Bombay High Court
Rambhau Mahadeorao Tembhurkar ... vs State Of Maharashtra Through The ... on 12 August, 2015
Bench: V.A. Naik
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
Writ Petition No.6688 of 2014
with
Writ Petition No.952 of 2015
with
Writ Petition No.2047 of 2015
with
Writ Petition No.2050 of 2015
with
Writ Petition No.2519 of 2015
(1) Writ Petition No.6688 of 2014 :
1. Rambhau Mahadeorao Tembhurkar,
since dead, through LRs.:
i)
Smt. Shantabai wd/o Rambhau Tembhurkar,
Aged about 72 years,
Occupation - Agriculturist.
ii) Baba Rambhau Tembhurkar,
Aged about 43 years, Occ. Agriculturist.
iii) Kawdu Rambhau Tembhurkar,
Aged about 36 years,
Occupation - Agriculturist.
2. Rambhau Shyamrao Kawale,
Dead, through LRs.:
i) Smt. Kamubai Rambhau Kawle,
Aged about 65 years,
Occupation - Agriculturist.
ii) Sunil Rambhau Kawale,
Aged about 32 years,
Occupation - Agriculturist.
iii) Yogesh Rambhau Kawale,
Aged about 29 years,
Occupation - Agriculturist.
3. Smt. Kalabai w/o Pandurang Shrikhande,
Aged about 70 years,
Occupation - Agriculturist.
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4. Shankar Pandurang Shrikhande,
Aged about 43 years,
Occupation - Agriculturist.
5. Vishwanath Gadi Thakre,
Aged about 73 years,
Occupation - Agriculturist.
6. Madho Gadi Thakre,
Aged about 68 years,
Occupation - Agriculturist.
7. Keshaorao Upasrao Chinchulkar,
Aged about 72 years,
Occupation - Agriculturist.
8. Bala Vithoba Kakde,
Aged about 72 years,
Occupation - Agriculturist.
9. Pandurang Upasrao Shrikhande,
Aged about 74 years,
Occupation - Agriculturist.
10. Deorao Sitaram Bajait,
Aged about 60 years,
Occupation - Agriculturist.
11. Vitthal Sitaram Bajait,
Aged about 46 years,
Occupation - Agriculturist.
12. Ramkrishna Sitaram Bajait,
Aged about 46 years,
Occupation - Agriculturist.
13. Balkrishna Narayan Parteki,
Aged about 72 years,
Occupation - Agriculturist.
14. Devikabai Ganpatrao Warkhade,
Aged about 70 years,
Occupation - Aghriculturist.
15. Nabhu Ganpatrao Warkhade,
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Aged about 48 years,
Occupation - Agriculturist.
16. Dilip Ganparao Warkhade,
Aged about 40 years,
Occupation - Agriculturist.
All petitioners R/o At post Takalghat,
Tah. Hingna, Dist. Nagpur. ... Petitioners
Versus
1. State of Maharashtra,
through the Collector, Nagpur.
2. The Deputy Collector & The Special Land
Acquisition Officer (General), Nagpur.
3. Maharashtra Industrial Development
Corporation, through its Regional
Manager,
5th Floor, Civil Lines, Regional Office,
Nagpur. ... Respondents
Shri V.P. Maldhure, Advocate for Petitioners.
Shri Rohit Deo, Associate Advocate General, with Shri N.R.
Patil, Assistant Government Pleader for Respondent Nos.1
and 2.
Shri M.M. Agnihotri, Advocate for Respondent No.3.
(2) Writ Petition No.952 of 2015 :
1. Pandurang s/o Maroti Pund,
Aged 65 years,
Occupation - Agriculturist.
2. Walmik s/o Vishwanath Rokade,
Aged 64 years,
Occupation - Agriculturist.
3. Vasant s/o Shyamrao Dakhole,
Aged 58 years,
Occupation - Agriculturist.
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4. Smt. Shalini w/o Ramdas Ghode,
Aged 45 years,
Occupation - Household.
5. Vijay s/o Rambhau Ragit,
Aged 48 years,
Occupation - Agriculturist.
6. Chandramohan s/o Bajirao Markam,
Aged 35 years,
Occupation - Agriculturist.
7. Smt. Sita w/o Rambhau Awachat,
Aged 62 years,
Occupation - Household.
8. Kishor s/o Pundlik Daburkar,
Aged 45 years,
Occupation - Agriculturist.
9. Smt. Sharja w/o Shriram Waghade,
Aged 48 years,
Occupation - Household.
10. Mahadeo s/o Namdeo Lakhe,
Aged 66 years,
Occupation - Agriculturist.
All R/o Takalghat, Tah. Hingna,
Dist. Nagpur. ... Petitioners
Versus
1. The State of Maharashtra,
through Special Land Acquisition
Officer (General),
Civil Lines, Nagpur.
2. The Maharashtra Industrial
Development Corporation,
through its Divisional Officer,
Udhyog Bhavan, Civil Lines,
Nagpur. ... Respondents
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Smt. Rajkumari Rai, Advocate for Petitioners.
Shri Rohit Deo, Associate Advocate General, with Shri N.R.
Patil, Assistant Government Pleader for Respondent No.1.
Shri M.M. Agnihotri, Advocate for Respondent No.3.
(3) Writ Petition No.2047 of 2015 :
1. Suresh Radheshyam Paliwal,
Aged about 57 years,
Occupation - Agriculturist,
R/o Butibori, Tah. & Dist. Nagpur.
2. Atmaram Laoxman Sahare (Dead),
through Shrawan Attmaram Sahare,
Aged about 40 years,
Occupation - Agriculturist,
R/o Butibori, Tah. & Dist. Nagpur.
