M/S. Vighnaharta Builders & ... vs The Mah. Airport Development Co. ...
2017 Latest Caselaw 2259 Bom

 Judgment                                          1                                wp36.08+1.odt




                  
                     IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                               NAGPUR BENCH, NAGPUR.

                            WRIT PETITION NO. 36 OF 2008
                                       WITH
                           WRIT PETITION NO. 1175 OF 2008


 W.P.NO. 36/2008.

 M/s. Suretech Hospital & Research
 Centre Limited, a Company having its 
 Registered Office at 13-A, R.P. Banerjee
 Marg, Dhantoli, Nagpur - 440 012, acting 
 through its Chairman cum Managing 
 Director Dr. Shri Rajendra S/o. Ganpatrao
 Deshmukh, Aged about 64 years, 
 Occupation : Medical practitioner, 
 Resident of 13-A, R.P. Banerjee Marg, 
 Dhantoli, Nagpur. 
                                                                       ....  PETITIONER.
                                    //  VERSUS //

 1. Maharashtra Air Port Development 
    Company Ltd., represented through its
    Vice Chairman and Managing Director, 
    12th Floor, World Trade Centre, Cuffe
    Parade, Mumbai - 400 005. 

 2. State of Maharashtra, through its 
    Secretary, Department of Revenue &
    Forest, Mantralaya, Mumbai-400 032.

 3. The Collector, Nagpur District, Nagpur.
    Collectorate, Civil Lines, Nagpur. 

 4. Special Land Acquisition Officer No.3, 
    Vidarbha Irrigation Development
    Corporation, Collectorate, Civil Lines, 
    Nagpur. 
                                                           .... RESPONDENTS
                                                                            . 
  ___________________________________________________________________
 Shri A.M.Gordey, Senior Advocate a/b Shri C.V.Kale, Adv.for Petitioners. 
 Shri M.G.Bhangde, Senior Advocate a/b. Shri S.Tapdia, Adv. for Resp.No.1.
 Shri A.V.Palshikar, A.G.P. for Respondent Nos. 2 to 4.   
 ___________________________________________________________________


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  Judgment                                       2                                wp36.08+1.odt




 WITH

 W.P.NO. 1175/2016.

 M/s. Vighnaharta Builders and Developers,
 a partnership firm, acting through and 
 represented by its authorized Partner Shri 
 Prabhat Singh, Aged about 50 years, 
 Occupation : Business, Resident of Behind
 Saraf Chambers, Sadar, Nagpur. 
                                                                    ....  PETITIONER.
                                 //  VERSUS //
 1. Maharashtra Air Port Development 
    Company Ltd., a Government of 
    Maharashtra Undertaking, having its
    Office at 12th Floor, World Trade Centre, 
    Cuffe Parade, Mumbai - 400 005, through
    its Vice-Chairman and Managing Director. 

 2. State of Maharashtra, the Department 
    of Revenue & Forest, Mantralaya, 
    Mumbai-400 032, through its 
    Secretary, 

 3. State of Maharashtra, the Department 
    of Rehabilitation, Mantralaya, 
    Mumbai-400 032, through its 
    Secretary, 

 4. The Collector, Nagpur District, 
    Collectorate, Civil Lines, Nagpur. 

 5. The Special Land Acquisition Officer No.3, 
    Vidarbha Irrigation Development
    Corporation, Collectorate, Civil Lines, 
    Nagpur. 

 6. The Additional Collector and the Competent 
    Authority under the provisions of the Urban
    Land (Ceiling and Regulation) Act, 1976, 
    Collectorate, Civil Lines, Nagpur. 
                                                           .... RESPONDENTS
                                                                            . 
  ___________________________________________________________________
 Shri K.H.Deshpande, Senior Advocate a/b Shri A Sudame, Adv.for Petitioner. 
 Shri M.G.Bhangde, Senior Advocate a/b. Shri S.Tapdia, Adv. for Resp.No.1.
 Shri A.V.Palshikar, A.G.P. for Respondent Nos. 2 to 6.   
 ___________________________________________________________________


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  Judgment                                               3                                wp36.08+1.odt




                      CORAM : PRASANNA B. VARALE AND Z.A.HAQ, JJ.
                      DATE OF RESERVING THE JUDGMENT : 26/04/2017.
                      DATE OF PRONOUNCING THE JUDGMENT:05/05/2017.


