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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
Writ Petition No.6688 of 2014
with
Writ Petition No.952 of 2015
with
Writ Petition No.2047 of 2015
with
Writ Petition No.2050 of 2015
with
Writ Petition No.2519 of 2015
(1) Writ Petition No.6688 of 2014 :
1. Rambhau Mahadeorao Tembhurkar,
since dead, through LRs.:
i)
Smt. Shantabai wd/o Rambhau Tembhurkar,
Aged about 72 years,
Occupation - Agriculturist.
ii) Baba Rambhau Tembhurkar,
Aged about 43 years, Occ. Agriculturist.
iii) Kawdu Rambhau Tembhurkar,
Aged about 36 years,
Occupation - Agriculturist.
2. Rambhau Shyamrao Kawale,
Dead, through LRs.:
i) Smt. Kamubai Rambhau Kawle,
Aged about 65 years,
Occupation - Agriculturist.
ii) Sunil Rambhau Kawale,
Aged about 32 years,
Occupation - Agriculturist.
iii) Yogesh Rambhau Kawale,
Aged about 29 years,
Occupation - Agriculturist.
3. Smt. Kalabai w/o Pandurang Shrikhande,
Aged about 70 years,
Occupation - Agriculturist.
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4. Shankar Pandurang Shrikhande,
Aged about 43 years,
Occupation - Agriculturist.
5. Vishwanath Gadi Thakre,
Aged about 73 years,
Occupation - Agriculturist.
6. Madho Gadi Thakre,
Aged about 68 years,
Occupation - Agriculturist.
7. Keshaorao Upasrao Chinchulkar,
Aged about 72 years,
Occupation - Agriculturist.
8. Bala Vithoba Kakde,
Aged about 72 years,
Occupation - Agriculturist.
9. Pandurang Upasrao Shrikhande,
Aged about 74 years,
Occupation - Agriculturist.
10. Deorao Sitaram Bajait,
Aged about 60 years,
Occupation - Agriculturist.
11. Vitthal Sitaram Bajait,
Aged about 46 years,
Occupation - Agriculturist.
12. Ramkrishna Sitaram Bajait,
Aged about 46 years,
Occupation - Agriculturist.
13. Balkrishna Narayan Parteki,
Aged about 72 years,
Occupation - Agriculturist.
14. Devikabai Ganpatrao Warkhade,
Aged about 70 years,
Occupation - Aghriculturist.
15. Nabhu Ganpatrao Warkhade,
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Aged about 48 years,
Occupation - Agriculturist.
16. Dilip Ganparao Warkhade,
Aged about 40 years,
Occupation - Agriculturist.
All petitioners R/o At post Takalghat,
Tah. Hingna, Dist. Nagpur. ... Petitioners
Versus
1. State of Maharashtra,
through the Collector, Nagpur.
2. The Deputy Collector & The Special Land
Acquisition Officer (General), Nagpur.
3. Maharashtra Industrial Development
Corporation, through its Regional
Manager,
5th Floor, Civil Lines, Regional Office,
Nagpur. ... Respondents
Shri V.P. Maldhure, Advocate for Petitioners.
Shri Rohit Deo, Associate Advocate General, with Shri N.R.
Patil, Assistant Government Pleader for Respondent Nos.1
and 2.
Shri M.M. Agnihotri, Advocate for Respondent No.3.
(2) Writ Petition No.952 of 2015 :
1. Pandurang s/o Maroti Pund,
Aged 65 years,
Occupation - Agriculturist.
2. Walmik s/o Vishwanath Rokade,
Aged 64 years,
Occupation - Agriculturist.
3. Vasant s/o Shyamrao Dakhole,
Aged 58 years,
Occupation - Agriculturist.
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4. Smt. Shalini w/o Ramdas Ghode,
Aged 45 years,
Occupation - Household.
5. Vijay s/o Rambhau Ragit,
Aged 48 years,
Occupation - Agriculturist.
6. Chandramohan s/o Bajirao Markam,
Aged 35 years,
Occupation - Agriculturist.
7. Smt. Sita w/o Rambhau Awachat,
Aged 62 years,
Occupation - Household.
8. Kishor s/o Pundlik Daburkar,
Aged 45 years,
Occupation - Agriculturist.
9. Smt. Sharja w/o Shriram Waghade,
Aged 48 years,
Occupation - Household.
10. Mahadeo s/o Namdeo Lakhe,
Aged 66 years,
Occupation - Agriculturist.
All R/o Takalghat, Tah. Hingna,
Dist. Nagpur. ... Petitioners
Versus
1. The State of Maharashtra,
through Special Land Acquisition
Officer (General),
Civil Lines, Nagpur.
2. The Maharashtra Industrial
Development Corporation,
through its Divisional Officer,
Udhyog Bhavan, Civil Lines,
Nagpur. ... Respondents
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Smt. Rajkumari Rai, Advocate for Petitioners.
Shri Rohit Deo, Associate Advocate General, with Shri N.R.
Patil, Assistant Government Pleader for Respondent No.1.
Shri M.M. Agnihotri, Advocate for Respondent No.3.
(3) Writ Petition No.2047 of 2015 :
1. Suresh Radheshyam Paliwal,
Aged about 57 years,
Occupation - Agriculturist,
R/o Butibori, Tah. & Dist. Nagpur.
2. Atmaram Laoxman Sahare (Dead),
through Shrawan Attmaram Sahare,
Aged about 40 years,
Occupation - Agriculturist,
R/o Butibori, Tah. & Dist. Nagpur.
3. Sheikh Abdul Hafeez Babbu Mia alias
Babbu Bhai Mohammad Sheikh,
Aged about 72 years,
Occupation - Agriculturist,
R/o Butibori, Tah. & Dist. Nagpur.
4. Shriram Shrawan Khante,
Aged about 62 years,
Occupation - Agriculturist,
R/o Butibori, Tah. & Dist. Nagpur.
5. Raju Sitaram Sakhare,
Aged about 48 years,
Occupation - Agriculturist,
R/o Butibori, Tah. & Dist. Nagpur.
