JUDGMENT R.M.S. Khandeparkar, J.
Page 1845
1. Heard.
2. This appeal arises from the Judgment and Order dated 26-10-2005 passed by the 9th Joint Civil Judge, Senior Division, Pune on the preliminary issue relating to the jurisdiction of the Civil Court to entertain, try and decide the suit challenging the land acquisition proceedings initiated under the Land Acquisition Act, 1894, hereinafter called as "the said Act".
3. The appellants have filed the Suit No. 423 of 2001 for various reliefs; however, the main relief relates to declaration that the land acquisition proceedings initiated under the Notification No. LAQ/87 dated 26-5-1989 be declared as null and void, as also the Order dated 17-11-1992 and the Order dated 11-10-1993 in Civil Application No. 4803 of 1993 in the Writ Petition No. 4671 of 1990 be declared to have been obtained by playing fraud upon the Court and, therefore, they are non est ab initio. There are also consequential reliefs asked for. The respondents raised a preliminary issue regarding absence of jurisdiction to the Civil Court to entertain the suit for the grant of the relief asked for. The Civil Court has answered the issue of jurisdiction in negative and has held that it has no jurisdiction to entertain the suit.
4. The Notification under Section 4 of the said Act came to be issued on 26-5-1989 on the ground that the land described in the said Notification was required for public purpose and the public purpose was disclosed as the need of the area for educational and research work in the field of technical education for the Maharashtra Academy of Engineering and Educational Research, Pune. The declaration under Section 6 of the said Act was issued on 25-5-1990. A petition being Writ Petition No. 4671 of 1990 came to be Page 1846 filed on 16-8-1990 by the respondent Nos.6 and 7 herein claiming ownership of the plot under acquisition and consequent to the Consent Terms filed therein, the petition was disposed of on 17-11-1992 in terms of those Consent Terms. By the Consent Terms, the public purpose for acquisition of the land was changed to the one for rehabilitation of co-operative housing societies. The appellants herein filed Civil Application No. 1082 of 1993 on 3-3-1993 in the said Writ Petition No. 4671 of 1990 contending that the Order of 17-11-1992 was fraudulently obtained by suppressing the facts and without the knowledge of the appellants, who claimed to be the real owners of the land in question. The said civil application was disposed of on 18-3-1993 by allowing the appellants to withdraw the application, leaving it open to the appellants to take such steps as may be available to them in accordance with law for redressal of their grievance which was set out in the said application. On 7-7-1993 the appellants issued a notice to the respondent-authorities under Section 80 of the Code of Civil Procedure (for short, "CPC") making grievance of fraud having been played on the Court. The Land Acquisition Officer took possession of the acquired land on 10-11-1993. The appellants herein again filed a petition being Writ Petition No. 1471 of 1994 on 25-2-1994 claiming writ remedy to be very efficacious remedy in view of the possession having been taken and non-consideration of the appellants' representation made to the authorities. However, the same was also dismissed by the order dated 19-8-1994 observing that there was nothing before the Court at that stage to conclude, without further investigation into the facts, that the appellants had any legal right in the land which was sought to be acquired and, therefore, as the case involved determination of disputed questions of fact, the writ petition was not an appropriate remedy. The appellants thereafter made representation, stated to be under Section 15A of the said Act on 29-9-1994, which came to be disposed of by the Government on 8-3-1995, without any favourable relief to the appellants. A Civil Application No. 1485 of 1995 in Writ Petition No. 4423 of 1990 came to be filed on 15-3-1995 by the appellants on the ground that it was learnt by the appellants that Consent Terms were to be filed in the said writ petition by the parties on the basis of the order passed in the Writ Petition No. 4671 of 1990, seeking to rehabilitate the respondents in the said land. However, the Writ Petition No. 4423 of 1990 itself came to be disposed of as not pressed for after taking on record the Consent Terms arrived at between the parties and consequently the Civil Application No. 1485 of 1995 was disposed of as dismissed since it did not survive. The award in the land acquisition proceedings came to be declared on 31-3-1995. A fresh Notice under Section 80 of the CPC r/w Section 52 of the said Act was issued on 21-6-1995 on behalf of the appellants. The possession of the part of the acquired land was transferred to the