Krishi Utpanna Bazar Samiti, ... vs State Of Maharashtra And Ors.
2001 Latest Caselaw 638 Bom

JUDGMENT

B.H. Marlapalle, J.

1. This petition, filed under Article 226 of the Constitution, raises an important question of law regarding the rights of the beneficiary of land under acquisition under the Land Acquisition Act, 1984 (L. A. Act, for short) when the State Government invokes its powers under Section 48(1) of the L. A. Act.

FACTUAL MATRIX

2. The petitioner market committee came to be established at Aurangabad initially in the year 1934 under the Hyderabad Markets Act as applicable to the erstwhile Hyderabad State and with the enactment of the Maharashtra Agricultural Crops Marketing (Regulation) Act, 1963 (for short, the said Act) came to be known as a Market Committee within meaning of Section 11 of the said Act. It used to function in the market area of Aurangabad City and its jurisdiction was extended to Aurangabad as well as Khultabad Talukas. With the rapid development of Aurangabad city and the surrounding

areas, a proposal for construction of new market yard of the Aurangabad City was sent to the Collector on 9th February, 1983 pursuant to the resolution dated 6th January, 1983 and the Collector, in turn forwarded the said proposal to the Special Land Acquisition Officer on 23rd February, 1983 for further action. The market committee had sought acquisition of about 248 Acres and 38 Gunthas (98 Hectares) of land from the Jadhavwadi, Harsul areas which were part of the new development plan made applicable to the Aurangabad City under Section 128 of the Maharashtra Regional and Town Planning Act, 1963 (for short MRTP Act) and this development plan was dated 7th January, 1983. Notification dated 15th April, 1983 under Section 4(1) of the L.A. Act for the first phase came to be issued on 20th April, 1983 and it was published in the local news papers on 24th May, 1983 as well as in the Government Gazette on 20th April, 1983. The spot publication was made on 25th May, 1983. Inquiry under Section 5A of the L.A. Act was conducted and after considering the representations made by the interested persons a decision was taken to delete some of the lands from the areas which were included in the notification. This was in respect of 23 properties from Jadhavwadi and 5 properties from Harsul village, consisting of a total land of 96 Hectares 42 Ares i.e. 79 Hectares 65 Ares from Jadhavwadi and 16 Hectares 77 Ares from Harsul. However, when the declaration under Section 6 of the L. A. Act dated 7th May, 1985 came to be published in the Government Gazette dated 27th June, 1985 the total land under acquisition was reduced to 76 Hectares 78 Ares and the properties of village Harsul in Gat Nos. 135, 153 and 154 were deleted. This declaration was published in a local Urdu daily on 13th May, 1985 and in a Marathi daily on 15th May, 1985, Its spot publication was made on 31st December, 1985. However, the A.P. M.C., vide its communication dated 27th May, 1985 had approached the Divisional Commissioner to invoke the urgency Clause under Section 17 of the L. A. Act. Reminders were sent, thereafter, and finally the Divisional Commissioner was pleased to pass an order on 8th November, 1985 applying the urgency clause. Directions were issued to the Special Land Acquisition Officer to enter the respective properties and take possession pursuant to the said order by giving 15 days notice to the owners of the concerned land under Sub-sections (1) and (2) of Section 9 of the L.A. Act.

3. The second phase of acquisition of land was initiated obviously because some lands were excluded from the earlier notification dated 15th April, 1983. The notification under Section 4(1) of the L.A. Act for the second phase was dated 21st October, 1985 and it was published in the Government Gazette on 2nd January, 1986 for acquisition of total 54 Hectares 27 Ares land from two Gat numbers of Jadhavwadi viz. Gat Nos. 12 and 15 and Survey No. 156 of Harsul Village. This was in pursuance of the communication dated 4th December, 1984 by the A.P.M.C. and followed by reminder dated 6th July, 1985. Before the said notification was issued an agreement was executed between the A.P.M.C. and the State Government as required under

the Rules. Declaration dated 29th January, 1987 under Section 6 of the L.A. Act in respect of second phase of acquisition was published in the Government Gazette on 19th March, 1987 and the said publication covered only 11 Hectares 59 Ares of land as against 54 Hectares 27 Ares originally set out in the notification under Section 4(i) of the L.A. Act. The properties covered under this declaration were Gat Nos. 12, admeasuring 3 Hectares 5 Ares, Gat No. 15; admeasuring 4 Hectares 30 Ares and Harsul Survey No. 156, admeasuring 4 Hectares and 24 Ares. Award came to be passed on 21st April, 1989, excluding Gat No. 156 which was deleted pursuant to the impugned decision and the land covered under this award was 7 Hectares 35 Ares.

4. In the meanwhile the Chairman of the A.P.M.C., by letter dated 26th January, 1985 accompanied by a resolution of the said body, approached the Commissioner/Collector, Aurangabad requesting for deletion of the properties in Gat No. 8. The land sought'to be deleted admeasured 6 Hectares 35 Ares as per the notification published under Section 4 of the L.A. Act and the said area of land was retained in the declaration published under Section 6 of the L.A. Act for the first phase. On 7th October, 1985 the Additional Commissioner, Aurangabad passed an order under Section 48(1) of the L.A. Act and deleted the acquisition in respect of Gat No. 8 to the extent of eight acres out of 6 Hectares and 35 Ares. The beneficiaries of this withdrawal from the acquisition were at the behest of Kamdhena Housing Societies, Aurangabad (2 Acres), Bhagirat Co-operative Housing Society (5 Ares), Smt. Vidya Khedkar (20 Gunthas) and Shri Milind Patil (20 Gunthas) and only 3 Hectares and 15 Ares land from Gat No. 8 was retained for acquisition,

5. It appears that the owners and possessors of land in Gat Nos. 10, 13 of Jadhavwadi and Survey No. 156 of Harsul village approached the State Government for deletion of their lands as well from the proposed acquisition. Gat No. 10 originally admeasured 25 Acres 12 Gunthas out of which 17 Acres and 16 Gunthas was acquired by CIDCO and 3 Acres and 5 Gunthas was acquired for widening of road. Under acquisition, in the first phase for A.P.M.C., was only 5 Acres and 1 Guntha (2 Hectares 1 Are). One Shri Mohd. Shafi Shah claiming to be the Mutawalli of Dargah Peer Baha-u-ddin Shah Saheb, Bhandari appears to have submitted an application to the Minister for Revenue and Forest on 28th August, 1984 requesting for deletion of 2 Hectares 1 Are land from Gat No. 10. On this application stay order was passed by the Minister and it was intimated to the Collector on 19th October, 1984. Similarly, one Shri Satyaparkash Ramanand Arya claiming to be the owner of the land Gat No. 13 submitted an application on 11th February, 1986 to the Minister for Revenue and Forest and stay order was communicated to the Collector on 18th February, 1986. Award came to be passed for the first phase consisting of 73 Hectares and 28 Ares land by the Special Land Acquisition Officer on 26th of June, 1987 and the Land Acquisition Officer specifically noted the stay order granted by the State Government in respect of land admeasuring 2 Hectares 1 Are in Gat No. 10

and 4 Hectares and 90 Ares in Gat No. 13. After the award was passed an application came to be submitted by the proposed Sanjay Gandhi Magaswargiya Grihanirman Sanstha, Aurangabad on 5th August, 1987 to the Revenue Minister requesting for deletion of the land in Gat No. 7/5 of Jadhavwadi. The applicant society claimed that it was in possession of 2 Acres 37 Gunthas of land and the land under acquisition was 2 Hectares 33 Ares from the said Gat number. It was also contended that they had purchased the land from the original owner. Stay order was passed and communicated to the Collector on 11th August, 1987.

6. One Shri Ramsingh/Ramling Balaram Sure had filed Writ Petition No. 15 of 1986 along with his brother Isharam S/o Balaram Sure challenging the notification under Section 4(1) and declaration under Section 6 of the L.A. Act in respect of agricultural land in Survey No. 135 of village Harsul. This petition was rejected by a Division Bench of this Court on 17th of February, 1986. On 29th September, 1986, he submitted a representation regarding deletion of land in Survey No. 156 of Harsul. He stated in the said representation that land in Survey No. 135, admeasuring 11 Acres was already acquired for the petitioner committee and by further acquisition of land admeasuring 4 Hectares 24 Ares from Survey No. 156 there would be injustice meted out to his family members. He also stated that there were about 250 to 300 persons occupying the said land (Surewadi). He, therefore, requested for inquiry in respect of Survey Nos. 135 and 156. The representation was entertained and stay order was passed by the Revenue Minister on 7th November, 1986.