 JUDGMENT  (PER COURT): 

1. Heard learned advocates for the respective parties.

2. These two petitions are disposed of by common judgment as in

these two petitions same notifications issued / published under the Land

Acquisition Act, 1894 in respect of the properties of the respective

petitioners, are challenged.

3. The notification under Section 4(1) of the Land Acquisition Act,

1894 (hereinafter referred to as "the Act of 1894") was issued by the

Commissioner, Nagpur Division, Nagpur on 19th April, 2007 notifying that

the land admeasuring 59.50 hectares out of the lands shown in Schedule to

the notification was likely to be required for public purpose. Notice under

Section 4(1) of the Act of 1894 was sent to the petitioners in the two

petitions (landowners) on 30th May, 2007. The notification stated that the

lands were urgently required and therefore, the inquiry as per Section 5-A of

the Act of 1894 was dispensed with. On 22nd November, 2007 notification

under Section 6 of the Act of 1894 was published in the official gazette. On

18th December, 2007 notice under Section 9 of the Act of 1894 was given to

the petitioners in both these petitions. As per this notice under Section 9 of

Judgment 4 wp36.08+1.odt

the Act of 1894 the land owners were required to attend the inquiry. These

petitions came to be filed on 7th January, 2008. Initially by order passed on

25th September, 2008, the parties were directed to maintain status-quo,

however, by order passed on 17th November, 2008 the order directing the

parties to maintain status-quo was vacated. It is undisputed before us that the

amount of compensation is deposited before the reference Court and

possession of the lands in question is taken by the respondent No.1.

4. The petitioners have challenged the acquisition, substantially on

the following grounds :

i) The acquisition of lands in question, dispensing with enquiry under Section 5-A of the Act of 1894 is illegal.

ii) The urgency clause under Section 17(4) of the Act of 1894 could not have been invoked as the facts on record show that there was no such urgency for acquisition of the lands in question which enabled the State Government to invoke the urgency clause.

iii) That the notification under Section 4(1) of the Act of 1894 was issued by the Divisional Commissioner, Nagpur and not by the State Government which is the proper and competent authority to issue notification.

iv) As per Section 126(1) of the Maharashtra Regional and Town Planning Act, 1866(hereinafter referred to as "the Act of 1966")

Judgment 5 wp36.08+1.odt

acquisition can be made by the appropriate authority either by agreement and paying the amount as per the agreement, or in lieu of such amount by granting Floor Space Index or Transferable Development Rights as laid down under Section 126(1)(b) of the Act of 1966, or by making an application to the State Government for acquiring land in question under the Act of 1894 and in the present case the acquisition of the lands in question is not by agreement and it is as per Section 126(1)(c) of the Act of 1966 and therefore, the acquisition should have been by the State Government and as the acquisition is by the Divisional Commissioner it is illegal.

v) That as per the development plan the lands in question were designated for the purpose other than the purpose for which they are acquired and as per Section 128 of the Act of 1966 such acquisition can be made only after the State Government is satisfied that the lands in question were needed for the purpose other than the purpose for which they were designated and in the present case the sanction given by the State Government does not show that it reached the satisfaction as required by Section 128 of the Act of 1966.

vi) The lands in question are acquired for re-rehabilitation of the Project Affected Persons and therefore, the acquisition should have been made by following the procedure as per the provisions of the Maharashtra Project Affected Persons Rehabilitation Act, 1999 and as it is not done, the acquisition is bad in law.

vii) The land which is subject matter of Writ Petition No. 36 of 2008 was exempted from the provisions of the Urban Land (Ceiling

Judgment 6 wp36.08+1.odt

and Regulation) Act, 1976 with condition that it should be utilized for construction of hospital which is public purpose in itself. The land which is subject matter of Writ Petition No. 1175 of 2008 was exempted from the provisions of the Urban Land (Ceiling and Regulation ) Act, 1976 on condition that the land should be used for carving out and providing small plots or constructing the tenaments on it which itself is a public purpose. That the order granting exemption from the provisions of the Urban Land (Ceiling and Regulation) Act, 1976 prohibited the use of the land for any other purpose and provided that any change in the use of land shall amount to breach of the conditions of grant of exemption.

viii) In Writ Petition No. 36 of 2008 an affidavit sworn by the petitioner on 6th April, 2017 is filed stating that Khasra No. 17/1-2, admeasuring 0.56 hectare, a triangular piece of land is fenced by cement poles and is lying vacant without any development on it.

ix) The acquisition of the lands in question is without following process of law and is therefore, in violation of the constitutional right conferred by Article 300A of the Constitution of India.

