Bombay High Court
* Fakhruddin vs The Union Of India on 3 December, 2010
Bench: Naresh H. Patil, Shrihari P. Davare
1 WP No.3555/1994
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
Writ Petition No.3555 Of 1994
* Fakhruddin s/o. Hyderali ]
(Died), through his ]
legal representatives ]
Mustafa s/o Fakhruddin ]
Ambawala, ]
Age 40 years, ]
Occupation : Service ]
R/o City Chowk, ]
Aurangabad
At present
R/o. Aden (ARY), YAMAN.
]
]
] .. Petitioner.
Versus
1) The Union of India, ]
Through the Secretary ]
to Government of India ]
Ministry of Petroleum, ]
New Delhi. ]
]
2) The State of Maharashtra ]
]
3) Hindustan Petroleum ]
Corporation Limited, ]
Regd. Office 17- ]
Jamshetji Tata Road, ]
Bombay - 400 020 ]
(A Government of India ]
Enterprise). ]
]
4) Shri. U.M. Ghadge, ]
The Chief Regional Manager, ]
Hindustan Petroleum, ]
1 RB Motilal Road, ]
Pune - 411 001. ]
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2 WP No.3555/1994
5) Abbas s/o Abdul Husain ]
deceased through his ]
legal heirs: ]
]
5A) Abdul Hussain s/o Abbas ]
Age 50 years, ]
Occupation: Business. ]
]
5B) Aqill Hussain s/o Abbas ]
Age 38 years, ]
Occupation: Business ]
]
5C) Saifuddin s/o Abbas ]
Age 35 years, ]
Occupation Business
ig ]
]
5A to 5C residents of ]
c/o Abdul s/o Hussain Abbas, ]
R/o Panchaki Road, ]
Opposite Government ]
Medical College, ]
Near Nawakhanda ]
Aurangabad. ]
]
6) The Collector, ]
Aurangabad, ]
District Aurangabad. ]
]
7) The Commissioner, ]
Aurangabad Division, ]
Aurangabad. ]
]
8) The Special Land ]
Acquisition Officer, ]
B & C, Aurangabad, ]
District Aurangabad. ] .. Respondents.
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3 WP No.3555/1994
Shri. S.P. Sonpawale, Advocate for petitioner.
Shri. Alok Sharma, Assistant Solicitor General for Union of
India - respondent No.1.
Shri. S.V. Kurundkar, Additional Government Pleader, for
respondent Nos.2,6,7 and 8.
Shri. S.P. Deshmukh, Advocate, for respondent Nos.3 and
4.
Shri. S.R. Barlinge, Advocate, for respondent Nos.5-A to 5-
C.
ig --------
CORAM: NARESH H PATIL &
K.K. TATED, JJ.
Date on which judgment
reserved: 28th October 2010.
Date on which judgment
pronounced: 03rd December 2010.
JUDGMENT (Per NARESH H PATIL, J.):
1) The petitioner claims to be owner of plot Survey
No.5-5-38 (Old No.1919) bearing CTS No.144/53 at Kranti
Chowk Aurangabad within the municipal limits of
Aurangabad Municipal Corporation. The plot admeasures
approximately 2108 square meters. The petitioner
contends that a lease of land of the subject plot was
executed by him in favour of "ESSO Standard Eastern
Inc.", a Corporation, which was operating in India and
was dealing in business of petroleum products. The lease
was executed on 1-12-1962 between the parties on rent of
Rs.250/- per month. The company was running a petrol
pump either itself or through some dealer. The lease
agreement was to be in operative at the first instance
specifically for a period of ten years. Under clause (d) of
the agreement it was stipulated that on the written request
of the lessee, the lessor would extend the period of lease
for a further period of ten years from the expiry of the said
term on the same rent. The petitioner stated that on
11-8-1972 the ESSO Company exercised its option and
requested to continue the said lease. The lease was
continued and by a communication dated 12th May 1982
the petitioner renewed the lease for a further period of ten
years. The Company thereafter again requested to extend
the period for further ten years commencing from
12-5-1982 but the petitioner was not ready to continue the
lease period. The petitioner sent notice under section 106
of the Transfer of Property Act read with section 80 of the
Code of Civil Procedure to the respondent No.1 i.e. Union
of India, the Ministry of Petroleum as well as to respondent
No.3 Company, namely, Hindustan Petroleum Corporation
Limited (HPCL). The petitioner's contention is that the
request for extension of lease period by the respondent No.
3 through communication dated 12-5-1982 was illegal and
the petitioner was terminating said tenancy as the
petitioner himself intended to raise some construction on
the said plot.
2)
The petitioner states that the respondent No.3
informed that they had already requested for extension of
further period from 1-10-1982. The company exercised its
power under section 5(2) and 7(3) of the Esso (Acquisition
of Undertakings in India) Act 1974. According to the
petitioner, the respondent No.3 - HPCL was successor in
title of the Esso company and as per the agreement of
lease the respondent No.3 ought to have vacated the
premises in the month of December, 1982. It is alleged that
the respondent No.3 and its officers were interested in
continuing the lease illegally and mala fide only to help
respondent No.5 dealer who was running petrol pump on
behalf of respondent No.3 - Corporation. The petitioner
states that there was no other reason for respondent No.3
to request for continuation of lease than to favour the
dealer. The original petitioner Fakruddin Haidar Ali died
and his represented by his legal representative.
3) The petitioner further stated that he filed
Regular Civil Suit No.587 of 1983 terminating the tenancy.