7. It is under these circumstances that the acquisition proceedings in respect of the lands in Gat Nos. 7/5, 10 and 13 of Jadhavwadi and Survey No. 156 of village Harsul came to be stayed by the State Government and the total area covered was 13 Hectares and 48 Ares. i.e. Gat No. 7/5 (2 Hectares 33 Ares), Gat No. 10 (2 Hectares 1 Are), Gat No. 13 (4 Hectares 90 Ares) and Survey No. 156 of Harsul (4 Hectares 24 Ares). The petitioner, committee submitted representations to the State Government for vacating the stay orders from time to time i.e. on 14th November, 1986, 17th September, 1986, 12th May, 1987, 28th November, 1987 and 13th January, 1988. The Desk Officer from the Ministry of Revenue and Forest addressed a letter dated 7th January, 1988 to the Chairman of the Petitioner Committee informing him that a meeting was arranged in the Chamber of the Minister for Revenue on 15th January, 1988 for considering its request to vacate the stay orders passed earlier and he was, therefore, requested to remain present for the said meeting along with other officers of the committee. Such a meeting was held on 15th January, 1988 and it was attended by the Chairman as well as other office bearers of the petitioner Committee. The Revenue Minister approved the proposal for final deletion of these properties in Gat Nos. 7/5, 10 and 13 of Jadhavwadi and Survey No. 156 of Harsul. The said decision was communicated to the Divisional Commissioner, Aurangabad vide letter dated

25th February, 1988 as well as to the petitioner committee vide communication dated 29th February, 1988. Subsequently, it appears that the petitioner committee addressed representations to the Honourable Chief Minister with a request to review the decision taken by the Revenue Minister regarding the deletion of these properties and while these representations were pending the petitioner approached this Court on 28th March, 1988. The petition was admitted on 29th March, 1988. Interim order was passed on 8th April, 1988 in Civil Application No. 556 of 1988 and it was vacated subsequently by order dated 8th August, 1988 passed in Civil Application No. 1394 of 1988.

8. The petitioner, therefore, approached the Apex Court and by order dated 9th December, 1988 Special Leave was granted. The appeal was disposed of by setting aside this Court's order dated 8th August, 1988. It was further directed that during the pendency of the instant petition before us, there shall be no construction on the land in Gat Nos. 7/5, 10, 13 of village Jadhavwadi and Gat No. 156 of village Harsul. The petitioner committee noticed that in spite of the order passed by the Supreme Court, restoring the interim order passed by this Court earlier, some construction was coming up on the said properties and, therefore, it filed Contempt Petition No. 49 of 1989 which came to be disposed of as withdrawn. Several Civil Applications were presented from time to time by the petitioner, seeking orders against the Government authorities so as to protect the subject land. It appears that the State authorities did precious little in response to the approaches made by the petitioner committee. The respective property owners have been impleaded as Respondents and more particularly Respondent Nos. 5 to 15.

RIVAL CONTENTIONS :

9. The petitioner committee contends that after the award dated 26th June, 1987 was passed under Section 11 of the L. A. Act in respect of 73 Hectares 28 Ares the entire amount was deposited by the petitioner committee, with the Land Acquisition Officer and possession of the land in Gat No. 7/5 as well as 156 was taken except the possession of the land in Gat Nos. 10 and 13, in 1986 itself. In support of this, it relies upon Kabja Pawati dated 8th April, 1986 which does not deal with the properties in Gat Nos. 10, 13 and 156 but deals with the property in Gat No. 7/5 along with other 28 properties. The petitioner Committee required 242 Acres of land and the resolution passed by the Committee for acquisition of the said land was duly approved by the authorities concerned and steps were taken for acquisition of the land at one time itself i.e. by a notification dated 20th April, 1983 published under Section 4(1) of the L. A. Act. However, certain lands were deleted when the declaration under Section 6 was published and, therefore, second and third phases of acquisition of land were undertaken.

10. The Third phase acquisition was initiated by publishing notification under Section 4(1) of the L. A. Act on 31st July, 1987 in respect of two

properties located in Gat Nos. 154 and 155, admeasuring 29 Hectares and 9 Ares. It is not disputed that this acquisition was not progressed further and it remained in abeyance all these years. The impugned order dated 29th February, 1988 communicating decision of the Government to delete the subject properties from acquisition is illegal inasmuch as in the meeting held on 15th January, 1988 in the Chamber of the Minister for Revenue no adequate opportunity was given to the petitioner committee to defend its case and the decision finally taken was in utter violation of the principles of natural justice, these proceedings could not be called as the proceedings within the meaning of Section 48(1) of the L. A. Act, show cause notice was not issued to the petitioner committee by the State Government regarding its proposal to delete these properties, the final decision for deletion was not gazetted and it was not authenticated as required under the Rules of Business framed by the State Government under Article 166 of the Constitution. The petitioner Committee emphasised its requirement of the total proposed land i.e. 242 Acres (98 Hectares) and it reiterates that it has the financial capacity to pay the compensation amount even for the balance land. The decision of the State Government to delete these lands also suffers from the vice of arbitrariness and there is no justification given by the State Government either in the impugned order or before this Court so as to sustain the said decision. In support of its contentions the petitioner has relied upon the following decisions :

1. "Prakash Vasudeo Deodhar and Ors. v. State of Maharashtra and Ors.", 1993 (2) Mh.L.J. 1768; 2. "Larsen and Toubro Ltd.

etc. v. State of Gujarat and Ors.", ; 3. "The State Government Houseless Harijan Employees Association v. State of Karnataka and Ors.", AIR 2001 SC 437; 4. Gulabrao Keshavrao Patil and Ors. v. State of Gujarat and Ors. ", .

The petitioner has also relied upon a recent judgment dated 9th April, 2001 handed down by a Division Bench of this Court in Writ Petition No. 670 of 1996, 3620 and 3874 of 1998 wherein the State Government's power under Section 48 of the L. A. Act was under challenge and this Court held that the order of deletion passed under Section 48(1) of the L.A. Act was illegal.

11. On behalf of the Respondent Nos. 1 to 4, return has been filed by the Desk Officer from the Ministry of Revenue and Forest Department. Similarly, some of the owners of the properties, which have been deleted, have also filed return opposing the petition. One Kishanrao s/o Yadavrao Sathe claiming to be the President of Sanjay Gandhi Magas Wargiya Griha Nirman Society has also filed return opposing the petition. The State Government has supported its stay orders passed from time to time, including the final decision of deletion of the subject properties from acquisition for the petitioner Committee. It is contended that the subject properties were never taken in possession by the Special Land Acquisition Officer even though the Divisional Commissioner had passed an order under Section 17(1) of the L.A.

Act for urgent possession of these properties and more particularly the properties in Gat Nos. 10, 13 and 156. Reliance, in this regard, has been placed on the award passed by the Land Acquisition Officer on 26th June, 1987 for the first phase. The State Government has relied upon the provisions of Section 15A read with Sections 11 and 16 of the L. A. Act in support of its powers to stay the further proceedings of acquisition in respect of the subject properties and in support of its decision of deletion the following grounds have been raised by the State Government.

 (a)    The actual requirement of the petitioner Committee for the purpose of construction of Market yard at Aurangabad city is much less than what is proposed to be acquired. 
 

 (b)    The statutory notice under Section 4 of the L.A. Act was not received by some of them. 
 

 (c)    That the Gat No. 10 in part is a part of lands held by Wakf on which a Dargah stands and its acquisition could lead to communal tension. 
 

 (d)    The lands of some of the owners was already acquired on earlier occasion from time to time for various purposes etc. 
 

 (e)    The land in Gat No. 7/5 was owned and possessed by a cooperative Society belonging to backward class people.  
 

So far as the issue of affording the opportunity of hearing is concerned, the stand of the Government is that the petitioner was given due hearing. All the grounds raised by the petitioner during the hearing held on 15th January, 1988 were considered and finally vide the impugned communication dated . 29th February, 1988 the Government decision was intimated for deletion of the lands in Gat Nos. 7/5, 10, 13 and 156. We must also note, at this stage, that the petitioner committee has been blamed of a partisan attitude in respect of some properties which were recommended to be deleted by the petitioner itself and these are the properties in Gat No. 8 and Gat No. 13 partly. It is contended that the petitioner committee itself passed resolutions for deletion of this land which was, in fact, road facing land with a prime location and the committee acted tinder political influence or so as to serve the interests of the respective owners and this indicated that the committee did not require the entire land which it had sought to acquire. The State Government also contends that during the course of hearing held on 15th January, 1988 the petitioner committee was called upon to justify its requirement for 242 Acres of land and no satisfactory justification could be putforth by the office bearers present on behalf of the committee and this indicated that the land already acquired for the committee was sufficient and its demand for acquisition of 242 Acres of land was unjustified and, more so taking into consideration the poor financial condition of the committee.