respondent Nos.5 and 8 to 12 on 12-10-1995. Thereafter, on 3-11-1995 a fresh petition being Writ Petition No. 2681 of 1996 came to be filed seeking various reliefs in relation to the acquired land and the land acquisition proceedings, which was dismissed on 2-9-1997. The S.L.P. filed against the same on 8-1-1998 also came to be dismissed on 4-5-1999. A review petition came to be filed being Review Petition No. 895 of 1999 on 31-5-1999 Page 1847 which came to be dismissed by the Apex Court on 22-7-1999. It was followed by a petition under Article 32 of the Constitution but the same was withdrawn on 7-8-2000. On 26-4-2001 Special Civil Suit No. 423 of 2001 came to be filed at Pune questioning the vires and validity of the land acquisition proceedings and for consequential reliefs. By preferring an application under Section 9-A of the CPC, the respondents invited an order on the point of jurisdiction of the Civil Court to entertain and deal with the matter. After framing the preliminary issue on the point as to whether the Civil Court had jurisdiction to try and decide the suit, and after hearing the parties, the trial Court by the impugned Judgment dated 26-10-2005 held that the Civil Court has no jurisdiction to entertain the suit. Hence the present appeal.
5. The trial Court in its Judgment on the preliminary issue, after referring to the decision of the Apex Court in State of Bihar v. Dhirendrakumar and Ors., , has held that in view of the ratio laid down by the Supreme Court in the said decision, the Civil Court has no jurisdiction to try any suit in respect of the land acquired under the provisions of the said Act. Considering that the reliefs in the suit mainly relate to declaration of the orders passed by the High Court to be bad in law, the award passed under the said Act to be bad in law, and for direction for carrying out the mutation of entries in the record of rights, the trial Court has held that the Civil Court has no jurisdiction to entertain the challenge to the legality of the orders passed by this Court, that no suit lies for the purpose of mutation of entries in the record of rights. The entire challenge in the suit being to the proceedings for the land acquisition, the orders passed by the High Court and for the mutation of entries in the record of rights, the Civil Court has held that it has no jurisdiction to decide such issues.
6. Undoubtedly, the Apex Court in Dhirendrakumar's case (supra) has held that by necessary implication the power of the Civil Court to take cognizance relating to the question of validity or illegality of the Notification or declaration under the said Act, except by the High Court under Article 226, is barred and, therefore, no civil suit will lie to challenge the land acquisition proceedings initiated and undertaken under the said Act. The said Act itself provides a complete machinery to deal with all the issues relating to the acquisition of land initiated under the said Act. In other words, it is a complete Code by itself in relation to all matters to be dealt with in relation to land acquisition proceedings under the said Act. It provides for an adequate remedy for the aggrieved persons on account of acquisition of their land. On that count itself, no suit would lie to challenge the land acquisition proceedings initiated under the said Act.
7. Shri C.R. Dalvi, learned Advocate appearing for the appellants, submitted that though in normal course the land acquisition proceedings initiated under the said Act cannot be challenged, yet in a case, where, in the purported exercise of powers under the said Act, the authorities sought to acquire the Page 1848 land in total violation and ignoring the provisions of the said Act, then such proceedings would be de hors the said Act and, therefore, challenge to such proceedings would lie before a Civil Court. He further submitted that in the case in hand the land acquisition proceedings are to be held as de hors the said Act on two grounds. Firstly, on the ground that the proposed acquisition was for the benefit of a co-operative society and in such cases the procedure for acquisition is not under Part-II but under Part-VII of the said Act. The term "company" under Part-VII includes co-operative societies in view of the definition of the said term in Section 3(e) of the said Act and the land in question having been acquired for the benefit of the co-operative society pursuant to the Consent Terms confirmed by this Court, no such proceedings could have been proceeded under the said Act in terms of Part-II. Secondly, assuming that the proceedings were validly initiated under Part-II, once a particular purpose is declared as public purpose in the Notification issued under Section 4, the same cannot be changed thereafter and in no case, after issuing the declaration under Section 6 of the said Act.