By a judgment and order dated 19-8-1989 the Civil Court
held that the lease was still subsisting and did not come to
an end. The suit was dismissed. Being aggrieved by the
said judgment and decree the petitioner preferred an
appeal being Regular Civil Appeal No.244 of 1989 before
the District Court Aurangabad. By a judgment and order
dated 2-11-1991 the learned Additional District Judge
allowed the appeal of the petitioner. The respondent No.3
being aggrieved by the said judgment and decree preferred
Second Appeal No.134 of 1992. The petitioner contends
that initially the stay was refused in the proceedings of the
second appeal but in the Letters Patent Appeal Stamp No.
17574 of 1992 stay was granted in favour of the
respondent No.3 - company. From the proceedings of LPA
it is gathered that by an order dated 6-8-1993 the Division
Bench of this Court (Coram: V.V. Kamat & A.A.Halbe, JJ.)
passed following order :
"Heard Shri. P.R. Deshmukh and Mr. Bajaj for
parties.
In view of order dt. 12.7.93 (copy taken on record) of
the S.C., S.A. No.134/92 is expedited and ordered to
be heard within 8 weeks, without disturbing earlier
order dt. 15-12-92 of this Court in this L.P.A., this
Appeal now has become infructuous. L.P.A. stands
disposed off as such, continuing earlier order till the
decision of SA 134/92."
4)
It is stated that S.L.P. (C) No.8250 of 1993 was
preferred against the said order of stay. The Apex Court did
not interfere but requested the High Court to dispose of
the second appeal within a period of 8 weeks from the
receipt of the order of the Apex Court dated 12-7-1993.
5) The petitioner contends that a civil application
came to be filed in the proceedings of the second appeal
being Civil Application No.2936 of 1993 in Second Appeal
No.134 of 1992 mainly contending that lease for further
period of ten years was also over and therefore the plaint
be allowed to be amended directing respondent No.3 to
hand over possession of the property. The respondent Nos.
3 and 4 opposed the application. It was then contended
by the respondent No.3, according to the petitioner, that
the respondent No.3 had already issued notification under
section 6 for taking over the premises by way of
acquisition. By order dated 6-9-1993 amendment of the
plaint as sought for by the petitioner was allowed. Written
Statement came to be filed on behalf of respondent No.3.
6) The petitioner specifically alleges that
respondent Nos.3 and 4 were acting at the behest of
respondent No.5 who was running the petrol pump as a
dealer of respondent No.3. Respondent No.4 was then
Chief Regional Manager of the HPCL. Respondent Nos.5-A
to 5-C are legal representatives of respondent No.5 - the
original dealer expired and is represented by his legal
representatives.
7) For the purposes of reference, proceedings of
Writ Petition No.7090 of 2005 and Writ Petition No.1748 of
2008 were also placed before us along with proceedings of
Second Appeal No.134 of 1992.
8) Writ Petition No.7090 of 2005 was filed by
Hindustan Petroleum Corporation Limited on 7-10-2005
against an order of issuance of warrant for possession
dated 14-9-2005 passed below Exhibit 1 of Regular
Darkhast No.46 of 1992 and for other consequential reliefs.
By an order dated 11th October 2005 Division Bench of this
Court granted status quo regarding possession which was
continued from time to time. By an order dated 21st
September 2007 the petition was admitted and status quo
granted earlier was continued by way of ad-interim relief.
Writ Petition No.1748 of 2008 was filed by deceased
Fakruddin Hayderali Ambawala raising challenge to the
orders dated 29th January 2008 and 12th March 2006
passed by the Divisional Commissioner. From the
proceedings we find that Writ Petition No.1748 of 2008 is
still pending admission hearing of this Court.
9) The petitioner contends that Notification under
section 4 of the Land Acquisition Act was issued on
9-3-1993 in respect of the subject plot. The Special Land
Acquisition Officer had called for objections. Accordingly,
the petitioner submitted his objections on 7-4-1993. The
petitioner applied for getting copy of notification issued
under section 6 of the Land Acquisition Act. It is alleged
that at the behest of respondent No.5, the authorities of
the respondent Corporation were acting in connivance.
The petitioner states that, notification under section 6 was
initially issued without mentioning any date and
notification number. The petitioner could not even get
copy of the said notification. The petitioner alleged that
with mala fide intention the subject plot was acquired.
The subject plot is situated at a location which has high
commercial potentiality and market value and is suitable
for business purposes. The petitioner was, therefore,
interested to develop his own property. The petitioner
states that the said plot was not suitable for running petrol
pump.
10) The petitioner contends that the Divisional
Commissioner had rejected the objections filed by the
petitioner. The petitioner filed a revision application under
section 15-A of the Land Acquisition Act (Maharashtra
Amendment). In stead of deciding the revision petition by
the State Government, the Commissioner wrongly and
illegally dealt with the revision petition and dismissed the
same.
11) By an order dated 30-7-1996 the petition
was allowed to be amended. The petitioner in para 24-A
states that after the writ petition was filed, on 2-12-1995
the respondent No.8 had passed award under the
proceedings initiated under Land Acquisition Act and the
compensation was determined for an amount of Rs.
57,69,701/-. A copy of the award was annexed to the
petition. The petitioner contends that in respect of the
award the petitioner is reserving his right to take
appropriate proceedings as advised to him and the
amendment was sought for limited purposes to point out
as to how the amount is being wasted by public limited
company to protect interests of private individual i.e.
respondent No.5. The petitioner disputes that possession
was taken by private negotiations or otherwise.