6. Tukaram Hariram Ghume,
Aged about 62 years,
Occupation - Agriculturist,
R/o Butibori, Tah. & Dist. Nagpur.
7. Arun Sampatrao Kolhe,
Aged about 67 years,
Occupation - Agriculturist,
R/o Butibori, Tah. & Dist. Nagpur. ... Petitioners
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Versus
1. State of Maharashtra,
through Collector, Nagpur.
2. Deputy Collector & The Special Land
Acquisition Officer (General),
Nagpur.
3. Maharashtra Industrial Development
Corporation, through its Regional Manager,
5th Floor, Civil Lines, Regional Office,
Nagpur. ... Respondents
Shri V.P. Maldhure, Advocate for Petitioners.
Shri Rohit Deo, Associate Advocate General, with Shri N.R.
Patil, Assistant Government Pleader for Respondent Nos.1
and 2.
Shri M.M. Agnihotri, Advocate for Respondent No.3.
(4) Writ Petition No.2050 of 2015 :
1. Dilip Shyamrao Nagpure,
Aged about 55 years,
Occupation - Agriculturist,
R/o Rengapur, Tah. Hingna,
District Nagpur.
2(i). Rajendra Yadavrao Ambatkar,
Aged about 48 years,
Occupation - Agriculturist.
2(ii). Narendra Yadavrao Ambatkar,
Aged about 53 years,
Occupation - Agriculturist.
2(iii) Shankarrao Ramaji Ambatkar,
Aged about 65 years,
Occupation - Agriculturist.
2(iv) Ashok Ramaji Ambatkar,
Aged about 62 years,
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Occupation - Agriculturist.
Nos.2(i) to 2(iv) R/o Butibori,
Tah. & Dist. Nagpur.
3. Smt. Shalini wd/o Maraotrao Kolhe,
Aged about 45 years,
Occupation - Nil,
R/o Butibori, Tah. & Dist. Nagpur.
4(i). Narhari Dattatraya Buit,
Aged about 69 years.
4(ii) Rajendra Dattatraya Buit,
Aged about 55 years.
Nos.4(i) & (ii) R/o Dhanashree Apartment,
Dharampeth, Nagpur.
5(i). Keshavrao Maroti Kolhe,
Aged about 71 years,
Occupation - Agriculturst.
5(ii). Smt. Maltibai wd/o Madhaorao Kolhe (Dead),
through Ravindra Madhaorao Kolhe,
Aged about 36 years,
Occupation - Agriculturist.
5(iii).Smt. Vastalabai wd/o Pandurang Kolhe,
Aged about 42 years,
Occupation - Agriculturist.
5(iv).Suresh Maroti Kolhe,
Aged about 55 years,
Occupation - Agriculturist.
5(v). Ramesh Maroti Kolhe,
Aged about 58 years,
Occupation - Agriculturist.
Nos.5(i) to 5(v) all R/o Butibori,
Tah. & Dist. Nagpur.
6(i). Smt. Satyafulabai wd/o Rambhau Kapse,
Aged about 75 years,
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Occupation - Agriculturist.
6(ii). Vishnu Rambhau Kapse,
Aged about 45 years,
Occupation - Agriculturist.
Nos.6(i) & (ii) R/o Butiboti, Ward No.3,
Nagpur.
7(i). Keshavrao Marotrao Kolhe,
Aged about 72 years,
Occupation - Agriculturist.
7(ii). Rameshrao Marotrao Kolhe,
Aged about 58 years,
Occupation - Agriculturist.
Nos.7(i) & (ii) R/o Radhakrupa Square,
Ramnagar, Wardha.
8. Smt. Maltibai wd/o Madhaorao Kolhe (Dead),
through Ravindra Madhaorao Kolhe,
Aged about 36 years,
Occupation - Agriculturist,
R/o Butibori, Nagpur.
9(i). Ikram Kamalbhai Sheikh,
Aged about 45 years,
Occupation - Agriculturist.
9(ii). Ijaaja Kamalbhai Sheikh,
Aged about 42 years,
Occupation - Agriculturist.
Both R/o Butibori, Tah. & Dist. Nagpur. ... Petitioners
Versus
1. State of Maharashtra,
through the Collector, Nagpur.
2. The Deputy Collector & The Special
Land Acquisition Officer (General),
Nagpur.
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3. The Maharashtra Industrial Development
Corporation,
through its Regional Manager,
5th Floor, Civil Lines,
Regional Office, Nagpur. ... Respondents
Shri V.P. Maldhure, Advocate for Petitioners.
Shri Rohit Deo, Associate Advocate General, with Shri N.R.
Patil, Assistant Government Pleader for Respondent Nos.1
and 2.
Shri M.M. Agnihotri, Advocate for Respondent No.3.
(5) Writ Petition No.2519 of 2015 :
1. Balak Jaganrao Bhagat,
Aged about 44 years,
Occupation - Nil,
R/o Takalghat, Tq. Hingna,
Distt. Nagpur.
2. Kaushalyabai w/o Mahadeo Choudhari,
Aged about 66 years,
Occupation - Nil,
R/o 38, Dhankodi Nagar,
Pipla Road, Nagpur.
3. Surendra s/o Chintaman Gadghate,
Aged about 45 years,
Occupation - Service,
R/o Takalghat, Tq. Hingna,
Distt. Nagpur.
4. Moreshwar s/o Laxman Jiwane,
Aged about 58 years,
Occupation - Service,
R/o Takalghat,
Tq. Hingna, Distt. Nagpur.
5. Prakash s/o Sadashiv Bhagat,
Aged about 40 years,
Occupation - Nil,
R/o Takalghat, Tq. Hingna,
Distt. Nagpur.
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6. Smt. Anusayabai Ramdas Shelkar,
Aged about years,
Occ.
R/o 13-A, Vishwakarma Nagar,
District Nagpur. ... Petitioners
Versus
1. The State of Maharashtra,
through its Secretary for Revenue and
Forest Department, Mangralaya,
Mumbai.
2. The Collector and The Land Acquisition
Officer (General), Nagpur.