12. The respective land owners have supported the decision of the Government and they contend that the orders have been passed by the

Government after hearing all the parties concerned and for justifiable reasons. It is also brought to our notice that some of the subject properties have already been developed and/or a large scale encroachment has taken place thereby making it impossible for the Government authorities or for the A. P. M. C. to take possession of these areas for the purpose of the committee. It is stated that the development on part of the subject properties has gone to such an extent that pucca concrete houses have come up on Gat No. 156 and it would be impossible to remove about 300 families for acquiring the said land for the petitioner committee. The State as well as the property owners in one voice state before us that the land that is already handed over to the committee is sufficient for its purpose and it does not require any further land for even the future expansions. It is also alleged that the committee has no justifiable plan to utilize the existing land in a proper manner and on the other hand the committee proposes to raise additional finance by selling the shops or other structures or by leasing out the other structures to be erected on the subject properties. The Respondent State authorities have also relied upon Rule 303B and 303C of the Manual of Land Acquisition for State of Maharashtra (Chapter X).

THE RECORD SPEAKS

13. The land admeasuring 2 Hectares 1 Are sought to be acquired from Gat No. 10 on the date the notification under Section 4(1) of the L. A. Act was issued, was in the name of Dargah Peer Baha-u-ddin, in the occupiers column the name of Mohd. Shafi Kasim Ali was shown as tenant and under other rights column the names of Dargah Peer Baha-u-ddin was shown. Name of Mohd. Shafi was shown for 3 Hectares 56 Ares in the cultivator's column and the subject land was shown to be uncultivated. On 28th of August, 1984 one Mohd. Shafi Shah s/o Kasim Ali Shah submitted an application to the Minister for Revenue and Forest Department claiming that he was the interested person as being Mutawalli in the land under acquisition in Gat No. 10 and the said land was Mashrut-ul-Khidmat Inam of the institution. The Land Acquisition Officer did not give him proper hearing and when the market committee had its own land there was no justification for acquisition of land belonging to others. He highlighted some sensitive issues to invite the State Government's attention in the following words ;

 (a)    The portion of peace of land in Gat No. 10 of village Jadhavwadi was acquired by CIDCO as well as for road widening and if the balance land was sought to be acquired he would become landless. 
 

 (b)    There was a Dargah Urus located in the land and there was no land available for performing the Urus which is required to be celebrated every year. This deprivation is a great blow to the religious feelings and faith of Muslim community as such.
 
 

 (c)    That was the only source of income of the institution and the source of livelihood of the Mutawalli and as per the Government Policy while acquiring the land, the land owner concerned should not be rendered landless. 
 

 (d)    in the land concerned there are graves of Saints which could not be allowed to be destroyed or affected in any manner as the same is having direct concern with the Muslim faith.  
 

This application was recommended by the then Member of Parliament from Aurangabad vide his letter dated 11th October, 1984 addressed to the Minister for Revenue and Forest. The Minister was pleased to pass an order of stay on possession while calling for particulars/papers on or about 18th October, 1984. This stay order was communicated telegraphically to the Collector on 19th October, 1984. The petitioner committee submitted its replies to the queries raised by the Government in respect of this land vide its letter dated 16th July, 1986 addressed to the Land Acquisition Officers.

14. Land in Gat No. 7/5, admeasuring 2 Hectares 33 Ares, is shown in the name of one Lalman Dagadu for the year 1982-1983 and the notice of acquisition under Section 4(1) of the L.A. Act was issued in the same name. However, the proposed Sanjay Gandhi Magaswargiya Griha Nirman Sanstha submitted a representation on 5th August, 1987, i.e. after the award was passed on 26th June, 1987, to the Minister for Revenue and the acquisition proceedings were further stayed by the Minister by his order dated 5th August, 1987. The Applicant society claimed that it was in possession of the land since 1983 by way of purchase from the original owner. No documentary proof regarding the ownership/possession was attached with this . application/representation. The stay granted by the Minister came to be intimated to the Collector telephonically on llth August, 1987. By a communication dated 20th August, 1987 one Shri K. Y. Sathe, who had signed the representation dated 8th January, 1987, was intimated regarding the stay order in respect of 2 Acres 7 Gunthas as against the land under acquisition of 2 Hectares 33 Ares i.e. 5 Acres and 33 Gunthas. It will be, therefore, necessary to presume that the stay order passed by the Minister was only in respect of 2 Acres and 33 Gunthas in this Gat number as the record does not show that the proceedings in respect of the entire land in the said Gat Number were stayed, at any time.

15. So far as the Gat No. 13 is concerned, one Satyaprakash Arya, a resident of Mumbai, submitted an application on 11th February, 1986 to the Revenue Minister claiming that he had purchased land admeasuring 12 Acres 5 Gunthas from the said Gat number on 28th August, 1974 from the previous owner namely Shri Khemchand s/o Balla, for industrial use and accordingly he had applied to the Collector, Aurangabad on 2nd September, 1974 for N. A. Permission. He also stated that he was residing at Mumbai and had engaged a Chaukidar to lookafter the subject land. The Chaukidar was

residing on the property and had informed by a telephonic message that the Special Land Acquisition Officer, along with staff was trying to dispossess the applicant. He also claimed that no notice, either under Section 4 or Section 6 of the L. A. Act was served on him and, therefore, the acquisition proceedings were vitiated. He had also cited the case of Gat No. 8 in support of his contentions that about 8 Acres of land from the said Gat number was already deleted by the Additional Commissioner and, therefore, he also should be treated on par with the said owners. It was also stated that 2 Acres and 1 Guntha land was already acquired from the said Gat number by CIDCO on the earlier occasion and the land in his possession would be better suited for residential purposes in view of the development undertaken by CIDCO. He desired to develop the said land for middle and low income group housing societies and, therefore, it was required to be deleted from acquisition. He also raised a plea that he would become landless if the land was acquired. He apprehended that he would be dispossessed any time without giving any opportunity of being heard and, therefore, the Special Land Acquisition Officer was required to be directed not to take possession until further orders. The Revenue Minister passed stay order on 17th February, 1986 on this representation in the following words :

"Presented by Shri Arya. The Collector (A.O.) is going to take over possession of this land in few days. Stay order be issued to Collector and in the meanwhile get the report and put up with comments."

The Land Acquisition Officer submitted a report to the Collector, Aurangabad on 31st July, 1986 in respect of the remaining 3 lands as well i.e. Gat No. 7/5, Gat No. 13 and Gat No. 156 and recommended the deletion.

The 7/12 extract in respect of Gat No. 13, admeasuring 6 Hectares 59 Ares showed the ownership in the name of Khemchand Balla, Satyaprakash Ramanand Arya, CIDCO Aurangabad, Vithal Umaji and Mohd. Iliyas Abu-Bakra. So far as Shri Satyaprakash Arya is concerned his ownership is shown in respect of 12 Acres 5 Gunthas and the land under acquisition was 4 Hectares and 90 Ares i.e. about 12 Acres 10 Gunthas.

16. On 29th September, 1986 one Ramsingh Balaram Sure submitted an application addressed to the Leader of Opposition in the Legislative Assembly and the Revenue Minister requesting for an inquiry in respect of the proposed acquisition of land in Survey Nos. 135 and 156 of Harsul village. He also requested for deletion of these properties from the acquisition. In support of the deletion of Survey No. 156 he stated that there were already 250 to 300 citizens residing on the subject land and the land in Survey No. 135, was already under acquisition. The 7/12 extract of this land Survey No. 156, at the relevant time, did not show the name of Ramsingh Balaram. However, the communication addressed by the Special Land Acquisition Officer on 27th April, 1987 to the Secretary in the Department of

Revenue and Forest gave the following names in respect of 11 sub-divisions of Gat No. 156.

