Both Are Residing At Gat No.113/13 ... vs 5] The Sub Divisional Officer
2013 Latest Caselaw 256 Bom

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           IN THE HIGH COURT OF JUDICATURE OF BOMBAY




                                                                 
                      BENCH AT AURANGABAD
                 WRIT PETITION NO.6366 of 2009




                                         
     1] Bhausaheb s/o. Murlidhar Gondkar
        Age 59 years, Occ. Agriculture.

     2] Raosaheb s/o. Murlidhar Gondkar,
        Age 57 years, Occ. Agriculture




                                        
     Both are residing at Gat No.113/13 situated
     at Shirdi, Tq. Rahata, Dist. Ahmednagar. 
                                 
                                            Petitioners




                             
         Versus   
     1] The State of Maharashtra
        Through its Secretary,
                 
        Urban Development Department,
        Mantralaya, Mumbai-32.

     2] The Director of Town Planning.
        Maharashtra State, Pune.
      


     3] The Assistant Director of Town Planning
   



        Maharashtra State, Nasik.

     4] The Nagar Panchayat Shirdi
        (through its Chief Officer) Shirdi,
        Taluka Rahata, Dist. Ahmednagar.





     5] The Sub Divisional Officer, Shrirampur,
        Taluka Shrirampur,
        District Ahmednagar.
                                            Respondents





     Mr. S.B. Talekar, Advocate with
     Mr. K.M. Nagarkar, Advocate for petitioners
     Mr. S.V. Kurundkar, Govt. Pleader for respondents Nos. 
     1,3 and 5
     Mr. V.D. Hon, Advocate for respondent No.4.

              WITH WRIT PETITION NO. 9133 OF 2013

     1] Sau. Sanjivani w/o. Dashrath Mahambre,




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       Age 52 years, Occ. Business.




                                                                  
     2] Rajni w/o. Vishwas Joglekar,
        Age 55 years. Occ.




                                          
     3] Soniya w/o. Devidas Patil,
        Age 48 years, Occ. 
     All R/o. Shirdi, Tq. Rahata,
     District Ahmednagar.




                                         
                                                   ..Petitioners

          versus
     1] The State of Maharashtra




                              
        Through its Secretary,
        Urban Development Department,
                  
        Mantralaya, Mumbai-32.

     2] The Director of Town Planning.
                 
        Maharashtra State, Pune.

     3] The Assistant Director of Town Planning
        Maharashtra State, Nasik.
      

     4] The Nagar Panchayat Shirdi
        (through its Chief Officer) Shirdi,
   



        Taluka Rahata, Dist. Ahmednagar.

     5] The Sub Divisional Officer, Shrirampur,
        Taluka Shrirampur,
        District Ahmednagar.





     6] Sub-Divisional Officer, Shirdi,
     Tq. Rahata, Dist. Ahmednagar.

     7] The Collector, Ahmednagar





     District Ahmednagar.

     Mr. Sanket S. Kulkarni, advocate for the Petitioner.
     Mr. S.K. Kadam, AGP for respondent Nos. 1 to 3 and 5 
     to 7,
     Mr. V.D. Hon,  advocate for the Respondent No.4.

                        ----
      




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                             CORAM : A.H. JOSHI &




                                                                       
                                    RAVINDRA V. GHUGE, JJ.

RESERVED ON : 22ND NOVEMBER, 2013. PRONOUNCED ON : 3rd DECEMBER, 2013

ORAL JUDGMENT [ PER A.H. JOSHI,J] :-

1] Rule. Rule made returnable forthwith. Heard

finally by consent of parties.

2] Facts involved in the case are not disputed.

Case pertains to a dispute as regards acquisition of

land done for the purpose of development plan of

Shirdi Town. The draft development plan of Shirdi

town was proposed, duly notified and was finalized

after hearing all objections. The Final development

plan was notified in official Gazette. The

petitioners confirm these facts in the body of the

writ petitions.

3] Writ petition No.6366 of 2009 was filed on

28.9.2009. During pendency of the petition, the land

acquisition proceedings were completed. It is not in

dispute that in furtherance to notice dated 1.3.2008,

under Sections 9 (3) and 9(4) of the Land Acquisition

Act, the writ petitioners had objected to the land

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acquisition, stating that the objections raised by the

petitioners before the Honourable Minister thereby

praying for deletion of their lands from the

acquisition, is pending. Petitioners in Writ Petition

No. 6366 of 2009 refrain from furnishing their claims

relating to compensation.

4] The dates and events supplied by the

petitioners are summarized for convenience as

follows :-

[A] WRIT PETITION NO.6366 OF 2009

Bhausaheb Murlidhar Gondkar and others

Versus The State of Maharashtra and others

Sr Date Particulars of events

.