5. The submission on behalf of the respondent No.1-Maharashtra

Airport Development Corporation for whose use the lands in question are

acquired has opposed the petitions substantially on the following grounds:

a) There are no pleadings in the petitions to challenge the acquisition on the ground of delay. The delay alleged by the

Judgment 7 wp36.08+1.odt

petitioners in the matter is after publication of notice under Section 4(1) of the Act of 1894 and it could have been explained by the respondents had there been pleadings in the petitions to support the contention.

b) The notification under Section 4 of the Act of 1894 is published by the Divisional Commissioner, Nagpur and as he is not impleaded as party to these petitions, the challenges raised on behalf of the petitioners to the legality of that notification cannot be examined as the Divisional Commissioner, Nagpur only could have supported his action.

c) Though it is argued that the notification under Section 4 of the Act of 1894 could not have been issued by the Divisional Commissioner, there is no such challenge in the petitions.

d) Relying on the order issued by the Urban Development Department, Government of Maharashtra on 21st July, 2006 it is submitted that the argument made on behalf of the petitioners that the acquisition is not in consonance with the provisions of Section 126(c) and Section 128 of the Act of 1966 is unsustainable.

e) The Maharashtra Project Affected Persons Rehabilitation Act, 1999 is enacted to consolidate and amend the law relating to the rehabilitation of the persons affected by certain projects in the State of Maharashtra and the grievance regarding non- compliance of any provisions of this Act can be made by the "affected persons" as defined under Section 2(2) of the Act of 1999 and the petitioners do not fall in the category of 'affected persons' under the Act of 1999 and therefore, they have no right

Judgment 8 wp36.08+1.odt

to raise the challenge that the provisions of the Act of 1999 are not complied with.

f) The submission made on the basis of the exemption order issued under the provisions of the Urban Land (Ceiling and Regulation) Act, 1976 is misdirected.

g) That as per the conditions incorporated in the orders granting exemption from the provisions of the Urban Land (Ceiling and Regulation) Act, 1976, the petitioners were required to take steps and undertake the construction on the lands in question within 5 years from the date of the order granting exemption, however, it is not done and the submission made on behalf of the petitioners on this point cannot be considered.

h) An affidavit sworn on 25th April, 2017 by Shri Subhash Vitthalrao Chahande, Advisor Technical is filed on behalf of the Respondent No.1, stating that entire Survey No. 17/1-2 and part of Survey No.19/1-2 and 19/3-2 falls within the area of proposed Airport, that existing runway is 3200 meters in length, that the length is proposed to be increased by 400 meters which is followed by government land admeasuring 818 meters in length and then there is some obstruction by railway track, highway and metro rail which admeasures 256 meters and after crossing this portion, 120 meters long area is kept for fixing approach lights to the runway.

6. After considering the pleadings, the documents placed on record

of the petition and the submissions made by the learned advocates for the

respective parties, we find that the acquisition of lands in question is bad in

Judgment 9 wp36.08+1.odt

law as the mandatory inquiry under Section 5-A of the Act of 1894 was

dispensed with without there being urgency of such nature which

necessitated invoking of powers under sub-section (4) of Section 17 of the

Act of 1894. The notification under Section 4(1) of the Act of 1894 was

published in the official gazette dated 22nd November, 2007 and the notice

under Section 9(1) and 9(2) of the Act of 1894 was issued on 14th

December, 2007. There is no explanation on behalf of the respondents

justifying the delay. Though it is argued on behalf of the respondent No.1

that there are no pleadings on this point in the petition, in our view, the

burden was on the respondents to explain and justify the delay as the

respondents dispensed with the mandatory inquiry under Section 5-A of the

Act of 1894 and deprived the petitioners of the right conferred by Section 5-A

of the Act of 1894. Therefore, has to be held that the impugned notification

suffers from legal infirmity.