     156/1 and 2   Shri Budhan Asaramji
156/3    Shankar Govinda
156/4    Hiraman Asraji
156/5    Dhansingh Kanhaya
156/6    Bala Asaram
156/7    Hiraman Asraji
156/8    Bala Asaram
156/9    Budhan Asraji
156/10    Shankar Govinda
156/11    Dhansingh Kanhaya 
 

From this information submitted to the department it is clear that Ramsinghs father Balaram was the owner of only two sub-divisions i.e. 156/6 and 156/8. By a mutuation entry carried out sometimes in 1985-1986 the name of Ramsingh along with his brother Isharam came to be incorporated in respect of the land in Gat No. 156/6 and the Applicants property was only limited to that sub-division. There was no application made by any one from the other ten or eleven owners, as the case may be. Even the petitioner's real brother, who had come to this Court, did not submit a representation to the State Government for deletion of the land. The Revenue Minister stayed further proceedings in respect of land in Survey No. 156 by his order dated 7th November, 1986 and on the same day it was telegraphically intimated to the Collector.

17. The Divisional Commissioner, Aurangabad by his letter dated 6th April, 1987 intimated the Government that Shri Mohd. Shafi had land in other Survey numbers as well and he would not be rendered landless by the proposed acquisition in Gat No. 10. It was stated that he was selling plots from the subject land under acquisition after obtaining stay from the Government. The Commissioner had opposed the deletion of the land in Gat Nps. 10 and 13 and stated that the notice under Section 4(1) of the L.A. Act were served, in both the cases. The Land owners did not file objections and did not participate in the inquiry under Section 5A of the L. A. Act though opportunities were given to them.

18. The Desk Officer, in the Department of Revenue and Forest, submitted a note on 7th May, 1987 and recommended that the Stay Orders granted earlier were required to be continued until the State Government took a final decision under Section 48(1) of the L. A. Act in respect of the subject properties. This recommendation was approved by the Deputy Secretary, on 7th May, 1987, by the Secretary on 8th May, 1987 and by the Minister on 15th May, 1987 and accordingly the order confirming the earlier stay granted on possession as well as further acquisition proceedings was communicated

to the Collector and other concerned authorities. A further note was submitted recommending an on the spot inspection and, therefore, the Deputy Secretary, vide his order dated 8th January, 1988 deputed the Desk Officer to visit the subject properties at Aurangabad and submit a report. On 11th January, 1988 the Desk Officer visited the subject properties along with the Special Land Acquisition Officer, went through the concerned record and submitted a detailed note on 14th January, 1988. The Desk Officer made submissions on 29th January, 1988 regarding the land in Gat Nos. 7/5, 10, 13 of Jadhavwadi village and also Gat No. 156 of Harsul village. He specifically stated the names of those M.L. As. M.Ps. and other politicians who had recommended these proposals. This note unfortunately did not deal with the issue of ownership of the applicants in respect of the subject property and it recommended the deletion. It refers to the hearing held on 15th January, 1988 in the chamber of the Minister for Revenue in which purportedly the Chairman of the Petitioner Committee and other office bearers along with the Deputy Secretary were present. It recorded the request of the petitioner committee to vacate the stay as all the land sought to be acquired was required by the committee and the road facing land was required for construction of an approach road. The committee emphasised the need for constructing the building for administrative purposes, bank, post office, police station, farmers lodge, veterinary hospital etc. It also referred to the additional issue of the committee borrowing an amount of Rs. 25 Lakhs while depositing the compensation amount pursuant to the award passed on 26th June, 1987. The note concluded with a recommendation to exercise powers under Section 48(1) of the L. A. Act at the request of the land owners who . were not entitled for any compensation. This note was approved by the Deputy Secretary on 29th January, 1988, by the Secretary on 1st February, 1988 and by the Minister on 23rd February, 1988. By a communication dated 29th February, and 25th February, 1988, the petitioner as well as the Divisional Commissioner, Aurangabad respectively were informed accordingly. It is seen from the record that the proceedings, if any, regarding the hearing held on 15th January, 1988 in the Minister's Chamber are not available and show cause notice was not issued to the petitioner committee regarding the Governments' intention to delete the subject properties from acquisition by exercising its powers under Section 48(1) of the L. A. Act. The decision dated 23rd February, 1988 of the Revenue Minister was not converted into an official notification or gazette so as to make it a Government decision by and in the name of the Governor as required under Article 166(1) of the Constitution. The said decision was not communicated to the petitioner as well as the concerned authorities by duly authenticating under the Business Rules as framed under Article 166(3) of the Constitution, in fact, we may observe, at this stage itself, that the note but up by the Desk Officer on 29th January, 1988, recommending deletion, has not been accepted specifically and there is no order passed by the Minister under the Business

Rules ordering the deletion of the subject properties by exercising the State Government's powers under Section 48(1) of the L. A. Act.

OUR FINDINGS AND CONCLUSIONS

19. At the threshold, we would deal with legality of the order passed by the Divisional Commissioner deleting land admeasuring 8 Acres from Gat No. 8 of Jadhavwadi village. This order was passed on 7th October, 1985 i.e. before the declaration under Section 6 of the L. A. Act was published and record shows that the said deletion decision was taken by the Additional Commissioner inter-alia on the basis of the resolution passed by the petitioner committee and as per the recommendations of the State Government. The order passed by the Additional Commissioner was not published in the Government Gazette though the order was passed under Section 48(1) of the L. A. Act. In the case of "Stale of Madhya Pradesh and Ors. v. Vishnu Prasad Sharma and Ors., , the Supreme Court, while dealing with the powers of the State Government or the appropriate authority for deletion of property from acquisition held :-

"Section 48(1) thus gives power to Government to withdraw from the acquisition without cancelling the notifications under Sections 4 and 6 after notice under Section 9(1) has been issued and before possession is taken. This power can be exercised even after the Collector, has made the award under Section 11 but before he takes possession under Section 15. Section 48(2) provides for compensation in such a case. The argument that Section 48(1) is the only method in which the Government can withdraw from the acquisition has, therefore, no force because the Government can always cancel the notifications under Sections 4 and 6 by virtue of its powers under Section 21 of the General Clauses Act and this power can be exercised before the Government directs the Collector to take action under Section 7. Section 48(1) is a special provision for those cases where proceedings for acquisition have gone beyond the stage of the issue of notice under Section 9(1) and it provides for payment of compensation under Section 48(2) read with Section 48(3)."

From the said decision it is clear that the State Government has powers to withdraw from the acquisition by invoking Section 21 of the General Clauses Act in cases where the acquisitions have not come to a stage of issuing notice under Section 9 of the L. A. Act and at any time after the notification under Section 4 or declaration under Section 6 of the L. A. Act has been issued. There is no dispute that the State Government's powers of withdrawal from the acquisition were, at the relevant time, delegated to the Divisional Commissioner, and the Divisional Commissioner has passed the order dated 7th October, 1985 in respect of the land admeasuring 8 Acres from Gat No. 8. This decision, therefore, does not suffer from any infirmities in law and it is too late for the State Government or any of the applicants praying for deletion

under Section 48(1) of the L. A. Act to rely upon the order of deletion dated 7th October, 1985 in support of their cases. Even if the petitioner committee had initiated the proposal, we cannot presume that the Additional Divisional Commissioner passed the order on 7th October, 1985 without application of his mind and it is an order by exercising the delegated powers by the State Government. Even the State Government is estopped from pointing a finger against the petitioner committee in respect of this deletion and in support of its decision which is impugned in this petition.

20. It is well established that the decision to withdraw from the acquisition by invoking powers under Section 48(1) of the L. A. Act is justiciable and the reasons given in support of such decision are subject to judicial review by this Court under Article 226 of the Constitution. In aid of this view, we may usefully refer to the law laid down by the Supreme Court in the case of "Amamath Ashram Trust Society and Anr. v. Governor of Uttar Pradesh and Ors.", AIR 1998 SC 477, and more particularly the following observations :

"Thus, the decision of the Government to withdraw from acquisition was based upon misconception of the correct legal position. Such a decision has to be regarded as arbitrary and not bonafide. Particularly in a case where as a result of a decision taken by the Government other party is likely to be prejudicially affected, Government has to exercise its power bona fide and not arbitrarily. Even though Section 48 of the Act confers upon the State wide discretion it does not permit it to act in an arbitrary manner. Though the State cannot be compelled to acquire land compulsorily for a company, its decision to withdraw from the acquisition can be challenged on the ground that power has been exercised mala fide or in an arbitrary manner. Therefore, we cannot accept the submission of the learned counsel for the State that the discretion of the State Government in this behalf is absolute and not justiciable at all."