8. Shri Dalvi has sought to rely upon the decisions in the matters of Union of India, New Delhi and Ors. v. Nand Kishore and Anr., , Madhya Pradesh Housing Board v. Mohd. Shafi and others, , The Industrial Development and Investment Co. Pvt. Ltd., and Anr. v. State Maharashtra and Ors., , Municipal Corporation of Greater Bombay v. Industrial Development Investment Co. Pvt. Ltd. and Ors. , Valjibhai Muljibhai Soneji and Anr. v. The State of Bombay (now Gujarat) and Ors. , Swamyatmananda and Ors. v. Sri Ramakrishna Tapovanam and Ors. and Jaipur Development Authority v. Radhey Shyam and Ors. in support of his arguments.
9. On the other hand, Shri M.G. Hoblikar, appearing for the respondent No. 5, submitted that the issue sought to be raised in relation to the wrong procedure and non-applicability of Part-II and applicability of Part-VII is no more res integra between the parties as the same stood concluded by the decision of this Court on 2-9-1997 in Writ Petition No. 2681 of 1996. He further submitted that there is no prohibition for change of the public purpose even after issuance of the declaration under Section 6 and Page 1849 much less after issuance of the Notification under Section 4 of the said Act. According to the learned Advocate, none of the decisions relied upon by the learned Advocate for the appellants lays down the law that prior to declaration of the award or taking possession of the property, the Government is not entitled to change the public purpose for which the land under acquisition can be put to use. He submitted that the said Act being a complete Code by itself for all the issues arising in relation to the acquisition of land under the said Act to be decided, no suit is maintainable to challenge the proceedings under the said Act and the law in that regard is well-settled by the decision of the Apex Court, referred to in the impugned Judgment by the trial Court.
10. Two points are sought to be raised to challenge the decision of the trial Court on the point of lack of jurisdiction to entertain the suit. The first point relates to alleged illegality in invoking the powers under Part-II instead of Part-VII for the acquisition proceedings and the second relates to change of public purpose during the pendency of the acquisition proceedings.
11. As regards the question that the land acquisition proceedings for a company or a society could not be under Part-II but ought to have been under Part-VII, it was specifically raised in Writ Petition No. 2681 of 1996 and this Court while dismissing the said writ petition rejected the said ground, apart from observing that similar ground was raised in the earlier petition but the same was withdrawn. In other words, the issue relating to necessity of invoking the powers under Part-VII, and not under Part-II, for the acquisition proceedings in the matter in hand, was raised in Writ Petition No. 2681 of 1996 but the petition in that regard was withdrawn. Again the same point was raised in Writ Petition No. 2681 of 1996 and it was rejected. Obviously, the principle of constructive res judicata would apply to the matter in hand in relation to the said issue.
12. There is no presumption that moment the land is sought to be acquired and the use thereof going to be managed and supervised by a company, it should be presumed to be for a purpose other than for a public purpose or that it ceases to be for public purpose. There can be instances where the land is acquired to be utilised for public purpose but the management and control thereof to be by a company. The expression "public purpose" in Part-II relates to the use of the land and not the person or the body who will implement or manage the land for particular public purpose. Unless the claimant disputes the purpose specified to be public purpose, there could hardly be an occasion for the appellants to insist that the proceedings ought to have been under Part-VII and not under Part-II for the acquisition of the land in question.