12) The petitioner has amended prayer clauses
also. In prayer clause (C-1) the petitioner claimed a
declaration that the subject acquisition be held to be mala
fide and arbitrary and claimed for quashing and setting
aside the award dated 2-12-1995. The petitioner prayed for
further consequential reliefs in terms of prayer clauses
(C-2) and (C-3).
13) The Division Bench of this Court issued
notices to the respondents on 19-8-1996. By an order dated
23-12-1996 the Division Bench granted interim relief to the
effect that possession of the property involved in the writ
petition shall not be taken in pursuance to notice dated
19-12-1996 until further orders.
14)
ig By an order dated 16-6-1998 the Division
Bench of this Court admitted the petition and vacated the
order passed on 23-12-1996 on the respondent - HPCL
filing undertaking.
15) On behalf of respondents Nos.3 and 4 Mr.
S.K. Bhatnagar, Senior Regional Manager of respondent
No.3 - HPCL filed affidavit-in-reply dated 21st July 1997.
The deponent contended that respondent No.3 is a
Government Company under the provisions of Section 617
of the Companies Act 1956 and public sector undertaking
of the Government of India and is under the administrative
control of Ministry of Petroleum and Natural Gas,
Government of India. With effect from 13-3-1974 the right,
title, interest and liabilities of the ESSO Standard
Incorporated in relation to the Undertakings in India were
vested in the Government of India by an Act of Parliament
i.e. Esso (Acquisition of Undertakings in India) Act, 1974
(IV of 1974). Prior to 13-3-1974 there existed three
companies known as "ESSO Group" viz ESSO Standard
Eastern Inc., ESSO Standard Refining Company Limited
and Lube India
ig Ltd., simultaneously the Central
Government acquired 74% of the paid up equity capital of
ESSO Standard Refining Company of India Ltd. and also
acquired 24% of the paid up equity capital of Lube India
Limited in which company the Central Government was
already having 50% equity participation. Thus, all the three
companies became Government Companies within the
meaning of Section 617 of the Companies Act, 1956. The
deponent further contends that, thereafter the Central
Government through the Ministry of Petroleum and
Chemicals issued a Notification No.GSR-131 (E) dated 14th
March 1974 in exercise of powers conferred by sub section
(1) of Section 7 of the ESSO Act of 1974, directing vesting
of right, title, interest and liabilities of these companies in
HPCL which came into existence with effect from
15-3-1974.
16) The deponent had refuted the allegations
of connivance, mala fides and favouritism. It is contended
that the respondent Corporation felt that the land is
required in public interest and accordingly steps were
taken to acquire the land. The respondent Corporation
deposited the entire amount as per the requisition of the
State Government and the Collector and accordingly the
proceedings were initiated. Section 4 Notification initially
was published on 19th March 1993. Notification under
Section 6 of the Land Acquisition Act was published in
gazette No.44 dated 4-11-1993, Aurangabad Times dated
15-10-1993, Daily Deogiri Tarun Bharat dated 16-10-1997
and village publication was made on 4-12-1993.
17) The deponent specifically contended that
the provisions of Part VII of the Land Acquisition Act are
not applicable as the acquisition is needed for public
purpose of Government company.
18) The deponent contended that while filing
objections under section 5-A the petitioner did not take
plea with regard to requirements of Part VII of the Land
Acquisition Act. It is contended that, the question as to
whether the land is needed for a public purpose is for the
State to decide and its decision in that respect cannot be
subject matter of judicial review under Article 226 of the
Constitution of India. The Award is passed which has
become final and conclusive. The deponent prayed for
dismissal of the writ petition.
19) The petitioner thereafter filed additional
affidavit on 21-6-2006. The petitioner contended that
notification under section 9 was published before issuance
of declaration of section 6 notification. The declaration
under sections 6 and 9 was faulty. The petitioner raised
question in respect of panchanama drawn and publication
made in this regard.
Mr.Gotiram Dhingu Rathod, Special Land Acquisition
Officer, filed affidavit-in-reply. In para 9 the deponent
contends :-
"9. I say and submit that thereafter declaration
under Section 6 was issued by the Divisional
Commissioner Aurangabad on 11/10/93. The said
notification/declaration under section 6 of the said
Act was published in Maharashtra Government
Gazette on 4/11/93 and in two daily news papers
i.e. Aurangabad Times on 15/10/93 and Daily
Devgiri Tarun Bharat on 16/10/93. Subsequently
the said declaration under section 6 of the said Act
was published at convenient place on CTS 14453
situated at Aurangabad on 4/12/93 and accordingly
panchanama was prepared. Hereto annexed and
marked as Exhibit R-3 is the true and correct copy
of the declaration."
The deponent refuted the allegations made in respect of
land acquisition proceedings. The deponent contends that
an application was filed by the petitioner under section
48(1) of the Act before the Commissioner Aurangabad for
deletion of the land from acquisition which was rejected on
12th March 2006. The Award was passed within period of
limitation prescribed under the Land Acquisition Act. The
deponent has annexed with affidavit-in-reply relevant and
important documents in respect of communication
exchanged between the Corporation and the Government
authorities. Agreement executed by HPCL, publication of
notifications, panchanamas drawn under sections 4 and 6
and an order passed by the Commissioner dated 12th
March 2006 under Section 48(1) of the L. A. Act.
21) The respondent Nos.5A to 5C filed affidavit-in-
reply dated 24-7-2007. They refuted allegations of mala
fides and influence exercised by deceased respondent No.
5. The deponent contends that respondent No.3 is a
Central Government Public Sector Undertaking, a
Government Company within the meaning of Section 617
of the Companies Act, 1956. The procedure under the Land
Acquisition Act had been scrupulously followed by the
authorities. The procedural rigors provided in Part VII of
the Land Acquisition Act and the rules are not applicable to
the present acquisition. The acquisition is in public interest
and, therefore, they claim dismissal of the petition.