3. Regional Officer,
Maharashtra Industrial Development
Corporation, Udyog Bhawan,
5th Floor, Civil Lines, Nagpur. ... Respondents
Shri S.A. Marathe, Advocate for Petitioners.
Shri Rohit Deo, Associate Advocate General, with Shri N.R.
Patil, Assistant Government Pleader for Respondent Nos.1
and 2.
Shri M.M. Agnihotri, Advocate for Respondent No.3.
Coram : Smt. Vasanti A. Naik &
A.M. Badar, JJ.
Date : 12th August, 2015 Oral Judgment (Per Smt. Vasanti A. Naik, J.) :
Since the question whether the provisions of Section 28-A of the Land Acquisition Act, 1894 would apply to the acquisitions under the Maharashtra Industrial Development Act, 1961 arises for determination in these writ ::: Uploaded on - 29/08/2015 ::: Downloaded on - 10/09/2015 20:02:16 ::: wp6688.14+ 11 petitions, they are heard together and are decided by this common judgment.
2. Rule. Rule, made returnable forthwith. The petitions are heard finally at the stage of admission with the consent of the learned counsel for the parties.
3. The lands of the petitioners were acquired under the Maharashtra Industrial Development Act, 1961 (hereinafter referred to as "the MID Act" for the sake of brevity) by the notifications issued under Section 32 of the MID Act in the years 1988-89. Separate awards were passed by the Land Acquisition Officer in respect of the lands of the petitioners and certain other land-holders in the year 1991-92. Being aggrieved by the grant of meagre compensation, some land-
holders filed reference under the provisions of Section 34 of the MID Act read with Section 18 of the Land Acquisition Act.
The reference filed by the claimants were registered as land acquisition cases and the Reference Court enhanced the compensation, thereby granting additional compensation, interest and solatium. In pursuance of the awards passed in the reference cases, the petitioners filed separate applications under Section 28-A of the Land Acquisition Act seeking ::: Uploaded on - 29/08/2015 ::: Downloaded on - 10/09/2015 20:02:16 ::: wp6688.14+ 12 re-determination of the amount of compensation on the basis of the award of the Court. The respondent-Maharashtra Industrial Development Corporation (hereinafter referred to as "the Corporation") raised an objection that Section 28-A of the Land Acquisition Act would not be applicable to the acquisition of the lands under the MID Act. According to the Corporation, only the provisions of the Land Acquisition Act, as they existed at the time of coming into force of the MID Act, could be applied to the acquisitions under the MID Act in view of the provisions of Section 34 of the MID Act. The objection of the Corporation was upheld by the Special Land Acquisition Officer and the applications filed by the petitioners were rejected. The orders rejecting the applications are impugned in these petitions and a declaration that the provisions of Section 28-A of the Land Acquisition Act are applicable to the acquisitions under the MID Act is sought. A direction is also sought against the Land Acquisition Officer to decide the applications filed by the petitioners under Section 28-A of the Land Acquisition Act, in accordance with law.
4. The learned counsel for the petitioners submitted that the provisions of Section 28-A of the Land Acquisition ::: Uploaded on - 29/08/2015 ::: Downloaded on - 10/09/2015 20:02:16 ::: wp6688.14+ 13 Act would be applicable to the acquisitions under the MID Act. It is submitted that the issue whether the amended provisions of the Land Acquisition Act would apply to the acquisitions under the MID Act came up for consideration before this Court in the case of Maharashtra Industrial Development Corporation, Nagpur v. Shaikh Khatinabi wd/o Abdul Gaffar Shaikh and others, reported in (2008) 1 Mh.L.J. 813, and this Court held that the provisions of Section 34 of the MID Act make a reference to the provisions of the Land Acquisition Act by reference and hence the provisions of Section 23(1-A) and (2) of the Land Acquisition Act would apply to the acquisitions under the MID Act. It is submitted that by relying on the judgment in the case of Maharashtra State Road Transport Corporation v.
State of Maharashtra, reported in (2003) 4 SCC 200, this Court had held that the claimants were entitled to interest and solatium on the enhanced compensation as per the amended provisions of Section 23 and 24 of the Land Acquisition Act. It is submitted that the Hon'ble Supreme Court, while considering the applicability of the amended provisions of the Land Acquisition Act to the Maharashtra Regional & Town Planning Act, 1966 (hereinafter referred to ::: Uploaded on - 29/08/2015 ::: Downloaded on - 10/09/2015 20:02:16 ::: wp6688.14+ 14 as "the MRTP Act"), has held in the judgment in the case of Girnar Traders (3) v. State of Maharashtra and others, reported in (2011) 3 SCC 1, that the provisions of the MRTP Act make a reference to the provisions of the Land Acquisition Act by incorporation and though the MRTP Act is a self-contained code, the amended provisions of the Land Acquisition Act, limited to the extent of acquisition of land, payment of compensation and recourse to legal remedies, could be read into the acquisitions controlled by the MRTP Act. It is submitted that even if it is held that the provisions of the MID Act make a reference to the provisions of the Land Acquisition Act by incorporation, in view of the judgment in the case of Girnar Traders (3) v. State of Maharashtra and others (supra), the provisions of Section 28-A of the Land Acquisition Act should necessarily apply to the acquisitions under the MID Act. It is submitted that the object of the provision of Section 28-A of the Land Acquisition Act is to grant similar compensation for similar quality of land to the interested parties and hence Section 28-A of the Land Acquisition Act provides a remedy and an opportunity to all aggrieved parties whose lands are covered under the same notification to seek the re-determination of the compensation, ::: Uploaded on - 29/08/2015 ::: Downloaded on - 10/09/2015 20:02:16 ::: wp6688.14+ 15 when one of the land-holders affected by the notification has secured the orders for payment of higher compensation from the Reference Court under Section 18 of the Land Acquisition Act. It is submitted that a view similar to the one expressed by this Court in the judgment in the case of Maharashtra Industrial Development Corporation v. Shaikh Khatinabi wd/o Abdul (supra) was earlier expressed by this Court in the judgment in the case of Resident Deputy Collector, Pune v.
