Ghanshyam S/O Ramcharan Amghe And ... vs State Of Maharashtra And Ors.
2005 Latest Caselaw 1080 Bom

JUDGMENT

B.R. Gavai, J.

1. By way of present petition, declaration is sought that respondent Nos. 2 to 4 are not entitled to take possession of an area admeasuring 1.07 acres out of Khasra Nos. 24/1 and 36/2 as the lands were allowed to be retained by the petitioners under the provisions of the Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter referred to as "the U.L.C. Act")- An order of permanent injunction is also sought thereby prohibiting the respondents from interfering with the possession and proprietary rights of the petitioners in the aforesaid lands.

2. The petitioners claim to be owners of certain lands in Khasra Nos. 24/1 and 36/2 of mouza Wanjari, Tq. and Distt. Nagpur. In respect of the said lands along with other lands in the area, a notification came to be issued on 5th September, 1963 by the respondent No. 2 - Nagpur Improvement Trust under Section 39 of the N.I.T. Act, which is analogous to Section 4 of the Land Acquisition Act, for acquisition of the said lands for the Housing Scheme known as "Wanjari Housing Accommodation Scheme". Thereafter, a notification under Section 45 of the N.I.T., which is analogous to Section 6 of the Land Acquisition Act, came to be issued on 4-3-1967. Subsequently, an Award under the provisions of the Land Acquisition Act (hereinafter referred to as "the Acquisition Act") came to be passed on 18th March, 1975. It appears that after coming into effect of the U.L.C. Act, the petitioners filed statement as required under the provisions of the U.L.C. Act. It is the contention of the petitioners that the competent Authority under the provisions of Section 9 of the U.L.C. Act determined the vacant land held by the petitioners in excess of the Ceiling limit. It is the contention of the petitioners that, it was held that all of them were possessing 1500 sq.mtrs. retainable land and insofar as the land in excess of ceiling limit is concerned, the land was acquired under the provisions of Section 10 of the U.L.C. Act.

3. The petitioners further submits that, thereafter, apprehending that the respondents will take possession of the retainable land, they approached this Court by way of Writ Petition No. 3792 of 2002. It is submitted that a pursis was filed on behalf of the N.I.T., wherein it is stated that possession of the said retainable land of 1.07 acres will not be taken without following due process of law. This Court vide order dt. 4-12-2003, thereafter, disposed of the said petition taking on record the pursis filed by the N.I.T. Vide the said order, the contentions available to the petitioners were kept open.

4. Subsequent thereto, the petitioners have been issued notice dt. 19th March, 2004 thereby directing them to hand over possession in pursuance to the Award dt. 18-3-1975. In response to the said notice, the petitioner made representation on 18th March, 2004 to the Land Acquisition Officer pointing out therein the order passed in Writ Petition No. 3792. However, by communication dt. 8-6-2004, the Land Acquisition Officer directed the petitioners to hand over possession. It was stated in the said communication that if the petitioners do not hand over possession, possession shall be taken through the State Machinery. Challenging the said communication, the petitioners have approached this Court praying for the declaration and prohibitory injunction as aforesaid.

5. Heard Mr. Chandurkar, learned counsel for the petitioners. Mr. Ahirkar, learned A.G.P. for respondent Nos. 1 and 3 and Mr. Mishra, learned counsel for respondent No. 2.

6. The main contention raised on behalf of the petitioners in the present petition is that once a person is permitted to hold retainable land under the provisions of the U.L.C. Act, then such a retainable land cannot be permitted to be acquired under the Acquisition Act. In support of this submission, reliance is sought to be placed on Section 42 of the provisions of the U.L.C. Act and the Judgments of two Division Benches of this Court in the case of Ganesh Rangnath Dhadphale v. Special Land Acquisition Officer (I), Pune reported in 7979 Mh.LJ. 787 and in the case of Roosi K. Modi and Anr. v. Union of India and Ors. reported in AIR 1982 Bom. 22.

7. As against this, the learned counsel for the respondent-State and the N.I.T. contends that the submissions made by the petitioners are untenable and the aforesaid judgments of this Court on which reliance is placed are inapplicable in the facts and circumstances of the present case. Mr. Mishra, learned counsel appearing on behalf of the respondent-N.I.T. submits that, as a matter of fact, the said judgments supports the case of the respondents. He further submits that a learned Single Judge of this Court has also relied on the Judgment of the Division Bench of this Court in the case , Majas Land Development and Anr. v. State of Maharashtra and Ors..

