Vishnu S/O Namdeo Kumar And Ors. vs State Of Maharashtra And Ors.
2002 Latest Caselaw 538 Bom

JUDGMENT

R.M. Lodha, J.

1. This group of four Writ Petitions was taken up together for motion hearing as common question in respect of Government Resolution dated 10th October 1973 is raised. All these Writ Petitions are disposed of by this common order.

2. For the sake of brevity and convenience, we shall refer to the facts obtaining in Writ Petition No. 5160 of 2000. The petitioners are the real brothers and it is their case that 0.81 hectares of land was acquired out of land bearing the then Survey No. 86/2 (presently Gut No. 365) for the public purpose, namely, for resettlement of the Project affected persons, by issuance of notification under Section 4 in the year 1973, Section 6 in the year 1975 and award was passed on 10th March 1977 by the Land Acquisition Officer, determining the compensation for the compulsory acquisition of petitioners' land. The petitioners accepted the amount of compensation as per award. The petitioners relying on the Government Resolution dated 10-10-1973 have set up a case that since they are factually in occupation and enjoyment of the land acquired from them and the said land has not been distributed to the Project affected persons, they are entitled to restoration of their land.

3. In opposition to the Writ Petition, on behalf of the respondents, an affidavit-in-reply has been filed. It is submitted that as per the final award, the amount of compensation has been accepted by the original land-owner. The land has been acquired for resettlement of Project affected persons and mutation has also been made in that regard. It is submitted that since the said land is still required for rehabilitation of the project affected persons though for the other project, the land cannot be restored even under Government Resolution dated 10-10-1973.

4. The learned counsel for the petitioners heavily placed reliance on Government Resolution dated 10th October, 1973 and submitted that as the petitioners' land has not been utilised and used so far, they are entitled to restoration of their land. The learned counsel for the petitioners also placed reliance on Savitri Devi v. State of Haryana and Ors., AIR 1976 SC Page 729 and Tulsi Co-operative Housing Society v. State of Andhra Pradesh, .

5. Before we proceed further we will first refer to two judgments cited by the learned counsel for the petitioners at the Bar. In Savitri Devi the Apex Court has observed thus:

"3. Once the land is acquired and the acquisition has become final, the pre-existing right, title and interest held by the erstwhile owner ceases to exist and is divested and stands vested in the State and the beneficiary free from all encumbrances. The question is : Whether the erstwhile holder is entitled to the allotment of the sites? The last paragraph of the policy connotes that:

"An outsee could be offered a plot when he files an affidavit to the effect that he does not hold any house/shop/plot in that town. Moreover, he should be an owner of the land proposed to be acquired for one year before the issue of notification under Section 4 of the Land Acquisition Act, 1894 and 75% of his land must come under acquisition."

4. On fulfilment of these conditions and then subject to the guidelines laid down therein, the candidate would be entitled to be considered for allotment. Merely because the land is not utilized after the acquisition, they are not automatically entitled to the allotment but subject to the guidelines, their claim would be considered. The appellant is entitled to file an application before the competent authority which would consider and dispose of it according to rule."

6. The contention of Savitri Devi before the Apex Court was that her land was acquired for public purposes, namely, residential and commercial purposes and the land having been not utilized, she is entitled to the restoration of land as per the policy of the Government in Annexure 3 appended to the SLP paper book. The Apex Court emphasized that once the land is acquired and the acquisition has become final, the pre existing right, title and interests of the erstwhile owner ceases to exist and is divested and stands vested in the State free from all encumbrances. In the light of the policy which was under consideration before the Apex Court, in para 4 of the said judgment, the Apex Court in unequivocal terms held that merely because the land is not utilized after the acquisition, they are not automatically entitled to the allotment but subject to the guidelines, their claim would be considered. In our view, Savitri Devi's case does not help the petitioners at all.