1 15.12.1992 The Development Plan of Shirdi Municipal Council was finalized

and approved by the Government of Maharashtra and the same was published in the Government Gazette.

2 25.2.1993 The Development Plan of Shirdi Municipal Council came into

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force.

3 15.12.1992 Two ring roads were shown in the sanctioned Development Plan.

4 1980 Father of the petitioners had constructed a residential house in the agricultural land owned

by him before commencement of Development Plan.

5 21.2.2008 Collector, Ahmednagar published

a notification under section ig 126(4) of the MRTP Act, 1966 read with Section 6 of the Land

Acquisition Act, 1894 for the purpose of acquisition of land for construction of internal

ring road.

6 Immediately after petitioners

came to know about the notification for initiation of

acquisition proceedings, petitioners approached the Secretary to Government, Urban Development Department and

prayed for modifications in the Development Plan.

The petitioners requested to delete internal ring road from the Development Plan since the

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same was no longer necessary.

7 16.4.2008 The Minister of State for Urban Development called meeting in

7.5.2008 his chamber and the same was adjourned. All the concerned officers were directed to remain

present on 7.5.2008 in the chamber of Hon'ble Minister of State for Urban Development

ig along with record.

The meeting was held in the 7A 7.5.2008 chamber of Honourable Minister.

8 21.6.2008 The Desk Officer to Government, Urban Development Department

circulated the minutes of the

meeting held on 7.5.2008 seeking comments as regards the changed alignment of 18 m wide internal

ring road.

9 16.6.2008 The request of the petitioners for deleting internal ring road from the Development Plan was

turned down.

10 21.7.2008 The petitioners approached the Hon'ble for Urban Development Department and requested to call for report from the concerned

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authorities.

11 10.7.2008 Meanwhile, the Desk Officer to Government, Urban Development

Department has called all concerned for spot inspection report changing the alignment of

the internal ring road.

12 1.3.2008 Meanwhile, the Sub Divisional Officer, Shrirampur has issued

notices under Section 9(3)(4) of ig the Land Acquisition Act on 1.3.2008.

13 12.3.2008 Petitioners have submitted an objection to the construction of internal ring road pursuant to

the notice, urging that petitioners' representation

against acquisition was pending before Honourable Minister.

[B] WRIT PETITION NO.9133 OF 2013

Sau. Sanjivani Dashrath Mahambre and others Versus

The State of Maharashtra and others

Sr. Date Particulars of events 1 1926 The petitioners' father was residing in Shirdi since 1926. The

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petitioners' father owner of various

lands in Shirdi and was devotee of "Shri Saibaba". Almost 25 Acres of

land owned by petitioner's father from Shirdi Town has been acquired

from time to time for various public purposes.

2 ... Except petitioners Residential House and Place of Business almost entire

lands belonging to petitioners have

been acquired by Government for various public purposes.

3. ... The petitioners are owner of land Gut Nos.148/1 situated at Shirdi, Tq. Rahata, District Ahmednagar

which is adm. 05 Hector & 02 Gs.

4. ... Out of the above land 04 Hector & 86

Rs. land is sought to be acquired for "Dharma Shala" and other

purpose.

5 29.4.2002 The said acquisition is stayed by this Hon'ble High Court by way of Writ Petition No.390/2002 by an

order dt.29.4.2002.

6 ... Thereafter, out of the same land 03 Rs. land is acquired for the purpose of construction of road.

7 21.2.2008 The notification is published in daily "Nagar Times" for acquisition

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of 27 Ares land out of Gut No.148/1

situated at Shirdi, Tq. Rahata, District Ahmednagar.

8 2011 The petitioners have filed a Writ Petition No.6953/2011 challenging the said acquisition.

9 13.9.2011 This Hon'ble High Court has by way of ad-interim orders directed the parties to maintain status-quo.

10 15.10.201 The petitioners have withdrawn the

petition with a liberty to file a fresh Writ Petition.

11 ... The petitioners own 05.02 Hectors of land and by way of different acquisitions 5.04 Hectares land is

sought to be acquired.

5] During the pendency of the writ petitions,

the Land Acquisition Officer had declared the award on

30th August, 2011.

6] Recently by amending the petition, the

petitioners have incorporated challenge to the said

award.

7] Petitioners in these two petitions, take

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serious exception to the scheme of law as in vogue in

the form of Section 126(2)(3)(4) of the Maharashtra

Regional and Town Planning Act, 1960, as can be seen

from the amended pleadings as well as their notes of

arguments.