3. Sheikh Abdul Hafeez Babbu Mia alias
Babbu Bhai Mohammad Sheikh,
Aged about 72 years,
Occupation - Agriculturist,
R/o Butibori, Tah. & Dist. Nagpur.
4. Shriram Shrawan Khante,
Aged about 62 years,
Occupation - Agriculturist,
R/o Butibori, Tah. & Dist. Nagpur.
5. Raju Sitaram Sakhare,
Aged about 48 years,
Occupation - Agriculturist,
R/o Butibori, Tah. & Dist. Nagpur.
6. Tukaram Hariram Ghume,
Aged about 62 years,
Occupation - Agriculturist,
R/o Butibori, Tah. & Dist. Nagpur.
7. Arun Sampatrao Kolhe,
Aged about 67 years,
Occupation - Agriculturist,
R/o Butibori, Tah. & Dist. Nagpur. ... Petitioners
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Versus
1. State of Maharashtra,
through Collector, Nagpur.
2. Deputy Collector & The Special Land
Acquisition Officer (General),
Nagpur.
3. Maharashtra Industrial Development
Corporation, through its Regional Manager,
5th Floor, Civil Lines, Regional Office,
Nagpur. ... Respondents
Shri V.P. Maldhure, Advocate for Petitioners.
Shri Rohit Deo, Associate Advocate General, with Shri N.R.
Patil, Assistant Government Pleader for Respondent Nos.1
and 2.
Shri M.M. Agnihotri, Advocate for Respondent No.3.
(4) Writ Petition No.2050 of 2015 :
1. Dilip Shyamrao Nagpure,
Aged about 55 years,
Occupation - Agriculturist,
R/o Rengapur, Tah. Hingna,
District Nagpur.
2(i). Rajendra Yadavrao Ambatkar,
Aged about 48 years,
Occupation - Agriculturist.
2(ii). Narendra Yadavrao Ambatkar,
Aged about 53 years,
Occupation - Agriculturist.
2(iii) Shankarrao Ramaji Ambatkar,
Aged about 65 years,
Occupation - Agriculturist.
2(iv) Ashok Ramaji Ambatkar,
Aged about 62 years,
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Occupation - Agriculturist.
Nos.2(i) to 2(iv) R/o Butibori,
Tah. & Dist. Nagpur.
3. Smt. Shalini wd/o Maraotrao Kolhe,
Aged about 45 years,
Occupation - Nil,
R/o Butibori, Tah. & Dist. Nagpur.
4(i). Narhari Dattatraya Buit,
Aged about 69 years.
4(ii) Rajendra Dattatraya Buit,
Aged about 55 years.
Nos.4(i) & (ii) R/o Dhanashree Apartment,
Dharampeth, Nagpur.
5(i). Keshavrao Maroti Kolhe,
Aged about 71 years,
Occupation - Agriculturst.
5(ii). Smt. Maltibai wd/o Madhaorao Kolhe (Dead),
through Ravindra Madhaorao Kolhe,
Aged about 36 years,
Occupation - Agriculturist.
5(iii).Smt. Vastalabai wd/o Pandurang Kolhe,
Aged about 42 years,
Occupation - Agriculturist.
5(iv).Suresh Maroti Kolhe,
Aged about 55 years,
Occupation - Agriculturist.
5(v). Ramesh Maroti Kolhe,
Aged about 58 years,
Occupation - Agriculturist.
Nos.5(i) to 5(v) all R/o Butibori,
Tah. & Dist. Nagpur.
6(i). Smt. Satyafulabai wd/o Rambhau Kapse,
Aged about 75 years,
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Occupation - Agriculturist.
6(ii). Vishnu Rambhau Kapse,
Aged about 45 years,
Occupation - Agriculturist.
Nos.6(i) & (ii) R/o Butiboti, Ward No.3,
Nagpur.
7(i). Keshavrao Marotrao Kolhe,
Aged about 72 years,
Occupation - Agriculturist.
7(ii). Rameshrao Marotrao Kolhe,
Aged about 58 years,
Occupation - Agriculturist.
Nos.7(i) & (ii) R/o Radhakrupa Square,
Ramnagar, Wardha.
8. Smt. Maltibai wd/o Madhaorao Kolhe (Dead),
through Ravindra Madhaorao Kolhe,
Aged about 36 years,
Occupation - Agriculturist,
R/o Butibori, Nagpur.
9(i). Ikram Kamalbhai Sheikh,
Aged about 45 years,
Occupation - Agriculturist.
9(ii). Ijaaja Kamalbhai Sheikh,
Aged about 42 years,
Occupation - Agriculturist.
Both R/o Butibori, Tah. & Dist. Nagpur. ... Petitioners
Versus
1. State of Maharashtra,
through the Collector, Nagpur.
2. The Deputy Collector & The Special
Land Acquisition Officer (General),
Nagpur.
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3. The Maharashtra Industrial Development
Corporation,
through its Regional Manager,
5th Floor, Civil Lines,
Regional Office, Nagpur. ... Respondents
Shri V.P. Maldhure, Advocate for Petitioners.
Shri Rohit Deo, Associate Advocate General, with Shri N.R.
Patil, Assistant Government Pleader for Respondent Nos.1
and 2.
Shri M.M. Agnihotri, Advocate for Respondent No.3.
(5) Writ Petition No.2519 of 2015 :
1. Balak Jaganrao Bhagat,
Aged about 44 years,
Occupation - Nil,
R/o Takalghat, Tq. Hingna,
Distt. Nagpur.
2. Kaushalyabai w/o Mahadeo Choudhari,
Aged about 66 years,
Occupation - Nil,
R/o 38, Dhankodi Nagar,
Pipla Road, Nagpur.
3. Surendra s/o Chintaman Gadghate,
Aged about 45 years,
Occupation - Service,
R/o Takalghat, Tq. Hingna,
Distt. Nagpur.