22) The learned counsel for the petitioner, Shri.
Sonpawale, submitted that without obtaining permission
from Central Government, respondent No.3 - HPCL had no
authority to request the State Government for acquisition
of the subject plot under the provisions of the Land
Acquisition Act. There was no public interest and public
purpose involved in acquisition of the subject plot. The land
acquisition proceedings were initiated, according to the
counsel, on the apprehension of respondent Nos.3,4 and
5A to 5C that they may suffer eviction orders under the
civil proceedings initiated in Regular Civil Suit No.587 of
1983 by the petitioner. Therefore, the land acquisition
proceedings are affected due to mala fides. The counsel
submitted that for the benefit of original respondent No.5
the respondent Nos.3 and 4 initiated land acquisition
proceedings which is unbecoming of a public sector
undertaking like
ig HPCL. The counsel submitted that
pending civil proceedings the respondent No.3 was not
entitled in law to proceed for acquisition of the land. In
respect of the steps taken by the Special Land Acquisition
Officer it was submitted that the record was manipulated
to suite the purposes. In the submission of the counsel,
notice under section 6 was in fact a publication of Section
9 notification. Section 9 notice was published prior to
Section 6 notification. The petitioner was not provided with
a copy of notice of section 6 inspite of repeated requests.
There was no Inward / Outward number to the
correspondence made between the authorities of the State.
There was no communication made by the Commissioner in
this regard to the lower officers.
23) The Commissioner had no power to decide the
revision under section 15-A of the Land Acquisition Act. It
was the State Government alone which was empowered to
decide his revision petition. The Commissioner being
interested party in the acquisition ought not to have
decided the revision petition, according to the counsel.
The decision given under provisions of section 5A was not
communicated to the petitioner. Though the HPCL had
other plot available, with mala fide intention, the subject
plot was acquired to benefit the respondent No.5. The
learned counsel submitted that, no orders were passed
under section 7 of the Land Acquisition Act. Therefore, the
land acquisition proceedings are vitiated. HPCL had no
power and was not entitled to request for acquisition of the
land in absence of request made by the Central
Government or the authorization given to the company.
The counsel, therefore, submitted that the entire land
acquisition proceedings are vitiated and therefore prayed
for allowing the petition by setting aside the award passed
by the Special Land Acquisition Officer.
24) The learned counsel Shri. Sunil Deshmukh,
appearing for respondent Nos.3 and 4 submitted that the
provisions of section 3(e) of the Land Acquisition Act
excludes Part VII of the Land Acquisition Act which does
not apply to the present proceedings. Publication of
Sections 6 and 9 Notifications was made properly and in
accordance with law. The land acquisition proceedings
were initiated properly. The respondent No.3 HPCL had
every authority in law to request for acquisition of the
subject property as it is a Government company and is
entrusted with the powers to request accordingly. The
counsel submitted, in alternative, that, even if there is
irregularity in respect of publication of notifications under
sections 6 and 9, it would not vitiate the land acquisition
proceedings. No prejudice was/is caused to the petitioner
in that regard. The counsel referred to the Land
Acquisition Manual and more particularly Sections 3(f),3(e)
and Chapter VII of the Land Acquisition Act. The counsel
disagreed with the submissions that the acquisition was
made mala fide by the Company to benefit private persons
and there was no public purpose involved in it.
25) The learned Additional Government Pleader
Shri. S.V. Kurundkar appearing for the State submitted
that no mala fide could be attributed to the authorities who
initiated the land acquisition proceedings. The Award was
already passed and, therefore, the petitioner was not
entitled to raise challenge to the Award on the grounds
raised in this petition.
26) The
ig learned counsel Shri. S.R. Barlinge
appearing for respondent Nos.5-A to 5-C submitted that
the allegations made in the petition in respect of mala fides
are not substantiated. There were no specific allegations in
the petition as to how the respondent No.5 influenced the
Union of India. The petitioner raised disputed questions of
fact which cannot be gone into in the proceedings of writ
petition.
It was submitted that, the land was not acquired to
benefit respondent No.5 - Dealer of the Company. The
Company had every authority and right to appoint another
dealer if the Company so desires. The counsel prayed for
dismissal of the petition.
27) In reply to the arguments advanced, learned
counsel for the petitioner Shri. Sonpawale submitted that,
there are allegations of mala fide that is why respondent
No.4 was made party in person. The Union of India
preferred not to file affidavit-in-reply. The consent of the
Union of India for acquisition was necessary. The counsel
raised objection to the proceedings under Section 5-A of
the Act. It was submitted that possession of the property
was not handed over to the HPCL.
28) Learned Assistant Solicitor General for Union of
India, Shri. Alok Sharma, submitted that the acquisition
proceedings were rightly initiated and were in accordance
with law.