7. In Tulsi Co-operative Housing Society what has been observed by the Apex Court is that the land acquired under the Acquisition Act should be properly utilized by the Government in order to achieve the purpose for which they were acquired and keeping that in view in mind, the Apex Court nominated the Committee comprising three Secretaries to Government for the purpose of carrying out the objects in appropriate manner. The question raised before the Apex Court was the legality and validity of acquisition proceedings. We fail to appreciate the applicability of Tulsi Co-operative Housing Society's case to the facts of the present case.

8. In the present Petition as we have already noted above, the acquisition was complete in all respect way back in the year 1977. The acquisition of petitioners land was for the purpose of resettlement of project affected persons. In the reply affidavit, the State Government has set up the case that the acquired land is to be utilised for resettlement of project affected persons though of a different project for which the land was acquired. The legal position is more than clear that once the acquisition of land is complete in all respect and land is vested in State Government free from all encumbrances and compensation for compulsory acquisition has been made, the expropriated owner ceases to have any right, title or interests in the land. The expropriated owner cannot insist on utilization and user of the acquired land for the same purpose for which it has been acquired nor for non-utilisation of the acquired land can claim its restoration.

9. In Gulam Mustafa and Ors. v. State of Maharashtra and Ors., , the Apex Court held that once the property has vested into the Government neither the previous owner nor their successors-in-interest can question the dealing and disposal of the property by the Government. In para 4 of the report, the Apex Court held thus --

"4. Failing here, counsel finally stressed that in any case no market for a small municipal town requires 28 acres of land, especially because the Master Plan prepared for the Municipality had allotted only 15 acres for this purpose. It is not for the Court to investigate into the area necessary for running a market. Moreover, there is no mala fides emerging from this circumstance. What has to be established is mala fide exercise of power by the State Government--the acquiring authority although the beneficiary of the acquisition is eventually the Municipality. There is no scintilla of evidence suggestive of malus animus in Government."

10. In State of Kerala v. M. Bhaskaran Pillai and Anr., , the Apex Court was seized with the question whether the Government can assign the land to the erstwhile owners and keeping in view the provisions of the Land Acquisition Act, in para 4 of the judgment held, thus :

"4. In view of the admitted position that the land in question was acquired under the Land Acquisition Act, 1894 by operation of Section 16 of the Land Acquisition Act, it stood vested in the State free from all encumbrances. The question emerges : Whether the government can assign the land to the erstwhile owners? It is settled law that if the land is acquired for a public purpose, after the public purpose was achieved, the rest of the land could be used for any other purposes. In case there is no other public purpose for which the land is needed, then instead of disposal by way of sale to the erstwhile owner, the land should be put to public auction and the amount fetched in the public auction can be better utilized for the public purpose envisaged in the Directive Principles of the Constitution. In the present case, what we find is that the executive order is not in consonance with the provision of the Act and is, therefore, invalid. Under these circumstances, the Division Bench is well justified in declaring the executive order as invalid. Whatever assignment is made, should be for a public purpose. Otherwise, the land of the Government should be sold only through the public auctions so that the public also gets benefits by getting higher value."

11. In yet another judgment, C. Padma and Ors. v. Dy. Secretary to the Government of T.N. and Ors. confirmed the judgment of the learned single Judge and the Division Bench held that the acquired land having already vested in the State, after receipt of compensation by predecessor-in-title of the appellants have no right to challenge the notification for acquisition. The Apex Court held thus :

"5. Shri G. Ramaswamy, learned Senior Counsel appearing for the appellants, contends that when by operation of Section 44B read with Section 40 of the Act, the public purpose ceased to be existing, the acquisition became bad and therefore, the GO was bad in law. We find no force in the contention. It is seen that after the notification in GOR 1392 dated 17-10-1962 was published, the acquisition proceeding had become final, the compensation was paid to the appellants' father and thereafter the lands stood vested in the State. In terms of the agreement as contemplated in Chapter VII of the Act, the Company had delivered possession subject to the terms and conditions thereunder. It is seen that one of the conditions was that on cessation of public purpose, the lands acquired would be surrendered to the Government. In furtherance thereof, the lands came to be surrendered to the Government for resumption. The lands then were allotted to SRVS Ltd. 5th respondent which is also a subsidiary amalgamated company of the original company. Therefore, the public purpose for which acquisition was made was substituted for another public purpose. Moreover, the question stood finally settled 32 years ago and hence the writ petition cannot be entertained after three decades on the ground that either original purpose was not public purpose or the land cannot be used for any other purpose."