4. Moreshwar s/o Laxman Jiwane,
Aged about 58 years,
Occupation - Service,
R/o Takalghat,
Tq. Hingna, Distt. Nagpur.
5. Prakash s/o Sadashiv Bhagat,
Aged about 40 years,
Occupation - Nil,
R/o Takalghat, Tq. Hingna,
Distt. Nagpur.
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6. Smt. Anusayabai Ramdas Shelkar,
Aged about years,
Occ.
R/o 13-A, Vishwakarma Nagar,
District Nagpur. ... Petitioners
Versus
1. The State of Maharashtra,
through its Secretary for Revenue and
Forest Department, Mangralaya,
Mumbai.
2. The Collector and The Land Acquisition
Officer (General), Nagpur.
3. Regional Officer,
Maharashtra Industrial Development
Corporation, Udyog Bhawan,
5th Floor, Civil Lines, Nagpur. ... Respondents
Shri S.A. Marathe, Advocate for Petitioners.
Shri Rohit Deo, Associate Advocate General, with Shri N.R.
Patil, Assistant Government Pleader for Respondent Nos.1
and 2.
Shri M.M. Agnihotri, Advocate for Respondent No.3.
Coram : Smt. Vasanti A. Naik &
A.M. Badar, JJ.
Date : 12th August, 2015
Oral Judgment (Per Smt. Vasanti A. Naik, J.) :
Since the question whether the provisions of
Section 28-A of the Land Acquisition Act, 1894 would apply
to the acquisitions under the Maharashtra Industrial
Development Act, 1961 arises for determination in these writ
petitions, they are heard together and are decided by this
common judgment.
2. Rule. Rule, made returnable forthwith. The
petitions are heard finally at the stage of admission with the
consent of the learned counsel for the parties.
3. The lands of the petitioners were acquired under the
Maharashtra Industrial Development Act, 1961 (hereinafter
referred to as "the MID Act" for the sake of brevity) by the
notifications issued under Section 32 of the MID Act in the
years 1988-89. Separate awards were passed by the Land
Acquisition Officer in respect of the lands of the petitioners
and certain other land-holders in the year 1991-92. Being
aggrieved by the grant of meagre compensation, some land-
holders filed reference under the provisions of Section 34 of
the MID Act read with Section 18 of the Land Acquisition Act.
The reference filed by the claimants were registered as land
acquisition cases and the Reference Court enhanced the
compensation, thereby granting additional compensation,
interest and solatium. In pursuance of the awards passed in
the reference cases, the petitioners filed separate applications
under Section 28-A of the Land Acquisition Act seeking
re-determination of the amount of compensation on the basis
of the award of the Court. The respondent-Maharashtra
Industrial Development Corporation (hereinafter referred to
as "the Corporation") raised an objection that Section 28-A of
the Land Acquisition Act would not be applicable to the
acquisition of the lands under the MID Act. According to the
Corporation, only the provisions of the Land Acquisition Act,
as they existed at the time of coming into force of the MID
Act, could be applied to the acquisitions under the MID Act in
view of the provisions of Section 34 of the MID Act. The
objection of the Corporation was upheld by the Special Land
Acquisition Officer and the applications filed by the
petitioners were rejected. The orders rejecting the
applications are impugned in these petitions and a
declaration that the provisions of Section 28-A of the Land
Acquisition Act are applicable to the acquisitions under the
MID Act is sought. A direction is also sought against the Land
Acquisition Officer to decide the applications filed by the
petitioners under Section 28-A of the Land Acquisition Act, in
accordance with law.
4. The learned counsel for the petitioners submitted
that the provisions of Section 28-A of the Land Acquisition
Act would be applicable to the acquisitions under the MID
Act. It is submitted that the issue whether the amended
provisions of the Land Acquisition Act would apply to the
acquisitions under the MID Act came up for consideration
before this Court in the case of Maharashtra Industrial
Development Corporation, Nagpur v. Shaikh Khatinabi wd/o
Abdul Gaffar Shaikh and others, reported in
(2008) 1 Mh.L.J. 813, and this Court held that the provisions
of Section 34 of the MID Act make a reference to the
provisions of the Land Acquisition Act by reference and hence
the provisions of Section 23(1-A) and (2) of the Land
Acquisition Act would apply to the acquisitions under the
MID Act. It is submitted that by relying on the judgment in
the case of Maharashtra State Road Transport Corporation v.
State of Maharashtra, reported in (2003) 4 SCC 200, this
Court had held that the claimants were entitled to interest
and solatium on the enhanced compensation as per the
amended provisions of Section 23 and 24 of the Land
Acquisition Act. It is submitted that the Hon'ble Supreme
Court, while considering the applicability of the amended
provisions of the Land Acquisition Act to the Maharashtra
Regional & Town Planning Act, 1966 (hereinafter referred to
as "the MRTP Act"), has held in the judgment in the case of
Girnar Traders (3) v. State of Maharashtra and others,
reported in (2011) 3 SCC 1, that the provisions of the MRTP
Act make a reference to the provisions of the Land
Acquisition Act by incorporation and though the MRTP Act is
a self-contained code, the amended provisions of the Land
Acquisition Act, limited to the extent of acquisition of land,
payment of compensation and recourse to legal remedies,
could be read into the acquisitions controlled by the MRTP
Act. It is submitted that even if it is held that the provisions
of the MID Act make a reference to the provisions of the Land
Acquisition Act by incorporation, in view of the judgment in
the case of Girnar Traders (3) v. State of Maharashtra and
others (supra), the provisions of Section 28-A of the Land
Acquisition Act should necessarily apply to the acquisitions
under the MID Act. It is submitted that the object of the
provision of Section 28-A of the Land Acquisition Act is to
grant similar compensation for similar quality of land to the
interested parties and hence Section 28-A of the Land
Acquisition Act provides a remedy and an opportunity to all
aggrieved parties whose lands are covered under the same
notification to seek the re-determination of the compensation,
when one of the land-holders affected by the notification has
secured the orders for payment of higher compensation from
the Reference Court under Section 18 of the Land Acquisition
Act. It is submitted that a view similar to the one expressed
by this Court in the judgment in the case of Maharashtra
Industrial Development Corporation v. Shaikh Khatinabi wd/o
Abdul (supra) was earlier expressed by this Court in the
judgment in the case of Resident Deputy Collector, Pune v.