However, inspite of the above findings we are not inclined to

quash the impugned notifications and to grant the prayer made by the

petitioners for releasing the lands in question from acquisition.

7. Relying on the judgment given in the case of Darshan Lal

Nagpal vs. Govt. (NCT of Delhi), reported in (2012) 2 SCC 327, the learned

Senior Advocates representing the petitioners have submitted that the

acquisition of the land for the purpose, as in the present case, does not justify

the exercise of powers by the Government under Section 17(4) of the Act of

Judgment 10 wp36.08+1.odt

1894 and the Court can take judicial notice of the fact that the planning,

execution and implementation of the schemes, as in the present case, shall

take few years and therefore, the private property cannot be acquired for

such purpose by invoking the urgency clause contained in Section 17 of the

Act of 1894 and the exclusion of the Rule of audi alteram partem embodied

in Section 5-A of the Act of 1894 is not warranted in such matters. It is

submitted that considering the proposition laid down in the above judgment

and as the acquisition of lands in question is illegal, the only consequential

order which is possible is that the impugned notifications should be quashed

and the respondents be directed to release the lands in question from

acquisition.

However, we find that in view of the facts of the present case,

the judgment given in the case of Anand Singh vs. State of U.P., reported in

(2010) 11 SCC 242 and the judgment given in the case of Competent

Authority vs. Barangore Jute Factory, reported in (2005) 13 SCC 477 clinch

the issue.

8. In the judgment given in the case of Anand Singh (supra), after

recording that the notifications under the Land Acquisition Act, 1894

suffered from legal infirmity as the State Government had failed to justify the

dispensation of the inquiry under Section 5-A of the Act of 1894, the Hon'ble

Supreme Court refused to declare the acquisition proceedings invalid and

Judgment 11 wp36.08+1.odt

illegal as it found that out of 400 landowners more than 370 had received

compensation and out of total cost of Rs.8,85,14,000/- for development on

the acquired land an amount of Rs.5,28,00,000/- was already spent and

more than 60% of the work was completed. As the existence of houses /

structures and buildings over the lands in question as on 22nd November,

2003 and 20th February, 2004 i.e. the date of publication of notice under

Section 4 of the Act of 1894, was disputed and as it was found that the

possession of the lands in question was not taken, the Hon'ble Supreme Court

granted liberty to the land-owners to make representation to the State

Authorities for release of their lands under Section 48(1) of the Act of 1894.

In the judgment given in the case of Barangore Jute Factory

(supra) the Hon'ble Supreme Court found that the notification in that case

was not as per Section 3-A(1) of the National Highways Act, 1956 and

therefore, it was invalid and the consequential acquisition was also bad in

law. The Hon'ble Supreme Court recorded that taking of possession of the

lands in question in that case was also in violation of the statutory provisions.

However, as it was found that the acquisition of the land was for construction

of national highway and the work was completed during pendency of the

proceedings, the Hon'ble Supreme Court refused to quash the notifications

and balanced the rights by directing that the compensation should be paid,

determining it on the basis of the date on which the possession of the land

was taken.

Judgment 12 wp36.08+1.odt

9. In the present case, we find that the above two judgments are

relevant as the facts of the present case are close to the two cases decided by

the above referred judgments. The affidavit filed on behalf of the respondent

No.1-Maharashtra Airport Development Corporation, sworn by Shri Subhash

Vitthalrao Chahande on 30th March, 2017 states that out of 99 land owners

affected by the acquisition of land only two land owners have challenged the

notifications and the acquisition. The affidavit states that in 2009-2010 an

amount of Rs.16,79,58,345/- was disbursed towards compensation, out of

which an amount of Rs.6,59,95,094/- was paid to 34 farmers for 22.43

hectares land, an amount of Rs.6,64,42,650/- for 27.26 hectares of land was

deposited in Civil Court under Section 30 of the Act of 1894 and an amount

of Rs.3,55,20,601/- for 9.73 hectares of land was deposited before the Civil

Court under Section 31 of the Act of 1894. It is stated that the respondent

No.1 has spent Rs.30.59 crores on the development of infrastructure on the

acquired lands. It is stated that the challenge in these two petitions is in

respect of the land which comes to 4.69% of the total acquired land.

