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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
Writ Petition No. 6917 of 2004
* City Industrial Development
Corporation, having its Head Office
at Nirmal, 2nd Floor, Nariman Point,
Bombay – 32 through its
Administrator, CIDCO,
New Aurangabad. .. Petitioner
Versus
1) State of Maharashtra
Through its Secretary,
Revenue Forest Department
Mantralaya, Bombay.
2) The Hon’ble Minister for
Revenue Forest Department,
Mantralaya, Mumbai – 32.
3) The Divisional Commissioner,
Aurangabad.
4) The Collector, Aurangabad.
5) The Special Land Acquisition
Officer (Special Unit),
Aurangabad Municipal Corporation
Rest House Premises,
Near Railway Station,
Aurangabad.
6) Gram Panchayat Satara,
Through its Sarpanch,
Village Satara,
Taluka Dist. Aurangabad.
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7) Devendrasingh Mulsingh Jaggi,
Age 55 years,
Occupation : Contractor,
R/o Osmanpura, Aurangabad.
8) The Aurangabad Municipal
Corporation, Aurangabad
Through the Commissioner. .. Respondents
—-
Shri. A.S. Bajaj, Advocate, for petitioner.
Shri. A.R. Borulkar, Assistant Government Pleader, for
respondent Nos.1 to 5.
Shri. M.D. Shinde, Advocate, for respondent No.6.
Shri. S.D. Kulkarni, Advocate, for respondent No.7.
Shri. S.V. Kshirsagar, Advocate, holding for Mrs. M.A.
Deshpande, Advocate, for respondent No.8.
—-
Coram: R.D. DHANUKA
SUNIL K. KOTWAL, JJ.
Judgment reserved on : 22 AUGUST 2017
Judgment pronounced on : 6th OCTOBER 2017.
JUDGMENT (Per R.D. Dhanuka, J.):
1) By this petition filed under Articles 226 and 227 of the
Constitution of India, the petitioner seeks a writ of certiorari for
quashing and setting aside the impugned order dated 23rd June,
2004 passed by the learned Minister for Revenue, Government of
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Maharashtra, in File No. LAQ 3940/2001/1582/Case No.181/A-1
and a notification dated 20th July, 2004 issued by the Divisional
Commissioner Aurangabad dropping the land acquisition
proceedings to the extent of Gat No.124/1 of village Satara, Taluka
and District Aurangabad. Some of the relevant facts for the purpose
of deciding this petition are as under :
2) The petitioner is appointed as New Town’s
Development Authority under section 113-A of the Maharashtra
Regional Town Planning Act (for short, “the said M.R.T.P. Act”).
Vide three notifications dated 30-10-1972, 3-2-1973 and 4-5-1973,
the State Government appointed the petitioner as special planning
authority for development of the notified area of new Aurangabad.
The land bearing Gat No.124/1 of village Satara, which is subject
matter of this petition, falls within the notified area under the said
three notifications as per provision of section 40(1)(4) of the said
M.R.T.P. Act for the development of Aurangabad notified area.
3) The petitioner carried out survey and prepared one
existing land use map of the said notified area and published the
draft proposal for the development of lands within its jurisdiction by
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publishing a public notice in Maharashtra Government Gazette
dated 21st May, 1973 as per provision of section 40(3)(d) of the said
M.R.T.P. Act. The said planing proposal was approved by the State
Government. In the said notified area, some land were acquired for
the purpose of the planned development and utilization for
industrial, commercial and residential purpose.
4) The petitioner accordingly approached the Collector of
Aurangabad vide letter dated 8th May, 1985 with a request to initiate
land acquisition proceeding under section 6 of the Land Acquisition
Act 1894 read with section 126 of the said M.R.T.P. Act as early as
possible and to hand over the possession of the land to the
petitioner. The Collector Aurangabad accordingly made
appointment of the Special Land Acquisition Officer, Special Unit,
Aurangabad under the powers delegated to him to perform the
functions of the Collector for all the proceedings to be taken in
respect of the acquisition under the Land Acquisition Act, 1894 and
also directed under section 7 of the Land Acquisition Act, 1894 to
take orders for said acquisition of lands to be acquired.
5) The notification as per provision under section 6 of
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the Land Acquisition Act, 1894 read with section 126 (4) of the said
M.R.T.P. Act was submitted to the Collector in order to get his
approval for publication. The Collector Aurangabad issued
notification under section 6 of the Land Acquisition Act, 1894 dated
29 September 1986. The said notification was published in the
Maharashtra Government Gazette on dated 1 st January, 1987 in
Aurangabad Division Supplement Part I on pages 5 and 6 and was
also published in the local news papers i.e. Daily Aurangabad Times
dated 1st January, 1987 and Daily Lok Vijay dated 3 rd January, 1987.
Various lands were sought to be acquired including the land
bearing Gat No.124/1 which was measuring about 7.78 hectares.
6) The Land Acquisition Officer thereafter issued notices
under section 9(3)(4) of the Land Acquisition Act, 1894 to all the
interested persons to file their claim statement and dispute, if any,
in respect of the area etc. It is the case of the petitioner that after
receipt of the notice under section 9(3)(4) of the Land Acquisition
Act, 1894 none of the owners disputed the area of their land as per
the notification.
7) On 14th December, 1988 the Land Acquisition Officer,
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Special Unit, Aurangabad made an award in respect of various lands
including the land bearing Gat No.124/1. In the said Award, the
Land Acquisition Officer mentioned the names of various persons
who were having interest in the said land bearing Gat No.124/1 and
the other plots under acquisition. The Special Land Acquisition
Officer in the said award determined the total amount of
compensation payable in respect of each of the land under
acquisition including land bearing Gat No.124/1 which is subject
matter of this petition.
8) On or about 20th January, 1989 the respondent No.7
herein filed a Writ Petition bearing No.377/1989 in this Court under
Article 226 read with Article 300A of the Constitution of India, inter
alia, praying for declaration that the impugned award dated 14th
December, 1988 made by the Land Acquisition Officer in respect of
land bearing Gat No.124/1 is illegal and without jurisdiction. The
said petition was resisted by the petitioner herein on various
grounds.
9) By an oral judgment dated 26th July, 2001 delivered by
this Court, the said writ petition bearing No.377/1989 filed by the
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respondent No.7 herein came to be dismissed. During the pendency
of the said writ petition there was an interim relief granted by this
Court in favour of the respondent No.7. This Court had also rejected
the oral application stay the operation of the said oral judgment.
This Court in the said writ petition made it clear that the land
owners were not precluded from approaching CIDCO or the State
Government for either concession or deletion of the lands as those
land owners continued to be in possession.
10) This Court also observed that the final Award had been
already passed on 14th December, 1988 and the land acquisition
proceedings stood concluded before the petitioner approached this
Court in the said writ petition. This Court also rendered a finding
that the petitioner had purchased the subject land in 1980 and 1984
and thus in view of the law laid down by the Supreme Court in the
case of State of Maharashtra and another v. Umashankar Rajabhau
and other (1996) 1 SCC 299 and various other judgments, the
purchase of the land by the petitioners was illegal and such a
transaction did not bind the State Government. This Court also
observed that the original land owner was given a notice of hearing
before the development plan was approved as far back as in the
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year 1973 and thus challenge raised by the petitioner to the
acquisition proceeding in respect of the land out of Gat No.124/1
from Satara village was without substance and accordingly was
dismissed.
11) Being aggrieved by the said oral judgment delivered by
this court on 26th July, 2001, the respondent No.7 herein filed
Special Leave Petition. In the mean while the Special Land
Acquisition Officer issued notice to respondent No.7 for handing
over possession of the land by removing the construction etc. The
respondent no.7 sought time to enable him to remove the
machinery etc. The Special Land Acquisition Officer granted time to
respondent No.7 to remove the machinery etc. and to hand over
possession of the land in question. On 3rd October, 2001 respondent
No.7 filed a Special Leave Petition. The said Special Leave Petition,
however, came to be dismissed.
12) Before the Special Land Acquisition Officer could take
possession of the land in question, respondent No.7 filed an
application before the learned Minister for Revenue and Forests
under section 48 of the Land Acquisition Act, 1894 on the ground
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that the said land was not needed by the petitioner and thus the
acquisition of the said land should be dropped. The said application
was opposed by the petitioner herein on various grounds including
on the ground of maintainability of the said application before the
learned Minister. The petitioner also denied that the land was not
needed by the petitioner. The petitioner pressed urgent need of
possession of the land in question. On 23 rd June, 2004 the learned
Minister overruled the objections raised by the petitioner and
directed to drop the acquisition proceeding in respect of the land in
question and directed the Collector to issue notification to the effect
that the land acquisition proceedings in so far as the land in
question concerned are dropped.
13) Being aggrieved by the said order dated 23 rd June,
2004 passed by the learned Minister, Revenue and Forests, the
petitioner filed this writ petition, inter alia, praying for a writ of
certiorari, for quashing and setting aside the said impugned order
dated 23rd June, 2004 passed by the learned Minister for Revenue
and Forests.
14) On 5th November, 2004 when the learned counsel for
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the petitioner therein pressed for interim relief, learned counsel for
the present respondent No.7 made a statement that no third party
rights had been created nor any construction had been made nor
the nature of the development was changed. Learned counsel also
made statement that status-quo would be maintained by respondent
No.7 until the matter was heard by the Court. He, however, made a
statement that a layout had been approved by the Gram Panchayat,
however, no further steps would be taken on that basis. By an order
dated 7th March, 2007 the aforesaid writ petition came to be
admitted. This Court directed respondent No.7 to maintain status-
quo concerning the subject property and directed not to change the
nature of the subject property thereafter until further orders. The
said interim order passed by this Court continues to operate till
date.
15) Mr. Bajaj, learned counsel for the petitioner, submits
that, the petitioner was appointed as Special Planning Authority by
the State Government for development of the notified area of New
Aurangabad. The petitioner had taken all the requisite steps
required for preparing the planning proposal contemplated under
section 115 of the said M.R.T.P. Act and had submitted a planning
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proposal to the State Government. The said planning proposal was
sanctioned by the State Government on 3 rd July, 1973. He submits
that the petitioner had thereafter made an application under section
126 of the said M.R.T.P. Act to the Collector for the purpose of
acquisition of the land bearing Gat No.124/1 and several other
plots.
16) It is submitted by the learned counsel that, the Land
Acquisition Officer after following due procedure of law, made an
award on 14th December, 1988 in respect of various lands including
the land in question. The requisite notices were also given to the
original owner of the said land in question. He invited our attention
to the averments made by the respondent No.7 in Writ Petition
No.377/1989 challenging the said order dated 14th December, 1987
in respect of part of the land bearing Gat No.124/1. He submits that
an interim order was passed by this Court in the said writ petition
restraining the petitioner herein and the Special Land Acquisition
Officer from taking possession of the land in question. He submits
that the said writ petition was ultimately dismissed by this Court by
rendering detailed reasons.