G.N. Landge since deceased through his heirs and another,
reported in (1998) 2 Mh.L.J. 756, and it was held that the
amended provisions of Sections 24 and 28 of the Land
Acquisition Act are adopted by reference in the MID Act in
1967 in view of Section 33(5) of the MID Act. It is submitted
that the MID Act has been amended from time to time till the
year 1997 and there is nothing in the amendments to show
that the MID Act did not wish to adopt the amended
provisions of Section 28-A of the Land Acquisition Act that
were brought on the Statute book in the year 1984. It is
submitted that the action on the part of the respondents in
refusing to entertain the applications filed by the petitioners
under Section 28-A of the Land Acquisition Act is arbitrary
and illegal.
5. Shri Rohit Deo, the learned Associate Advocate
General, appearing on behalf of the State Government,
submitted that the provisions of Section 28-A of the Land
Acquisition Act are sui generis and, therefore, the same
cannot be applied to the acquisitions under the MID Act by
taking recourse to the provisions of Section 34 thereof. It is
submitted that the said provision is itself discriminatory in
nature, inasmuch as it refuses similar compensation in terms
of an award passed by the Court under Section 18 of the
Land Acquisition Act to a land-holder, who has applied under
Section 18 of the Land Acquisition Act and has lost. It is
submitted that it is clear from the statement of objects and
reasons of Amendment Act 68 of 1984 that the provisions of
Section 28-A were introduced only with a view to give the
benefit of higher compensation in terms of the award of the
Court to only inarticulate and poor people, who are unable to
file a reference under Section 18 of the Land Acquisition Act
in view of their poverty or illiteracy. It is submitted that the
object of incorporating the provisions of Section 28-A in the
Land Acquisition Act has been discussed in the judgment of
the Hon'ble Supreme Court in the case of Babua Ram and
others v. State of U.P. And another, reported in (1995) 2 SCC
689. It is submitted that the Hon'ble Supreme Court has held
in the aforesaid judgment that the Legislature has made a
discriminatory policy between the poor and the inarticulate,
to whom the benefit of Section 28-A is to be extended, and
the comparatively affluent class, that has taken advantage of
a reference under Section 18 of the Land Acquisition Act. It
is submitted that since, according to the Hon'ble Supreme
Court, the object of the provisions of Section 28-A of the Land
Acquisition Act is to provide higher compensation to the poor
and inarticulate people, the said provision cannot be read
into the provisions of the MID Act, specially when the
provision of Section 28-A of the Land Acquisition Act is a sui
generis or stand alone provision though it is included in Part
III of the Land Acquisition Act. It is submitted that the
Hon'ble Supreme Court has no doubt held in the judgment
reported in (2011) 3 SCC 1 [Girnar Traders (3) v. State of
Maharashtra and others] that the provisions of the Land
Acquisition Act in respect of acquisition, payment of
compensation and recourse to legal remedies would apply to
the provisions of the MRTP Act, but every compensatory
provision may not so apply. It is submitted that the State
may not apply every compensatory provision in the Central
Act to a State Act and still the State Act may not suffer from
the vice of discrimination. The learned counsel relied on the
judgments reported in AIR 1954 SC 493 and (2002) 4 SCC
34 in this regard.
6. Shri Agnihotri, the learned counsel for the
Corporation supported the action of the Corporation and the
State Government. It is submitted that Section 28-A of the
Land Acquisition Act itself carves out two classes of
landholders, a class of landholders that has approached the
Reference Court under the provisions of Section 18 of the
Land Acquisition Act and a class of landholders that has
failed to file a Reference under Section 18. It is submitted
that only the landholders that had not filed a Reference
under Section 18 of the Land Acquisition Act, would be
entitled to seek higher compensation under Section 28-A of
the Land Acquisition Act on the basis of the orders of the
Reference Court for payment of higher compensation. It is
submitted that the question whether there is a procedural
discrimination between the provisions of the MID Act and the
Land Acquisition Act fell for consideration before the Hon'ble
Supreme Court in the case of Shri Ramtanu Co-operative
Housing Society Ltd. & Anr. v. State of Maharashtra & Ors.,
reported in AIR 1970 SC 1771, and the Hon'ble Supreme
Court held that the pith and substance of the MID Act is
establishment, growth and organization of industries and
acquisition of the land in that behalf for carrying out the said
purpose under the Act. It is submitted that it was held by the
Hon'ble Supreme Court in the said reported judgment that
the MID Act and the Land Acquisition Act were dissimilar in
situations and circumstances. It is submitted that in such
circumstances, it cannot be said that the provisions of Section
28A of the Land Acquisition Act would apply to the
acquisitions under the MID Act by taking recourse to the
provisions of Section 34 of the MID Act. The learned counsel
also relied on the judgment of the Hon'ble Supreme Court in
the case of Union of India v. Chajju Ram (Dead) by LRs & Ors.,
reported in (2003) 5 SCC 568, to substantiate his submission
that the classification sought to be made for determination of
the amount of compensation towards acquisition of the land
under the Defence of India Act vis-a-vis Land Acquisition Act
is a reasonable and valid one. It is submitted that it was held
in the aforesaid reported decision that the amended
provisions of Section 23(1) of the Land Acquisition Act would
not apply to the acquisition under the provisions of the
Defence of India Act. It is submitted by placing reliance on
the judgment in the case of Dayal Singh & Ors. v. Union of
India & Ors., reported in (2003) 2 SCC 593, that a
substantive right, such as the right to have the compensation
redetermined must be expressly provided by the statute and
since the right to seek redetermination of compensation
under Section 28-A of the Land Acquisition Act is not
expressly provided under the MID Act, the said provisions
cannot be read into the MID Act or could be applied to the
acquisitions under the MID Act by implication. The learned
counsel sought for the dismissal of the writ petitions.