The respondent No.1 contends that the plots for rehabilitation

of the Project Affected Persons have been carved out from the acquired lands.

This is disputed by the petitioners. Then in the subsequent affidavit filed on

behalf of the respondent No.1, sworn on 25th April, 2017, it is stated that

part of the land in question i.e. subject matter of these two petitions, is

required for fixing the approach lights to the runway. We find that there is a

deviation on this point in the stand of the respondent No.1.

Judgment 13 wp36.08+1.odt

10. The petitioner in Writ Petition No. 36 of 2008 has filed an

affidavit sworn on 17th April, 2017 stating that the submissions made on

behalf of the respondent No.1 about the use / proposed use of land is not

correct. The petitioner has stated that on 22nd February, 2008, in reply to a

query under the Right to Information Act, 2005 the Airport Authority of India

has given reply that Khasra No. 17/1-2 is very close to the extended center

line of runway 14-32 and Khasra No.19/1-2 and 19/3-2 are not in the

extended centre line of runway No.14-32. It is further stated that height of

the over-bridge which is constructed can be the obstacle for approach lights if

the over-bridge crosses highway and the runway lighting cables cannot cross

the NIT over-bridge and the railway track. In the affidavit, the petitioner has

stated that the respondent No.1 had earlier shown that the land of the

petitioner is to be used for rehabilitation of the project affected persons,

however, now the stand is changed.

11. We find that there is dispute about the present status of the

lands in question. In the affidavit filed on behalf of the respondent No.1 on

30th March, 2017 it is stated that 1616 plots are carved out from the

acquired land and 980 plots are distributed to the persons who are to be

rehabilitated. However, the petitioner in Writ Petition No. 36 of 2008 has

filed affidavit on 6th April, 2017 stating that the plots are not carved out

from the land of the petitioner and the respondent No.1 has not spent any

amount and development activities are not carried out on the land of the

Judgment 14 wp36.08+1.odt

petitioner. It is stated that there is no change in the status of the land of the

petitioner and a triangular piece of land is lying as it is, fenced by the cement

poles. There are disputed questions of fact involved.

12. The objection raised on behalf of the respondent No.1 to the

maintainability of the petitions on the ground that the Divisional

Commissioner is not impleaded as party relying on the judgment given in the

case of Udit Narain Singh Malpaharia vs. Additional Member Board of Revenue,

reported in AIR 1963 SC 786 and the judgment given in the case of

Vishwambhar vs. Laxminarayan, reported in (2015) 9 SCC 1, in our view, is

not required to be dealt with in view of our conclusions recorded above.

Similarly, as we find that the impugned notifications suffer from legal

infirmity, relying on the judgments given in the case of Anand Singh and

Barangore Jute Factory (supra), we decline to quash the impugned

notifications and to grant prayer directing the respondents to release the

lands in question from acquisition. We have not adverted to the other points

raised on behalf of the petitioners.

13. Thus, though we find that the impugned notifications suffer

from legal infirmity, considering the facts of the case and the proposition laid

down in the judgments given in the case of Anand Singh and Barangore Jute

Factory (supra), we refuse to quash the notifications and to grant prayer of

the petitioners. However, to subserve the ends of justice following order is

passed :

            Judgment                                               15                                wp36.08+1.odt




                  i)        The petitioners in these two petitions will be at liberty to make 

representation to the authorities under Section 48(1) of the Act of 1894 for release of their lands acquired pursuant to the impugned notifications.

OR IN THE ALTERNATIVE

ii) The petitioners in both these petitions may inform the respondents that they are not intending to submit application under Section 48(1) of the Act of 1894 and if such application is made by either of the petitioner or both of them, such petitioner / petitioners will be entitled for compensation for their lands acquired pursuant to the impugned notifications, the compensation to be determined by considering the date on which the possession of lands in question was taken as the relevant date.

iii) If the petitioner / petitioners choose to file application under Section 48(1) of the Act of 1894 and if the application is rejected, such petitioner/ petitioners will be entitled for the compensation determined by considering the date on which possession is taken as the relevant date.

The petitions are partly allowed in the above terms. In the

circumstances, the parties to bear their own costs.

                              (Z.A.HAQ, J.)                            (P.B.VARALE, J.)
RRaut..