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12 WP 6917 of 200417) It is submitted that this Court had also rendered finding
that the transfer effected in favour of respondent No.7 in respect of
the said portion in question was illegal and such transaction was not
binding on the State Government. He submits that admittedly the
S.L.P. filed by the respondent No.7 against the said oral judgment
delivered by this Court rejecting the writ petition filed by the
respondent No.7 came to be dismissed. He submits that the
acquisition of the said land in question and validity of the
acquisition proceeding has been upheld and could not be opened
before the learned Minister for Revenue and Forests.
18) It is submitted by the learned counsel that though
respondent No.7 had asked for time to remove his machinery and
other items from the said plot of land in order to hand over the
possession to the petitioner but in stead of handing over the
possession thereof to the Special Land Acquisition Officer,
respondent No.7 filed a Special Leave Petition. He submits that
respondent No.7 did not hand over possession of the land in
question to the Special Land Acquisition Officer though the writ
petition as well as the S.L.P. filed by respondent No.7 came to be
rejected.
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13 WP 6917 of 200419) It is submitted by the learned counsel for the petitioner
that though the said proceedings filed by respondent No.7 under
section 48 of the Land Acquisition Act, 1894 were not maintainable
before the learned Minister for Revenue and Forests, the learned
Minister illegally granted stay against the petitioner from taking
possession of the land in question from respondent No.7.
20) It is submitted by the learned counsel for the petitioner
that though respondent No.7 was fully aware of the fact that the
original owner had not challenged the acquisition proceedings and
the declaration issued by the Special Land Acquisition Officer had
become final, the respondent No.7 purchased the said property
thereafter and challenged the land acquisition by filing writ petition.
The respondent No.7 also started carrying on development on the
said land without obtaining any permission for the development of
the said land contemplated under sections 44 and 45 of the said
M.R.T.P. Act and under section 42 of the Maharashtra Land Revenue
Code. He submits that the respondent No.7 had made a claim of
compensation in terms of money before the Special Land
Acquisition Officer contemplated under section 9 of the said Land
Acquisition Act, 1894 and also by way of Reference under section 18
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14 WP 6917 of 2004of the said Act. He submits that respondent No.7 thus could not
have invoked section 48 of the Land Acquisition Act, 1894 in any
manner whatsoever.
21) Learned counsel for the petitioner submits that the
proceedings for acquisition of the land in question were initiated by
the petitioner under section 126 of the said M.R.T.P. Act with the
Collector for the purpose of acquisition. He invited our attention to
Section 126 (1)(a) (b) of the said M.R.T.P. Act and submits that in
this case there was no agreement between the original owners and
the planning authority to pay the agreed amount to the original
owners. The petitioner had accordingly made an application under
section 126(1)(c) of the said M.R.T.P. Act to the State Government
for acquiring such land. The State Government was satisfied on
receipt of such application from the petitioner that the land
specified in the said application was needed for the public purpose
specified therein and had accordingly taken various steps to acquire
the said land. It is submitted that the declaration made by the state
Government under section 126(2) of the said M.R.T.P. Act has to be
considered as a declaration duly made under the said provisions of
the said M.R.T.P. Act and not under the provisions of the Land
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15 WP 6917 of 2004Acquisition Act, 1894.
22) The learned counsel for the petitioner placed reliance
on the judgment of the Supreme Court in the case of Girnar Traders
(3) v. State of Maharashtra, (2011) 3 SCC 1, and in particular
paragraphs 8, 17 to 20, 48 to 54, 64 to 68 and 85. Learned counsel
for the petitioner invited our attention to the paragraphs 8 and 19
of the judgment in the case of Girnar Traders (3) (supra) and would
submit that the issue before the Supreme Court in the said judgment
was not only as to whether the provision of section 11-A of the Land
Acquisition Act, 1894 amongst other provisions introduced by
Central Act No.68/1984 would apply to Chapter VII of the said
M.R.T.P. Act but the issue was also as to whether the said M.R.T.P.
Act is a self-contained Code or not, if so to what effect. The issue
considered by the Supreme Court in the said judgment was also to
the effect that whether in any event all the provisions of the Land
Acquisition Act, 1894 as amended by Central Act No.68/1984 with
emphasis on section 11-A can be read into the provisions of the said
M.R.T.P. Act.
23) It is submitted that in that context this Court has to
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16 WP 6917 of 2004consider whether the view taken by the Supreme Court in the said
judgment that the said M.R.T.P. Act is a self contained code and the
views expressed by the Supreme Court on that issue and other
relevant issues would be in the nature of ratio decidendi or would be
an obiter dicta. He submits that even if any part of observations
made by the Supreme Court in the said judgment if amounted to
obiter dicta, the same would be still binding on this Court also.
Learned counsel for the petitioner also invited our attention to the
paragraphs 22 to 35, 39, 43, 45, 47 to 51, 54, 59, 64, 66, 68, 70,
71, 75, 76, 79 to 88, 91, 92, 95, 102, 104, 107 to 110, 116, 117,
119, 121 to 130. He submits that it is categorically held by the
Supreme Court in the said judgment that all the provisions of the
Land Acquisition Act, 1894 introduced by law of amendment would
not per se become applicable and be deemed to be part and parcel of
the said M.R.T.P. Act. It is held that if provisions of section 11-A of
the Land Acquisition Act are applied or deemed to be incorporated
by application of any doctrine of law into the provisions of the said
M.R.T.P. Act it will have the effect of destroying the statutory rights
available to the State Government and extra powers of the planning
authority. It is held that if provisions of section 11-A of the Land
Acquisition Act, 1894 are read and enforced stricto senso in the said
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17 WP 6917 of 2004M.R.T.P. Act indispensable consequences would be that various
development schemes under the said M.R.T.P. Act would come to a
halt and larger public interest would suffer.
24) It is submitted by the learned counsel that the proposal
for acquisition of the land in question was made by the petitioner by
invoking section 126 of the said M.R.T.P. Act. Thus merely because
the machinery provided under the provisions of the Land
Acquisition Act, 1894 was used for the purpose of acquisition, such
acquisition of land does not become an acquisition under the
provisions of the Land Acquisition Act, 1894 but continues to be the
acquisition under the provisions of the said M.R.T.P. Act.
25) Learned counsel for the petitioner invited our attention
to the judgment of the Supreme Court in the case of Special Land
Acquisition Officer, KIADB, Mysore and Another v. Anasuya Bai
(Dead) By Legal Representatives And Others, (2017) 3 SCC 313, and
in particular paragraphs 29 and 30 and would submit that in the
said latest judgment the Supreme Court has reiterated the views of
the Supreme Court in the case of Girnar Traders (3) (supra). The
Supreme Court held that the provisions of section 24(2) of the new
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18 WP 6917 of 2004Land Acquisition Act making section 11-A of the old Land
Acquisition Act would not be applicable. The Supreme Court also
considered the earlier judgment in the case of Munithimmaiah v.
State of Karnataka, (2002) 4 SCC 326, in which it was held by the
Supreme Court that the provisions of Section 6 and 11-A of the
Land Acquisition Act, 1894 do not apply to the provisions of the
Bangalore Development Authority Act, 1976. The Supreme Court
made a distinction between the purposes of the two enactments and
held that all the provisions of the Land Acquisition Act, 1894 do not
apply to the Bangalore Development Authority Act, 1976. The
Supreme Court also adverted to the judgment of the Constitution
Bench of the Supreme Court in the case of Offshore Holdings (P) Ltd.
v. Bangalore Development Authority, (2011) 3 SCC 139, in which it
was held that section 11-A of the Land Acquisition Act, 1894 does
not apply to the acquisition under the Bangalore Development Act,
1976.
26) Learned counsel strongly placed reliance on the said
judgment in the case of Special Land Acquisition Officer, KIADB,
Mysore (supra) and would submit that the purposes of the Land
Acquisition Act, 1894 and of the said M.R.T.P. Act are totally
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19 WP 6917 of 2004different. He submits that the provisions of the Land Acquisition Act,
1894 thus cannot be extended to or be read in the provisions of the
said M.R.T.P. Act. He submits that the Supreme Court in the said
judgment has reiterated the view taken in the case of Girnar Traders
(3) (supra).
27) Learned counsel for the petitioner also invited our
attention to the judgment delivered by the Division Bench of this
Court in the case of Hanumanrao Morbaji Gudadhe and Ors. Vs.
State of Maharashtra and Ors., 2015(6) Mh L J 127 and in
particular paragraphs 9 to 11 and would submit that the Division
Bench of this Court after adverting to the judgment of the Supreme
Court in the case of Girnar Traders (3) (supra); the provisions of
the said M.R.T.P. Act and the Right to Fair Compensation and
Transparency in Land Acquisition, Rehabilitation and Resettlement
Act, 2013 (for short, "RFCTLARR Act 2013") and the true intention
and object of the enactments made, has held that both the
enactments are self contained code and the provisions of section 24
of the Act of 2013 would not be applicable to the acquisitions
under the provisions of the said M.R.T.P. Act for various reasons.
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20 WP 6917 of 200428) It is submitted by the learned counsel that the
judgment of the Supreme Court in the case of Girnar Traders (3)
(supra) holding that the provisions of the said M.R.T.P. Act are self
contained code and has been interpreted and followed by the
Division Bench of this Court in the case of Hanumanrao Morbaji
Gudadhe (supra) and thus the respondent No.7 cannot be allowed
to urge that the limited issue before the Supreme Court in the case
of Girnar Traders (3) was whether the provision of section 11-A of
the Land Acquisition Act, 1894 amongst other provisions and
introduction of Act No. 68/2014 would apply to Chapter VII of the
said M.R.T.P. Act and on that ground the other observations made by
the Supreme Court in the said judgment cannot amount to ratio
decidendi has no merit. He submits that subsequent to the judgment
of the Supreme Court, taking the same view the judgment of the
Division Bench of this Court, interpreting the judgment of the
Supreme Court in the case of Girnar Traders (3) (supra), squarely
applies to the facts of this case and is binding on this Court.
29) It is submitted by the learned counsel that the
application thus made by respondent No.7 for deletion of the plot in
question from the acquisition itself was not maintainable. He
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21 WP 6917 of 2004submits that since the acquisition of the land in question was not
under the provisions of the Land Acquisition Act, 1894, the question
of applicability of section 48 of the said Act for deletion of the plot
in question from acquisition did not arise. The learned counsel
submits that though this Court in the order passed in the writ
petition filed by the respondent No.7 and several other land owners
had made it clear that the owners could approach the CIDCO or the
State Government praying for either concession or deletion of the
lands as they continued in possession, would not create any remedy
in favour of the respondent No.7 for invoking section 48 of the Land
Acquisition Act, 1894 which provision is not extended to the
acquisitions made under the provision of section 126 of the said
M.R.T.P. Act.