G.N. Landge since deceased through his heirs and another, reported in (1998) 2 Mh.L.J. 756, and it was held that the amended provisions of Sections 24 and 28 of the Land Acquisition Act are adopted by reference in the MID Act in 1967 in view of Section 33(5) of the MID Act. It is submitted that the MID Act has been amended from time to time till the year 1997 and there is nothing in the amendments to show that the MID Act did not wish to adopt the amended provisions of Section 28-A of the Land Acquisition Act that were brought on the Statute book in the year 1984. It is submitted that the action on the part of the respondents in refusing to entertain the applications filed by the petitioners under Section 28-A of the Land Acquisition Act is arbitrary and illegal.
::: Uploaded on - 29/08/2015 ::: Downloaded on - 10/09/2015 20:02:16 ::: wp6688.14+ 165. Shri Rohit Deo, the learned Associate Advocate General, appearing on behalf of the State Government, submitted that the provisions of Section 28-A of the Land Acquisition Act are sui generis and, therefore, the same cannot be applied to the acquisitions under the MID Act by taking recourse to the provisions of Section 34 thereof. It is submitted that the said provision is itself discriminatory in nature, inasmuch as it refuses similar compensation in terms of an award passed by the Court under Section 18 of the Land Acquisition Act to a land-holder, who has applied under Section 18 of the Land Acquisition Act and has lost. It is submitted that it is clear from the statement of objects and reasons of Amendment Act 68 of 1984 that the provisions of Section 28-A were introduced only with a view to give the benefit of higher compensation in terms of the award of the Court to only inarticulate and poor people, who are unable to file a reference under Section 18 of the Land Acquisition Act in view of their poverty or illiteracy. It is submitted that the object of incorporating the provisions of Section 28-A in the Land Acquisition Act has been discussed in the judgment of the Hon'ble Supreme Court in the case of Babua Ram and ::: Uploaded on - 29/08/2015 ::: Downloaded on - 10/09/2015 20:02:16 ::: wp6688.14+ 17 others v. State of U.P. And another, reported in (1995) 2 SCC
689. It is submitted that the Hon'ble Supreme Court has held in the aforesaid judgment that the Legislature has made a discriminatory policy between the poor and the inarticulate, to whom the benefit of Section 28-A is to be extended, and the comparatively affluent class, that has taken advantage of a reference under Section 18 of the Land Acquisition Act. It is submitted that since, according to the Hon'ble Supreme Court, the object of the provisions of Section 28-A of the Land Acquisition Act is to provide higher compensation to the poor and inarticulate people, the said provision cannot be read into the provisions of the MID Act, specially when the provision of Section 28-A of the Land Acquisition Act is a sui generis or stand alone provision though it is included in Part III of the Land Acquisition Act. It is submitted that the Hon'ble Supreme Court has no doubt held in the judgment reported in (2011) 3 SCC 1 [Girnar Traders (3) v. State of Maharashtra and others] that the provisions of the Land Acquisition Act in respect of acquisition, payment of compensation and recourse to legal remedies would apply to the provisions of the MRTP Act, but every compensatory provision may not so apply. It is submitted that the State ::: Uploaded on - 29/08/2015 ::: Downloaded on - 10/09/2015 20:02:16 ::: wp6688.14+ 18 may not apply every compensatory provision in the Central Act to a State Act and still the State Act may not suffer from the vice of discrimination. The learned counsel relied on the judgments reported in AIR 1954 SC 493 and (2002) 4 SCC 34 in this regard.
6. Shri Agnihotri, the learned counsel for the Corporation supported the action of the Corporation and the State Government. It is submitted that Section 28-A of the Land Acquisition Act itself carves out two classes of landholders, a class of landholders that has approached the Reference Court under the provisions of Section 18 of the Land Acquisition Act and a class of landholders that has failed to file a Reference under Section 18. It is submitted that only the landholders that had not filed a Reference under Section 18 of the Land Acquisition Act, would be entitled to seek higher compensation under Section 28-A of the Land Acquisition Act on the basis of the orders of the Reference Court for payment of higher compensation. It is submitted that the question whether there is a procedural discrimination between the provisions of the MID Act and the Land Acquisition Act fell for consideration before the Hon'ble ::: Uploaded on - 29/08/2015 ::: Downloaded on - 10/09/2015 20:02:16 ::: wp6688.14+ 19 Supreme Court in the case of Shri Ramtanu Co-operative Housing Society Ltd. & Anr. v. State of Maharashtra & Ors., reported in AIR 1970 SC 1771, and the Hon'ble Supreme Court held that the pith and substance of the MID Act is establishment, growth and organization of industries and acquisition of the land in that behalf for carrying out the said purpose under the Act. It is submitted that it was held by the Hon'ble Supreme Court in the said reported judgment that the MID Act and the Land Acquisition Act were dissimilar in situations and circumstances. It is submitted that in such circumstances, it cannot be said that the provisions of Section 28A of the Land Acquisition Act would apply to the acquisitions under the MID Act by taking recourse to the provisions of Section 34 of the MID Act. The learned counsel also relied on the judgment of the Hon'ble Supreme Court in the case of Union of India v. Chajju Ram (Dead) by LRs & Ors., reported in (2003) 5 SCC 568, to substantiate his submission that the classification sought to be made for determination of the amount of compensation towards acquisition of the land under the Defence of India Act vis-a-vis Land Acquisition Act is a reasonable and valid one. It is submitted that it was held in the aforesaid reported decision that the amended ::: Uploaded on - 29/08/2015 ::: Downloaded on - 10/09/2015 20:02:16 ::: wp6688.14+ 20 provisions of Section 23(1) of the Land Acquisition Act would not apply to the acquisition under the provisions of the Defence of India Act. It is submitted by placing reliance on the judgment in the case of Dayal Singh & Ors. v. Union of India & Ors., reported in (2003) 2 SCC 593, that a substantive right, such as the right to have the compensation redetermined must be expressly provided by the statute and since the right to seek redetermination of compensation under Section 28-A of the Land Acquisition Act is not expressly provided under the MID Act, the said provisions cannot be read into the MID Act or could be applied to the acquisitions under the MID Act by implication. The learned counsel sought for the dismissal of the writ petitions.