29) We would now address the substantial grounds
raised by the petitioner. The learned counsel for the
petitioner submitted that, element of public purpose was
absent in the acquisition of the subject land as no land
could be acquired for the purposes of establishing a petrol
pump which would be allotted to be run by a third party. It
is alleged that to benefit the respondent - dealer the land
was acquired. A Corporation cannot acquire land on behalf
of the State or Union, according to the counsel. We may
refer to the provisions of Section 3(cc), (e) and (f) of the
Land Acquisition Act, 1894. The provisions of Section 3(cc)
refer to the expression "corporation owned or controlled by
the State". In Section 3(e) expression "Company" is
defined which means a company as defined in section 3 of
the Companies Act, 1956, other than a Government
company referred to in clause (cc). In section 3(f) while
defining "public purpose" clause (iv) stipulates that it
would include the provision of land for a corporation
owned or controlled by the State. Proposal was initiated by
the respondent Corporation as a Government Company
having 51% share of the Union of India and in the light of
the provisions of the Land Acquisition Act, 1894 and the
Esso (Acquisition of Undertakings in India) Act, 1974 (for
short, "the Act of 1974") and considering the purpose for
which the land was acquired i.e. for public purpose for
retail outlet to cater need of motoring public being purpose
of the Union, we are of the view that element of public
purpose was existing while the proposal was initiated for
acquisition of the subject land. The submissions raised by
the counsel for the petitioner on this ground are not
convincing.
30) The learned counsel for the petitioner submitted
that the HPCL was not entitled in law to initiate land
acquisition proceedings in absence of specific consent of
the Union of India. The counsel referred to the provisions
of the Act of 1974. We have perused the same. Esso was a
foreign company within the meaning of Section 591 of the
Companies Act 1956 incorporated under the laws of the
State of Delaware in the United States of America. The
Government Company means a company as defined in
Section 617 of the Companies Act. Under the Act of 1974
right, title and interest of Esso Company were acquired in
order to ensure that the ownership and control of the
petroleum products distributed and marketed in India by
the said company are vested in the State. Section 7(1),(2)
(3) of the Act of 1974 reads as under :
"7.(1) Notwithstanding anything contained in
sections 3,4 and 5, the Central Government may, if
it is satisfied that and Government company is
willing to comply, or has complied, with such terms
and conditions as that Government may think fit to
impose, direct, by notification, that the right, title
and interest and the liabilities of Esso in relation to
any undertaking in India shall, instead of containing
to vest in the Central Government, vest in the
Government company either on the date of
notification or on such earlier or later date (not
being a date earlier than the appointed, day) as
may be specified in the notification.
(2) Where the right, title and interest and the
liabilities of Esso in relation to its undertakings in
India vest in a Government company under sub-
section (1) the Government company shall, on and
from the date of such vesting, be deemed to have
become the owner, tenant or lessee, as the case
may be, in relation to such undertakings, and all
the rights and liabilities of the Central
Government in relation to such undertakings shall,
on and from the date of such vesting, be deemed
to have become the rights and liabilities,
respectively of the Government company.
(3) The provisions of sub-section (2) of section 5
shall apply to a lease or tenancy, which vets in a
Government company, as they apply to a lease or
tenancy vested in the central Government and
reference therein to the Central Government:
shall be construed as a reference to the
Government Company."
31) Considering the provisions of the said Act, it is
clear that all the rights and liabilities of the Central
Government in relation to such undertaking shall on and
from the date of such vesting be deemed to become rights
and liabilities respectively of the Government company. In
the light of the provisions of the Act of 1974 and the Land
Acquisition Act 1894 we do not find that the HPCL had no
authority in law to initiate proposal for acquisition of land
on behalf of the Union of India.
32) The learned counsel for the petitioner submitted
that in view of pendency of civil proceedings filed by the
petitioner, owner of the subject land, for possession of the
subject land by filing Regular Civil Suit No.587 of 1983,
the HPCL or the Union of India had no authority to initiate
proposal for acquisition of land. It is alleged that the
acquisition proceedings were initiated deliberately to
scuttle the probable eviction orders by the Civil Court. The
steps taken by the HPCL are full of mala fides. The HPCL
was interested to benefit the respondent dealer of the
company who was running petrol pump on the subject site.
After considering the original record and the documents
placed before us, and in view of the rival contentions of the
contesting parties, we do not find that the move to initiate
land acquisition proceedings was to favour the respondent
dealer.
33) As regards pendency of the civil suit from
the record we find that Second Appeal No.134 of 1992
filed by the HPCL is still pending. The submission of the
learned counsel for the petitioner to the effect that there
was no interim relief passed in the proceedings of the
second appeal is not correct. In the proceedings of the
Letters Patent Appeal by an order dated 6-8-1993 Division
Bench of this Court while disposing of the Letters Patent
Appeal continued the order of stay granted on 15-12-1992
till decision of the second appeal. Therefore, it cannot be
said that the HPCL was under threat of execution of
eviction decree. The submissions and allegations made on
that ground are not sustainable.
34) The learned counsel submitted that the
provisions of Sections 6 and 9 of the Land Acquisition Act
were not followed in letter and spirit. It is the contention of
the counsel that Section 9 notice was published prior to
notice of Section 6 of the Act. We have perused the record,
the panchanamas, the endorsements made by the officers
concerned. We do not find that any manipulation was done
in respect of publication of notice. The counsel for the
respondent HPCL submitted that, improper service of
section 9 notice would not vitiate the acquisition
proceedings. In the affidavit-in-reply filed on behalf of
respondent Nos.6 to 8 it is contended that notification
declaration under section 6 of the Land Acquisition Act was
published in Maharashtra Government Gazette on
4-11-1993 and in two daily newspapers i.e. Aurangabad
Times on 15-10-1993 and Daily Deogiri Tarun Bharat on
16-10-1993. Subsequently the said declaration under
section 6 of the Act was published at convenient place on
CTS 14453 situated at Aurangabad on 4-12-1993 and
accordingly panchanama was prepared. Award under
section 11A of the Act was passed on 2-12-1995 amounting
to Rs.56,16,701/- only. We do not find any convincing
ground and material to reject the averments made by the
deponent on oath.
