to contend, that the provisions of the RTFFLR Act are being adopted by the Ministry of Coal for determining the compensation, which are taken on record and marked as X and Y, for the purposes of identification, however, we find that

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these communications cannot be considered as a substitute for the notification RTFFLR 105 (3) of the RTFFLR Act so as to make it applicable for acquisitions under the CBA. Though learned counsel for the petitioners has also relied upon the Notification dated 28.08.2015 to contend that the RTFFLR Act has been made applicable to proceedings under the CBA, we however, find ourselves unable to agree with the same as the said Notification has been issued in exercise of the powers under Section 113 of the RTFFLR Act, which cannot be a substitute for Notification under Section 115(3) of the said Act. The plea, therefore, that the RTFFLR Act, is applicable for the purpose of acquisition under the CBA, is rejected.

17. The only relief which the petitioners, would be entitled, since it is not now disputed that the possession and access of the lands aforesaid stand restored to the petitioners as on 21.9.2022, would be compensation for they being deprived of its use for some period of time. It is, however, also material to note, that the exact period for which the petitioners, were deprived of the use of the aforesaid land has not

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come on record with any sufficient clarity. In this regard learned counsel for the petitioners invites our attention to the reports of the SDO filed alongwith the pursis to contend that the land is not suitable for cultivation and therefore, the petitioners are entitled for substantial compensation, for having being deprived of the use of the land. She also invites our attention to the photographs filed on record along with the pursis dated 20.02.2025 contending, that there are huge dumps on all four sides of the land which makes it water-logged in rainy season and therefore uncultivable. She further invites our attention, to the report of the Committee, which is filed along with the pursis dated 20.02.2025 which also indicates that the lands in question are surrounded by dumps which have height of approximately 30 mtrs. on the western and southern side, which in the rainy season, flow into the lands in question thereby making them unclutivable. The report also suggests measures to be taken for making the land cultivable, however the cost for the same, is directed to be calculated separately from the appropriate authority, which also indicates that the

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road which was created also needs repair.

18. Mr. Shukul, learned counsel for the respondent Nos. 3 and 4 on the other hand relies upon the report regarding the calculations about damages, standing on account of excess rain fall in the Tahsil of Parseoni in the month of July, 2024 to contend, that the similar yardstick be adopted for the purpose of determining the compensation, by adopting which the compensation payable according to him would be not more than Rs. 19,80,896/- to the respondents of all the four lands.

19. The issue of determining compensation, compensation is a vexed one and would require multiple parameters to be considered, to be tested on the touchstone of cross-examination which cannot be determined in our jurisdiction under Article 226 of the Constitution of India. At the same time, it cannot be denied that the petitioners, have been deprived of the use of their lands at least from 2016 till 2022 in which year it is claimed that the over burden was removed and access was provided, We however find that the situation of unutilization of the land in question still

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continues today and the threat of the overburden, flowing into the land on continuous rain fall is a continuous one, looming over the petitioners. The difficulty in cultivation due to inundation and the over flowing of the over burden into the land in question, is also one which would add insult to the injury. In that view of the matter, as of now, we fix the tentative compensation to be paid to the petitioners, for non- utilization of the lands in question, for the aforesaid duration, at Rs.25,00,000/- per field, to be deposited by the respondents Nos.3 and 4 in this Court within a period of a week from today, which upon such deposit shall be paid to the petitioners. We, however, make it clear, that the actual compensation which the petitioners claim, would be required to be determined, in appropriate proceedings to be initiated by the petitioners, as there are claims and counter claims and contrary positions indicated in the reports too, regarding the cultivability of the fields in question, the expenses which would be required to restore them for cultivation and so also the very question, whether they are restorable, on all counts, the compensation would

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be different. We, therefore, dispose off the petition in the above terms, leaving it open for the petitioners to pursue their claims for determining the compensation for non-utilization of their lands in question, before the appropriate Court / authority as deemed fit and proper by the petitioners.

Rule accordingly.

(ABHAY J. MANTRI, J.) (AVINASH G. GHAROTE, J.)

Belkhede / Deshmukh / MP Deshpande

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