7. To answer the question involved in these writ
petitions, it would be necessary to consider the object of the
MID Act and the Land Acquisition Act, including the
provisions of Section 28-A, that are introduced therein, in the
year 1984 by amendment. The Hon'ble Supreme Court had
an occasion to decide two principal questions that were
raised in the case of Shri Ramtanu Co-operative Housing
Society Ltd. & Anr. v. State of Maharashtra & Ors., (supra),
firstly, whether the State Government was competent to
enact the MID Act and secondly whether there is a procedural
discrimination between the MID Act and the Land Acquisition
Act. While determining the aforesaid questions, the Hon'ble
Supreme Court considered the object of the MID Act and the
true character and intent thereof. On a reading of the
provisions of the MID Act, the Supreme Court observed thus
in paragraphs 15 & 21 of the said judgment :
"15. It is in the background of the purposes of the
Act and powers and functions of the Corporation that
the real and true character of the legislation will be
determined. That is the doctrine of finding out the
pith and substance of an Act. In deciding the pith and
substance of the legislation, the true test is not to find
out whether the Act has encroached upon or invaded
any forbidden field but what the pith and substance of
the Act is. It is that true intent of the Act which will
determine the validity of the Act. Industries come
within Entry 24 of the State List subject to the
provision of Entry 7 and entry 52 of the Union List of
the Constitution. Entry 7 of the Union list relates to
industries declared by Parliament by law to be
necessary for the purpose of defence or for the
prosecution of war. Entry 52 of the Union List relates
to industries, the control of which by the Union is
declared by Parliament by law to be expedient in the
public interest. The establishment, growth and
development of industries in the State or Maharashtra
does not fall within Entry 7 and Entry 52 of the Union
List. Establishment, growth and development of
industries in the State is within the State List of
industries. Furthermore, to effectuate the purpose of
the development of industries in the State it is
necessary to make land available. Such land can be
made available by acquisition or requisition. The Act
in the present case deals with acquisition of land by
the State and on such acquisition, the State may
transfer the land to the Corporation which again may
develop it itself and establish industrial estates or may
develop industrial areas. Acquisition or requisition of
land falls under Entry 42 of the Concurrent List. In
order to achieve growth of industries it is necessary
not only to acquire land but also to implement the
purposes of the Act. The Corporation is therefore
established for carrying out the purposes of the Act.
The pith and substance of the Act is establishment,
growth and organization of industries, acquisition of
land in that behalf and carrying out the purposes of
the Act by setting up the Corporation as one of the
limbs or agencies of the Government. The powers and
functions of the Corporation show in no uncertain
terms that these are all in aid of the principal and
predominant purpose of establishment, growth and
establishment of industries.
21. ....... It is to be remembered that the Act in the
present case is a special one having the specific and
special purpose of growth, development and
organisation of industries in the State of
Maharashtra. The Act has its own procedure and
there is no provision in the Act for acquisition of land
for a company as in the case of Land Acquisition Act.
In the present case, acquisition under the Act is for the
purpose of development of industrial estates or
industrial areas by the Corporation or any other
purpose in furtherance of the objects of the Act. The
policy underlying the Act is not acquisition of land for
any company but for the one and only purpose of
development, organisation and growth of industrial
estates and industrial areas. The Act is designed to
have a planned industrial city as opposed to
haphazard growth of industrial areas in all parts of
the State. The Act is intended to prevent growth of
industries in the developed parts of the State.
Industries are therefore to be set up in the developing
or new parts of the State where new industrial towns
will be brought into existence. The object of the Act is
to carve our planned areas for industries. On one side
there will be enginnering industries and on the other
there will be chemical industries. There will be
localisation of industries with the result that the
residents and dwellers of towns and cities will not
suffer either from the polluted air or obnoxious
chemicals of industries or the dense growth of
industries and industrial population, within and near
about the residential areas. The Land Acquisition Act
is a general Act and that is why there is specific
provision for acquisition of land by the State for
public purpose and acquisition of land by the State for
companies. The present Act on the other hand is
designed for the sole purpose of development of
industrial areas and industrial estates and growth and
development of industries within the State. Industrial
undertakings or persons who are engaged in industries
all become entitled to the facilities on such industrial
growth. Under the Land Acquisition Act, acquisition is
at the instance of and for the benefit of a company
whereas under the present Act acquisition is solely by
the State for public purposes. The two Acts are
dissimilar in situations and circumstances."
After observing thus, the Hon'ble Supreme Court
held that the MID Act is within the legislative competence of
the State Government and there is no procedural
discrimination between the MID Act and the Land Acquisition
Act.
8. The question whether the amended provisions of the
Land Acquisition Act i.e., Section 23(2) and Section 23(1)(A)
that relate to the payment of solatium and interest would
apply to the acquisitions under the MID Act fell for
consideration before this Court in the case of Resident Deputy
Collector, Pune v. G.N. Landge & Anr., reported in
1998 (2) Mh. L.J. 756, and this Court observed by referring
to a couple of judgments of the Hon'ble Supreme Court that it
had no hesitation in coming to the conclusion that the
provisions of Sections 23 and 24 of the Land Acquisition Act
are adopted by reference in the MID Act in the year 1967 in
view of Section 33(5) of the MID Act. This Court observed
thus in paragraph 21 of the said reported judgment :
"21. It is also significant to note that when by
Act XI of 1967, section 33(5) was amended, section
34 was not amended. In 1975 by Act No. XVIII of
1975 section 34 was amended and instead of appeal
reference was provided and it was further stated that
in case of such a reference the provisions of Part III of
the Land Acquisition Act shall mutatis mutandis apply
to further proceeding in respect thereof. Section 28 is
in Part III of the Land Acquisition Act and therefore, it
will apply to the present proceeding before the District
Court as they are out of reference under section 34.