30) It is submitted that the said judgment of this Court
could not have been construed by the respondent No.7 and the
learned Minister for Revenue and Forests as if the provision of
section 48 of the Land Acquisition Act, 1894 stood extended to the
acquisition of the land in question made under section 126 of said
M.R.T.P. Act. He submits that the application filed by the respondent
No.7 before the respondent No.2 was thus without jurisdiction and
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22 WP 6917 of 2004thus the order passed by the learned Minister for Revenue and
Forests was totally without jurisdiction and was illegal and without
authority of law. He submits that though an objection to the
maintainability of the said application filed by the respondent No.7
was raised specifically by the petitioner by filing a detail reply
before the respondent No.2, the respondent No.2 did not consider
the objection of the maintainability of the said application in the
impugned order and has passed an illegal order.
31) It is submitted by the learned counsel for the petitioner
that the respondent No.7 had admittedly purchased the land much
after the notification for acquiring the plot in question was issued
knowing fully well that the property was under acquisition.
Respondent No.7 could not claim any equity before the respondent
No.2 for the amount paid by way of consideration to his original
owners or the amount if any alleged to he to be spent on
development if any on the plot. The respondent No.7 had
purchased the said property at his own risk. He submits that this
Court in the said judgment delivered on 26th July, 2001 in Writ
Petition No.377/1989 filed by respondent No.7 had considered this
issue and has already rendered finding that the respondent No.7
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23 WP 6917 of 2004had purchased the land in question in 1980 and 1984 and after
adverting to the various judgments of the Supreme Court has
rendered a finding that the purchase of the land in question by
respondent No.7 herein was illegal and such a transaction thus
would not bind the State Government. This Court also noticed that
the original land owner was already given a notice of hearing before
the development plan was approved way back in 1973.
32) Learned counsel for the petitioner invited our attention
to the various averments made by the respondent No.7 in the
application filed under section 48 of the Land Acquisition Act, 1894
before the respondent No.2 and also the detail reply filed by the
petitioner to the said application raising various issues while
opposing the said application. He submits that the petitioner had
also pointed out in greater detail the need of the petitioner to take
possession of the said plot already acquired.
33) Learned Counsel for the petitioner invited our attention
to Section 126(2) of the said M.R.T.P. Act and would submit that
even if the Notification was issued under Section 6 of the Land
Acquisition Act, 1894, since the declaration was issued under
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24 WP 6917 of 2004Section 126(2) of the said M.R.T.P. Act, the provisions of the said
M.R.T.P. Act would be attracted and not the Land Acquisition Act,
1894 for all the purposes. Learned Counsel for the petitioner
invited our attention to the impugned order passed by respondent
No.2 and also the averments made in the application filed by
respondent No.7 and the detail reply filed by the petitioner raising
objection to the said application and would submit that entire order
passed by respondent No.2 is totally overlooking the objections
raised by the petitioner and shows total non-application of mind on
the part of respondent No.2. He submits that the impugned order is
also contrary to the provisions of the said M.R.T.P. Act and the Land
Acquisition Act, 1894. He submits that though the purpose of the
acquisition proceeding initiated by the petitioner were already
upheld in the petition filed by respondent No.7 including the issue
of the land needed by the petitioner or not, the learned Minister for
the Revenue and Forest has decided contrary to the judgments
delivered by this Court.
34) It is submitted by the learned Counsel for the petitioner
that even if Section 48 of the Land Acquisition Act would have been
attracted to the facts of this case, the scope of this provision is very
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25 WP 6917 of 2004limited and is for public at large and is not meant for individual
benefit. He submits that in this case respondent No.7 had
purchased the land much after the notification was issued. He
submits that the application of respondent No.7 was filed with a
view to grab the land and was to somehow delay the handing over
of possession of the land to the petitioner. In support of this
submission, learned Counsel for the petitioner placed reliance on
the judgment of the Supreme Court in case of Uddar Gagan
Properties Limited Versus Sant Singh and others {(2016) 11 SCC
378}, and in particular paragraph 30.
35) It is submitted by the learned counsel that the learned
Minister of Revenue and Forests has not considered any material
produced by the petitioner in the impugned order. The learned
Counsel for the petitioner placed reliance on the judgment delivered
by the Division Bench of this Court in case of Pralhad Lokram
Dodeja and others Versus State of Maharashtra and others {2001(4)
BOM.C.R. 35}, and in particular paragraph 82.
36) Learned Counsel for the petitioner placed reliance on
the judgment of the Supreme Court in case of Uddar Gagan
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26 WP 6917 of 2004Properties Limited (supra), also in support of the submission that in
the facts and circumstances of this case, the powers exercised by the
learned Minister for Revenue and Forest could not have been
exercised and more particularly on paragraphs 23 and 24. It is
submitted by the learned counsel that the public purpose mentioned
in the notification was not vague but a specific public purpose was
mentioned.
37) Mr. Kulkarni, learned Counsel for respondent No.7, on
the other hand, invited our attention to the order passed by the
Division Bench of this Court on 26th July, 2001 in Writ Petition No.
377 of 1989 filed by respondent No.7 and in particular paragraph 9
and would submit that pursuant to the said order and Judgment
delivered by this Court, respondent No.7 was granted liberty to
approach the CIDCO or State Government praying for either
concession or deletion of the lands as they continued to be in
possession of respondent No.7. He submits that said application,
thus, filed by respondent No.7 under Section 48 of the Land
Acquisition Act, 1894 was maintainable. The learned Minister for
Revenue and Forests, thus, did not exceed the jurisdiction as
canvassed by the petitioner.
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27 WP 6917 of 200438) Learned Counsel for the respondent No.7 placed
reliance on the judgment of the Supreme Court in case of Girnar
Traders (3) (Supra) and, in particular paragraph 19 and would
submit that the limited issue before the Supreme Court in the said
judgment was whether provisions of Section 11-A of the Land
Acquisition Act, 1894 amongst other provisions, introduced by
Central Act 68 of 1984 would apply to Chapter VII of the said
M.R.T.P. Act or not. He submits that observations, thus, made by
the Supreme Court in the said judgment as to whether the said
M.R.T.P. Act is self contained code or not, is not a ratio decidendi but
would at the most obiter dicta.
39) Learned counsel for the respondent No.7 placed
reliance on the judgment of the Hon'ble Supreme Court in case of
The Special Land Acquisition Officer, Bombay and others Vs. M/s.
Godrej and Boyce (AIR 1987 Supreme Court 2421). He submits
that after the impugned order was passed by the learned Minister
for Revenue and Forests, the learned Collector has already deleted
the land of respondent No.7 from acquisition. He submits that the
power of the State Government to delete any land from acquisition
is not taken away under Section 48 of the Land Acquisition Act,
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28 WP 6917 of 20041894. He invited our attention to the Notification issued under
Section 6(3) of the Land Acquisition Act, 1894 and would submit
that few persons' lands, which were sought to be acquired, were
deleted by the Government on various grounds. He submits that
land in question was reserved for housing which purpose was
deleted.
40) Next submission of the learned Counsel for respondent
No.7 is that all the lands, which were sought to be acquired by the
petitioner, were already handed-over to Aurangabad Municipal
Corporation and, thus, the petitioner has no locus standi even to
raise any objection to the application filed by respondent No.7 for
deletion of land in question either under section 48 of the Land
Acquisition Act, 1894 or to impugned order passed by the learned
Minister of Revenue and Forests in the writ petition. He submits
that the petitioner ceased to have any interest in the land in
question and on that ground itself, the petition deserves to be
dismissed. He submits that Aurangabad Municipal Corporation
itself could have pursued the litigation after handing-over
possession of all the plots under acquisition. He submits that the
plots of land vest in the Aurangabad Municipal Corporation and
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29 WP 6917 of 2004not in petitioner.
41) Learned Counsel for the respondent No.7 placed
reliance on various provisions of the said RFCTLARR Act 2013 and
the Land Acquisition Act, 1894 and would submit that since the
petitioner had neither paid the compensation nor took possession of
the land in question from respondent No.7 within five years of the
acquisition, the so called acquisition proceedings of the land in
question proceedings thus came to an end. In support of this
submission he strongly placed reliance on section 24(2) of the said
RFCTLARR Act.
42) Learned Counsel for respondent No.7 placed reliance
on Section 126(3) of the said M.R.T.P. Act and would submit that
the provisions of the Land Acquisition Act, 1894 would apply to the
facts of this case and thus the petitioner neither having paid any
compensation nor has taken possession within the time prescribed,
if the petitioner seeks to acquire land of respondent No.7 and to
issue fresh notification, the petitioner will have to pay market value
in respect of land in question to respondent No.7. He submits that
all the provisions of the Land Acquisition Act 1894 would apply to
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30 WP 6917 of 2004the acquisition though initiated by the petitioner under section 126
of the said M.R.T.P. Act. He submits that all the provisions from
Section 6 onwards would apply in view of the Notification under
Section 4 came to be issued by the State Government for acquiring
land in question.
43) Learned Counsel for respondent No.7 invited our
attention to section 126(a) (b) (c) of the said M.R.T.P. Act and
would submit that in this case since no agreement was entered into
between petitioner and respondent No.7 and since no TDR was
allowed, the only provision that could have been invoked by the
petitioner under Section 126(c) of the said M.R.T.P. Act and for
invoking the said provision, petitioner was required to apply to the
State Government for acquiring land in question under the
provisions of the Land Acquisition Act, 1894. He submits that once
Notification under section 4 was issued under the Land Acquisition
Act, 1894 all provisions of Land Acquisition Act, 1894 including
Section 48 would be only applicable and not the provisions of the
said M.R.T.P. Act.
44) The learned Counsel for respondent No.7 submits that
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31 WP 6917 of 2004since several other lands have already been released by the State
Government under Notification dated 19th June, 2000, the land of
respondent No.7 also will have to be released. He submits that
there cannot be any discrimination in respect of land of respondent
No.7 and other land owners. In support of this submission, the
learned Counsel for respondent No.7 placed reliance on the
judgment of the Supreme Court in the case of Hari Ram and Anr. Vs.
State of Haryana and Ors., (2010) 3 Supreme Court Cases 621,
and in particular paragraph 24 thereof. He submits that the award
in this case was already made under section 11 of the Land
Acquisition Act on 14th December, 1988 i.e. much prior to the said
Act came into force. It is submitted by the learned counsel for
respondent No.7 that under Section 151 of the said M.R.T.P. Act,
the powers, which can be exercised under the said Act, can be
delegated to any Officer of the State Government and accordingly
the Collector can continue acquisition under the Land Acquisition
Act, 1894 in view of the fact that there is no separate provision for
acquisition under the said M.R.T.P. Act.