8] The exception is on the plea that said

provisions militate against the constitutional

guarantee of Article 14 r/w. Constitutional direction

under Article 300A of the Constitution of India.

9] Writ petitions are opposed by the

respondents on the grounds as follows :-

[A] ON FACTS :-

[a] That the acquisition is for the purpose

of development of ring road;

[b] Shirdi town is on world map and has

become extremely crowded;

[c] To avoid load of traffic and for

maintenance of law and order, it is necessary to

have the traffic diverted;

[d] The entire land merging into ring road

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which is under the Development Plan Road is

acquired;

[e] All lands except those owned by the

petitioners are converted into development plan

road - ring road.

[f] Part of the land under acquisition

subject matter of challenge, is also acquired and

only part thereof, covered by certain contractors

has remained to be taken in possession.

[g] In view of the existing road under the

affected area, bottlenecks in the traffic are

created and it is necessary to dismiss the

petitions and let the work of ring road be

completed in larger public interest.

[h] Process of hearing and opportunity was

available to the petitioners at the time of

conversion of Draft Development Plan into final

plan.

[i] Petitioners were again heard at the time

of notice under Section 9 of the Land Acquisition

Act.

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{B} OBJECTIONS ON THE POINT OF LAW :-

[a] Challenge to Section 126 of MRTP Act, on

the ground that it militates against the

constitutional guarantee is no more res-integra.

It has attained finality and petitions deserve

dismissal.

[b] For considering the challenge contained

in the petitions, it is necessary to advert to

the grounds as averred in the petition as well as

submissions advanced at Bar.

10] This court shall not denote the grounds

averred in the petition and those furnished by way of

synoptic notes, as verbose, nevertheless, it would be

possible to condense those submissions, which are

condensed as follows :-

[a] The Land Acquisition Act, is the

parent and/or principal legislation authorizing

acquisition of land for public purpose;

[b] The MRTP Act has its main objective

of orderly development of towns, regions, roads

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and various other purposes.

[c] Acquisition of land is a device and

not the object of the MRTP Act.

[d] The device of acquisition is

available under the Land Acquisition Act;

[e] The provisions under the Land

Acquisition Act, which confer on the owners of

the land, a beneficial right have to be

respected;

[f] Acquisition by taking recourse to

Land Acquisition Act would be thus be available

to the State and hence, authority of the State to

acquire land will continue to remain accessible

through provisions of the Land Acquisition Act

and rights of the citizen will also be protected;

[g] Therefore, the scheme of Land

Acquisition Act, through Section 11A and other

provisions, will be deemed to be bodily

incorporated under Section 2 of the MRTP Act,

lest, Sections 126(2)(3)(4) will have to be

declared ultravires and will have to be struck

down;

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11] RELIANCE ON PRECEDENTS :-

Learned Advocate for the petitioners, has

placed reliance on the following judgments :-

[1] Nagpur Improvement Trust and others Vs.

Vitthalrao and others. (1973) 1 SCC 500;

[2] District Registrar and Collector, Hyderabad and Another Vs. Canara Bank and others.

(2005)1 SCC 496;

[3] The Solapur Promoters and Builders Association Society and another Vs. State of Maharashtra and others. 2005(4) ALL MR 484;

[4] Director General of Doordarshan and others Vs. Anand Patwardhan and others. (2006)8 SCC 433.

[5] Municipal Committee Patiala Vs. Model

Town Residents Association and others. (2007) 8 SCC 669.

[6] Anuj Garg Vs. Hotel Ass of India. (2008)

3 SCC 1.

[7] Girnar Traders Vs. State of Maharashtra and others. (2011) 3 SCC 1.

[8] Andhrpradesh Dairy Development

Corporation Federation Vs. B. Narasimha Reddy and others. (2011) 9 SCC 286.

[9] Shri Navendra Kumal Vs. Union of India and another" W.A. No. 119 of 2008, decided on 6.11.2013 by Guahati High Court.

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12] Based on all these judgments, the

petitioners advanced submissions as follows :-

[a] The Constitution Bench, delivering the

judgment in "Girnar Traders Vs. State of Maharashtra

and others" reported in (2011)3 SCC 1", (hereinafter

referred to as, "Girnar Traders (3)" for sake of

brevity) does not lay down a correct law.

[b] While deciding the said case, the Full Bench

of the Honourable Supreme Court has considered and

distinguished the reported judgment in the case of

"NIT vs. Vitthalrao and others" (supra), the said case

of NIT is not correctly distinguished and hence, the

said judgment of Full Bench in Girnar Traders (3), is

per-incurium.