7. To answer the question involved in these writ petitions, it would be necessary to consider the object of the MID Act and the Land Acquisition Act, including the provisions of Section 28-A, that are introduced therein, in the year 1984 by amendment. The Hon'ble Supreme Court had an occasion to decide two principal questions that were raised in the case of Shri Ramtanu Co-operative Housing Society Ltd. & Anr. v. State of Maharashtra & Ors., (supra), ::: Uploaded on - 29/08/2015 ::: Downloaded on - 10/09/2015 20:02:16 ::: wp6688.14+ 21 firstly, whether the State Government was competent to enact the MID Act and secondly whether there is a procedural discrimination between the MID Act and the Land Acquisition Act. While determining the aforesaid questions, the Hon'ble Supreme Court considered the object of the MID Act and the true character and intent thereof. On a reading of the provisions of the MID Act, the Supreme Court observed thus in paragraphs 15 & 21 of the said judgment :
"15. It is in the background of the purposes of the Act and powers and functions of the Corporation that the real and true character of the legislation will be determined. That is the doctrine of finding out the pith and substance of an Act. In deciding the pith and substance of the legislation, the true test is not to find out whether the Act has encroached upon or invaded any forbidden field but what the pith and substance of the Act is. It is that true intent of the Act which will determine the validity of the Act. Industries come within Entry 24 of the State List subject to the provision of Entry 7 and entry 52 of the Union List of the Constitution. Entry 7 of the Union list relates to industries declared by Parliament by law to be necessary for the purpose of defence or for the prosecution of war. Entry 52 of the Union List relates to industries, the control of which by the Union is declared by Parliament by law to be expedient in the ::: Uploaded on - 29/08/2015 ::: Downloaded on - 10/09/2015 20:02:16 ::: wp6688.14+ 22 public interest. The establishment, growth and development of industries in the State or Maharashtra does not fall within Entry 7 and Entry 52 of the Union List. Establishment, growth and development of industries in the State is within the State List of industries. Furthermore, to effectuate the purpose of the development of industries in the State it is necessary to make land available. Such land can be made available by acquisition or requisition. The Act in the present case deals with acquisition of land by the State and on such acquisition, the State may transfer the land to the Corporation which again may develop it itself and establish industrial estates or may develop industrial areas. Acquisition or requisition of land falls under Entry 42 of the Concurrent List. In order to achieve growth of industries it is necessary not only to acquire land but also to implement the purposes of the Act. The Corporation is therefore established for carrying out the purposes of the Act.
The pith and substance of the Act is establishment, growth and organization of industries, acquisition of land in that behalf and carrying out the purposes of the Act by setting up the Corporation as one of the limbs or agencies of the Government. The powers and functions of the Corporation show in no uncertain terms that these are all in aid of the principal and predominant purpose of establishment, growth and establishment of industries.::: Uploaded on - 29/08/2015 ::: Downloaded on - 10/09/2015 20:02:16 ::: wp6688.14+ 23
21. ....... It is to be remembered that the Act in the present case is a special one having the specific and special purpose of growth, development and organisation of industries in the State of Maharashtra. The Act has its own procedure and there is no provision in the Act for acquisition of land for a company as in the case of Land Acquisition Act. In the present case, acquisition under the Act is for the purpose of development of industrial estates or industrial areas by the Corporation or any other purpose in furtherance of the objects of the Act. The policy underlying the Act is not acquisition of land for any company but for the one and only purpose of development, organisation and growth of industrial estates and industrial areas. The Act is designed to have a planned industrial city as opposed to haphazard growth of industrial areas in all parts of the State. The Act is intended to prevent growth of industries in the developed parts of the State.
Industries are therefore to be set up in the developing or new parts of the State where new industrial towns will be brought into existence. The object of the Act is to carve our planned areas for industries. On one side there will be enginnering industries and on the other there will be chemical industries. There will be localisation of industries with the result that the residents and dwellers of towns and cities will not suffer either from the polluted air or obnoxious chemicals of industries or the dense growth of ::: Uploaded on - 29/08/2015 ::: Downloaded on - 10/09/2015 20:02:16 ::: wp6688.14+ 24 industries and industrial population, within and near about the residential areas. The Land Acquisition Act is a general Act and that is why there is specific provision for acquisition of land by the State for public purpose and acquisition of land by the State for companies. The present Act on the other hand is designed for the sole purpose of development of industrial areas and industrial estates and growth and development of industries within the State. Industrial undertakings or persons who are engaged in industries all become entitled to the facilities on such industrial growth. Under the Land Acquisition Act, acquisition is at the instance of and for the benefit of a company whereas under the present Act acquisition is solely by the State for public purposes. The two Acts are dissimilar in situations and circumstances."
After observing thus, the Hon'ble Supreme Court held that the MID Act is within the legislative competence of the State Government and there is no procedural discrimination between the MID Act and the Land Acquisition Act.
8. The question whether the amended provisions of the Land Acquisition Act i.e., Section 23(2) and Section 23(1)(A) that relate to the payment of solatium and interest would apply to the acquisitions under the MID Act fell for consideration before this Court in the case of Resident Deputy ::: Uploaded on - 29/08/2015 ::: Downloaded on - 10/09/2015 20:02:16 ::: wp6688.14+ 25 Collector, Pune v. G.N. Landge & Anr., reported in 1998 (2) Mh. L.J. 756, and this Court observed by referring to a couple of judgments of the Hon'ble Supreme Court that it had no hesitation in coming to the conclusion that the provisions of Sections 23 and 24 of the Land Acquisition Act are adopted by reference in the MID Act in the year 1967 in view of Section 33(5) of the MID Act. This Court observed thus in paragraph 21 of the said reported judgment :
"21. It is also significant to note that when by Act XI of 1967, section 33(5) was amended, section 34 was not amended. In 1975 by Act No. XVIII of 1975 section 34 was amended and instead of appeal reference was provided and it was further stated that in case of such a reference the provisions of Part III of the Land Acquisition Act shall mutatis mutandis apply to further proceeding in respect thereof. Section 28 is in Part III of the Land Acquisition Act and therefore, it will apply to the present proceeding before the District Court as they are out of reference under section 34.