45) Learned Counsel for respondent No.7 placed reliance
on the judgment of the Supreme Court in the case of Pune
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32 WP 6917 of 2004Municipal Corporation and another Vs. Harakchand Misirimal
Solanki and others, 2014(4) Mh.L.J. 566 and in particular
paragraph 3, 11, 20, 22 and would submit that since the petitioner
has not deposited the compensation in the Government Treasury for
more than five years prior to the commencement of the Right to Fair
Compensation and Transparency in Land Acquisition, Rehabilitation
and Resettlement Act 2013, the acquisition has lapsed. He submits
that possession of the land in question admittedly is with the
respondent No.7 even today.
46) It is submitted by the learned Counsel for respondent
No.7 that though his client made statement that he will maintain
status-quo and after order of status-quo was passed by this Court in
this Writ Petition, the period of five years for the purpose of
depositing compensation and for taking possession of the plot in
question after an award under Section 11 of the L.A. Act made by
the Special Land Acquisition Officer has not stopped. He placed
reliance on the judgment of the Supreme Court in the case of Union
of India and others Vs. Shiv Raj and others (2014) 6 Supreme Court
Cases 564 and in particular paragraphs 21 to 26.
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33 WP 6917 of 200447) It is submitted that even if order passed by the learned
Minister for Revenue and Forests is set aside in Writ Petition, the
earlier proceedings would revive. In support of the submission that
the acquisition proceeding shall lapse and in view of petitioner not
having deposited compensation amount within five years from the
date of award and has not taken possession of the land from
respondent No.7, the learned counsel for respondent No.7 also
placed reliance on the judgment of the Supreme Court in case of
B.A. Basavaiah and others Vs. Bangalore Development Authority and
others AIR 2000 SC 3403(1) and on particular paragraph 1 in the
case of Radiance Fincap (P) Ltd. Vs. Union of India, delivered on 12th
January, 2015 in I.A. No. 3 of 2014 in Civil Appeal No. 4283 of
2011 and other companion matters.
48) Learned Counsel for the respondent No.7 placed
reliance on the judgment of the Supreme Court in case of Delhi
Administration V. Gurdip Singh Uban and others etc., (AIR 2000
SC 3737), and more particularly on paragraph 64 in support of his
submission that in view of his client having carried out various
developments on the land in question and has incurred substantial
amount, the learned Minister for Revenue and Forests has rightly
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34 WP 6917 of 2004considered case of his client sympathetically under section 48 of the
Land Acquisition Act, 1894 and thus, such decision of the learned
Minister for Revenue and Forest cannot be interfered with by this
Court in this Writ Petition. He submits that substantial loss would be
caused to his client and thus, on that ground also the application
filed by his client under Section 48 of the Land Acquisition Act 1894
would be maintained.
49) The learned Counsel submits that even if respondent
No.7 had purchased land in question when the notification was
issued, he is still the full owner of the said land till possession is
taken by the State Government, which the Government failed within
a period of five years from the date of the award made by the Land
Acquisition Officer. He submits that there is no bar from purchasing
the property under acquisition.
50) Mr Bajaj, learned Counsel for petitioner in rejoinder
distinguished the judgment of the Supreme Court in case of Pune
Municipal Corporation and another (Supra), on the ground that
in that judgment the Supreme Court had considered the fact that
the notice was issued under Section 4(1) of the Land Acquisition
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35 WP 6917 of 2004Act, 1894 whereas, in this case the notice was issued under Section
126 of the said M.R.T.P. Act and thus the said judgment is clearly
distinguishable with the facts of this case. He submits that the
Supreme Court in the said judgment has accordingly considered the
effect of Section 24(2) of the said RFCTLARR Act, 2013 and Section
31 of the Land Acquisition Act, 1894 ; and thus, the facts of the in
case in above judgment of the Supreme Court are clearly
distinguishable in the facts of this case.
51) In so far as submission of the learned counsel for
respondent No.7 that the observation made by the Supreme Court
in Girnar Traders (3) (Supra) is obiter dicta and not ratio decidendi
is concerned, it is submitted that views expressed by Supreme
Court in the said case has been changed in the later judgment in the
case of Special Land Acquisition Officer, KIADB, Mysore and another
(supra) and also followed and interpreted by the Division Bench of
this Court in case of Hanumanrao Morbaji Gudadhe and others
(supra), (Supra), holding that the said M.R.T.P. Act as well as Land
Acquisition Act are self contained Codes and thus, the said
judgments are binding on this Court.
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36 WP 6917 of 200452) In so far as submission of learned Counsel for
respondent No.7 that the petitioner has no locus to file this petition
on the ground that all the plots have been already handed over to
the Aurangabad Municipal Corporation by the petitioner is
concerned, it is submitted by the learned Counsel for the petitioner
that in the year 1982, rest of the notified area of the CIDCO was
covered within Aurangabad Municipal limits but the same was for
all other purposes excluding the planning for the reason that CIDCO
was Special Planning Authority for the new area of Aurangabad for
the notified area. He submits that since then the petitioner has been
exercising its power as Special Planning Authority. Learned Counsel
submits that as per agreement entered into between CIDCO and
Aurangabad Municipal Corporation, the authority has right to
develop notified area of new Aurangabad Project to be retained
with the petitioner itself. He submits that only developed area has
been handed over to Aurangabad Municipal Corporation for
maintenance. He submits that the petitioner has locus to file this
petition and to impugn the order passed by the learned Minister for
Revenue and Forest. He submits that the petitioner was a party to
the said proceeding before the learned Minister for Revenue and
Forest and has rightly filed this petition in view of being aggrieved
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37 WP 6917 of 2004by the said order.
53) In so far as allegations of the respondent No.7 that
there was discrimination between respondent No.7 and other land
owners is concerned, the learned Counsel for the petitioner submits
that no such reasons are assigned by the learned Minister for
Revenue in the impugned order. He submits that in any event, there
was no such discrimination between respondent No.7 and other
land owners at the hands of the petitioner or by the State
Government. Some of the land were deleted which were under
acquisition for different reasons already set out in the rejoinder
affidavit filed by the petitioner.
54) In support of this submission, learned Counsel for the
petitioner invited our attention to the averments made by the
petitioner in paragraph 5 of the rejoinder affidavit dated 3 rd July,
2006. He submits that some of the lands during the course of time
had been encroached upon or due to surrounding encroachment,
have been rendered of no use for development and the removal of
illegal construction and encroachment thereon had become
impossible, and thus, such lands were denotified. He submits that
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38 WP 6917 of 2004land of the petitioner however, cannot be compared with those
lands as reasons for denotification of those lands cannot be a
ground to hold that the land of the petitioner is not needed for the
development and/or to justify the dropping of the land acquisition
proceedings by the learned Minister for Revenue and Forest in the
impugned order.
55) Learned Counsel for the petitioner invited our attention
to the relevant paragraph at page 181 of the Writ Petition forming
part of the impugned order passed by the learned Minister
observing that the petitioner had not explained immense need of
the plot in question. He submits that this observation in the
impugned order is totally perverse and contrary to the judgment
delivered by this Court thereby upholding acquisition proceedings of
the land in question and the order passed by the Supreme Court in
Special Leave Petition against order passed by this Court. He
submits that learned Minister for Revenue and Forest could not have
re-opened the issue of acquisition in the impugned order.
56) In so far as judgment of the Supreme Court in the case
of Godrej and Boyce, (supra), relied upon by the learned Counsel
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39 WP 6917 of 2004for respondent No.7 is concerned, learned Counsel for petitioner
invited our attention to Paragraph 5 of the said judgment and would
submit that in that matter the acquisition was withdrawn by the
Government, whereas, the owners of the land were insisting and
were seeking the relief against the Government to acquire their
lands. He submits that facts before the Supreme Court in said
judgment are totally different and are clearly distinguishable in the
facts of this case.
57) It is submitted by the learned Counsel for the petitioner
that respondent No.7 was even otherwise not entitled to invoke the
provisions of Section 48 of the Land Acquisition Act in view of the
fact that the acquisition of the land is made for the use of public at
large and not for individual benefit.
58) In so far as the development alleged to have been
carried out by respondent No.7 over the land in question is
concerned, it is submitted by the learned Counsel for petitioner that
it was case of respondent No.7 himself that he had already carried
out some development after denotification. He submits that in any
event, respondent No.7 did not produce any record or material
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40 WP 6917 of 2004before the learned Minister for Revenue and Forest and also before
this Court about the so called development carried out by
respondent No.7 on the land and when. He submits that even if
respondent No.7 has carried out development on the land, no
sympathy can be shown to respondent No.7 in view of the fact that
he has purchased property after notification was issued.
59) In so far as submission of the learned counsel for
respondent No.7 that provision of Section 24(2) of the said
RFCTLARR Act, 2013 would be attracted to the facts of this case,
and thus the petitioner not having deposited compensation amount
or not having taken possession of the land in question within five
years from the date of award made by the Land Acquisition Officer
and thus acquisition proceedings are lapsed, is concerned, it is
submitted by the learned Counsel for the petitioner that the
acquisition proceedings were already concluded much before five
years of the said Act coming into force. The validity of the
acquisition proceedings is already upheld by this Court and the
Supreme Court. The question of applicability of Section 24(2) of
the said Act did not arise.
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41 WP 6917 of 200460) It is submitted that the petitioner could not take
possession in view of the stay granted by this Court in earlier Writ
Petition filed by respondent No.7, thereafter by the learned Minister
for Revenue and Forest and also in view of order of status quo by
this Court in this writ petition. He submits that if this Court vacates
status-quo order or if the impugned order of the learned Minister
for Revenue and Forest is set aside by this Court, the petitioner
would be able to take possession of the land in question from
respondent No.7.
61) In so far as payment of compensation is concerned, it
is submitted that the compensation is already determined by the
Land Acquisition Officer in the award. Respondent No.7 has also
filed a reference under Section 18 of the Land Acquisition Act, 1894.
The amount of compensation is already deposited by the petitioner.
The question of acquisition proceedings being lapsed on the ground
of alleged non deposit of the compensation, thus, does not arise. He
submits that respondent No.7 can withdraw the amount of
compensation which is not withdrawn so far which was deposited
by the petitioner. The petitioner will get five years time to take
possession from the date of this Court vacating order of status-quo
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42 WP 6917 of 2004for taking possession. He submits that in any event, for the purpose
of computation of the period of five years for the purpose of taking
possession under section 24(2) of the said Act, the period of stay
granted by this Court in two writ petitions and by the learned
Minister in the proceedings under section 48 of the Land Acquisition
Act, 1894 has to be excluded.
62) It is submitted that the respondent No.7 himself had
made a statement before this Court in this writ petition that he
would maintain status-quo. It is lastly submitted by the learned
counsel for the petitioner that impugned order passed by the
learned Minister for Revenue and Forest is totally perverse, contrary
to the provisions of law and the judgments delivered by this Court
in earlier Writ petition, which is upheld by the Hon. Supreme Court
upholding acquisition of the land in question and thus, deserves to
be set aside.