13. Besides, assuming that the proceedings instead of being initiated under Part-VII are initiated under Part-II, unless such proceedings are stalled by taking recourse to appropriate proceedings before declaration of the award and taking of possession of the land, question of entertaining such a grievance after the land is acquired and possession thereof is taken and after the land has vested in the Government, does not arise at all. Undisputedly, the suit was filed after the declaration of the award and after taking over of possession of the acquired land. Mere irregularity in the land acquisition proceedings Page 1850 will not vitiate the title of the Government or of the acquiring body, once the possession of the land is taken consequent to the award declared under Section 11 of the said Act. In such cases, the only remedy which could be availed by the aggrieved party is the proceedings for compensation and not to get the land acquisition proceedings quashed and set aside.
14. In any case, the proceedings which were initiated for acquisition of the land in the matter in hand were the subject-matter of dispute before this Court and in terms of the orders passed in the earlier petition, the proceedings were not disturbed on the said ground. Undisputedly, the Notification under Section 4 was issued on 26-5-1989 and the declaration under Section 6 was issued on 25-5-1990. The suit in question was filed on 26-4-2001, that is to say more than eleven years after issuance of the declaration under Section 6 and more than twelve years after issuance of the Notification under Section 4. Merely because the appellants were engaged in filing petitions after petitions, that itself cannot be a justification for entertaining such a suit after the lapse of eleven years. Considering all these aspects, there is absolutely no substance in the grievance that the authority could not have invoked the powers under Part-II but ought to have proceeded under Part-VII and that therefore the acquisition is de hors the said Act and that, therefore, bad in law.
15. For the reasons stated above, therefore, the point relating to legality of the land acquisition proceedings sought to be raised by the petitioners is devoid of substance and needs to be answered in negative.
16. The next point relates to change in the purpose for which the land has been acquired. It is well-settled law that once the acquisition proceedings are concluded, issue regarding the change in use of the land cannot be the subject-matter of judicial review, unless a case of mala fide is made out. The contention on behalf of the appellants is two-fold: firstly, there cannot be any change in the public purpose once it is specified in the Notification under Section 4. In other words, once the purpose is identified, the authorities are not entitled to change the public purpose for the acquisition of the land. Secondly, upon the declaration under Section 6, till the declaration of award under Section 11, there cannot be any change in public purpose, otherwise whole proceedings would stand vitiated.
17. The Section 4(1) of the said Act, undoubtedly, requires to disclose the public purpose for which the land is sought to be acquired. Therefore, it cannot be disputed, that mere statement that the land is needed for public purpose, will not satisfy the requirement of Section 4 of the said Act. The acquiring body has to disclose the actual purpose for which the land is sought to be acquired and such purpose should be a public purpose.
18. Under Section 6, when the declaration is issued, it also requires the authority to disclose a public purpose for which the land is sought to be acquired. However, Section 6 nowhere states that the declaration in relation to the land being required for acquisition should relate to the same purpose which is specified under Section 4 and there can be no variation in the public purpose specified under the Section 4 Notification. On the contrary, the expression used in Section 6 is "a" public purpose. It nowhere speaks of "the" Page 1851 public purpose. Undoubtedly, Section 6 specifies that when the appropriate Government is satisfied after considering the report submitted by the Collector after inquiry under Section 5A, that any particular land is needed for a public purpose, a declaration shall be made to that effect and further that different declarations may be made from time to time in respect of different pieces of the land covered by the same Notification under Section 4(1), irrespective of whether one report or different reports has or have been made under Section 5A. In other words, after submission of the report under Section 5A, it is not obligatory for the Government to acquire the entire land which was the subject-matter of the Notification under Section 4 and it is the discretion of the Government to decide about the particulars of the land which can be subjected to acquisition and consequently the declaration under Section 6, albeit such land has to be the one which was the subject-matter of the Section 4 Notification and not any other land. However, it is not necessary that the entire land which was the subject-matter of the Notification under Section 4 should necessarily be the subject-matter of only one declaration under Section 6 of the said Act. While issuing the declaration under Section 6, the Government may proceed to acquire either the entire land which was the subject-matter of the Notification under Section 4, or different pieces of such land, depending upon the need of land for a public purpose.