In this connection, we endorse the reasoning given by the District Court in para 34 of its judgment as to why he has awarded interest as per section 28 of the Land Acquisition Act."
After so observing, the Court held that the ::: Uploaded on - 29/08/2015 ::: Downloaded on - 10/09/2015 20:02:16 ::: wp6688.14+ 26 Maharashtra Industrial Development Corporation was liable to pay interest in terms of the provisions of Section 28 of the Land Acquisition Act for acquisitions under the MID Act. It is not in dispute that after the said decision, the Corporation started paying interest and solatium to the claimants in terms of the provisions of Sections 23 and 28 of the Land Acquisition Act.
9.While deciding the question whether under Section 34 of the MID Act, a claimant would be required to file a reference within a period of 60 days from the date of the award or from the date of notice of the award by the Collector in the case of Maharashtra Industrial Development Corporation, Nagpur v. Shaikh Khatinabi wd/o Abdul Gaffar Shaikh and others, reported in 2008(1) Mh. L.J. 813, this Court had an occasion to consider the landmark judgments of the Hon'ble Supreme Court in the case of Nagpur Improvement Trust v. Vasantrao & Ors., reported in AIR 2002 SC 3499, and Maharashtra State Road Transport Corporation v. State of Maharashtra & Ors., reported in AIR 2003 SC 1901.
After considering the two aforesaid judgments of the Hon'ble Supreme Court, this Court observed in paragraph 13 of the ::: Uploaded on - 29/08/2015 ::: Downloaded on - 10/09/2015 20:02:16 ::: wp6688.14+ 27 judgment reported in 2008(1) Mh. L.J. 813, that Section 34 of the MID Act makes a reference to the provisions of the Land Acquisition Act by reference and not by incorporation.
The Court observed that the Legislature has simply made the provisions of Part III of the Land Acquisition Act applicable to further proceedings in respect of the application made to the Collector within 60 days of determination. This Court observed that in so far as such proceedings are concerned, the subsequent amendments to Part III of the Land Acquisition Act would also apply to them. It was held that since the provisions of Section 34 of the MID Act make a reference to the provisions of the Land Acquisition Act by reference, the reference to the Court could be made within 60 days from the date of securing the knowledge of the award as there was no reason to apply a different yardstick to a claimant whose land was acquired under the provisions of the MID Act. In all the aforesaid cases, the amended provisions of the Land Acquisition Act were held to be applicable to the acquisitions under the MID Act.
10. There is another set of judgments in the cases of Nagpur Imrovement Trust & Anr. v. Vithal Rao & Ors., ::: Uploaded on - 29/08/2015 ::: Downloaded on - 10/09/2015 20:02:16 ::: wp6688.14+ 28 reported in (1973) 1 SCC 500, Nagpur Improvement Trust & Anr. v. Vithal Rao & Ors., reported in (1973) 1 SCC 500; NIT v. Vasantrao & Ors., (supra) and MSRTC vs. State of Maharashtra & Ors., (supra), wherein the Hon'ble Supreme Court, by applying the test of Article 14 of the Constitution of India held that different principles of compensation cannot be formulated if land is acquired for public purposes, as discrimination cannot be made on the basis of the authority acquiring the land. The Hon'ble Supreme Court held thus in the judgment in the case of NIT & Anr. v. Vithal Rao & Ors., (supra) :
"28. It would not be disputed that different principles of compensation cannot be formulated for lands acquired on the basis that the owner is old or young, healthy or ill, tall or short, or whether the owner has inherited the property or built it with his own efforts, or whether the owner is a politician or an advocate. Why is this sort of classification not sustainable ? Because the object being to compulsorily acquire for a public purpose, the object is equally achieved whether the land belongs to one type of owner or another type.
29. Can classification be made on the basis of the public purpose for the purpose of compensation for ::: Uploaded on - 29/08/2015 ::: Downloaded on - 10/09/2015 20:02:16 ::: wp6688.14+ 29 which land is acquired? In other words can the Legislature lay down different principles of compensation for lands acquired say for a hospital or a school or a Government building? Can the Legislature say that for a hospital land will be acquired at 50% of the market value, for a school at 60% of the value and for a Government building at 70% of the market value? All three objects are public purposes and as far as the owner is concerned it does not matter to him whether it is one public purpose or the other. Article 14 confers an individual right and in order to justify a classification there should be something which justifies a different treatment to this individual right. It seems to us that ordinarily a classification based on the public purpose is not permissible under Article 14 for the purpose of determining compensation. The position is different when the owner of the land himself is the recipient of benefits from an improvement scheme, and the benefit to him is taken into consideration in fixing compensation. Can classification be made on the basis of the authority acquiring the land? In other words can different principles of compensation be laid if the land is acquired for or by an Improvement Trust or Municipal Corporation or the Government? It seems to us that the answer is in the negative because as far as the owner is concerned it does not matter to him whether the land is acquired by one authority or the other.::: Uploaded on - 29/08/2015 ::: Downloaded on - 10/09/2015 20:02:16 ::: wp6688.14+ 30
30. It is equally immaterial whether it is one Acquisition Act or another Acquisition Act under which the land is acquired. If the existence of two Acts could enable the State give one owner different treatment from another equally situated the owner who is discriminated against, can claim the protection of Article 14."
The Hon'ble Supreme Court held that it was necessary for the Nagpur Improvement Trust to pay compensation to the land holders as per the provisions of the Land Acquisition Act. In the judgment in the case of Nagpur Improvement Trust v. Vasantrao & Ors., (supra), the Hon'ble Supreme Court, by following its earlier judgment in the case of NIT v. Vithal Rao, (supra), held that different principles of compensation cannot be laid if the land is acquired for Improvement Trust or Municipal Corporation or the Government. By making reference to the judgment in the case of NIT v. Vithal Rao, (supra), it was observed that in so far as the owner is concerned, it does not matter to him whether the land is acquired by one authority or the other.