8. In view of the provisions of Section 3 of the U.L.C. Act, no person is entitled to hold any vacant land in excess of the ceiling limit in the territories to which the said Act applies. It is not in dispute that the said law applies to the Nagpur Corporation area. It is also not in dispute that, as provided under Section 4, the ceiling limit for Nagpur area is 1500 sq. metres. Under the provisions of Section 6 of the U.L.C. Act, every person who is holder of vacant land in excess of the ceiling limit is required to file statement before the competent Authority specifying therein the location, extent, value and such other particulars as may be prescribed of all vacant land. Section 8 of the U.L.C. Act requires preparation of draft statement in respect of the person who has filed statement under Section 6 by a competent Authority, upon a statement being filed by a person concerned under Section 6 and upon due enquiry held by the competent Authority. Section 9 provides for final statement being made by the competent Authority after taking into consideration the orders passed on the objections. Section 10 provides for acquisition of the land held to be surplus land. Section 42 of the U.L.C. Act provides that provisions of the U.L.C. shall have effect notwithstanding anything inconsistent therewith in any other law for the time being in force or any custom, usage or agreement or decree or order of a Court, Tribunal or other Authority.

9. Mr. Chandurkar, learned counsel for the petitioners submitted that once a final statement has been made by the competent Authority under Section 9 of the U.L.C. Act, it is not permissible to acquire the land held to be retainable by the competent authority by invoking the provisions of the Acquisition Act. It is the submission of the learned counsel for the petitioner that this position of law stands fully covered by the aforesaid two judgments in the case of Ganesh and Roosi K. Modi (cited supra).

Section 9 of the U.L.C. Act reads thus :

"After the disposal of the objections, if any, received under Sub-section (4) of Section 8 the competent authority shall make the necessary alterations in the draft statement in accordance with the orders passed on the objections aforesaid and shall determine the vacant land held by the person concerned in excess of the ceiling limit and cause a copy of the draft statement as so altered to be served in the manner referred to in Sub-section (2) of Section 8 on the person concerned and where such vacant land is held under a lease, or a mortgage, or a hire-purchase agreement, or an irrevocable power of attorney, also on the owner of such vacant land."

Section 42 of the U.L.C. Act reads thus :

"Act to override other laws :-

The provisions of this Act shall have effect notwithstanding anything inconsistent therewith in any other law for the time being in force or any custom, usage or agreement or decree or order of a Court, tribunal or other authority."

10. It can, thus, clearly be seen that Section 9 of the said Act provides for making a final statement by the competent Authority after disposing of the objections, if any received under Sub-sectionsection (4) of Section 8 and provides for determination of the vacant land held by the person concerned in excess of the Ceiling limit. Section 42 of the U.L.C. Act gives an overriding effect to the provisions of the U.L.C. Act, inasmuch as it provides that the provisions of U.L.C. Act shall have effect notwithstanding anything inconsistent therewith in any other law for the time being in force. However, we are unable to see as to how these provisions prohibit acquisition of land under the Acquisition Act, which land is held to be retainable by the person filing return. The petitioners are also not in a position to point out any other provision either in the U.L.C. Act or any other law which prohibits acquisition of retainable land, which is held to be retainable under the U.L.C. Act.

11. In the case of Ganesh Dhadphale (cited supra), the proceedings for acquisition of the land in question were initiated under the provisions of sections 4 and 6 of the Acquisition Act and also enquiries as to the amount of compensation were finalised before the enforcement of the U.L.C. Act on 17-2-1976. On coming into effect of the U.L.C. Act, further proceedings under the Acquisition Act were suspended on the instructions from the Government to wait pending the result of the proceedings before the competent Authority under the U.L.C Act. The petitioners therein, whose land was being acquired, protested against the same and approached this Court. The learned Single Judge of this Court held that merely enforcement of the U.L.C. Act could not justify the inaction of the Land Acquisition Officer. Being aggrieved thereby, an appeal was preferred before the Division Bench. In the appeal, reliance was placed by the State Government on the provisions of Section 42 of the U.L.C. Act and it was contended that any possible conflict between the provisions of the U.L.C. Act and Acquisition Act could only be avoided by suspending the provisions under the Acquisition Act and enabling the competent Authority under Urban Land Ceiling Act to work out the provisions of the U.L.C. Act. The Division Bench, considering as to whether there is any inconsistency between the provisions of two enactments, observed in paragraph 16 of the said judgment as under :

"When any land being acquired under the Land Acquisition Act also gets included in such final statement intended for acquisition under Section 10(1) of the Urban Land Ceiling Act, actual inconsistency can be said to have arisen and it is at this point of time that the Urban Land Ceiling Act would alone apply and Land Acquisition Act would cease to apply to the land or any portion thereof so included in the final statement under Section 9."