REASONS AND CONCLUSIONS
63) We shall first decide whether the provisions of the
Maharashtra Regional and Town Planning Act, 1966 (M.R.T.P. Act
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43 WP 6917 of 2004for short) and the provisions of Land Acquisition Act, 1894 are self-
contained and also whether all the provisions of the Land
Acquisition Act can be read into the provisions of the M.R.T.P. Act or
not. Learned counsel for the petitioner as well as learned counsel for
respondent No.7 relied upon various paragraphs of the judgment of
the Supreme Court in case of Girnar Traders (3) (supra) in support
of their rival contentions whether the provisions of Land Acquisition
Act as well as the provisions of the M.R.T.P. Act are self-contained or
not, and on the issue whether the acquisition of the land in question
initiated at the instance of the petitioner under the provisions of the
M.R.T.P. Act were to be considered as an acquisition under the
provisions of the Land Acquisition Act for all the purposes.
64) It is the submission of the learned counsel for the respondent
No.7 that there was no issue before the Supreme Court in the case
of Girnar Traders (3) whether both these Acts were self-contained
Code or not and thus, the observations made by the Supreme Court
in the said judgment cannot be considered as ratio decidendi and at
the most, it may amount to obiter dicta. On the other hand, the
submission of the learned counsel for the petitioner is that, the issue
before the Supreme Court in the said judgment was not limited to
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44 WP 6917 of 2004whether the provisions of Section 11-A of the Land Acquisition Act,
amongst other provisions, introduced by Central Act 68 of 1894
would apply to Chapter VII of the M.R.T.P. Act or not, but the issue
was also before the larger Bench that whether the Land Acquisition
Act, 1894 and the M.R.T.P. Act are self-contained Code or not.
65) Learned counsel for respondent, in support of his
submissions heavily placed reliance on para 19 of the judgment of
Supreme Court and would submit that, the issue for consideration
of the larger Bench in the said judgment was restricted to whether
the provisions of Section 11-A of the Land Acquisition Act amongst
other provisions would apply to Chapter VII of the M.R.T.P. Act or
not. Mr. Bajaj, learned counsel for the petitioner, on the other hand,
heavily placed reliance on paras 8, 17 to 20, 22 to 35, 39, 43, 45, 47
to 51.
66) We have minutely gone through the judgment of the
Supreme Court in case of Girnar Traders (3) (supra). A perusal of
the said judgment indicates that a Bench of Supreme Court, in case
of Girnar Traders (1) Vs. State of Maharashtra, reported in (2004) 8
SCC 505, expressed certain doubts on the correctness of law stated
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45 WP 6917 of 2004in case of Sant Jogindar Singh Vs. State of Punjab, reported in 1995
(Supp) (2) SCC 475, and referred the matter to larger Bench.
Supreme Court, in case of Girnar Traders (1) (supra) felt that, there
were good reasons for reading the provisions introduced by the
Land Acquisition (Amendment) Act, 1894 into Chapter VIII of the
M.R.T.P. Act, and Section 11-A of the Land Acquisition, 1894 is one
of such provisions. The Constitution Bench was accordingly called
upon to examine whether the M.R.T.P. Act is a self-contained Code
or not and if so, to what effect. The issue before the larger Bench
was also as to whether in any event, all the provisions of Land
Acquisition Act, as amended by Central Act of 1894, with emphasis
of Section 11-A can be read into the provisions of the M.R.T.P. Act.
67) The Supreme Court referred to these questions in para
8 of the said judgment, which were the issues before the Supreme
Court in the said judgment and have been dealt with in the later
part of the said judgment. In para No.17 and 18 of the said
judgment, the Supreme Court referred to the arguments of the
appellant that the decision of the Supreme Court in Sant Jogindar's
case (supra) needs reconsideration by a larger Bench as it did not
state correct law whereas the respondent State of Maharashtra has
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46 WP 6917 of 2004taken up the plea that, Sant Jogindar's case (supra) clinched the
entire issue in para 18 of the said judgment. The Supreme Court
also referred to the order passed by it earlier rendering three
reasons for referring the matter to a larger Bench.
68) The Supreme Court, after considering the statement of
objects and reasons of the M.R.T.P. Act, observed that, the said Act
was enacted by the legislature of the State of Maharashtra as it was
expedient to make provisions for the planning, development and
use of the land in regions established for the purpose of that Act, for
the constitution of regional planning bodies therefor, and to make
better provisions for the preparation of development plans with a
view to ensure that the town planning scheme is made in proper
manner and its execution is made effective. It is held that, the
planning authority is entitled to refuse or grant, subject to certain
conditions permission to develop in accordance with such plan.
Unauthorised development was made penal and could be removed
and the use contrary to plan according to be discontinued. Under
such plan, a local authority is to allocate land for different uses i.e.
for residential, industrial, commercial and agricultural and to
reserve sites required for public purposes as well. Town Planning
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47 WP 6917 of 2004Scheme could be made in respect of any land whether open or built
up and incremental contribution i.e. betterments of land value could
be recovered from the owners of the plots benefiting from the
proposals made in the scheme.
69) The scheme of the M.R.T.P. Act includes specifying the
land to be used for providing various public amenities and services.
The Supreme Court has also dealt with various provisions of the
M.R.T.P. Act and the purpose and object of the Act, the matters
provided under the said Act, restriction of change of user of land for
development etc.
70) In para 37 of the said judgment, the Supreme Court has
held that, the most important facet of the M.R.T.P. Act is the
provisions with regard to acquisition and lapsing of reservation and
powers of the Government in that regard. The Supreme Court dealt
with Sections 125 and 126 of the M.R.T.P. Act. It is held that, under
Section 126(2)(c) of the M.R.T.P. Act, where an application has been
moved under Section 126(2)(c) of the M.R.T.P. Act, to the State
Government for acquiring such land under the Land Acquisition Act,
then the Government is to act in accordance with and subject to the
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48 WP 6917 of 2004provisions of Section 126(2) of the M.R.T.P. Act. If the State
Government is of the view that, any land included in such plan is
needed for any public purpose, it may make a declaration to that
effect in the official gazette in the manner provided in Section 6 of
the Land Acquisition Act. Such declaration, notwithstanding
anything contained in the Land Acquisition Act, shall be deemed to
be a declaration duly made under that Section.
71) There is no requirement to comply with the provisions
of Sections 4 and 5 of the Land Acquisition Act before such
declaration is published. It is further provided that, subject to
provisions of Section 126(4) of the M.R.T.P. Act, no such declaration
shall be made after the expiry of one year from the dae of
publication of the draft regional plan, development plan or any
other plan or the scheme as the case may be.
72) It is held by the Supreme Court that, after such
declaration is published, the Collector shall proceed to take order
for acquisition of the land under the Land Acquisition Act and
provisions of that Act shall apply to the acquisition of the said land
with a modification that date of market value of the land to be
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49 WP 6917 of 2004acquired shall be determined with reference to sub-section 3(i)(iii)
of Section 126 of the M.R.T.P. Act. Section 126(4) of the M.R.T.P.
Act empowers the State Government to make a fresh declaration for
acquiring the land where a period of one year specified in Section
126(2) of the M.R.T.P. Act has lapsed but then market value of the
land would be the market value of the date of publication of fresh
declaration.
73) In paras 48 to 51 of the said judgment of Supreme
Court in Girnar Traders (3) (supra), it is held that, the provisions of
the M.R.T.P. Act clearly demonstrate 'self-contained' scheme under
the said Act. It is held that, reference to the provisions of Land
Acquisition Act in some of the provisions of the M.R.T.P. Act could
only imply that they have solely been made for the purpose of
completing the process of acquisition. Most of the provisions of the
Land Acquisition Act, with alteration in the language, have been
specifically stated under the provisions of the M.R.T.P. Act itself.
Sections 126 to 129 of the State Act clearly enunciate the intention
of the framers that substantive provisions of the Land Acquisition
Act are not applicable to the M.R.T.P. Act, which is a self-contained
Code providing procedure regarding all matters contained therein,
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50 WP 6917 of 2004except to the extent that provisions of Section 9 to 11 of the Land
Acquisition Act be brought into it for the limited purpose of
acquiring land.
74) It is held that, once the provisions of the M.R.T.P. Act
are analysed in their correct perspective, a holistic view can be
taken that it is a Code in itself. It is a legislation which has the
paramount purpose only of planning, and acquisition of land is
merely incidental, that too for a very limited purpose. It is held
that, the primary object of the State Act is planned development.
Acquisition of land takes place only where the land is reserved,
designated or required for complete development in the view of the
planning, development or appropriate authority. Complete
mechanism as to how the development plans shall be prepared,
notified and implemented as well as how the land is to be acquired,
and how the rights and disputes inter se parties as well as between
the planning authorities and the owners will be settled are provided
under different provisions of the M.R.T.P. Act.
75) It is held that it is explicitly clear that, a complete
mechanism of planning, implementation, adjudicatory process in
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51 WP 6917 of 2004that regard as well as the methodology adopted for acquiring lands,
in its limited sense, inclusive of change in the use, for public
purpose, for which the land is required have been specifically
provided under the M.R.T.P. Act. The M.R.T.P. Act is hardly
dependent upon the Land Acquisition Act except to the limited
extent of completing the process of determining compensation other
than the compensation determinable by the designated arbitrator or
Tribunal. The matters for acquisition and payment of compensation
are to be finalized with the aid of the provisions of the Land
Acquisition Act. It is held that, this being a scheme of the M.R.T.P.
Act, mere reference to some of the provisions of Land Acquisition
Act would not take away the substantive scheme of the said Act
which is a complete Code in itself.
76) Insofar as the provisions of the Land Acquisition Act,
1894 are concerned, the same are dealt with in para 55 onwards in
the said judgment. It is held by the Supreme Court that, the
primary purpose and the only object of the Land Acquisition Act is
acquisition of land and payment of compensation for such
acquisition. It is not an Act dealing in extension or otherwise with
development and planning. Despite the fact that it is compulsory
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52 WP 6917 of 2004acquisition, which is in exercise of the powers of the State of
eminent domain, the legislature has still admitted to create a
balance between the compulsory acquisition on the one hand and
right of owners/ interested persons in land on the other. The
acquisition proceedings are commenced with issuance of a
notification under Section 4 of the Land Acquisition for public
purpose and would end with the payment of compensation for such
acquired land. The mechanism provided under Land Acquisition
Act is entirely relatable to the process of acquisition of land and
payment of compensation.