35) The learned counsel for the petitioner submitted
that the objections raised under section 5-A of the Act were
not dealt with. The deponent on behalf of respondent Nos.
6 to 8 i.e. the Special Land Acquisition Officer averred on
oath that the objections were called under section 5-A of
the Act and accordingly the objector filed the same on
9-7-1993, hearing was accorded by the Divisional
Commissioner to the affected party and accordingly on
24-6-1994 the objections raised by the petitioner under
section 5-A came to be decided. We find that the
mandatory requirements under section 5-A were also
complied with.
36)
The learned counsel for the petitioner further
submitted that, he had demanded copies of notification
under section 6 and other relevant documents but they
were not provided to him deliberately. The correspondence
referred to by the counsel for the petitioner between the
Government officers, according to the counsel, did not
have inward / outward numbers. The Commissioner did
not communicate any response under section 6 of the Act
to the lower officers.
37) From the record and the reply filed and the
submissions advanced by the counsel for the contesting
respondents we do not find that, any prejudice is caused to
the petitioner's case on that ground. If any irregularity had
occurred in regard to the correspondence then the same
does not go to the root of the matter to vitiate the entire
acquisition proceedings.
38) The learned counsel for the petitioner submitted
that, the revision petition filed under section 15-A of the
Act ought not to have been decided by the Commissioner
as it is the State Government which has powers to decide
the same. The counsel for the petitioner further submitted
that the Commissioner is an interested party in land
acquisition proceedings. We are of the view that the
petitioner had submitted to the jurisdiction of the
Commissioner and now the petitioner cannot raise issue
in respect of jurisdiction of the Commissioner in
entertaining the revision filed under Section 15-A of the
Land Acquisition Act. The contentions on that ground are
rejected.
39) The learned counsel further submitted that the
HPCL had alternative plot which could have been utilised
for running a petrol pump. Some photographs are also
placed on record. On the said plot regional administrative
building was proposed and it is informed that
administrative building of the HPCL was constructed on
the said plot.
40) It has come on record that, award was also
passed in respect of the subject land on 2-12-1995. Notice
under section 12(2) was issued to the petitioner on
29-2-1996. Copy of the award was delivered to the
petitioner on 25-3-1996. During the course of hearing the
learned counsel submitted that reference petition under
section 18 of the Act was preferred and accordingly
reference proceedings are pending in the civil Court. The
petitioner had applied for deletion of the land from
acquisition under section 48(1) of the Land Acquisition Act
on 12-12-2005. The petitioner was heard and by an oder
dated 12-3-2006 the Divisional Commissioner rejected the
said application.
41) The learned counsel for the petitioner submitted
that, there is non compliance of the provisions of Section 7
of the Land Acquisition Act, inasmuch as the Collector
Aurangabad did not obtain order from the Commissioner
for acquisition of the land. From the record we find that
there is substantial compliance of the provisions of Section
7 of the Act.
42) Considering the record and the contentions
raised in that regard there is no glaring infirmity in the
acquisition proceedings. The same are not vitiated. The
acquisition proceedings are not actuated by mala fides.
The HPCL had authority to initiate the process. There was
no objection by the Union of India in this regard. In the
order passed by the Divisional Commissioner dated
12-3-2006 in respect of proceedings under section 48(1) of
the Act by the original land holder it has been observed
that, the land which was required by the HPCL could be
acquired by the Divisional Commissioner under the
delegated powers by the Central Government.
43) The learned counsel for the petitioner has relied
on the following case law :--
State of Punjab v. Raja Ram, AIR 1981 SC 1694.
This case was cited in respect of provision of Section 3(e)
of the Land Acquisition Act which defines expression
"Company".
The Collector (District Magistrate), Allahabad v. Raja
Ram Jaiswal, AIR 1985 SC 1622.
This case was relating to publication of notification in
locality. Publication of substance of notification being a
mandatory requirement. It was observed that if powers are
exercised for extraneous and irrelevant purpose the
notification would be illegal.
S. Bavajan Sahib v. State of Kerala, AIR 1988 Kerala
280.
This case was cited in respect of computation of period of
limitation of two years from the date of declaration for
making the award.
Metro Theatre Bombay Ltd. V. Union of India, AIR
1988 Bombay 183.
In this case the learned Single Judge of Bombay High
Court observe that, there could not be any blanket
proposition that under no circumstances section 4
notification can be challenged. If it is mala fide it can be
challenged. If the said decision to acquire land could be
shown to be not in good faith, one need not wait till Section
6 notification was issued and the same could be
challenged.
Shyamnandan Prasad v. State of Bihar, 1994 LAC 84
(SC).
Shivaji Maharaj Virajman Marwari Panchayati Mandir
Avran Marari Panchayati Bagichi, Durrs Milkana
Swath Behat Roa, Sahaanpur v. The State of U.P. 1997
(1) LAC 296 (All).
Kanaka Gruha Nirmana Sahakara Sangha, Avalahalli,
Banglore South Taluk v. Kota Srinivasa Murty, 1998
(1) LAC 475 (Kar).
This case was cited in respect of seeking prior approval of
Government for acquisition of land for cooperative housing
society. Absence of approval vitiate acquisition proceeding,
according to the Division Bench.
K. Kumar Naicher v. State of Tamil Nadu, 1998 (2)
LAC 282 (Mad).
This judgment was cited in respect of publication of
notification under section 4 at convenient place in locality
which is a mandatory provision and violation of the same
would make the notification bad in law.
Hindustan Petroleum Corporation Ltd. V. Darius
Shapur Chenai, 2005 (9) SRJ 106.