21. While entertaining the applications under Section 48(1) of the L.A. Act submitted by the land/property owners the authority concerned is required to follow the principles of natural justice and such a requirement has to be read into the provisions of the said section. The decision of the Constitution Bench of the Supreme Court in the case of "Olga Tellis and Ors. v. Bombay Municipal Corporation and Ors.", , is applicable to such proceedings as well. The same view was reiterated by the Supreme Court in the land acquisition cases and more particularly in the case of "The State Government Houseless Harijan Employees Association" (supra) in the following words :--

"But as far as the beneficiary of the acquisition is concerned there is no similar statutory provision. On contrast with the owners position the beneficiary of the acquisition may, by withdrawal from the

acquisition, suffer substantial loss without redress particularly when it may have deposited compensation money towards the costs of the acquisition and the steps of the acquisition under the Act have substantially been proceeded with. An opportunity of being heard may allow the beneficiary not only to counter the basis for withdrawal but also if the circumstances permitted, to cure any defect or short coming and fill any lacuna."

In the case of Prakash Vasudeo Deodhar (supra) this Court inter alia held that (a) when notification under Section 6 of the L. A. Act is published and notices under Section 9 are served, the only mode for withdrawal of lands from acquisition is by resorting to the powers under Section 48 of the L.A. Act, (b) once notices under Section 9 are served, it is not possible for any officer of the Government to promise or direct withdrawal of land from acquisition, (c) withdrawal in such cases is permissible only by publication of notification in the official Gazette in that respect, (d) while withdrawing land from acquisition it is incumbent upon the Government to follow the same mode which it follows while initiating acquisition by exercising powers under Section 4 and 6 of the L. A. Act, and (e) State Government cannot regulate the exercise of statutory duties under the L. A. Act by issuance of executive directions or instructions.

22. More recently, the Apex Court in the case of M/s Larsen and Toubro Limited (supra) dealt with the same issues and it would be useful to reproduce the observations made in para 31 of the said decision :

"Principles of law are, therefore, well settled. A notification in the Official Gazette is required to be issued if the State Government decides to withdraw from the acquisition under Section 48 of the Act of any land of which possession has not been taken. An owner need not be given any notice of the intention of the State Government to withdraw from the acquisition and the State Government is at liberty to do so. Rights of the owner are well protected by Sub-section (2) of Section 48 of the Act and if he suffered any damage in consequence of the acquisition proceedings, he is to be compensated and Subsection (3) of Section 48 provides as to how such compensation is to be determined. There is, therefore, no difficulty when it is the owner whose land is withdrawn from acquisition is concerned. However, in the case of a company, opportunity has to be given to it to show cause against any order which the State Government proposes to make withdrawing from the acquisition. Reasons for this are not far to seek. After notification under Section 4 is issued, when it appears to the State Government that the land in any locality is needed for a company, any person interested in such land which has been notified can file objections under Section 5A(1) of the Act. Such objections are to be made to the Collector in writing and who after giving the objector an opportunity of being heard and after hearing all such

objections and after making such further inquiry, if any, as the Collector thinks necessary, is to make a report to the State Government for its decision. Then the decision of the Government on the objections is final. Before the applicability of other provisions in the process of acquisition, in the case of company, previous consent of the State Government is required under Section 39 of the Act nor unless (sic) the company shall have executed the agreement as provided in Section 41 of the Act. Before giving such consent Section 40 contemplates a previous inquiry. Then compliance with Rules 3 and 4 of the Land Acquisition (Company) Rules, 1963 is mandatorily required. After the stage of Section 40 and 41 is reached, the agreement so entered into by the Company with the State Government is to be published in the Official Gazette. This is Section 42 of the Act which provides that the agreement on its publication would have the same effect as if it had formed part of the Act. After having done all these, State Government cannot unilaterally and without notice to the Company withdraw from the acquisition. Opportunity has to be given to the company to show cause against the proposed action of the State Government to withdraw from acquisition. A declaration under Section 6 of the Act is made by notification only after formalities under Part-VII of the Act which contains Sections 39 and 42 have been complied and report of the Collector under Section 5A(2) of the Act is before the State Government who consents to acquire the land on its satisfaction that it is needed for the Company. A valuable right, thus, accrues to the Company to oppose the proposed decision of the State Government withdrawing from acquisition. The State Government may have sound reasons to withdraw from the acquisition but these must be made known to the company which may have sound reasons or perhaps more which might persuade the State Government to reverse its decision withdrawing from acquisition."

23. In the case of "State Government Houseless Harijan Employees Association's" (supra) a plea was raised before the Apex Court that the decision rendered in the case of Larsen and Toubro (supra) was applicable only in the cases where the beneficiary of acquisition was a company and this contention was overruled by the Apex Court by holding that the law laid down in the case of Larsen and Toubro is applicable for all acquisitions and not only for the acquisitions made for the company. These enunciations of the Apex Court set out the law governing the State Government's powers under Section 48(1) of the Land Acquisition Act and the stages that are required to be followed right from receiving the application or request till the final decision is taken and communicated to the beneficiary. At the first instance, it is necessary that the power under Section 48(1) of the L. A. Act is sought to be invoked only when the possession of the subject land remained with the owners/possessors and it was not taken over by the Land Acquisition

Officer. When the Government decided to entertain such application submitted by the land owners, the second stage was to give a show cause notice to the beneficiary setting out the proposed reasons for deletion so that the beneficiary has an opportunity to put up its defence, opposing the deletion and sufficient time is provided to present its response in reply to the said show cause notice. Then, comes a stage of hearing to the respective parties and this hearing must reflect as proceedings recorded by the authority who has heard the respective parties. This cannot be by any stretch of imagination the notes or submissions made by some Desk Officer or any other officer in the ministry or the department concerned. These proceedings so recorded must reflect the contentions of the respective parties, the reasoning by the competent authority to accept or reject such contentions and the findings in support of the order of deletion or the order of rejecting the applications which demonstrate the application of mind by the competent authority alone. The next stage would be the publication of the said order and the publication within the meaning of Article 166(1) of the Constitution. This publication/ communication must satisfy the requirements inasmuch as the order must be published/communicated expressly in the name of the Governor. The provisions of Article 166(1) of the Constitution are required to be read with the provisions of Article 154 of the Constitution. Clause (2) of Article 166 further provides that orders and other instruments made and executed in the name of the Governor shall be authenticated in such manner as may be specified in rules to be made by the Governor and the validity of an order or instrument which is so authenticated shall not be called in question on the ground that it is an order or instrument made or executed by the Governor. A mere communication to the parties concerned that the application has been allowed or rejected would not satisfy the requirements of Article 166(2) of the Constitution. The petitioner has placed reliance on the judgment of the Supreme Court in the case of "Gulabrao Patil" (supra) wherein the Supreme Court held that the order of the State Government must be express in the name of the Governor and then communicated to the person concerned and the decision of a Minister under Business Rules shall not be final or conclusive. The Apex Court had examined the provisions of Rule 12 and 15 of the Business Rules framed by the State Government under Article 166(3) of the Constitution and in para 14 it observed, thus :--

"The responsibility of Council of Ministers under Article 164(2) of the Constitution embodies the political responsibility of the Ministry headed by the Chief Minister. Collective responsibility makes each Minister responsible to the Legislature for the acts of himself and other members of the Council of Ministers. Since the Council of Ministers would stay in office as long as it commands the majority of the Legislative Assembly, the Council of Ministers is politically responsible as one entity. In case it loses its confidence the Ministry as a whole is required to resign. The responsibility to the Governor

and accountability to the people collectively by the Council of Ministers is through and by the Chief Minister. It would, therefore, be clear that the decision of a Minister under the Business Rules is not final or conclusive until the requirements in terms of Clauses (1) and (2) of Article 166 are complied with. Before the action or the decision is expressed in the name of the Governor in the manner prescribed under the Business Rules and communicated to the party concerned it would always be open by necessary implication, to the Chief Minister to send for the file and have it examined by himself and to take a decision, though the subject was allotted to a particular minister for convenient transaction of the business of the Government. The subject, though exclusively allotted to the Minister, by reason of the responsibility of the Chief Minister to the Governor and accountability to the people, has implied power to call for the file relating to a decision taken by a Minister. The object of allotment of the subject to a Minister is for the convenient transaction of the business at various levels through designated officers. The ultimate object is to secure an impartial, pure and efficient administration as propounded by Dr. Ambedkar in the Constituent Assembly vide Constituent Assembly Debates, Vol. VIII page 546."