After so observing, the Hon'ble Supreme Court rejected the submission made on behalf of the Nagpur Improvement Trust ::: Uploaded on - 29/08/2015 ::: Downloaded on - 10/09/2015 20:02:16 ::: wp6688.14+ 31 that the amended provisions of the Land Acquisition Act, specially Sections 23(1)(A), 23(2) and 28 would not apply to the acquisitions under the Nagpur Improvement Trust Act.
The Hon'ble Supreme Court added that the beneficial amendments in the Land Acquisition Act would have to be read into the State enactments including the Nagpur Improvement Trust Act to save the same from the vice of discrimination. It is held by the Hon'ble Supreme Court in the case of MSRTC v. State of Maharashtra (supra) that the provisions of the Land Acquisition Act as amended from time to time vis-a-vis compensation would apply to the acquisitions under the MRTP Act and any other interpretation of the provisions of Section 126(3) of the MRTP Act would afflict the acquisitions by the vice of invidious discrimination and palpable arbitrariness, hit by Article 14 of the Constitution.
The Hon'ble Supreme Court proceeded to add that if it is not held so, the provisions of Section 126(3) of the MRTP Act would be liable to be struck down as violative of Article 14, in which case the entire process of acquisition contemplated by Chapter VII of the MRTP Act will become unworkable and ineffectual. It is held that the land owners whose lands are acquired under Chapter VII of the MRTP Act cannot be ::: Uploaded on - 29/08/2015 ::: Downloaded on - 10/09/2015 20:02:16 ::: wp6688.14+ 32 subjected to a disability or disadvantage in the matter of obtaining monetary recompense for the deprivation of land depending upon the nature of public purpose or the authority for whose benefit the land is acquired. The Hon'ble Supreme Court held that the provisions of the MRTP Act make a reference to the provisions of the Land Acquisition Act by reference. The three aforesaid judgments of the Hon'ble Supreme Court clearly lay down that the provisions of the Land Acquisition Act, vis-a-vis compensation should be necessarily applied to the MRTP Act and the Nagpur Improvement Trust Act or else they would suffer from the vice of discrimination and would be hit by the provisions of Article 14 of the Constitution of India.
11. The aforesaid judgments were considered by the Constitution Bench of the Hon'ble Supreme Court while answering a reference in the case of Girnar Traders (3) v.
State of Maharashtra & Ors., reported in (2011) 3 SCC 1, and while holding that there is a reference to the provisions of the Land Acquisition Act by the provisions of Section 126 of the MRTP Act by incorporation, the Hon'ble Supreme Court held that despite the said position, the provisions of the Land ::: Uploaded on - 29/08/2015 ::: Downloaded on - 10/09/2015 20:02:16 ::: wp6688.14+ 33 Acquisition Act, limited to the extent of acquisition of land, payment of compensation and recourse to legal remedies could be read into the acquisitions. The reference was answered by the Constitution Bench of the Hon'ble Supreme Court in paragraph 191 of the aforesaid judgment, as under :
"191. Having said so, now we proceed to record our answer to the proposition referred to the larger Bench as follows:
ig For the reasons stated in this judgment, we hold that the MRTP Act is a self-contained code.
Further, we hold that provisions introduced in the Land Acquisition Act, 1894 by Central Act 68 of 1984, limited to the extent of acquisition of land, payment of compensation and recourse to legal remedies provided under the said Act, can be read into an acquisition controlled by the provisions of Chapter VII of the MRTP Act but with a specific exception that the provisions of the Land Acquisition Act insofar as they provide different time-frames and consequences of default thereof including lapsing of acquisition proceedings cannot be read into the MRTP Act. Section 11-A of the Land Acquisition Act being one of such provisions cannot be applied to the acquisitions under Chapter VII of the MRTP Act."
While holding so, the Hon'ble Supreme Court was ::: Uploaded on - 29/08/2015 ::: Downloaded on - 10/09/2015 20:02:16 ::: wp6688.14+ 34 mindful of the purpose of legislation by reference and legislation by incorporation, viz. that in a legislation by reference all amendments to the former law, though made subsequent to the enactment of the later law, would ipso facto apply to the later law and in a case of legislation by incorporation the subsequent amendments in the former law could not be treated as a part of the incorporating Act. The Hon'ble Supreme Court held that though there is a reference to the provisions of the Land Acquisition Act by Section 126(3) of the MRTP Act by incorporation, the amending provisions of the Land Acquisition Act to the extent of acquisition of land, payment of compensation and recourse to legal remedies could be read into the acquisitions under the MRTP Act.
12. By applying the law laid down by the Hon'ble Supreme Court in the case of Girnar Traders (3) v. State of Maharashtra, (supra), it would be necessary to hold that the provisions of Section 28-A of the Land Acquisition Act would apply to the acquisitions under the MID Act. It would be necessary to so hold, as the MID Act and the MRTP Act would fall in the same category of enactments. In the case of Union ::: Uploaded on - 29/08/2015 ::: Downloaded on - 10/09/2015 20:02:16 ::: wp6688.14+ 35 of India v. Chajju Ram (Dead) By LRs. & Ors., (supra), the Hon'ble Supreme Court had categorized or grouped the acquisitions under different enactments. The first group of cases include the acquisitions under the Nagpur Improvement Trust Act, MRTP Act and the other Town Planning Acts where a common scheme and pattern is laid down as the statutes relate to Town Planning, Development and acquisition for the purposes of development, whereas in the other group or category, the enactments like the Defence of India Act and the Requisitioning and Acquisition of Immovable Property Act and the like are included. It is held by the Hon'ble Supreme Court in the said reported decision that to the acquisitions falling under the enactments in the first category, the provisions of the Land Acquisition Act would apply. Whereas, for the reasons recorded in the said judgment, after making a distinction between the two categories it is held that the provisions of the Land Acquisition Act may not be read into the acquisitions falling under the Acts in the second category. The Court held that the classification sought to be made for determination of compensation for acquisition of land in respect of cases falling in the first category and the second category is reasonable and valid one and is founded on the object sought ::: Uploaded on - 29/08/2015 ::: Downloaded on - 10/09/2015 20:02:16 ::: wp6688.14+ 36 to be achieved by the legislation. Hence, though the amended provisions of the Land Acquisition Act were not applied to the Requisitioning and Acquisition of Immovable Property Act, 1952 and the Defence of India Act, 1971, the said amended provisions were made applicable to the acquisitions under the various Town Planning Acts. The MID Act would fall in the first category of cases and hence the amended provisions of Section 28-A of the Land Acquisition Act will have to be read in to the acquisitions under the MID Act. If the MID Act falls in the first group or category of enactments referred to hereinabove, it would be necessary to hold by following the Seven Judges judgment of the Hon'ble Supreme Court in the case of Nagpur Improvement Trust v.