19. The expression "a public purpose" in Section 6 evidently discloses that it does not necessarily relate to the description of the public purpose which was specified under Section 4. It can be the same purpose as well as it can be a different purpose. There can be a minor variation, as well a major one, nevertheless, it should be a public purpose.
20. Undoubtedly, when the change in public purpose is challenged before the Court, the acquiring body should be able to disclose application of mind for change of the purpose. It should not be as a matter of course that there can be change in purpose, but the same shall be preceded by required inquiry regarding need of the land for the changed public purpose and decision in that regard.
21. In any case, this issue stands concluded by the decision of the Apex Court in Municipal Corporation of Greater Bombay's case (supra) wherein in no uncertain terms it was held that:
It would not, therefore, be necessary that the original public purpose should continue to exist till the award was made and possession taken. Nor is it the duty of the Land Acquisition Officer to see whether the public purpose continues to subsist.
Even in Mohd. Shafi's case (supra), the observations of the Apex Court clearly reveal that there is no bar for change of public purpose even pending the acquisition proceedings. Of course, it should disclose the application of mind Page 1852 by the concerned authorities in deciding the change in public purpose. It was held therein that:
The letter of the Executive Engineer of the Housing Board to the Collector had indicated that the Chairman of the Board had found the land suitable for "construction of buildings and shops under the self-financing scheme", the notification issued under Section 4(1) makes no mention thereof and instead declares the "public purpose" to be "residential". Again, in the declaration issued under Section 6(1) of the Act the "public purpose" has been stated to be "housing scheme of Housing Board" and not "construction of buildings and shops under the self-financing scheme". Admittedly, apart from the letter referred to above, there was no other material with the State Government and, therefore, it is not understandable on what material, did the State Government state the "public purpose" in different terms in the notifications issued under Sections 4 and 6(1). No explanation has been furnished by the learned Counsel as to why different public purposes were mentioned in the letter of the Board and the two notifications issued under Sections 4 and 6 of the Act. These factors go to expose non-application of mind by the authorities while issuing the impugned notification and it appears that they were not even sure about the "public purpose" for which the land was sought to be acquired.
22. Apparently, the Apex Court did not hold that the purpose disclosed in the Notification was not a public purpose as such. But on account of use of different phraseology in the description of the public purpose in the Notification and the declaration under Section 4 and respectively, coupled with the fact that the Government had no material to sustain their contention that the same to be a public purpose, besides there was no explanation for the use of different phraseology in relation to the description of the public purpose, it was held that it disclosed non-application of mind by the authorities in relation to the public purpose and, therefore, it created a doubt whether the acquisition was at all for any public purpose. The ruling about the non-application of mind was with reference to the facts of the case before the Apex Court. The decision does not lay down the proposition of law to the effect that moment there is change in public purpose, that itself would reveal non-application of mind, nor change in phraseology regarding the public purpose would lead to any such conclusion. On the contrary, the ruling clearly discloses that there is no impediment for change in public purpose. Once the public purpose is identified in the Notification under Section 4, it cannot be insisted that the same public purpose should continue till the declaration of the award. There can be change/changes in the public purpose. What is relevant is that the purpose has necessarily to be a public purpose. The moment it ceases to be a public purpose, certainly the aggrieved party can challenge the same by way of a writ petition.