24. Against the backdrop of the settled position in law, we are required to examine the impugned decision of the State Government. There is no dispute that by letter dated 7th January, 1988 the petitioner committee was informed to attend a meeting to be held in the Minister's chamber on 15th January, 1988 and that too on the subject of vacating the stay orders granted by it earlier. There was no mention in this notice that the applications, as submitted by the land owners for deletion of land from acquisition would be taken up for consideration. This notice does not satisfy any of the requirements of a show cause notice. It did not even speak of the proceedings to be held under Section 48(1) of the L. A. Act and it merely referred for attending a meeting to be held to discuss its request to vacate the stay orders. The requirement of issuing a show cause notice as mandated by the Apex Court in the case of Godrej as well as L & T and subsequently followed in the case of State of Houseless Harijan Employees Association (supra) was not at all satisfied and we record that no such show cause notice has been issued by the State Government. This would be the first reason to quash the impugned decision.

25. The proceedings purportedly held on 15th January, 1988 are not available on record and when we speak of proceeding in respect of a statutory power, these proceedings must reflect the respective contentions and the reasoning thereon by the competent authority, namely the Minister in this case. On record, there is precious little in this regard except the note put up by the Desk Officer on 29th January, 1988 which mentions the submissions made by the petitioner committee.

There is no order passed by the Minister invoking powers under Section 48(1) of the L. A. Act. The note put up by the Desk Officer finally concludes that this is a fit case to invoke powers under Section 48(1) of the L.A. Act and the said recommendation dated 29th January, 1988 seems to have been countersigned even without any remark either by the Deputy Secretary, Secretary or by the Minister. We are not inclined to accept the countersigning by the Minister on this note as his decision amounting to an order under Section 48(1) of the L. A. Act. This is the second ground on which the deletion from acquisition is vitiated.

This decision is communicated to the petitioner committee as well as the Divisional Commissioner on or about 29th February, 1988 by a Desk Officer again. The said decision is not in the name of the Governor of Maharashtra and it is not authenticated as required under the Business Rules or the Rules of Authentication. The requirements of Article 166(1) and (2) of the Constitution are thus not met in the instant case. In addition, this decision was required to be gazetted as per the law laid down by the Apex Court in the case of Larsen and Toubro (supra). It is candidly accepted that no such gazette notification was published, at any time. However, the learned Government Pleader invited our attention to the provisions of Rule 303 of the Manual of Land Acquisition for the State of Maharashtra in support of his contentions that there was no such requirement of gazette publication. We agree with the learned Government Pleader's submissions only in respect of the orders passed under Section 48(1) of the L. A. Act in the matters where the land acquisition had processed only to the stage of the notification under Section 4 and declaration under Section 6 of the L. A. Act. The Government cannot rely upon these provisions in the cases where the acquisition has progressed to a stage of issuing notices under Section 9 and beyond. Once the notices under Section 9 of the L. A. Act have been issued to the owners and if the Government decides to pass an order of deletion before the possession is handed over, this order must be gazetted and the law laid down by the Supreme Court is very clear in this regard. The learned Government Pleader also has relied upon the provisions of Rule 303-AA and 303-B of the said Manual. This manual was framed by the State Government in 1918 and revised upto December, 1972. To say the least, the manual is outdated and it is hightime that the State Government addressed itself to carry out the necessary amendments keeping in mind the law laid down by various enunciations. In short, the impugned decision suffers on these counts and there is no plausible reason to sustain the said decision.

26. In support of its stay orders the Government has referred to the provisions of Section 15A of the L. A. Act. The said provisions read, as under :--

"15A. The appropriate Government may at any time before the Award is made by the Collector under Section 11 call for any record of any proceedings (whether by way of inquiry or otherwise) for the

purpose of satisfying itself as to the legality or propriety of any finding or order passed or as to the regularity of such proceedings and may pass such order or issue such direction in relation thereto as it may think fit :

Provided that the appropriate Government shall not pass or issue any order or direction prejudicial to any person without affording such person a reasonable opportunity of being heard."

This provision gives the powers of revision to the State Government in respect of the land acquisition proceedings before an award is made under Section 11 of the L. A. Act for the purpose of satisfying itself as to the legality or propriety of any finding or order passed in the said proceedings. In the instant case, so far as the first phase is concerned, the notification under Section 4(1) of the L. A. Act was issued on 20th April, 1983. The declaration under Section 6 was published on 27th June, 1985 and thereafter the Divisional Commissioner had passed an order invoking the provisions of Section 17(1) of the L. A. Act on 8th November, 1985. The first stay order was passed in respect of Gat No. 10 on 18th October, 1984. The second stay order was passed on 17th February, 1986 i.e. after the urgency clause was invoked and the third stay order was passed on 5th August, 1987. There was no case to invoke even the revision powers under Section 15A of the L. A. Act as on 18th October, 1984 as there was no order passed by any authority except a notification issued under Section 4(1) of the L. A. Act. The power to withdraw from the acquisition proceedings either under Section 48(1) of the L. A. Act or under Section 21 of the General Clauses Act cannot be equated or compared with the powers under Section 15A of the L. A. Act. The State Government certainly has the powers to withdraw from the acquisition, at any time before the possession of the land is taken over but that does not mean that the Government is free to invoke the powers under Section 15A of the L.A. Act and pass stay orders either on possession or on further acquisition proceedings. In the case at hand, the stay orders have been passed ex-parte and without any opportunity of hearing to the petitioner committee. Even if it is presumed that the State Government had such powers under Section 15A the State Government on the face of it, it acted in breach of the requirements of the proviso to the said section. Amazingly, when the stay order was confirmed the petitioner committee was not given an opportunity of hearing and thus the statutory requirement was flagrantly violated in this regard as well.

27. The Government has also taken a plea before us in support of its impugned decision, that the land admeasuring 73 Hectares 28 Ares, already handed over to the petitioner committee, was adequate and it did not require any additional land. This ground is falsified by the State Government's own action viz., the proceedings undertaken for acquisition in the second and third phases in respect of additional land admeasuring 11 Hectares 59 Ares and 29

Hectares 9 Ares respectively. In the second phase the land sought to be acquired as per the notification published under Section 4 of the L. A. Act was 54 Hectares 27 Ares but when the declaration under Section 6 was published in the Government Gazette on 19th March, 1987 the acquisition from Gat Nos. 12, 15 and 156 was limited to 11 Hectares and 59 Ares and this declaration was published before the impugned decision was taken by the State Government. Similarly, for the third phase, notification under Section 4(1) of the L. A. Act has been published on 31st July, 1987 for land admeasuring 29 Hectares 9 Ares from Gat Nos. 154 and 155. If in its wisdom the Government had realised that the petitioner committee was seeking acquisition of lands over and above its requirement, there was no reason for the State Government to initiate fresh steps for the acquisition of second and third phases and it was within the competence of the State Government to tell the A.P.M.C. that the Government was not in favour of any further acquisition as its requirement for expansion was already met by handing over 73 Hectares 28 Ares land. This specious ground of non-requirement of additional land by the petitioner committee is not, in any case, supported by the State Government's own actions and, therefore, we do not find the said reason to be sufficient to justify the impugned decision.

28. The Government also takes a plea before us that it has even otherwise noticed the land acquisition proceedings suffering from infirmities and, therefore, it was convinced that the whole proceedings were likely to be vitiated if challanged in a Court of law. In this regard the Government takes a plea that the development plan for Aurangabad was published on 7th January, 1983 and, therefore, the acquisition proceedings ought to have been initiated by invoking the provisions of the M.R.T.P. Act. This plea also does not find support in the eyes of law. The award of the first phase was passed on 26th June, 1987 and the impugned decision, even if it is taken in the meeting held on 15th January, 1988, was certainly after the award was passed. The Government ought to have noted that once the award was passed the land acquisition proceedings cannot be challenged on any ground and this position in law is well recognised by a recent judgment of the Supreme Court in the case of "Municipal Council, Ahmednagar and Anr. v. Shah Haider Baig and Ors.", . Thus, the reason that otherwise the proceedings were likely to be vitiated is no justification in support of such an order.

29. We now proceed to examine the deletion of each of the four properties and whether the impugned decision could be sustained on the face of the facts as well as the settled position in law.