77) In para 66 of the judgment, it is held that, the Land
Acquisition Act itself is a self-contained Code within the framework
of its limited purpose i.e. acquisition of land. It provides for
complete machinery for acquisition of land including the process of
execution, payment of compensation as well as legal remedies in
case of any grievances. In para 67 of the said judgment, the
Supreme Court has compared the provisions of the Land Acquisition
Act with the M.R.T.P. Act in great detail. The Supreme Court has
summarized in detail the provisions in the two Acts, which are
contrary to each other insofar as powers of the authority provided
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53 WP 6917 of 2004therein are concerned.
78) After summarizing some of the glaring contents of
distinct between the two Acts, it is held that, the purpose of
referring to this distinction was primarily to demonstrate that they
were two different Statutes operating in different fields, the
provisions of which were required to be utilised by the authorities
concerned for the object sought to be achieved under the respective
Acts. The schemes under the two Acts are distinct and different.
The scheme under the State Act can be implemented with recourse
to the provisions of the Central Act which have been specifically
stated therein. At the same time, where there are specific provisions
under the State Act, the corresponding provision of the Land
Acquisition Act will not apply. The provisions of the Land
Acquisition Act relating to the acquisition of land alone, for which
there are no specific provisions under the State Act,would be
applicable to the acquisition under the State Act. The Supreme
Court referred to various provisions of the two Acts to come to a
conclusion as to why both the Acts are self-contained Code, in the
said judgment.
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54 WP 6917 of 200479) In paras 86 to 94, the Supreme Court decided the issue
whether the provisions of Land Acquisition Act with particular
reference to Section 11-A can be read into and treated as part of the
M.R.T.P. Act on the principles of either "Legislation by reference" or
"Legislation by incorporation". Supreme Court held that, there can
be hardly any hesitation in concluding that the M.R.T.P. Act is a self-
contained Code and does not lose its colour or content of being a
self-contained Code merely because it makes a reference to the
some of the provisions of the Land Acquisition Act for acquisition of
the land for the purpose of the M.R.T.P. Act and determination of
compensation in that behalf. The referred provisions of the Land
Acquisition Act may only be taken recourse to that limited extent
within extensive framework and for the purpose of the M.R.T.P. Act.
It is held that, both these Acts operate in different field. One is the
Central Act while other is the State Act. They derive their source
from different entries in the constitutional lists.
80) In para 125 of the judgment, Supreme Court held that,
in terms of Section 126(1) (c) of the M.R.T.P. Act, the application to
the State Government has to be made for acquiring such land under
the Land Acquisition Act under the Land Acquisition Act. Such land
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55 WP 6917 of 2004refers to the lands which are required only under the provisions of
the M.R.T.P. Act. Section 126(2) refers to Section 6 of the Land
Acquisition Act only for the purpose of format in which the
declaration has to be made. In terms of Section 126(3), on
publication of the declaration, the Collector shall proceed to take
order for acquisition of the land under the State Act i.e. for the
purpose of acquisition of the land. The procedure adopted under
the Land Acquisition Act shall be adopted by the Collector and
nothing more. It is held that, those provisions of the State Act
clearly frame a scheme for planned development with limited
incorporation of some of the provisions of the Land Acquisition Act.
81) In para 127 of the judgment, it is held that, the
acquisition proceedings under the M.R.T.P. Act are commenced by
issuance of a declaration under Section 126(2) and then the
procedure prescribed under the Land Acquisition Act is followed, up
to the passing of the award under Section 11 of the Land
Acquisition Act. The determination of compensation depend upon
the principles stated in Sections 23 and 24 of the Land Acquisition
Act, but subject to Sections 128(2) and 129(1) of the M.R.T.P. Act.
It is held that, all the provisions of Land Acquisition Act introduced
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56 WP 6917 of 2004by later amendments would not, per se, become applicable and
deemed to be part and parcel of the M.R.T.P. Act.
82) The Supreme Court in the case of Special Land Acquisition
Officer, KIADB, Mysore and Another (Supra) after considering the
provisions of the Land Acquisition Act, 1894 and Karnataka
Industrial Areas Development Act, 1966 (for short, 'KIAD Act'), and
after considering some of the provisions of the said Acts, which are
pari-materia with the provisions of The Maharashtra Regional
Town Planning Act (for short, 'the M.R.T.P. Act') and also after
considering the provisions of Section 24(2) of the Right to Fair
Compensation and Transparency in Land Acquisition, Rehabilitation
and Resettlement Act, 2013 (for short, RFCTLARR Act, 2013) has
held that the said provisions of the KIAD Act, 1966 are self-
contained code and the said Act is regulating the land acquisition
for public purpose and for payment of compensation.
83) The Supreme Court in the said judgment adverted the earlier
judgment in case of Girnar Traders(3) (supra). After interpreting the
said Judgment the Supreme Court took a view that Section 11-A of
the Land Acquisition Act, 1894 does not apply to acquisitions under
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57 WP 6917 of 2004the provisions of the M.R.T.P. Act. The Supreme Court held that on
parity of reasoning, the provisions of Section 24(2) of the said
RFCTLARR Act, 2013 would not be applicable. It thus clear that the
Supreme Court in the later Judgment has taken the same view what
was taken by the Supreme Court in the earlier case Girnar
Traders(3) (supra). The Supreme Court in this later Judgment also
interpreted the Judgment in the case of Girnar Traders (3) (supra)
and held in this Judgment that Section 11-A of the Land Acquisition
Act does not apply to the acquisition under the M.R.T.P. Act.
84) The Division Bench of this Court in case of Hanumanrao
Morbaji Gudadhe and Ors. (supra) has held that the provisions of
Section 24(2) of the said RFCTLARR Act, 2013 and also the
provisions of the Land Acquisition Act and M.R.T.P. Act, and
RFCTLARR Act, 2013 are self-contained codes and the provisions of
Section 24 of the RFCTLARR Act, 2013 would not be applicable to
the acquisitions under the provisions of the M.R.T.P. Act for various
reasons. It is held that the M.R.T.P. Act is a self contained code. The
M.R.T.P. Act and RFCTLARR Act, 2013 are wholly dis-similar and
have different objects. It is held that the reference to the provisions
of the Land Acquisition Act, 1894 in the M.R.T.P. Act having been
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58 WP 6917 of 2004held to be reference by incorporation of the provisions of Section 24
of the said RFCTLARR Act, 2013 Act which is enacted after the
repeal of Land Acquisition Act, 1894, cannot be read into the
provisions of M.R.T.P. Act, especially when the M.R.T.P. Act is not
amended and its provisions do not make reference to the
RFCTLARR Act, 2013. It proves that the true intent of both the
enactments is different.
85) This Court adverted to the Judgment of the Supreme
Court in case of Girnar Traders (3) (supra) and held that the
Supreme Court in the said Judgment had held that the provisions of
the Land Acquisition Act, 1894 is limited to the extent of land
acquisition, payment of compensation and recourse to legal
remedies could be read into the acquisitions controlled by the the
provisions in the M.R.T.P. Act, but the provisions of Land
Acquisition Act, 1894 insofar as they provide different time-frames
and consequences of default thereof including lapsing of acquisition
proceedings cannot be read into the M.R.T.P. Act. The Division
Bench held that the said Judgment of Superme Court in the case of
Girnar Traders is the last word of the Supreme Court on the issue
involved that the provisions limited to acquisition and compensation
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59 WP 6917 of 2004would only apply to the proceedings for the acquisition under the
M.R.T.P. Act and the provisions like Section 24 of the said
RFCTLARR Act, 2013, which provide different time-frames and
consequences of default thereof including lapsing of acquisition
proceedings cannot be read into the M.R.T.P. Act.
86) In paragraph No.10 of the Judgment of the Division Bench, it
is clearly held that even assuming that the other provisions of the
said RFCTLARR Act, 2013 were to apply to the acquisitions under
the M.R.T.P. Act, it could be gathered from unambiguous provisions
of Section 24 of the said RFCTLARR Act, 2013 by complying
salutary principles of interpretation that the provisions of Section 24
of the said RFCTLARR Act, 2013 would apply only to the
acquisitions initiated under the Land Acquisition Act, 1894. This
Court also considered the definition of "initiated" defined in the
Oxford English Dictionary to mean 'cause, process or action to
begin'. It is held that the proceedings under the Land Acquisition
Act, 1894 commence or begin with the issuance of Section 4
Notification. A reference is also made to Section 4 of the
Notification in the proviso to Section 24(2) of the said RFCTLARR
Act, 2013 and it is held that the said provisions shows that the
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60 WP 6917 of 2004provisions of Section 24 of the RFCTLARR Act, 2013 would be
applicable only to the acquisitions under the Land Acquisition Act.
87) In paragraph No.11 of the said Judgment delivered by the
Division Bench, it is held that although the provisions of the said
RFCTLARR Act, 2013 would not per se apply to the M.R.T.P. Act,
specially when the M.R.T.P. Act not is not yet amended and
continues to make a reference to the Land Acquisition Act, 1894 by
incorporation, the provisions of the said RFCTLARR Act, 2013
insofar as they relate to determination of compensation will have to
read into the M.R.T.P. Act, so as to save some of the provisions of the
M.R.T.P. Act from the vice of discrimination.
88) A perusal of the Judgment of the Supreme Court in case of
Girnar Traders(3) clearly indicates that the issue before the Supreme
Court was not restricted to whether the provisions of Section 11-A
of the Land Acquisition Act, 1894 would apply to acquisitions under
Chapter VII of the M.R.T.P. Act or not, but also to decide whether the
M.R.T.P. Act is a self-contained code or not and if so to what extent.
Various issues were referred to larger Bench in view of the Supreme
Court having expressed doubt about the correctness of law stated in
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61 WP 6917 of 2004case of Sant Joginder Singh, reported in 1995 Supp.(2) SCC, 475.
We are thus not inclined to accept the submission of Mr.Kulkarni,
the learned counsel that the view taken by the Supreme Court that
the provisions of the Land Acquisition Act, 1894 and M.R.T.P. Act are
self-contained codes and only limited provisions of the Land
Acquisition Act can be read in the provisions of the M.R.T.P. Act,
cannot be considered as ratio decidendi but was at most the obiter
dicta. In our view, the submission of the learned counsel is contrary
to the view taken by the Supreme Court in case of Girnar Traders(3)
(supra), which has been followed by the Supreme Court in case of
Special Land Acquisition Officer, KIADB, Mysore and Another (supra)
and also followed and interpreted by the Division Bench of this
Court in case of Hanumanrao Morbaji Gudadhe and Ors.(supra).
89) A perusal of the record clearly indicates that in this case a
declaration was issued by the State Government for acquiring the
land in question under Section 126(2) of the M.R.T.P. Act. Based on
the said declaration, the Collector had appointed the Special Land
Acquisition Officer for the purpose of acquiring the said land and to
provide mechanism of the acquisition of the said land under the
provisions of the Land Acquisition Act, 1894. There was no
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62 WP 6917 of 2004Notification issued by the Land Acquisition Officer under Section 4
of the Land Acquisition Act, 1894 admittedly. It is thus clear beyond
reasonable doubt that the proceedings for acquisition were initiated
under the provisions of Section 126(2) of the M.R.T.P. Act and not
under Section 4 of the Land Acquisition Act.