[c] It is still open for this court in exercise

of jurisdiction under Article 226 of the Constitution

of India to hold and declare that Section 126 of the

MRTP Act is ultra-vires the constitution.

13] It is not necessary on facts of the case,

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and in view of the legal position, as to whether it is

open to the court to examine the legality and

constitutional validity of law, in the background that

some time in the past, it was examined by this court.

14] Learned Government Pleader appearing for the

State has urged that all submissions canvassed by the

learned Advocate for the petitioners do not carry any

substance. The Judgment of the Honourable Supreme

Court in "NIT vs. Vitthalrao and another", is fully

considered and distinguished by the Honourable Supreme

Court in Girnar Traders (3) case, and the challenges

have no merit.

15] The limited question, which arises for

consideration in the light of the legal position, as

it has emerged from "Girnar Traders (3)", is as

follows :-

Is the question of applicability of Land Acquisition Act, to the provisions of the MRTP Act, as a superior or parent legislation, open for adjudication and ruling by this court ? OR

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Whether the question of constitutional validity

of Section 126 of the MRTP Act, open for scrutiny?

16] It shall suffice if this court looks into

precedents, namely , "NIT Vs. Vitthalrao and another"

and "Girnar Traders (3)", referred to supra.

17] It is seen from reading of "NIT Vs.

Vitthalrao", that various amendments to NIT Act,

intended to amend various provisions of the Land

Acquisition Act. Those amendments were challenged on

the ground that they militate against the beneficial

provisions contained in the Land Acquisition Act,

which provided for acquisition of land in favour of

the NIT and prescribed for payment of solatium lesser

than the amount payable under the Land Acquisition Act

when acquisition is done for the purpose of NIT.

The Honourable Supreme Court in "NIT vs.

Vitthalrao" supra held that, those amendments resulted

in carving out NIT as a separate acquiring body and as

a class, for various reasons recorded in the said

judgment, and taking away all beneficial provisions

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contained in the Land Acquisition Act, while the land

was being acquired for NIT, were held to be ultra-

vires.

18] The Honourable Supreme Court considered the

entire scheme of the Land Acquisition Act and compared

those provisions with the provisions pertaining to

acquisition for the purpose and under the MRTP Act.

19] In these premises, the Supreme Court ruled

with full exposition of the scheme of the MRTP Act

that the scheme of Section 126, dispensed with the

stages and in particular, stage of Sections 4 and 5A

of the Land Acquisition Act. In para.39 it is held

that MRTP is a complete Code in itself and reference

to provisions of the Land Acquisition Act was, for the

purpose of determination of payment of compensation

and reference was only for that limited purpose.

(para.84,85 and 86 of Girnar Traders (3) case.)

20] This exercise is done, in para.67 onwards in

the judgment in the case of "Girnar Traders (3)", and

after threadbare scrutiny, the Honourable Supreme

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Court has arrived at conclusions, namely, the MRTP

Act, was a complete code in itself. The entire purpose

and object of providing for power to acquire and its

procedure, was governed by the Land Acquisition Act,

while, the whole perspective of MRTP Act and its

objective, was to have a proper and orderly

development of townships and providing for its method,

modalities etc. and only the aspect of procedural

matter, as to how to pass award, was drawn from the

provisions of the Land Acquisition Act.

21] Section 11A of the Land Acquisition Act was

not applicable ( para.145,145 and 191 of Girnar

Traders (3) case).

22] With the above discussion, this court has to

conclude the question as to desirability and or

mandatory nature of provisions of Land Acquisition Act

for implementation of scheme under the MRTP Act, as

operating through Section 126, is no more open.

23] The challenge now before us is not open for

any further scrutiny before this Court by virtue of

binding nature of the dictum contained in Girnar

Traders (3) case, as a rule of precedent.

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The petitioners' contention suggesting that

"NIT Vs. Vithhalrao" is not properly considered and

thereby Girnar Traders (3) is per-incurium, is bold,

ingenious, and courageous submission than based on

reality. That the judgment in the case of Girnar

Traders (3), does not hold the cause espoused by the

petitioners. It is another thing that the said

judgment being available for criticism before the High

court, which is bound by law of precedents.

24] Considering the facts and law, as falls

for consideration before this court, we hold that the

issue as to constitutional validity of Section 126(2)

(3) and (4) of the MRTP Act, has to be answered in the

negative. All other prayers are consequential. Since

the first prayer fails, all other prayers do fail.

25] In the result, writ petitions are dismissed

with costs. Rule is discharged.

      
            [RAVINDRA V. GHUGE]             [A.H. JOSHI]
                   JUDGE                        JUDGE
     grt/