In this connection, we endorse the reasoning given by
the District Court in para 34 of its judgment as to
why he has awarded interest as per section 28 of the
Land Acquisition Act."
After so observing, the Court held that the
Maharashtra Industrial Development Corporation was liable
to pay interest in terms of the provisions of Section 28 of the
Land Acquisition Act for acquisitions under the MID Act. It is
not in dispute that after the said decision, the Corporation
started paying interest and solatium to the claimants in terms
of the provisions of Sections 23 and 28 of the Land
Acquisition Act.
While deciding the question whether under
Section 34 of the MID Act, a claimant would be required to
file a reference within a period of 60 days from the date of
the award or from the date of notice of the award by the
Collector in the case of Maharashtra Industrial Development
Corporation, Nagpur v. Shaikh Khatinabi wd/o Abdul Gaffar
Shaikh and others, reported in 2008(1) Mh. L.J. 813, this
Court had an occasion to consider the landmark judgments of
the Hon'ble Supreme Court in the case of Nagpur
Improvement Trust v. Vasantrao & Ors., reported in AIR 2002
SC 3499, and Maharashtra State Road Transport Corporation
v. State of Maharashtra & Ors., reported in AIR 2003 SC 1901.
After considering the two aforesaid judgments of the Hon'ble
Supreme Court, this Court observed in paragraph 13 of the
judgment reported in 2008(1) Mh. L.J. 813, that Section 34
of the MID Act makes a reference to the provisions of the
Land Acquisition Act by reference and not by incorporation.
The Court observed that the Legislature has simply made the
provisions of Part III of the Land Acquisition Act applicable to
further proceedings in respect of the application made to the
Collector within 60 days of determination. This Court
observed that in so far as such proceedings are concerned,
the subsequent amendments to Part III of the Land
Acquisition Act would also apply to them. It was held that
since the provisions of Section 34 of the MID Act make a
reference to the provisions of the Land Acquisition Act by
reference, the reference to the Court could be made within
60 days from the date of securing the knowledge of the
award as there was no reason to apply a different yardstick to
a claimant whose land was acquired under the provisions of
the MID Act. In all the aforesaid cases, the amended
provisions of the Land Acquisition Act were held to be
applicable to the acquisitions under the MID Act.
10. There is another set of judgments in the cases of
Nagpur Imrovement Trust & Anr. v. Vithal Rao & Ors.,
reported in (1973) 1 SCC 500, Nagpur Improvement Trust &
Anr. v. Vithal Rao & Ors., reported in (1973) 1 SCC 500; NIT
v. Vasantrao & Ors., (supra) and MSRTC vs. State of
Maharashtra & Ors., (supra), wherein the Hon'ble Supreme
Court, by applying the test of Article 14 of the Constitution of
India held that different principles of compensation cannot be
formulated if land is acquired for public purposes, as
discrimination cannot be made on the basis of the authority
acquiring the land. The Hon'ble Supreme Court held thus in
the judgment in the case of NIT & Anr. v. Vithal Rao & Ors.,
(supra) :
"28. It would not be disputed that different
principles of compensation cannot be formulated for
lands acquired on the basis that the owner is old or
young, healthy or ill, tall or short, or whether the
owner has inherited the property or built it with his
own efforts, or whether the owner is a politician or an
advocate. Why is this sort of classification not
sustainable ? Because the object being to
compulsorily acquire for a public purpose, the object is
equally achieved whether the land belongs to one type
of owner or another type.
29. Can classification be made on the basis of the
public purpose for the purpose of compensation for
which land is acquired? In other words can the
Legislature lay down different principles of
compensation for lands acquired say for a hospital or
a school or a Government building? Can the
Legislature say that for a hospital land will be
acquired at 50% of the market value, for a school at
60% of the value and for a Government building at
70% of the market value? All three objects are public
purposes and as far as the owner is concerned it does
not matter to him whether it is one public purpose or
the other. Article 14 confers an individual right and
in order to justify a classification there should be
something which justifies a different treatment to this
individual right. It seems to us that ordinarily a
classification based on the public purpose is not
permissible under Article 14 for the purpose of
determining compensation. The position is different
when the owner of the land himself is the recipient of
benefits from an improvement scheme, and the benefit
to him is taken into consideration in fixing
compensation. Can classification be made on the
basis of the authority acquiring the land? In other
words can different principles of compensation be laid
if the land is acquired for or by an Improvement Trust
or Municipal Corporation or the Government? It
seems to us that the answer is in the negative because
as far as the owner is concerned it does not matter to
him whether the land is acquired by one authority or
the other.
30. It is equally immaterial whether it is one
Acquisition Act or another Acquisition Act under
which the land is acquired. If the existence of two
Acts could enable the State give one owner different
treatment from another equally situated the owner
who is discriminated against, can claim the protection
of Article 14."
The Hon'ble Supreme Court held that it was
necessary for the Nagpur Improvement Trust to pay
compensation to the land holders as per the provisions of the
Land Acquisition Act. In the judgment in the case of Nagpur
Improvement Trust v. Vasantrao & Ors., (supra), the Hon'ble
Supreme Court, by following its earlier judgment in the case
of NIT v. Vithal Rao, (supra), held that different principles of
compensation cannot be laid if the land is acquired for
Improvement Trust or Municipal Corporation or the
Government. By making reference to the judgment in the
case of NIT v. Vithal Rao, (supra), it was observed that in so
far as the owner is concerned, it does not matter to him
whether the land is acquired by one authority or the other.
