C I D C O Aurangabad vs The State Of Mah on 6 October, 2017

1 WP 6917 of 2004

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.

::: Uploaded on – 06/10/2017 07/10/2017 02:13:13 :::
2 WP 6917 of 2004

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

::: Uploaded on – 06/10/2017 07/10/2017 02:13:13 :::
3 WP 6917 of 2004

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

::: Uploaded on – 06/10/2017 07/10/2017 02:13:13 :::
4 WP 6917 of 2004

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

::: Uploaded on – 06/10/2017 07/10/2017 02:13:13 :::
5 WP 6917 of 2004

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,

::: Uploaded on – 06/10/2017 07/10/2017 02:13:13 :::
6 WP 6917 of 2004

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

::: Uploaded on – 06/10/2017 07/10/2017 02:13:13 :::
7 WP 6917 of 2004

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

::: Uploaded on – 06/10/2017 07/10/2017 02:13:13 :::
8 WP 6917 of 2004

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

::: Uploaded on – 06/10/2017 07/10/2017 02:13:13 :::
9 WP 6917 of 2004

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

::: Uploaded on – 06/10/2017 07/10/2017 02:13:13 :::
10 WP 6917 of 2004

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

::: Uploaded on – 06/10/2017 07/10/2017 02:13:13 :::
11 WP 6917 of 2004

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.

::: Uploaded on – 06/10/2017 07/10/2017 02:13:13 :::

                                              12                         WP 6917 of 2004

17) 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.

::: Uploaded on - 06/10/2017 07/10/2017 02:13:13 :::

                                            13                         WP 6917 of 2004

19) 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

::: Uploaded on - 06/10/2017 07/10/2017 02:13:13 :::
14 WP 6917 of 2004

of 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

::: Uploaded on - 06/10/2017 07/10/2017 02:13:13 :::
15 WP 6917 of 2004

Acquisition 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

::: Uploaded on - 06/10/2017 07/10/2017 02:13:13 :::
16 WP 6917 of 2004

consider 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

::: Uploaded on - 06/10/2017 07/10/2017 02:13:13 :::
17 WP 6917 of 2004

M.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

::: Uploaded on - 06/10/2017 07/10/2017 02:13:13 :::
18 WP 6917 of 2004

Land 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

::: Uploaded on - 06/10/2017 07/10/2017 02:13:13 :::
19 WP 6917 of 2004

different. 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.

::: Uploaded on - 06/10/2017 07/10/2017 02:13:13 :::

                                             20                         WP 6917 of 2004

28) 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

::: Uploaded on - 06/10/2017 07/10/2017 02:13:13 :::
21 WP 6917 of 2004

submits 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

::: Uploaded on - 06/10/2017 07/10/2017 02:13:13 :::
22 WP 6917 of 2004

thus 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

::: Uploaded on - 06/10/2017 07/10/2017 02:13:13 :::
23 WP 6917 of 2004

had 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

::: Uploaded on - 06/10/2017 07/10/2017 02:13:13 :::
24 WP 6917 of 2004

Section 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

::: Uploaded on - 06/10/2017 07/10/2017 02:13:13 :::
25 WP 6917 of 2004

limited 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

::: Uploaded on - 06/10/2017 07/10/2017 02:13:14 :::
26 WP 6917 of 2004

Properties 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.

::: Uploaded on - 06/10/2017 07/10/2017 02:13:14 :::

                                              27                         WP 6917 of 2004

38) 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,

::: Uploaded on - 06/10/2017 07/10/2017 02:13:14 :::
28 WP 6917 of 2004

1894. 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

::: Uploaded on - 06/10/2017 07/10/2017 02:13:14 :::
29 WP 6917 of 2004

not 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

::: Uploaded on - 06/10/2017 07/10/2017 02:13:14 :::
30 WP 6917 of 2004

the 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

::: Uploaded on - 06/10/2017 07/10/2017 02:13:14 :::
31 WP 6917 of 2004

since 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

::: Uploaded on - 06/10/2017 07/10/2017 02:13:14 :::
32 WP 6917 of 2004

Municipal 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.

::: Uploaded on - 06/10/2017 07/10/2017 02:13:14 :::

                                             33                         WP 6917 of 2004

47) 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

::: Uploaded on - 06/10/2017 07/10/2017 02:13:14 :::
34 WP 6917 of 2004

considered 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

::: Uploaded on - 06/10/2017 07/10/2017 02:13:14 :::
35 WP 6917 of 2004

Act, 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.

::: Uploaded on - 06/10/2017 07/10/2017 02:13:14 :::

                                            36                         WP 6917 of 2004

52) 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

::: Uploaded on - 06/10/2017 07/10/2017 02:13:14 :::
37 WP 6917 of 2004

by 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

::: Uploaded on - 06/10/2017 07/10/2017 02:13:14 :::
38 WP 6917 of 2004

land 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

::: Uploaded on - 06/10/2017 07/10/2017 02:13:14 :::
39 WP 6917 of 2004

for 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

::: Uploaded on - 06/10/2017 07/10/2017 02:13:14 :::
40 WP 6917 of 2004

before 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.