90) In our view, the acquisition of the land in question thus was
initiated under the provisions of the M.R.T.P. Act and was subject to
the provisions of the said Act except to the extent of completing the
process of determining compensation other than the compensation
determinable by the designated arbitrator or tribunal. Be that as it
may, even if the Judgment of the Supreme Court in case of Girnar
Traders(3) holding that the provisions of the Land Acquisition Act,
1894 and the M.R.T.P. Act are self-contained codes and all the
provisions of the Land Acquisition Act cannot be read in the
provisions of M.R.T.P. Act is considered as obiter dicta, this Court is
bound by even by the obiter dicta in the Judgment delivered by the
Supreme Court. The aforesaid three judgments squarely apply to the
facts of this case. We are respectfully bound by those Judgments.
91) Insofar as the issue whether Section 48 of the Land
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63 WP 6917 of 2004Acquisition Act is applicable to the acquisition initiated under the
provisions of M.R.T.P. Act or not is concerned, in our view, in view of
the principles laid down by the Supreme Court in case of Girnar
Traders(3) (supra), in case of Special Land Acquisition Officer,
KIADB, Mysore and Another (supra) and Judgment of the Division
Bench of this Court in case of Hanumanrao Morbaji Gudadhe and
Ors.(supra), remedy under Section 48 cannot be attracted in case of
acquisition initiated under M.R.T.P. Act. The said application made
by respondent No.7 before respondent No.2 for seeking deletion of
the land from acquisition itself was not maintainable, In our view,
the learned Minister for Revenue and Forest Department had acted
without jurisdiction, without authority of law by entertaining the
application purported to have been filed by the respondent No.7
under Section 48 of the Land Acquisition Act, 1894.
92) A perusal of the record indicates that though the petitioner
herein had raised a specific objection about the maintainability of
the said application filed by the respondent No.7 purportedly under
Section 48 of the Land Acquisition Act, the learned Minister for
Revenue and Forest Department did not even bothered to deal with
the said objection of maintainability of the said application in the
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64 WP 6917 of 2004impugned order and passed an illegal order contrary to the
provisions of the Land Acquisition Act, 1894 and also the provisions
of the said M.R.T.P. Act.
93) Insofar as the Judgment of the Supreme Court in case of Pune
Municipal Corporation and another (supra) relied upon by
Mr.Kulkarni, learned counsel for the respondent No.7 is concerned,
a perusal of the said Judgment clearly indicates that the Notification
in that case was issued by the Land Acquisition Officer under
Section 4 of the Land Acquisition Act, 1894 and the notices under
Section 4(1) were served upon the land owners/interested persons.
The said Notification under Section 4 was valid. A declaration
under Section 6 was followed by notices under Section 9. The
Special Land Acquisition Officer thereafter, made an award under
Section 11 of the Land Acquisition Act, 1894. However, in this case
admittedly, the notification was issued under Section 126(2) of the
M.R.T.P. Act.
94) In paragraph No.11 in the case of Pune Municipal
Corporation, the Supreme Court has held that in relation to the land
acquisition proceedings initiated under Land Acquisition Act, 1894,
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65 WP 6917 of 2004where an award has been made five years prior to the
commencement of RFCTLARR Act, 2013 and either of the two
contingencies are satisfied i.e. (i) physical possession of the land
has not been taken, or (ii) the compensation has not been paid,
such acquisition proceedings shall be deemed to have lapsed. On the
lapse of such acquisition proceedings, if the Government still
chooses to acquire the land, which was subject matter of acquisition
under the 1894 Act, then it has to initiate the proceedings afresh
under the RFCTLARR Act, 2013. The proviso appended to Section
24(2) deals with a situation where in respect of the acquisition
initiated under the Land Acquisition Act, 1894 has been made and
compensation in respect of majority of landholdings has not been
deposited in the account of beneficiaries, then all the beneficiaries
specified in the Notification become entitled to compensation under
RFCTLARR Act, 2013.
95) The Supreme Court in the said Judgment thereafter
considered the issue whether the expression "compensation has not
been paid" and held that the amount of compensation has to be
either paid to the land owners/persons interested to or to be
deposited in the Court. The Supreme Court rejected the argument
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66 WP 6917 of 2004of the State Government that deposit of the compensation in the
State's Revenue account would amount to the payment of
compensation or deposit of the same in the Court under Section 31
of the Land Acquisition Act, 1894. The intent and object of
RFCTLARR Act, 2013 and the M.R.T.P. Act are totally different.
Division Bench of this Court in case of Hanumanrao Morbaji
Gudadhe (supra) has held that the provisions of section 24(2) of the
RFCTLARR Act, 2013, the provisions of Land Acquisition Act and
M.R.T.P. Act are Self Contained Code and the provisions of Section
24 of the RFCTLARR Act, 2013, would not be applicable to the
acquisition under M.R.T.P. Act. It is held that since M.R.T.P. Act is not
yet amended after enactment of RFCTLARR Act, 2013, the
provisions as they relate to determination of the compensation will
have to be read into the M.R.T.P. Act, so as to save some of the
provisions of the M.R.T.P. Act from the vice of discrimination. The
said Judgment of the Division Bench applies to the facts of this case
and is binding on this Court.
96) Be that as it may, in the facts of this case, admittedly no
Notification was issued for acquiring land under Section 4 of the
Land Acquisition Act, but was issued under Section 126 of the
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67 WP 6917 of 2004M.R.T.P. Act. The acquisition proceeding in this case challenged by
the respondent No.7 on various grounds has attained finality. The
writ petition filed by the respondent No.7 challenging the
acquisition proceedings came to be dismissed by this Court. Special
Leave Petition against the said order and Judgment of the Division
Bench also came to be dismissed. The respondent No.7 had applied
for injunction against the petitioner from taking possession of the
land in question from respondent No.7. The said injunction was
granted by this Court in the said writ petition. The petition was
thereafter dismissed.
97) The learned Minister for Revenue and Forest also
granted injunction against the petitioner from taking possession of
the land in question from respondent No.7. The said injunction
continued till the impugned order was passed by him. In this writ
petition also, the respondent No.7 made a statement that he would
maintain status-quo in respect of the land in question, which was
accepted by this Court. This Court thereafter, passed an order of
status-quo in respect of land in question, which order is still in force
till today. The question of the petitioner thus taking the possession
of the land from the respondent No.7, within five years from the
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68 WP 6917 of 2004date of award in this case did not arise.
98) Insofar as payment or deposit of compensation is
concerned, though section 24 of the RFCTLARR Act, 2013 would
not apply to the acquisition under M.R.T.P. Act, it is not in dispute
that the petitioner had already deposited the amount determined by
the Special Land Acquisition Officer in respect of the land in
question in the appropriate proceeding. Thus, it cannot be said that
the petitioner could not take possession within five years from the
date of award made by Special Land Acquisition Officer or could not
pay or deposit the compensation payable to the respondent No.7
within five years from the date of award and thus the reservation
has lapsed and if fresh notification is issued, compensation at the
rate provided in the said Act would be payable.
99) In our view, there is no substance in the submission of
the learned counsel for the respondent No.7 that though there was
injunction against the petitioner for taking possession of land in
question in favour of the respondent No.7 passed by this Court and
also by the learned Minister for Revenue and Forest, the time of five
years to take possession or to pay or deposit compensation had not
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69 WP 6917 of 2004stopped even during such period of such injunction and/or status-
quo order. It is not in dispute that till today the said status-quo
order is in force.
100) In our view, the principles of law laid down by the
Supreme Court in case of Girnar Traders (3) (supra), in case of
Special Land Acquisition Officer, KIADB, Mysore anr. (supra) and
judgment of this Court in case of Hanumanrao Morbaji Gudadhe
others (supra) squarely apply to the facts of this case. We are
respectfully bound by this judgment. In our view, the application,
thus, filed by the respondent No.7 purportedly under Section 48 of
the Land Acquisition Act, 1894 itself was not maintainable and thus,
the impugned order passed by the learned Minister for Revenue
Forest Department were totally without jurisdiction, without
authority of law and illegal.
101) Be that as it may. In our view, since the acquisition of
land in question was not under the provisions of Land Acquisition
Act, 1894, the question of applicability of Section 48 of the Land
Acquisition Act, 1894 for deletion of the plot in question from
acquisition did not arise. Though this Court, while dismissing the
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70 WP 6917 of 2004Writ Petition filed by the respondent No.7 on 26/7/2001 had made
it clear that the land owners were not precluded from approaching
the respondent No.3 or the State Government praying for either
concession or deletion of the land as they continued in possession,
the said clarification issued by this Court would not create a remedy
in favour of the respondent No.7 under Section 48 of the Land
Acquisition Act, which provision was not at all attracted in view of
the acquisition of the land in question being initiated under Section
126(2) of the M.R.T.P. Act.
102) In our view, the learned Minister for Revenue Forest
Department could not have usurped the jurisdiction purportedly
under Section 48 of the Land Acquisition Act, 1894, which he did
not have, relying upon the order of clarification in para 9 of the
judgment dated 26/7/2001 made by this Court in the said Writ
Petition No.377/1989. Such application could be made by the
respondent No.7 only if the same was permissible in law and under
the provisions of Land Acquisition Act, 1894 or under any other
provisions of law. The learned counsel for the respondent No.7
could not point out any other provision of law invoked by the
respondent No.7 while filing such application for deletion of
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71 WP 6917 of 2004reservation before the learned Minister for Revenue Forest
Department. The learned Minister for Revenue Forest
Department did not decide the issue of maintainability of the said
application in the impugned order at all though specifically raised in
reply filed by the petitioner before him. In our view, the order
passed by the learned Minister for Revenue Forest Department
shows total non-application of mind in passing the impugned order.
103) Be that as it may. Even if the respondent No.7 could
have invoked the provision under Section 48 of the Land Acquisition
Act for seeking deletion of the land in question from acquisition, in
our view, the scope of Section 48 of the Land Acquisition Act is very
limited and can be invoked only in the interest of public at large,
and not for the individual benefit of a party. It is not in dispute that
the notice of acquisition was already issued to the original owner by
the authority. The original owner did not challenge the acquisition
proceedings at all. After issuance of such notice by the authority to
the original owner, the respondent No.7 entered into the transaction
with the original owner in respect of the plot in question
intentionally and knowing well of the initiation of acquisition
proceedings in respect of the plot in question.