(a) Gat No. 7/5 of Jadhavwadi :

30. The application for deletion from the acquisition was submitted on 5th August, 1987 by the proposed Sanjay Gandhi Magaswargiya Grihanirman Sahakari Sanstha. Aurangabad to the Revenue Minister in respect of 2 Acres

7 Gunthas land out of 2 Hectares and 33 Ares sought to be acquired in the said Gat Number i.e. about 5 Acres and 33 Gunthas. The Government did not take any steps to inquire about the title of the said applicant over the land admeasuring 2 Acres and 7 Gunthas. The 7/12 extract, at the relevant time, shows the ownership of Lalman Dagadu in respect of the entire land under acquisition from the said Gat Number. This property owner never submitted an application for deletion from acquisition. He was not heard at any time by any of the authorities regarding the proposal for deletion. The Applicant society did not place on record any document in support of its claim of possession either as owner or by any other mode. There is no dispute that the possession of this property was taken over much before the stay order was passed by the Minister and on record we have noticed Panchanama in this regard drawn on 5th March, 1986. Even the award passed by the Land Acquisition Officer on 26th June, 1987 shows that the possession was taken on 5th March, 1986 and the award passed includes the said land admeasuring 2 Hectares 33 Ares. It is a well established position in law that once the possession of the land was taken over either before the award was passed by invoking the urgency clause or after the award was passed, an application under section 48(1) of the L. A. Act for withdrawal is not maintainable and the powers under the said section cannot be invoked once the possession of the land has been taken over. The landlord does not have the remedy of applying for withdrawal from the acquisition once he has parted with the possession. We, therefore, hold that the application submitted by the proposed co-operative housing society was not maintainable on three grounds viz. the society had no title over the subject land and the powers under Section 48(1) could not be exercised as the land owner had already parted with the possession of the property and more importantly the application for deletion was not made by the land owner.

(b) Gat No. 10 :

31. As we have noticed earlier the Applicant in respect of this property claimed to be a Mutawalli of the said Dargah Peer and possessor of the said property. He had also raised the plea of being landless and thus being deprived of the source of livelihood. In addition, he had raised the plea of religious feelings. All these grounds are utterly false if regards be had to the inspection report submitted by the Desk Officer on 14th January, 1988 after visiting the properties concerned on 8th January, 1988. In para 3 of the said report the Desk Officer wrote :

^^3-n ojhy xV ua- e/khy tfeuhph izR;{k ikg.kh dj.;kr vkyh- ¼udk'kk lkscr tksMyk vkgs-½ xV ua- 10 tyxko&tkyuk oyu jLR;keè;s foHkkxyk xsysyk vkgs- jLR;kP;k if'pe Hkkx e/;s nxkZ vlwu R;kHkksorh eksdyh tkxk vkgs o R;kyk rkjsps dqai.k ?kkrysys vkgs- rh tkxk lk/kkj.k 1&[email protected] ,dj {ks=kph vkgs- vktwcktwl flMdksus laiknu dsysY;k tehuhoj iDdh ?kjs vkgsr- gh tkxk d`f"k mRiUu cktkj lehrhP;k Hkw laiknu izLrkokr lekfo"V ukgh- jLR;kP;k iwoZ Hkkxkr jLR;kyk lekarj vlysyh tkxk laiknuk

^^[kkyh vkgs o R;k e/;s jLR;kyk ykxwu lqekjs 8 iDdh vukf/kd`r ?kjs vkgsr- R;k e/;s vtZnkjkps ?kjgh lekfo"V vkgs- R;k ?kjkaP;k ikBh ekxhy dkgh eksdY;k tkxsr js[kkadu d:u Hkw[kaM ikMysys vk<ywu ;srkr- vtZnkjkps vls Eg.k.ks vkgs dh] laiknuk [kkyhy tkxsr nxkZ vkgs o R;kdfjrk rh tkxk vko';d vkgs- okLrfod nxkZ gk laiknuk [kkyhy tksxsr ;sr ukgh-**

The Desk Officer clearly stated that the original Gat No. 10 was divided by the Jalgaon-Jalna road and the said Dargah on the land was located on the western side of the said land and it was fenced and admeasured about 1 1/2 Acres. It was surrounded by the land acquired by CIDCO on which pucca construction of residential buildings had come up. This land was not included in the land sought to be acquired for the petitioner committee. The land sought to be acquired for the petitioner committee is located on the eastern side of the road and there were only 8 pucca houses constructed on the said land including the house of the applicant also. In the open land plots were already demarcated. This report also is required to be read with earlier note submitted by the Desk Officer in which there was a reference to the report submitted by the Divisional Commissioner, Aurangabad which stated that this applicant was misusing the stay order by demarcating the plots and disposing them. Once the notification under Section 4(1) of the L. A. Act was published on 20th April, 1983 the applicant had no authority to dispose of any plots from the said property. On one hand he placed before the Revenue Minister utterly false grounds and mislead the State Government for seeking exparte stay orders and on the other hand he misused the stay orders by resorting to disposal of plots marked out of the subject land and that too when he was not , the owner of the land. His title to the property was never examined by the authorities concerned though the 7/12 extract showed that he was in possession of the suit property. The reasons given by the State Government in support of deletion of this property from the acquisition by invoking powers under Section 48(1) of the L. A. Act do not have regards to the findings recorded by the Desk Officer in his note dated 14th January, 1988. Obviously, the State Government fell prey to the utter false reasoning presented by the applicant. The decision to delete the said land is, therefore, unsustainable on any count and if there is any encroachment that has come up in the said property, it has obviously been after 20th April, 1983 and/or after the stay order was passed by this Court which was restored by the Apex Court at the instance of the petitioner committee. We refer to a recent judgment of the Supreme Court in the case of "Delhi Administration v. Gurdeepsingh", AIR 2000 SC 3737 and more particularly the observations in para 64. The Supreme Court had an occasion to deal with a similar situation wherein the acquiring body i.e. the Delhi Development Authority had given a letter to the land owner that the land was deleted from acquisition and on the basis of this letter he proceeded with construction but in fact there was no such order passed. The construction had come up when the subject property was under acquisition. Jt was held that such a construction could not be protected. Similarly, the constructions which have come up on this property any time after 20th April, 1983 at the instance of any persons cannot be protected and it will be the respondent State authorities who shall be responsible to clear this encroachment and more so when they were bound to follow the mandate of law and the orders passed by this Court as well as the Apex Court. It is obvious that the authorities concerned acted in connivance with the Applicant by remaining silent and tailing to take adequate measures to protect this property.

(c) Gat No. 13 :

32. The application submitted by the owner of this property on llth February, 1986 clearly admitted that it was an agricultural land purchased for industrial purposes on 28th August, 1974 and the owners/purchaser was staying at Mumbai. The open plot was under the care of a watchman who was provided with a small watchman's accommodation on that plot only. It also stated that an application was submitted for non-agriculture permission on 2nd September, 1974 to the Collector, Aurangabad. It was further alleged that the notice under section 4(1) as well as declaration under section 6 of the L. A. Act was not served on him and thus the acquisition proceedings were vitiated on account of failure to observe the statutory provisions. The Applicant had taken support of the order dated 7th October, 1985 passed by the Additional Commissioner deleting 8 Acres of land from Gat No. 8.

33. We may again come to the inspection report submitted by the Desk Officer after visiting this property. The said report clearly stated that the notice under section 4(1) of the L. A. Act was served on one person by name Kedar Pande and apart from this person's signature there was one more signature on the office copy of the said notice. This second signature was tried to be erased or interpolated by putting a thumb impression in ink subsequently. The Land Acquisition Officer had stated before the Desk Officer that this was a deliberate attempt made by the concerned land owner to show that the notice was never served on him. The Desk Officer raised a question as to how an outsider had an access to the Government record to interpolate the said receipt and no satisfactory explanation came forward. He recorded his finding that the applicant's contention regarding non-receipt of notice under section 4(1) was questionable. We have noted earlier that the notification under section 4(1) was published in the local news papers as well as on the Chawadi. Similarly, declarations under section 6 were published in the news papers on 14th May, 1985 and llth May, 1985 in the Government Gazette on 27th June, 1985 and Chawadi notice was published on 21st December, 1985. It was, thereafter, that the land owner approached the State Government on llth February, 1986. If an absentee landlord is not available on the property or in any of the local areas he cannot raise a plea that notice under section 4(1) or a declaration under section 6 of the L. A. Act was not served on him. He had his representative in the watchman who was staying

on the property and the person by name Shri Pande ought to be the said watchman. It was necessary for the State Government to inquire into the identity of this Shri Pande who had signed the copy of the notification under section 4(1) of the L. A. Act before proceeding further to entertain the application for withdrawal from the acquisition. This has not been done. The record, as noticed by the Desk Officer, and the attending circumstances do make out a clear case that the land owner was served with the notice under section 4(1) as well as the declaration under section 6 of the L. A. Act. The report submitted by the Divisional Commissioner vide letter dated 6th April, 1987 also specifically stated that the requisite notices were served on the applicant and he did not participate in the inquiry conducted under section 5A of the L. A. Act.