Vithal Rao, (supra), that different principles of compensation cannot be formulated for land acquired under the different enactments because as far as the owner is concerned, it does not matter to him whether his land is acquired by one authority or the other. The judgment in the case of The State of Madhya Pradesh v. G.C. Mandawar, reported in AIR 1954 SC 493, and the judgment in the case of Ashutosh Gupta v.
State of Rajasthan & Ors., reported in (2002) 4 SCC 34, and relief on by the learned Associate Advocate General cannot be ::: Uploaded on - 29/08/2015 ::: Downloaded on - 10/09/2015 20:02:16 ::: wp6688.14+ 37 applied to the cases in hand as in the said reported cases, the scope of provisions of Article 14 has been discussed generally, without making a reference to acquisitions or enactments dealing with it and we have discussed the judgments directly on the issue involved in this judgment. So also, for the reasons recorded hereinabove, the judgments reported in the case of Union of India v. Chajju Ram (Dead) By LRs. & Ors., (supra), and Dayal Singh & Ors. v. Union of India & Ors., (supra) and relied on by the counsel for the Corporation cannot support the submission of the Corporation that the provisions of Section 28A of the Land Acquisition Act would not apply to the acquisitions under the MID Act. The object of Section 28-A of the Land Acquisition Act, as could be seen from the Statement of Objects and Reasons of the Amendment Act, 1984, is to ensure that there is no inequality in the payment of compensation for the same or similar quality of land to different interested parties. The relevant portion of the Statement of Objects and Reasons reads thus :
"Amendment Act 68 of 1984 - Statement of Objects and Reasons. -
(ix) Considering that the right of reference to the Civil Court under section 18 of the Act is not usually taken advantage of by inarticulate and poor people ::: Uploaded on - 29/08/2015 ::: Downloaded on - 10/09/2015 20:02:16 ::: wp6688.14+ 38 and is usually exercised only by the comparatively affluent land owners and that this causes considerable inequality in the payment of compensation for the same or similar quality of land to different interested parties, it is proposed to provide an opportunity to all aggrieved parties whose land is covered under the same notification to seek re-determination of compensation, once any one of them has obtained orders for payment of higher compensation from the reference Court under section 18 of the Act."
It is apparent from the Statements of Objects and reasons that Section 28-A was inserted in the Land Acquisition Act with a view to ensure that there is no inequality in the payment of compensation for similar quality of land to different interested parties covered by the same notification, once one of the persons affected by the notification has obtained orders for payment of higher compensation from the Reference Court under Section 18 of the Land Acquisition Act. The object of the provisions of Section 28-A is to provide similar compensation to the land holders that are affected by the same Section 4 notification.
It cannot be said that Section 28-A was enacted only with a view to help the inarticulate and poor people. Section 28-A appears to have been enacted, as reflected from the ::: Uploaded on - 29/08/2015 ::: Downloaded on - 10/09/2015 20:02:16 ::: wp6688.14+ 39 statements of objects and reasons to remove inequality and discrimination in the payment of compensation. If the object of enacting the provisions of Section 28A is as such, it cannot be said that the said provisions cannot be read in the provisions of the MID Act so as to make the same applicable to the acquisitions under the MID Act.
13. We are bound by the judgment of the Hon'ble Supreme Court in the case of Girnar Traders (3) v. State of Maharashtra & Ors., (supra) which lays down that the provisions of the Land Acquisition Act in respect of payment of compensation, recourse to remedies and the acquisition of the land should be read into the acquisitions controlled by the provisions of the MRTP Act. We find that the provisions of Section 28-A of the Act provide for legal remedy and also provide for payment of compensation. It cannot be said on a reading of the provisions of Part III of the Land Acquisition Act, including the provisions of Section 28-A that the provisions of Section 28-A are sui generis. The provisions of Section 28-A are thoughtfully linked with the other provisions of Part III of the Land Acquisition Act and it cannot be said that they would not apply to the acquisitions under ::: Uploaded on - 29/08/2015 ::: Downloaded on - 10/09/2015 20:02:16 ::: wp6688.14+ 40 the MID Act. For the reasons recorded in the judgment in the case of Girnar Traders (3) v. State of Maharashtra (supra), though it would be necessary to hold that the provisions of Section 34 of the MID Act make a reference to the provisions of the Land Acquisition Act by incorporation, it would be further necessary to hold by following the ratio laid down in paragraph 191 of the said judgment that the provisions of Section 28-A of the Land Acquisition Act would apply to the acquisitions under the MID Act or else, they would suffer from the vice of discrimination, as they relate to legal remedy and payment of compensation. It would not be necessary for this Court to consider in this case, whether every compensatory provision could be held to apply to the acquisitions under the provisions of the MID Act. Suffice it to hold that the compensatory provisions of Section 28-A, if not read in the provisions of MID Act, would render the provisions of the MID Act vulnerable, as being arbitrary and discriminatory.
14. For the reasons aforesaid, the writ petitions are allowed. It is hereby held that the provisions of Section 28-A of the Land Acquisition Act would apply to the acquisitions under the MID Act. The respondent No. 2 is directed to ::: Uploaded on - 29/08/2015 ::: Downloaded on - 10/09/2015 20:02:16 ::: wp6688.14+ 41 consider the applications of the petitioners for determination of compensation on the basis of the award of the Court, in accordance with the provisions of the Land Acquisition Act.
Rule is made absolute in the aforesaid terms with no order as to costs.
JUDGE JUDGE
ig ******
PDL/*GS.
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