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72 WP 6917 of 2004104) This Court, while dismissing the Writ Petition filed by
the petitioner by judgment dated 26/7/2001, rendered a finding
that the purchase of the said land by the respondent No.7 was
illegal and such a transaction did not bind the State. It is also held
by this Court that the respondent No.7 (original petitioner in the
said Writ Petition No.371/1989) had purchased the subject land in
1984. The original land owner was given a notice for hearing
before the development plan was approved way back in 1973. Such
findings rendered by the Division Bench of this Court in the said
Writ Petition filed by respondent No.7 has attained finality. The
learned Minister for Revenue Forest Department, however, totally
ignored and overlooked these findings of the Division Bench of this
Court which were not only binding on the parties but also on the
learned Minister for Revenue Forest Department. A perusal of the
order passed by the learned Minister for Revenue Forest
Department clearly indicates that, various findings about illegality
of transactions entered into between the respondent No.7 and the
original owner, and about the knowledge of respondent No.7, of the
acquisition proceedings have not been dealt with or considered by
the learned Minister for Revenue Forest Department in the
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73 WP 6917 of 2004impugned order at all. The respondent No.7 had already made a
claim before the Land Acquisition Officer and had applied for
enhancement of the claim subsequently.
105) A perusal of the impugned order passed by the learned
Minister for Revenue Forest Department indicates that, he has
held that there was no bar for any kind of the transaction of the
land under acquisition after the proposed acquisition of the land
had commenced and even after initiation of acquisition process till
the possession of the land under acquisition was not taken, and,
therefore, the transaction for purchase of the land in question,
entered into by the respondent No.7 with the original land owner
was legal. In our view, this finding of the learned Minister for
Revenue Forest Department is totally contrary to the finding of
fact rendered by Division Bench of this Court to the effect that the
purchase of the land by the respondent No.7 was illegal and such a
transaction did not bind the State. This Court, while rendering such
finding, had also considered the date of the transaction between the
respondent No.7 and the original owners. In our view, the
impugned order passed by the learned Minister for Revenue
Forest Department shows total ignorance of law and contrary to the
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74 WP 6917 of 2004judgment of this Court.
106) In our view, the finding of the learned Minister for
Revenue Forest Department that application under Section 48(1)
of the Land Acquisition Act, 1894 is maintainable, is totally contrary
to the principles of law laid down by the Supreme Court in case of
Girnar Traders (3) (supra), in case of Special Land Acquisition
Officer, KIADB, Mysore anr. (supra) and judgment of this Court in
case of Hanumanrao Morbaji Gudadhe others (supra). Similarly,
the findings of the learned Minister for Revenue Forest
Department that the entire acquisition proceedings were to be
completed as per the provisions of the Land Acquisition Act, 1894
and thus, application under Section 48 filed by the respondent No.7
was maintainable, is also totally perverse and contrary to the
aforesaid judgments delivered by the Supreme Court as well as High
Court respectively. The finding of the learned Minister for Revenue
Forest Department that since possession of the land was not taken
by the Government under Section 16 of the Land Acquisition Act,
1894 and thus, application under Section 48(1) is maintainable on
that ground, is also totally perverse and contrary to the judgments
of the Supreme Court. There was a stay order granted by this Court
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75 WP 6917 of 2004in the Writ Petition No.377/1989, which stay order continued from
time to time. The petitioner, thus, could not have taken possession
of the said land from the respondent No.7. In our view, Section 16
of the Land Acquisition Act, 1894 was not at all attracted in view of
the fact that the acquisition proceedings initiated by the petitioner
were under Section 126(2) of the M.R.T.P. Act and not under the
provisions of the Land Acquisition Act, 1894.
107) Insofar as the issue whether the land was required for
public purpose or not, the learned Minister for Revenue Forest
Department has held that the purpose of acquisition mentioned by
the petitioner was that the land was immensely required. However,
the acquiring body had not given any reasons in the Writ Petition or
brought any concrete evidence and thus, the requirement of the
petitioner to acquire the land was not proved. In our view, this
finding of the learned Minister for Revenue Forest Department is
totally perverse and contrary to the judgment delivered by this
Court in Writ Petition No.377/1989 and the order passed by the
Supreme Court on 3/10/2001 dismissing the S.L.P. Filed by the
respondent No.7. This Court had rejected the challenge by the
respondent No.7 to the validity of the acquisition proceedings in
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76 WP 6917 of 2004toto, which order has attained finality. The learned Minister for
Revenue Forest Department, therefore, in the impugned order,
could not have rendered a finding that the petitioner had not
proved that the land was immensely required by the petitioner.
108) The petitioner had only taken possession of all the
lands except few, which were deleted from acquisition at the initial
stage for various reasons. This finding rendered by the learned
Minister for Revenue Forest Department is also without
application of mind and contrary to the order of the Supreme Court
accepting that the acquisition of proceedings were initiated for
public project. The finding of the learned Minister for Revenue
Forest Department that the petitioner has not brought on record any
concrete evidence or documents showing that there would be any
hurdle to the entire public, or public interest would be affected if
the land in question is deleted from the acquisition proceedings is
concerned, the said finding is also totally perverse and contrary to
the judgment of this Court and the order of Supreme Court and is
passed overlooking the material produced by the petitioner before
the learned Minister for Revenue Forest Department. The plot
was acquired by the petitioner being a special planning authority
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77 WP 6917 of 2004and for the public purpose. The learned Minister for Revenue
Forest Department has totally overlooked various submissions made
and the documents produced by the petitioner in support of its
submissions opposing the said application purportedly to have been
made under Section 48 of the Land Acquisition Act, 1894.
109) This Court, in case of Pralhad Lokram Dodeja (supra)
has held that, if the learned Minister has drawn conclusion contrary
to the material placed by the beneficiary, this conduct on the part of
the Minister cannot be considered as an innocent act or mistake, but
it was a deliberate decision. In our view, this principle laid down by
the Division Bench of this Court squarely applies to the facts of this
case. In this case also the learned Minister for Revenue Forest
Department totally by-passed and overlooked the binding judgment
of this Court rendering various findings of facts which is upheld by
the Supreme Court and has decided totally contrary to the law laid
down by this Court and the findings rendered therein. It is thus
clear that the conduct on the part of the learned Minister for
Revenue Forest Department cannot be considered as an innocent
act or mistake but is a deliberate decision to favour the respondent
No.7 and is contemptuous. We are respectfully bound by the said
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78 WP 6917 of 2004judgment of this Court in the case of Pralhad Lokram Dodeja
(supra).
110) The Supreme Court, in case of Uddar Gagan Properties
Limited (supra) has held that, use of power for a purpose different
from the one for which power is conferred, is colourable exercise of
power. Statutory and public power is trust and the authority on
whom such power is conferred is accountable for its exercise. Fraud
on powers voids the action of the authority. It is held that, the
power to release land from acquisition has to be exercised
consistent with the doctrine of public trust and not arbitrarily.
Functioning of a democratic Government demands equality and
non-arbitrariness. Rule of law is the foundation of a democratic
society. In our view, even if the learned Minister for Revenue
Forest Department had jurisdiction to entertain such frivolous
application filed by the respondent No.7, powers of the learned
Minister for Revenue Forest Department could not have been
exercised in favour of the respondent No.7 claiming individual
interest and in ignorance of the larger public interest involved in
acquiring the said portion of the land. The larger public interest
would prevail over the smaller individual interest and more
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79 WP 6917 of 2004particularly in a case where a party whose transaction was already
declared as illegal and not binding on the State Government by this
Court. The principles of law laid down by Supreme Court in case of
Uddar Gagan Properties Limited (supra) squarely applies to the
facts of this case. We are respectfully bound by the said judgment.
111) In so far as judgment of Supreme Court in case of
Special Land Acquisition Officer, Bombay and others V/s M/s Godrej
and Boyce, relied upon by learned counsel for respondent No.7 is
concerned, in our view, the said judgment would not apply to the
facts of this case on the ground that, in that matter the acquisition
was withdrawn by the Government whereas the owners of the land
were insisting that the Government shall acquire their lands. In our
view, the facts before the Supreme Court in the said judgment were
totally different and thus, the said judgment is clearly
distinguishable in the facts of this case and would not assist the case
of the respondent No.7.
112) Insofar as the submission of learned counsel for
respondent No.7 that there was discrimination in respect of the land
of respondent No.7 and other land owners, and in support of this
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80 WP 6917 of 2004submission, reliance placed on the judgment of the Supreme Court
in case of Hari Ram anr. (supra) is concerned, in our view, Mr.
Bajaj, learned counsel for the petitioner is right in his submission
that there was no discrimination between the respondent No.7 and
any other land owner. The transaction of respondent No.7 with the
original owner was already declared illegal. Be that as it may. The
ten plots deleted from acquisition were for different reasons
permissible in law and could not be compared with the case of the
respondent No.7. The judgment of Supreme Court in case of Hari
Ram anr. (supra) is totally distinguishable in the facts of the case
and would not assist the case of respondent No.7. Similarly, the
judgment of the Supreme Court in Union of India ors. Vs. Shiv Raj
ors.(supra) and the judgment in case of Radiance Fincap (P) Ltd.
(supra) relied upon by respondent No.7 would not assist the case of
respondent No.7 and are clearly distinguishable.
113) Insofar as submission of learned counsel for respondent
No.7 that his client has spent substantial amount on the land in
question is concerned, in our view, Mr. Bajaj, learned counsel for the
petitioner is right in his submission that the respondent No.7 could
not produce any proof before this Court in the earlier Writ Petition,
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81 WP 6917 of 2004before the learned Minister and also before this Court in this
petition. Even if he has spent any amount, the same was at his risk
in view of the fact that he was fully aware of the acquisition
proceedings being initiated and in spite thereof, had entered into
the transaction with the original owner. In any event, he had
already filed a claim for compensation.
114) In our view, the impugned order passed by the learned
Minister for Revenue Forest Department is totally illegal and
without authority of law, and thus deserves to be set aside.
We, therefore, pass following order :
ORDER
(a) Writ Petition No.6917/2004 is made absolute in
terms of prayer clauses (A) and (B). Rule is made
absolute in aforesaid terms.(b) There shall be no order as to costs.(c) Parties to act on the authenticated copy of this
order.( SUNIL K. KOTWAL ) ( R.D. DHANUKA )
JUDGE JUDGE
ysk/::: Uploaded on - 06/10/2017 07/10/2017 02:13:15 :::
82 WP 6917 of 2004At the request of the learned counsel for the Respondent
No.7, operation of this Judgment is stayed for a period of six
weeks. It is made clear that the respondent No.7 shall not part with
the possession of the property in question, during this period in
favour of any party, except the petitioner. The respondent no.7 shall
serve the copy of the proceedings of the Special Leave Petition or
any other proceedings arising out of the challenge to the present
judgment, if any, that may be filed by the Respondent No.7, upon
the petitioner as well as other parties, well in advance.
( SUNIL K. KOTWAL) ( R.D. DHANUKA)
JUDGE JUDGEYSK/
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