12. It can thus be seen that the Division Bench has observed that only when a land or any portion thereof which is sought to be acquired under the Acquisition Act is also included in the final settlement under Section 9 of the U.L.C. Act and intended for acquisition, under Section 10(1) of the U.L.C. Act, the provisions of the Land Acquisition Act would cease to apply to the said land or part thereof.

13. The Division Bench in paragraph 39 has observed thus :

"Mere commencement of the Urban Land Ceiling Act, or inclusion of the very same land in the statement under Section 6, cannot affect the proceedings under the Land Acquisition Act. Thus, the enquiry under Section 11, declaration of award under Section 12, and taking possession thereunder cannot be said to have been prevented by any section of the Urban Land Ceiling Act till the final statement under Section 9 is prepared and the same land is included therein. It is difficult to conceive of any inconsistency between any provision of the Land Acquisition Act and Urban Land Ceiling Act till then. Nothing can prevent the Land Acquisition Officer from taking possession, and consequently getting the title in the land vested in the State under the said Act. Result of such title vesting in the State under Section 16 of the Land Acquisition Act will be that the said land will not be available for inclusion in the final statement contemplated to be prepared under Section 9 of the Urban Land Ceiling Act."

14. It can thus be seen that the Division Bench in the aforesaid judgment has clearly held that there is no inconsistency between any provisions of the Acquisition Act and the U.L.C. Act till a final statement under Section 9 is prepared. The Division Bench has further held that nothing can prevent the Land Acquisition Officer from taking possession and consequently, getting the title in the land vested in the State under the Acquisition Act. It has been held that the result of such title vesting in the State under Section 16 of the Land Acquisition Act will be that the said land will not be available for inclusion in final statement contemplated to be prepared under Section 9 of the Urban Land Ceiling Act.

Taking into consideration the aforesaid legal position, the Division Bench dismissed the appeal filed by the State Government and allowed the Special Civil Application No. 2184 of 1977 which was filed on behalf of one of the land owners. On perusal of the judgment, we could not see that the Division Bench has anywhere observed that once the land is held to be retainable under provisions of Section 9 of the U.L.C. Act, it cannot be acquired under the provisions of the Acquisition Act. On the contrary, it can be seen from the aforesaid case that until the land is included in final statement under Section 9 there is nothing which precludes the acquisition of the land under the Land Acquisition Act if the proceedings for acquisition of the same are commenced at an earlier point of time. We, therefore, find that the said judgment does not support the case of the petitioner.

15. In the case of Roosi K. Modi (cited supra), a notification under Section 4 of the Acquisition Act was issued by the Commissioner on 1-9-1962 indicating Government's proposal to acquire the entire land measuring in all 47,396 sq. metres. After finalisation of the proposal, Section 6 declaration was issued on 14-5-1963. In the meanwhile, after coming into force of the U.L.C. Act on 17-2-1976, return was submitted by the petitioners on 13-8-1976. The competent Authority declared the petitioners to be a surplus holder to the extent of 41,396.83 sq. metres. Accordingly, the notification under Section 10(3) of the U.L.C. Act was issued on 7-6-1979 for the acquisition of surplus holdings of the petitioners excluding the remaining area of 5,967.12 sq. metres. Though after issuance of Section 6 notification on 14-5-1963 notices under Section 9 of the Acquisition Act were served and the trial of the claim for compensation at the market rate was concluded, the passing of the Award was withheld due to the proceedings under the U.L.C. Act. After acquisition of the aforesaid area of 41,396.83, which was a surplus land under Section 10(3) of the U.L.C. Act, the Land Acquisition Officer proceeded to fix the price of the remaining area of the land i.e. 5967.82 sq. metres under the provisions of the Acquisition Act. Accordingly, the Award was pronounced on 23-11-1979 and a notice was issued to the petitioners to deliver possession of the land. The petitioners, therefore, filed petition before this Court. It was contended on behalf of the petitioner that the proceedings under the Land Acquisition Act has become ineffective and invalid in entirety due to inconsistency with the U.L.C. Act after finalisation of statement of surplus land under Section 9 and acquisition under Section 10(3) of the said Act. It was also contended on behalf of the petitioners therein that the proceedings for acquisition of the remaining area of 5967 sq. metres could not be valid unless earlier notification dt. 14-5-1963 is completely nullified and fresh one covering the area of 5,967 Sq. metres is issued after holding enquiry under Section 5A of the Acquisition Act. Negating this contention, the Division Bench observed in para 9 as under :

"This contention appears to us to be wholly untenable. It is necessary to bear in mind that reduction of the area of acquisition from 47,396 to 5,967 sq. metres is the direct consequence of the notification issued under Section 10(3) of the U.L.C. Act and not of any act or omission involving any violation on the part of the appropriate Government.