After so observing, the Hon'ble Supreme Court rejected the
submission made on behalf of the Nagpur Improvement Trust
that the amended provisions of the Land Acquisition Act,
specially Sections 23(1)(A), 23(2) and 28 would not apply to
the acquisitions under the Nagpur Improvement Trust Act.
The Hon'ble Supreme Court added that the beneficial
amendments in the Land Acquisition Act would have to be
read into the State enactments including the Nagpur
Improvement Trust Act to save the same from the vice of
discrimination. It is held by the Hon'ble Supreme Court in
the case of MSRTC v. State of Maharashtra (supra) that the
provisions of the Land Acquisition Act as amended from time
to time vis-a-vis compensation would apply to the acquisitions
under the MRTP Act and any other interpretation of the
provisions of Section 126(3) of the MRTP Act would afflict
the acquisitions by the vice of invidious discrimination and
palpable arbitrariness, hit by Article 14 of the Constitution.
The Hon'ble Supreme Court proceeded to add that if it is not
held so, the provisions of Section 126(3) of the MRTP Act
would be liable to be struck down as violative of Article 14,
in which case the entire process of acquisition contemplated
by Chapter VII of the MRTP Act will become unworkable and
ineffectual. It is held that the land owners whose lands are
acquired under Chapter VII of the MRTP Act cannot be
subjected to a disability or disadvantage in the matter of
obtaining monetary recompense for the deprivation of land
depending upon the nature of public purpose or the authority
for whose benefit the land is acquired. The Hon'ble Supreme
Court held that the provisions of the MRTP Act make a
reference to the provisions of the Land Acquisition Act by
reference. The three aforesaid judgments of the Hon'ble
Supreme Court clearly lay down that the provisions of the
Land Acquisition Act, vis-a-vis compensation should be
necessarily applied to the MRTP Act and the Nagpur
Improvement Trust Act or else they would suffer from the
vice of discrimination and would be hit by the provisions of
Article 14 of the Constitution of India.
11. The aforesaid judgments were considered by the
Constitution Bench of the Hon'ble Supreme Court while
answering a reference in the case of Girnar Traders (3) v.
State of Maharashtra & Ors., reported in (2011) 3 SCC 1, and
while holding that there is a reference to the provisions of the
Land Acquisition Act by the provisions of Section 126 of the
MRTP Act by incorporation, the Hon'ble Supreme Court held
that despite the said position, the provisions of the Land
Acquisition Act, limited to the extent of acquisition of land,
payment of compensation and recourse to legal remedies
could be read into the acquisitions. The reference was
answered by the Constitution Bench of the Hon'ble Supreme
Court in paragraph 191 of the aforesaid judgment, as under :
"191. Having said so, now we proceed to record our
answer to the proposition referred to the larger Bench
as follows:
ig For the reasons stated in this judgment, we
hold that the MRTP Act is a self-contained code.
Further, we hold that provisions introduced in the
Land Acquisition Act, 1894 by Central Act 68 of
1984, limited to the extent of acquisition of land,
payment of compensation and recourse to legal
remedies provided under the said Act, can be read into
an acquisition controlled by the provisions of Chapter
VII of the MRTP Act but with a specific exception that
the provisions of the Land Acquisition Act insofar as
they provide different time-frames and consequences
of default thereof including lapsing of acquisition
proceedings cannot be read into the MRTP Act.
Section 11-A of the Land Acquisition Act being one of
such provisions cannot be applied to the acquisitions
under Chapter VII of the MRTP Act."
While holding so, the Hon'ble Supreme Court was
mindful of the purpose of legislation by reference and
legislation by incorporation, viz. that in a legislation by
reference all amendments to the former law, though made
subsequent to the enactment of the later law, would
ipso facto apply to the later law and in a case of legislation by
incorporation the subsequent amendments in the former law
could not be treated as a part of the incorporating Act. The
Hon'ble Supreme Court held that though there is a reference
to the provisions of the Land Acquisition Act by
Section 126(3) of the MRTP Act by incorporation, the
amending provisions of the Land Acquisition Act to the extent
of acquisition of land, payment of compensation and recourse
to legal remedies could be read into the acquisitions under
the MRTP Act.
12. By applying the law laid down by the Hon'ble
Supreme Court in the case of Girnar Traders (3) v. State of
Maharashtra, (supra), it would be necessary to hold that the
provisions of Section 28-A of the Land Acquisition Act would
apply to the acquisitions under the MID Act. It would be
necessary to so hold, as the MID Act and the MRTP Act would
fall in the same category of enactments. In the case of Union
of India v. Chajju Ram (Dead) By LRs. & Ors., (supra), the
Hon'ble Supreme Court had categorized or grouped the
acquisitions under different enactments. The first group of
cases include the acquisitions under the Nagpur Improvement
Trust Act, MRTP Act and the other Town Planning Acts
where a common scheme and pattern is laid down as the
statutes relate to Town Planning, Development and
acquisition for the purposes of development, whereas in the
other group or category, the enactments like the Defence of
India Act and the Requisitioning and Acquisition of
Immovable Property Act and the like are included. It is held
by the Hon'ble Supreme Court in the said reported decision
that to the acquisitions falling under the enactments in the
first category, the provisions of the Land Acquisition Act
would apply. Whereas, for the reasons recorded in the said
judgment, after making a distinction between the two
categories it is held that the provisions of the Land
Acquisition Act may not be read into the acquisitions falling
under the Acts in the second category. The Court held that
the classification sought to be made for determination of
compensation for acquisition of land in respect of cases
falling in the first category and the second category is
reasonable and valid one and is founded on the object sought
to be achieved by the legislation. Hence, though the
amended provisions of the Land Acquisition Act were not
applied to the Requisitioning and Acquisition of Immovable
Property Act, 1952 and the Defence of India Act, 1971, the
said amended provisions were made applicable to the
acquisitions under the various Town Planning Acts. The MID
Act would fall in the first category of cases and hence the
amended provisions of Section 28-A of the Land Acquisition
Act will have to be read in to the acquisitions under the MID
Act. If the MID Act falls in the first group or category of
enactments referred to hereinabove, it would be necessary to
hold by following the Seven Judges judgment of the Hon'ble
Supreme Court in the case of Nagpur Improvement Trust v.