23. It is true that the Division Bench of the Delhi High Court in Nand Kishore's case (supra) had held that the Government cannot change the purpose and acquire for a purpose other than the purpose declared under Section 6 of the said Act. However, the said ruling cannot be construed as laying down a general proposition of law taking into consideration the facts under which Page 1853 the said ruling was given. That was a case where the Notification under Section 4 was issued in the year 1960. The proceedings had reached at the stage of issuance of Notice under Section 9 only in the year 1971, nearly eleven years after initiation of the acquisition proceedings. At that stage, the original public purpose was sought to be changed from fire station to construction of staff quarters and at the same time, the provisions of Section 17 were sought to be invoked. In all those circumstances, the Division Bench observed thus:
The question in this case is narrowed to one point and one point only. Can emergency powers be exercised for taking the land of the subject by changing the purpose from one to the other How will satisfaction be reached by the executive when the purpose is changed from the fire station to staff quarters Satisfaction was arrived at in 1960 when it was felt that a fire station in the locality is an urgent need. In 1960 the necessity was urgent. It did not admit of delay. But the same cannot be predicated of the other public purpose, namely, the construction of staff quarters in 1971.
Being so, the decision in Nand Kishore's case can be of no help to the appellants to buttress their contention against the change of public purpose in the case in hand.
24. The decision of the Division Bench of this Court in The Industrial Development and Investment Co., (supra) was essentially based on the decision of the Division Bench of the Delhi High Court in Nand Kishore's case. It is indeed observed by the Division Bench of this Court in The Industrial Development and Investment Co.'s case that if the Government wants to depart from the original purpose, the only course is to start fresh acquisition proceedings. However, the said finding is not preceded by any reasonings as such to arrive at the said finding. It merely refers to the decision of the Delhi High Court in Nand Kishore's case and observes that the Government cannot change the original public purpose till the acquisition is complete. In any case, the said ruling has been set aside by the Apex Court in Municipal Corporation of Greater Bombay v. Industrial Development Investment Co. Pvt. Ltd. and others (supra), besides, being not in consonance with the decision of the Apex Court in Mohd. Shafi's case.
25. In Valjibhai Muljibhai's case (supra), the suits had proceeded throughout on the footing that there was no formal defect in regard to their maintainability. Besides, the purpose disclosed in the acquisition proceedings itself revealed that the acquisition was for the purpose of constructing a bus depot required by the State Transport Corporation and for constructing office and other buildings by the said Corporation, and undisputedly the State Transport Corporation was not a local authority but merely a company and therefore the provisions of Part-VII of the said Act were required to be complied with. That apart, the challenge to the land acquisition proceedings was given Page 1854 immediately after issuance of the Notification under Section 6 and the aggrieved party did not wait till the proceedings were concluded by declaration of the award and taking over of the possession. In the case in hand, the entire land acquisition proceedings have been concluded and even the possession of the land has been taken over and in these circumstances, the said decision can be of no help to the appellants.
26. The decision in Swamyatmananda's case (supra) has absolutely no relevancy to the matter in hand. That was a decision in relation to a question as to whether the jurisdiction of the Civil Court stands ousted in terms of Section 53 and 53A of the Tamil Nadu Recognised Private School (Regulation) Act, 1973. In that regard, it was held that undisputedly the dispute with regard to the title over the immovable property will have to be adjudicated in the Civil Court and Section 53 merely postulates that the Civil Court will have no jurisdiction to decide or deal with any question which is by large or under the said Act required to be decided or dealt with by any authority or officer mentioned in the said Act.
27. The decision of the Apex Court in Radhey Shyam's case (supra) is on a totally different issue. That is on the point that the Land Acquisition Officer has no power or jurisdiction to give any land under acquisition or any other land in lieu of compensation and further that the decree cannot incorporate any matter other than the matters determined under Section 11 or those referred to and determined under Section 18 of the said Act. It has no application to the matter in hand.
28. As no other point is sought to be raised in the matter, and since the trial Court has correctly exercised the issue of jurisdiction, the impugned Judgment does not warrant any interference as far as it relates to challenge to the land acquisition proceedings in relation to the land in question, as also the related issues dealt with by the trial Court in the impugned Judgment. However, this shall not preclude the appellants from claiming compensation for acquisition of the land, if they are so entitled to, in accordance with the provisions of law. Hence, the appeal fails and is hereby dismissed, in terms of the provisions of law comprised under Order 41, Rule 11 of the Code of Civil Procedure. No order as to costs.