Section 42 of the U.L.C. Act gives overriding effect to the provisions thereof, notwithstanding anything contrary in any enactment or contract etc. Even the notification and orders passed thereunder are bound to have such overriding effect on the notification or orders passed under any other such enactment, provisions of which have to yield to the provisions of this Act in terms of the mandates of Section 42. The notification thus issued under Section 10(3) of the U.L.C. Act acquiring 41,396 sq. metres out of C.S. No. 42, is bound to have such overriding effect on the earlier notification dt. 14-5-1963 under Section 6 of the L.A. Act, because of its patent inconsistency and consequently the latter becomes ineffective to the extent of such 41,396 sq.metres. It is this inconsistency and consequential partial invalidity that have driven the authorities acting under the Land Acquisition Act to restrict the acquisition proceedings thereunder only to the area of 5,967 sq.metres left untouched by the acquisition under Section 10(3) of the U.L.C. Act. The notification dt 14-5-1963 to the extent of 5.967 sq. metres remains still impaired and there is no reason why it could not be acted upon to that extent."

16. It can thus clearly be seen from the aforesaid observations of the Division Bench that the earlier notification under the Acquisition Act for an area which is not acquired under the provisions of the U.L.C. Act still remains unimpaired and there is no reason why it could not be acted upon to that extent. We find that the present case is squarely covered by the ratio laid down by the Division Bench in the aforesaid case.

17. The Division Bench in paragraph 10 has further observed thus :

"Any question of withdrawing from the acquisition of any part of the land under Section 48 of the L.A. Act or cancellation of the notification dated 14-5-1963 does not arise in such a case. In either of these situations continuation of the acquisition proceedings is not obstructed by any legal impediment, and discontinuation of the proceedings is entirely the choice of the appropriate Government. These considerations can have no application where partial invalidity is the creation of the Statute and nothing in any such Statute prevents proceedings with the valid part of the declaration and the acquisition proposal."

18. It can thus be seen that it is a settled position that the inconsistency between the provisions of the Acquisition Act and the U.L.C. Act arises only in the eventuality that the same land is covered under the Section 4 notification, Section 6 declaration of the Acquisition Act and the statement under Section 9 of the U.L.C. Act. Only in that eventuality the provisions of Section 42 will come into play and that the provisions of the U.L.C. Act will have overriding effect over the provisions of any other law for the time being in force. It is further settled law that if a part of land covered under sections 4 and 6 notification of the Land Acquisition Act is acquired under the provisions of Section 10 of the U.L.C. Act, there is nothing which precludes acquisition of the remaining part of the land under the provisions of the Land Acquisition Act. We find that both the judgments in the case of Ganesh and Roosi K. Modi (cited supra) do not support the case of the petitioners. On the contrary, they hold against the proposition of law as advanced by the petitioners.

19. In that view of the matter, we do not find any merit in the present Writ Petition.

20. However, it was contended by the learned counsel for the petitioners that the respondent No. 2-Trust itself has passed the resolution dt. 31st May, 1999 thereby permitting the persons, whose lands have been held as retainable lands, to make construction on the said land. It is also submitted that if possession of the retainable land is also taken away, the petitioners would become landless persons and will have to come on road. In this respect, Mr. Mishra, learned counsel for the respondents submits that the contention of the petitioners that they would become landless is without merit. Placing reliance on Rule 23 of the Nagpur Improvement Trust Lands Disposal Rules, he submits that such of the persons who will become landless are entitled to grant of 500 sq. metres of piece of land by the Nagpur Improvement Trust. He submits that in case the petitioners become landless, their cases will be governed under Rule 23 and they will be allotted 500 sq. metres of land. In that view of the matter, we do not find that there is much substance in the grievance of the petitioner that they would become landless if the retainable land is acquired. Insofar as resolution of the N.I.T. dt. 31st May, 1999 is concerned, if it is applicable to the case of the petitioners, they may apply to the N.I.T. for consideration of their cases and the N.I.T. may take appropriate decision in accordance with law and the resolution passed by it.

In that view of the matter, the petition is dismissed with the observation aforesaid.

Rule is discharged with no orders as to costs.