::: Uploaded on - 06/10/2017 07/10/2017 02:13:14 :::

                                              41                          WP 6917 of 2004

60) 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

::: Uploaded on - 06/10/2017 07/10/2017 02:13:14 :::
42 WP 6917 of 2004

for 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

::: Uploaded on - 06/10/2017 07/10/2017 02:13:14 :::
43 WP 6917 of 2004

for 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

::: Uploaded on - 06/10/2017 07/10/2017 02:13:14 :::
44 WP 6917 of 2004

whether 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

::: Uploaded on - 06/10/2017 07/10/2017 02:13:14 :::
45 WP 6917 of 2004

in 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

::: Uploaded on - 06/10/2017 07/10/2017 02:13:14 :::
46 WP 6917 of 2004

taken 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

::: Uploaded on - 06/10/2017 07/10/2017 02:13:14 :::
47 WP 6917 of 2004

Scheme 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

::: Uploaded on - 06/10/2017 07/10/2017 02:13:14 :::
48 WP 6917 of 2004

provisions 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

::: Uploaded on - 06/10/2017 07/10/2017 02:13:14 :::
49 WP 6917 of 2004

acquired 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,

::: Uploaded on - 06/10/2017 07/10/2017 02:13:14 :::
50 WP 6917 of 2004

except 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

::: Uploaded on - 06/10/2017 07/10/2017 02:13:14 :::
51 WP 6917 of 2004

that 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

::: Uploaded on - 06/10/2017 07/10/2017 02:13:14 :::
52 WP 6917 of 2004

acquisition, 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

::: Uploaded on - 06/10/2017 07/10/2017 02:13:14 :::
53 WP 6917 of 2004

therein 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.

::: Uploaded on - 06/10/2017 07/10/2017 02:13:14 :::

                                           54                         WP 6917 of 2004

79) 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

::: Uploaded on - 06/10/2017 07/10/2017 02:13:14 :::
55 WP 6917 of 2004

refers 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

::: Uploaded on - 06/10/2017 07/10/2017 02:13:14 :::
56 WP 6917 of 2004

by 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

::: Uploaded on - 06/10/2017 07/10/2017 02:13:14 :::
57 WP 6917 of 2004

the 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

::: Uploaded on - 06/10/2017 07/10/2017 02:13:14 :::
58 WP 6917 of 2004

held 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

::: Uploaded on - 06/10/2017 07/10/2017 02:13:14 :::
59 WP 6917 of 2004

would 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

::: Uploaded on - 06/10/2017 07/10/2017 02:13:14 :::
60 WP 6917 of 2004

provisions 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

::: Uploaded on - 06/10/2017 07/10/2017 02:13:14 :::
61 WP 6917 of 2004

case 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

::: Uploaded on - 06/10/2017 07/10/2017 02:13:14 :::
62 WP 6917 of 2004

Notification 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

::: Uploaded on - 06/10/2017 07/10/2017 02:13:14 :::
63 WP 6917 of 2004

Acquisition 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

::: Uploaded on - 06/10/2017 07/10/2017 02:13:14 :::
64 WP 6917 of 2004

impugned 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,

::: Uploaded on - 06/10/2017 07/10/2017 02:13:14 :::
65 WP 6917 of 2004

where 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

::: Uploaded on - 06/10/2017 07/10/2017 02:13:14 :::
66 WP 6917 of 2004

of 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

::: Uploaded on - 06/10/2017 07/10/2017 02:13:14 :::
67 WP 6917 of 2004

M.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

::: Uploaded on - 06/10/2017 07/10/2017 02:13:14 :::
68 WP 6917 of 2004

date 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

::: Uploaded on - 06/10/2017 07/10/2017 02:13:14 :::
69 WP 6917 of 2004

stopped 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

::: Uploaded on - 06/10/2017 07/10/2017 02:13:14 :::
70 WP 6917 of 2004

Writ 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

::: Uploaded on - 06/10/2017 07/10/2017 02:13:14 :::
71 WP 6917 of 2004

reservation 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.

::: Uploaded on - 06/10/2017 07/10/2017 02:13:14 :::

                                             72                         WP 6917 of 2004

104) 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

::: Uploaded on - 06/10/2017 07/10/2017 02:13:14 :::
73 WP 6917 of 2004

impugned 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

::: Uploaded on - 06/10/2017 07/10/2017 02:13:15 :::
74 WP 6917 of 2004

judgment 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

::: Uploaded on - 06/10/2017 07/10/2017 02:13:15 :::
75 WP 6917 of 2004

in 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

::: Uploaded on - 06/10/2017 07/10/2017 02:13:15 :::
76 WP 6917 of 2004

toto, 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

::: Uploaded on - 06/10/2017 07/10/2017 02:13:15 :::
77 WP 6917 of 2004

and 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

::: Uploaded on - 06/10/2017 07/10/2017 02:13:15 :::
78 WP 6917 of 2004

judgment 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

::: Uploaded on - 06/10/2017 07/10/2017 02:13:15 :::
79 WP 6917 of 2004

particularly 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

::: Uploaded on - 06/10/2017 07/10/2017 02:13:15 :::
80 WP 6917 of 2004

submission, 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,

::: Uploaded on - 06/10/2017 07/10/2017 02:13:15 :::
81 WP 6917 of 2004

before 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 2004

At 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 JUDGE

YSK/

::: Uploaded on - 06/10/2017 07/10/2017 02:13:15 :::

Leave a Comment

Your email address will not be published. Required fields are marked *