The counsel submitted that there has to be a reasoned
order if the objections filed by the owner is to be rejected.
Ramrao Pralhadrao Deshmukh v. State of
Maharashtra, 2007 LAC 773 Bombay.
This judgment is delivered by Division Bench (Coram:
Naresh H Patil & R.M. Borde, JJ). This case was cited in
respect of procedure to be adopted as regards declaration
and publication of notification under sections 4 and 6 and
the issue in respect of mala fide.
The learned counsel further has referred to the
reported judgment in Mohammad Hashim v. State of
Uttar Pradesh, 1993 L.A.C.1 in respect of non
application of mind by the State in issuing section 4
notification to acquire the land being subject of litigation.
44) The learned counsel Shir. Sunil Deshmukh
appearing for the respondent - HPCL in support of his
submission has placed reliance on the following reported
judgments.
State of Haryana v. Raghubir Dayal, 1995 AIR SCW
46. The Apex Court observed, in the facts of the said case,
thus :
"5. The use of word "shall" is ordinarily
mandatory but it is sometimes not so interpreted if
the scope of the enactment, on consequence to flow
from such construction would not so demand.
Normally, the word "shall" prima facie ought to be
considered mandatory but it is the function of the
Court to ascertain the real intention of the
legislature by a careful examination of the whole
scope of the statute, the purpose it seeks to serve
and the consequences that would flow from the
construction to be placed hereon. The word "shall"
therefore, ought to be constructed not according to
the language with which it is clothed but in the
context in which it is used and the purpose it seeks
to serve. The meaning has to be ascribed to the
word "shall" as mandatory or as directory,
accordingly. Equally, it is settled law that when a
statute is passed for the purpose of enabling the
doing of something and prescribes the formalities
which are to be attended for the purpose, those
prescribed formalities which are essential to the
validity of such thing would be mandatory.
However, if by holding them to be mandatory,
serious general inconvenience is caused to innocent
persons or general public, without very much
furthering the object of the Act, the same would be
construed as directory."
Sriniwas Ramnath Khatod v. State of Maharashtra,
2001 AIR SCW 4799. Para 9 of the report reads thus :
"9. In support of this submission reliance was
placed upon the case of Eugenio Misquita v. State of
Goa reported in (1997) 8 SCC 47. In this case it was
inter alia held as follows :-
"7. It is now well settled that the last of
the dates in the series of the publications made
under Section 4(1) of the Act is the relevant
date to reckon the starting point of limitation
for the purpose of proviso to Section 6(1)(ii).
Now, the question is which is the relevant date
to reckon the last date for the purpose of clause
(ii) of the first proviso to Section 6(1). In other
words, whether the modes of publication
prescribed under Section 6(2) obviously for the
purpose of reckoning limitation under Section
11-A of the Act have any part to play in the
matter of computing the period prescribed
under clause (ii) of the first proviso to Section
6(1).
xxx xxx xxx
xxx xxx xxx
17. In the light of the law laid down by this
Court, we have no hesitation to hold that the
declaration published under Section 6 of the Act
was well within one year and the challenge to
the same has been rightly rejected by the High
Court. However the view taken in the judgment
of the High Court under appeal that the
relevant date for reckoning the period of
limitation will be the date of making of the
declaration under Section 6, may not be
correct. As held in Krishi Utpadan Mandi
Samity case [(1995) 2 SCC 497] mere making of
declaration is not enough. The making of
declaration under Section 6 is complete for the
purpose of clauses (i) and (ii) of the proviso to
Section 6(1) when it is published in the Official
Gazette."
Relying heavily on the above observations it has
been submitted that this Court has already held that
the relevant date for reckoning of limitation is not the
date of making of the declaration under section 6. It
is submitted that this Court has held that a
declaration under Section 6 is complete only when it
is published in the Official Gazette."
Sooraram Pratap Reddy v. District Collector, Ranga
Reddy, (2008) 9 SCC 552.
The Apex Court in this case dealt with issue of eminent
domain, existence of public purpose. Paragraphs 115 and
117 of the report read thus:
"115. Reference was also made to Pratibha Nema
v. State of M.P. There, a piece of dry land of the
appellants and others was notified for acquisition
under Section 4 of the Act for public purpose,
namely, for establishment of Diamond Park. The
acquisition was challenged on the ground that it
was not for public purpose but was meant only to
benefit a company and its associates, and as such it
was in colourable exercise of power and ultra vires
the Act. Referring to earlier decisions of this Court
and drawing distinction between acquisition by the
State for "public purpose" covered by Part II and
acquisition for a "company" under Part VII, the
Court stated :
"22. Thus the distinction between public
purpose acquisition and Part VII acquisition has
got blurred under the impact of judicial
interpretation of relevant provisions. The main
and perhaps the decisive distinction lies in the fact
whether the cost of acquisition comes out of public
funds wholly or partly. Here again, even a token or
nominal contribution by the Government was held
to be sufficient compliance with the second
proviso to Section 6 as held in a catena of
decisions. The net result is that by contributing
even a trifling sum, the character and pattern of
acquisition could be changed by the Government.
In ultimate analysis, what is considered to be an
acquisition for facilitating the setting up of an
industry in the private sector could get imbued
with the character of public purpose acquisition if
only the Government comes forward to sanction
the payment of a nominal sum towards
compensation. In the present state of law, that
seems to be the real position" (emphasis supplied).
116. ........
117. The counsel for the appellants referred to
Amarnath Ashram Trust Society v. Governor of U.P.