34. There is one more issue which the Government did not think it appropriate or thought it convenient not to consider. It is well known that in the State of Maharashtra agricultural land cannot be purchased by a person who does not hold any agricultural land unless a specific order is passed by the Collector concerned granting such permission to acquire agricultural land. Admittedly, the subject land was agricultural land and though it was purchased by way of a registered sale-deed none in the Government thought it appropriate to examine whether this requirement of law was followed by the Applicant while he purchased this land for non-agriculture purposes. In the representation subsequently submitted the Applicant also took a plea of developing this land for residential purposes and obviously to make money. There is nothing wrong in the intention of making money so long as the process of law is complied with and in the instant case every thing was done without following the process of law and a false claim was raised before the Government. We again refer to the Judgment of the Supreme Court in the case of "Delhi Administration" (supra) and more particularly the observations in paragraphs 54, 55, and 56 which are relevant in the instant case as well. The notice under section was sought to be avoided on personal grounds and on the grounds that (a) even if the purpose was public purpose the land of the objector was not necessary in the sense that the public purpose could be served by other land already proposed or some other land to which the objector may refer or (b) in _ any event, even if the subject land is necessary for the public purpose the special fact situation in which the objector was placed it was a fit case for omitting his land from the acquisition. The first reason was personal to the land and the second objection was personal to the objector. The Supreme Court held that these reasons have to be stated/pleaded in the section 5A inquiry and if objections have not been filed, the notification must be conclusive proof that the said person had waived all objections which were personal and which he could have raised. In the instant case, admittedly, the applicant did not file any objections in reply to the notice under section 4(1) of the L. A. Act and even till the urgency

powers under section 17(1) of the L. A. Act were invoked by the Divisional Commissioner for taking over the possession.

35. The Sketch of the entire property proposed for the expansion of the petitioner committee as has been placed on record does indicate that the subject property adjoins the main Jalgaon-Jalna road and thus it was necessary for the petitioner committee to utilize that property for expansion as well as to provide the main entrance to the proposed market committee Area. The adjoining property in Gat Nos. 12 and 15 as well as 156 cannot be considered for this purpose and we will deal with the reasons a little later in this regard. It is obvious that the decision to delete this property was without application of mind and contrary to the provisions of law. We may also refer to a Full Bench Judgment of this Court in the case of "Mahadeo Vithoba Jadhav vs. Sub Divisional Officer and Land Acquisition Officer and others ", 1981 Mh.LJ. 511. This Court accepted a legal proposition that individual service of notice under section 4(1) of the L. A. Act was not a mandatory requirement and the said notice had only two requirements to be met viz. gazette notification has to be published and the substance of such notification be published at a convenient place in the locality from where the land has been notified for acquisition. None of the defence raised by the applicant before the State Government could be a sufficient ground in support of the deletion of the suit property from acquisition and, therefore, the said decision smacks of an arbitrary action by the State Government.

(d) Gat No. 156 :

36. The subject land was sought to be acquired in the second phase and though in the original notification under section 4(1) of the L. A. Act the total land sought to be acquired from this Gat number of Harsul was 33 Hectares and 13 Ares, in the declaration published under section 6 of the L. A. Act it was reduced to 4 Hectares and 24 Ares. This declaration dated 29th January, 1987 was published in the Government Gazette on 19th of March, 1987. After the applicant had failed before this Court in Writ Petition No. 15 of 1986 he had submitted his application on 29th September, 1986 i.e. prior to the publication of the declaration under section 6 of the L. A. Act. However, he was not the owner in respect of the entire land under acquisition. One does not know whether his application was treated in a representative capacity and there is nothing on record that such was the case. We fail to understand the circumstances in which the Government decided to delete this entire patch of land which on record was owned by more than 20 persons at the relevant time. The Collector, Aurangabad had, at our instance, directed an on the spot inquiry for apprising us about the construction activities/residential houses on this property and the report submitted before us on 3rd July, 2001 does show that about 378 persons have constructed their houses on this land. This plea also was taken up by the applicant in his application dated 29th September, 1986 and it was perhaps a case where the land was not suitable for acquisition inasmuch as it would have been difficult for the State Government to remove

these houses already constructed and hand over possession of the land to the petitioner committee. This factual position ought to have been considered by the Land Acquisition Officer before he ventured to issue the notice under section 4(1) of the L. A. Act and we are, therefore, satisfied that this was one case where the Government would be justified in invoking its powers under section 48(1) of the L. A. Act and of course by following the due process of law afresh. Such a fresh, approach would be justified in view of the law laid down by the Supreme Court in the case of Godrej (supra) and more particularly the observations in para 6 therein. If, during the process of acquisition, the Government had noticed that the land was encroached upon or overrun by constructing houses or there were already residential dwellings when the acquisition steps were initiated, the Government cannot be compelled to acquire such a land and the Government will be justified in initiating steps for withdrawal from such an acquisition by invoking powers under section 48(1) of the L. A. Act, at any time before the possession of the said land is taken over. The decision already taken cannot be justified or supported due to procedural deficiencies in complying with the statutory requirements. We leave it to the State Government to consider this issue afresh and by following the due process of law.

37. From the record, we have also noticed that the acquisition in the second phase is totally frustrated. This acquisition in respect of 11 Hectares and 59 Ares land is near impossible on the face of the report submitted by the Collector on 3rd July, 2001 and the report submitted by the District Deputy Registrar, Co-operative Societies, Aurangabad to the Desk officer in the Department of Textiles on llth June, 1997. From this report it is clear that most of the land sought to be acquired from Gat No. 12 and 15 is already encroached upon and it is difficult to ascertain when this encroachment has taken place. The petitioner alleges that the encroachment has come up due to the inaction on the part of Respondent Nos. 1 to 4 who failed to act as per the directions of the Supreme Court. Similarly, in Gat No. 156 there are about 211 houses and 17 shops constructed. The second phase acquisition was from only these properties viz, Gat Nos. 12 and 15 of Jadhavwadi and Gat No. 156 of Harsul village. At the same time the acquisition in the third phase governing 29 Hectares 9 Ares land has not progressed further. We have not been apprised of any encroachment on these plots in Gat Nos. 154 and 155. No reasons have come on record as to why the acquisition proceedings have been kept in abeyance or under suspension by the competent authorities. The original demand of the petitioner committee was for land admeasuring 242 Acres i.e. about 98 Hectares. The Award passed by the Land Acquisition Officer in respect of first phase is for 73 Hectares and 28 Ares including the land admeasuring 2 Hectares 33 Ares in Gat No. 7/5, 2 Hectares 1 Are in Gat No. 10 and 4 Hectares 90 Ares in Gat No. 13 and out of this the land in Gat Nos. 10 and 13 has not yet been handed over to the petitioner committee. This shall have to be done by the Respondent Nos. 1 to 4 forthwith.

38. For the reasons elaborately set out hereinabove we allow Writ Petition No. 477 of 1988 and make the rule absolute in terms of the following order:

(A) The impugned decision for deletion of the land from Gat Nos. 7/5, 10, 13 of Jadhavwadi and Gat No. 156 of village Harsul, communicated to the petitioner Committee as well as the Divisional Commissioner on 25th February, 1988 and 29th February, 1988, respectively, is hereby quashed and set aside. The decision to delete the land in Gat No. 7/5, 10, 13 of Jadhavwadi and Gat No. 156 of village Harsul is illegal and void-ab-initio.

(B) The Respondent Nos. 1 to 4 are directed to continue or initiate fresh steps as may be required in law for acquisition of land in the third phase i.e. the agricultural land in Gat Nos. 154 and 155 admeasuring 29 Hectares 9 Ares of village Harsul so as to meet the entire requirement of land as originally sought by the petitioner committee.

(C) We direct the Respondent Nos. 1 to 4 to remove the encroachment if any, from agricultural land in Gat No. 7/5 of village Jadhavwadi as expeditiously as possible and within a period of two months from today.

(D) We direct the Respondent Nos. 1 to 4 to take possession of Agricultural land in Gat Nos. 10 and 13 forthwith and take steps to remove the encroachment, if any, on the subject land within a period of two months and hand over possession of the said land to the petitioner committee within three months from today.

39. This order will not come in the way of the State Government to initiate fresh proceedings under section 48(1) of the L. A. Act for deletion of the land in second phase of acquisition i.e. from Gat Nos. 12, 15 and 156 by following the due process of law and the petitioner committee is at liberty to take appropriate steps to oppose such proceedings, if so desired.

40. Costs in the cause.

41. Issuance of certified copy is expedited.

42. Order accordingly.