Vithal Rao, (supra), that different principles of compensation
cannot be formulated for land acquired under the different
enactments because as far as the owner is concerned, it does
not matter to him whether his land is acquired by one
authority or the other. The judgment in the case of The State
of Madhya Pradesh v. G.C. Mandawar, reported in AIR 1954
SC 493, and the judgment in the case of Ashutosh Gupta v.
State of Rajasthan & Ors., reported in (2002) 4 SCC 34, and
relief on by the learned Associate Advocate General cannot be
applied to the cases in hand as in the said reported cases, the
scope of provisions of Article 14 has been discussed generally,
without making a reference to acquisitions or enactments
dealing with it and we have discussed the judgments directly
on the issue involved in this judgment. So also, for the
reasons recorded hereinabove, the judgments reported in the
case of Union of India v. Chajju Ram (Dead) By LRs. & Ors.,
(supra), and Dayal Singh & Ors. v. Union of India & Ors.,
(supra) and relied on by the counsel for the Corporation
cannot support the submission of the Corporation that the
provisions of Section 28A of the Land Acquisition Act would
not apply to the acquisitions under the MID Act. The object
of Section 28-A of the Land Acquisition Act, as could be seen
from the Statement of Objects and Reasons of the
Amendment Act, 1984, is to ensure that there is no inequality
in the payment of compensation for the same or similar
quality of land to different interested parties. The relevant
portion of the Statement of Objects and Reasons reads thus :
"Amendment Act 68 of 1984 - Statement of Objects
and Reasons. -
(ix) Considering that the right of reference to the
Civil Court under section 18 of the Act is not usually
taken advantage of by inarticulate and poor people
and is usually exercised only by the comparatively
affluent land owners and that this causes considerable
inequality in the payment of compensation for the
same or similar quality of land to different interested
parties, it is proposed to provide an opportunity to all
aggrieved parties whose land is covered under the
same notification to seek re-determination of
compensation, once any one of them has obtained
orders for payment of higher compensation from the
reference Court under section 18 of the Act."
It is apparent from the Statements of Objects and
reasons that Section 28-A was inserted in the Land
Acquisition Act with a view to ensure that there is no
inequality in the payment of compensation for similar quality
of land to different interested parties covered by the same
notification, once one of the persons affected by the
notification has obtained orders for payment of higher
compensation from the Reference Court under Section 18 of
the Land Acquisition Act. The object of the provisions of
Section 28-A is to provide similar compensation to the land
holders that are affected by the same Section 4 notification.
It cannot be said that Section 28-A was enacted only with a
view to help the inarticulate and poor people. Section 28-A
appears to have been enacted, as reflected from the
statements of objects and reasons to remove inequality and
discrimination in the payment of compensation. If the object
of enacting the provisions of Section 28A is as such, it cannot
be said that the said provisions cannot be read in the
provisions of the MID Act so as to make the same applicable
to the acquisitions under the MID Act.
13. We are bound by the judgment of the Hon'ble
Supreme Court in the case of Girnar Traders (3) v. State of
Maharashtra & Ors., (supra) which lays down that the
provisions of the Land Acquisition Act in respect of payment
of compensation, recourse to remedies and the acquisition of
the land should be read into the acquisitions controlled by
the provisions of the MRTP Act. We find that the provisions
of Section 28-A of the Act provide for legal remedy and also
provide for payment of compensation. It cannot be said on a
reading of the provisions of Part III of the Land Acquisition
Act, including the provisions of Section 28-A that the
provisions of Section 28-A are sui generis. The provisions of
Section 28-A are thoughtfully linked with the other
provisions of Part III of the Land Acquisition Act and it cannot
be said that they would not apply to the acquisitions under
the MID Act. For the reasons recorded in the judgment in the
case of Girnar Traders (3) v. State of Maharashtra (supra),
though it would be necessary to hold that the provisions of
Section 34 of the MID Act make a reference to the provisions
of the Land Acquisition Act by incorporation, it would be
further necessary to hold by following the ratio laid down in
paragraph 191 of the said judgment that the provisions of
Section 28-A of the Land Acquisition Act would apply to the
acquisitions under the MID Act or else, they would suffer
from the vice of discrimination, as they relate to legal remedy
and payment of compensation. It would not be necessary for
this Court to consider in this case, whether every
compensatory provision could be held to apply to the
acquisitions under the provisions of the MID Act. Suffice it to
hold that the compensatory provisions of Section 28-A, if not
read in the provisions of MID Act, would render the
provisions of the MID Act vulnerable, as being arbitrary and
discriminatory.
14. For the reasons aforesaid, the writ petitions are
allowed. It is hereby held that the provisions of Section 28-A
of the Land Acquisition Act would apply to the acquisitions
under the MID Act. The respondent No. 2 is directed to
consider the applications of the petitioners for determination
of compensation on the basis of the award of the Court, in
accordance with the provisions of the Land Acquisition Act.
Rule is made absolute in the aforesaid terms with no order as
to costs.
JUDGE JUDGE
ig ******
PDL/*GS.