12. The aforesaid legal position has also been noted by the Apex Court in Netal Bag and Ors. v. The State of Bengal, .

13. In Municipal Council, Ahmednagar and Anr. v. Shah Hyder Beig and Ors., , the Apex Court observed that the Writ Petition challenging the acquisition reserved for School and playground since 1952 cannot be entertained even when there was no development of plot.

14. The Division Bench presided over by one of us (R.M. Lodha, J.) in Dilip Narayanrao Jadhav and Anr. v. Maharashtra Rajya Sahakari Dudh Sangh Ltd. and Ors. in Writ Petition No. 6710/2000, on 7th January 2002, had the same issue concerning release of land from acquisition and restoration of the said land to the petitioners based on Government Resolution dated 10-10-1973 under consideration wherein the Division Bench held thus --

"In Gulam Mustafa and Ors. v. The State of Maharashtra and Ors., the Apex Court ruled that there is no principle of law by which a valid compulsory acquisition can be voided because the land acquired has been diverted to a public purpose other than the one stated in the declaration under Section 6 of the Land Acquisition Act. Legal position is well established that it is open to the State Government to use the acquired land for the public purpose other than for which it has been acquired. In the present case, large tract of land has already been put to public use. The learned counsel for petitioners heavily relied upon the Government Resolution dated 10th October 1973 for restoration of the unused and unutilized land. The said resolution is of no help to the present petitioners as we have already observed that the expropriated owner had claimed restoration of possession way back in the year 1975 on the ground that the acquired land has not been utilized and used for the purpose for which it has acquired and had challenged the lease of 20 acres of land to first respondent herein. The said suit was ultimately withdrawn by the expropriated owner before this Court. The self-same plea cannot be raised by the petitioners who claimed to be Mirashi tenant when the expropriated owner had already withdrawn the suit on that ground. Besides that, on the basis of resolution dated 10-10-1973; in the light of the judgment of the Apex Court reported in State of Kerala and Ors. v. M. Bhaskaran Pillai and Anr. , the petitioners cannot claim restoration of the lands in question. The Apex Court observed thus --

"4. The question emerges whether the Government can assign the land to the erstwhile owners? It is settled law that if the land is acquired for a public purpose, after the public purpose was achieved, the rest of the land could be used for any other public purpose. In case there is no other public purpose for which the land is needed, then instead of disposal by way of sale to the erstwhile owner, the land should be put to public auction and the amount fetched in the public auction can be better utilized for the public purpose envisaged in the Directive Principles of the Constitution. In the present case, what we find is that the executive order is not in consonance with the provisions of the Act and is, therefore, invalid. Under these circumstances, the Division Bench is well justified in declaring the executive order as invalid."

6. In view of the aforesaid legal position, the validity and legality of the Government Resolution dated 10th October 1973 is highly questionable and therefore, its enforcement cannot be sought by the petitioners."

15. Thus, the legal position is no more res integra and it is settled that an expropriated owner cannot insist on restoration of the land even if the land has not been utilized for the purpose it was acquired or for other purpose. If the land has not at all been used, the land of the Government should be sold through public auction and not to the expropriated owner. In view of this legal position, the Government Resolution dated 10th October 1973 cannot be enforced.

16. The petitioners are, thus, not entitled to restoration of land as claimed by them on the basis of Government Resolution dated 10th October 1973.

17. All the four writ petitions are accordingly dismissed in limine.