In that case, land was sought to be acquired for
playground for students of Amarnath Vidya Ashram
(Public School), Mathura. Notification under Section
4 of the act was issued stating that the land was to
be acquired for "public purpose". The landowner
challenged the acquisition contending that the land
was acquired for a society and since procedure
prescribed in Part VII was not followed, the
acquisition was bad in law. Upholding the contention,
quashing the proceedings and referring to Pandit
Jhandu Lal this Court observed:
"6. It is now well established that if the
cost of acquisition is borne either wholly or partly
by the Government, the acquisition can be said to
be for a public purpose within the meaning of the
Act. But if the cost is entirely borne by the
company then it is an acquisition for a company
under Part VII of the Act. .... Admittedly, in the
present case the entire cost of acquisition is to be
borne by the appellant Society and, therefore, it is
an acquisition for a company and not for a public
purpose. That is also borne out by the notification
issued under Section 6 of the Act which states 'that
the land mentioned in the schedule below is
needed for the construction of playground for
students of Amar Nath Vidya Ashram (Public
School), Mathura in District Mathura by the Amar
Nath Ashram Trust, Mathura'. Therefore, simply
because in the notification issue under Section 4 of
the Act it was stated that the land was needed for a
public purpose, namely, for a playground for
students of Amar Nath Vidya Ashram (Public
School), Mathura, it cannot be said that the
acquisition is for a public purpose and not under
Chapter [Part] VII for the appellant Society in view
of subsequent events and the declaration made
under Section 6." (emphasis supplied."
Urmila Roy v. Bengal Peerless Housing Development
Company Ltd. (2009) 5 SCC 242.
Bihar State Housing Board v. State of Bihar, 2003 AIR
SCW 4372.
State of T.N. v. Mahalakshmi Ammal, AIR 1996 SC
866. Paragraph 9 of this judgment reads thus :
"9. It is well settled law that publication of the
declaration under Section 6 gives conclusiveness to
public purpose. Award was made on September 26,
1986 and for survey No.2/11 award was made on
August 31, 1990. Possession having already been
undertaken on November 24, 1986, it stands vested
in the State under Section 16 of the act free from
all encumbrances and thereby the Government
acquired absolute title to the land. The initial award
having been made within two years under Section
11 of the Act, the fact that subsequent award was
made on 31st August, 1990 does not render the
initial award invalid. It is also to be seen that there
is stay of dispossession. Once there is stay of
dispossession, all further proceedings necessarily
could not be proceeded with as laid down by this
Court. Therefore, the limitation also does not stand
as an impediment as provided in the proviso to
Section 11A of the Act. Equally, even if there is an
irregularity in service of notice under Sections 9
and 10, it would be a curable irregularity and on
account thereof, award made under Section 11 does
not become invalid. Award is only an offer on
behalf of the State. If compensation was accepted
without protest, it binds such party but subject to
Section 28A. Possession of the acquired land would
be taken only by way of memorandum,
Panchanama, which is a legally accepted norm. It
would no be possible to take any physical
possession. Therefore, subsequent continuation, if
any, had by the erstwhile owner is only illegal or
unlawful possession which does not bind the
Government nor vested (sic) under Section 16
divested in the illegal occupant. Considered from
this perspective, we hold that the High Court was
not justified in interfering with the award."
Nasik Municipal Corporation v. Harbanslal Laikwant
Rajpal, AIR 1997 SC 1701. Paragraph 5 of the judgment
reads thus :
"5. It is then contended by Mr. U.R. Lalit that the
respondents had not been given the information of
the notification under Section 9 of the Land
Acquisition Act. Therefore, the award is bad in law.
We find no force in the contention. In the absence of
notice or failure to serve notice, the award does not
become invalid. Due to the fact that immediately
after the award and before the publication of the
award, the writ petition came to be filed on
September 25, 1980, we direct the appellants to
make an application within six weeks under Section
18(1) of the Land Acquisition Act seeking reference.
The Land Acquisition Officer is directed to refer the
matter to the competent Civil Court for disposal
within two months according to law."
We have perused the judgments cited before us by the
learned counsel appearing for the contesting parties.
45) It has been brought to our notice that under the
Gazette of India a Notification was published on 14th
March 1974 which read as under :
" MINISTRY OF PETROLEUM AND CHEMICALS
NOTIFICATION
New Delhi, the 14th March 1974
G.S.R. 131(E).-- In exercise of the powers conferred
by sub-section (1) of section 7 of the Esso
(Acquisition of Undertakings in India), Act, 1974 (4
of 1974) the Central Government being satisfied
that Esso Standard Refining Company of India
Limited, a Government Company, is willing to
comply with the terms and conditions imposed by
the Central Government, hereby directs that the
right, title and interest and the liabilities of Esso
Eastern Inc., in relation to its undertakings in India,
shall, instead of continuing to vest in the Central
Government, vest, with effect from the 15th day of
March, 1974, in Esso Standard Refining Company
of India Limited.
[No.F.21/48/72-IOC-Vol.II]
S.M.H. Burney, Addl.Secy."
46) We find that there existed public purpose for
acquisition of the land and, therefore, in absence of serious
prejudice caused to the petitioner, the acquisition
proceedings could not be said to have been vitiated.
47) After perusing the record and considering the
pleadings and the submissions advanced on behalf of the
contesting parties we are of the view that no interference
is warranted in exercise of extraordinary writ jurisdiction
under Article 226 of the Constitution of India.
48) The writ petition is dismissed. Rule is
discharged. No order as to costs.
Sd/- Sd/-
(K.K. TATED, J.) ig (NARESH H PATIL, J.)
rsl/ wp.3555
