Bombay High Court
Shri. Salim Naim Khan And Anr vs State Of Maharashtra And Ors on 11 April, 2023
Bench: R.D. Dhanuka, M. M. Sathaye
2023:BHC-AS:10832-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 4858 OF 2016
1. Mr. Salim Naim Khan
Age: 47 years, Occupation: Business
2. Mrs. Reshma Salim Khan
Age: 40 years, Occupation: Business
Both residing at 209, Shama Plaza,
Salim Compound, Ansari Nagar,
Opp. Prince Park,
Virar Road, Nalasopara (E) ..Petitioners
..Versus..
1. State of Maharashtra
Through its department of Urban Development
Mantralaya at Mumbai
2. Ld. Additional Commissioner
Konkan Division at Belapur
2-a. Ld. District Collector of Palghar
3. Ld. Compentent Authority, @ Sub Divisional
Officer, Vasai Division, Vasai
Having office of Old Government Auditorium
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Killa Bandar Road, Malonde, Vasai Gaon,
Vasai, Dist. Plaghar
4. Bochasanvasi Shree. Akshar Purhottam
Swaminarayan Sanstha
19, Swami Narayan Chowk, Dadar (CR)
Mumbai-400014
5. Vasai Virar Municipal Corporation
Through its Commissioner
Dist. Palghar. ..Respondents
ALONG WITH
CIVIL APPLICATION NO. 1545 OF 2019
IN
WRIT PETITION NO. 4858 OF 2016
1. Atma Vallabh Samaj Utkarsh Trust,
a Public Trust registered with the
registrar of Public Trust under the Bombay Public
Trust Act, 1980 having the office at
Bldg. No. 7, Achole Road, Nallasopara (E)
also at Shree Atmanad Jain Sabha, 39/41,
Dhanji Street, 2nd floor, Mumbai 400003
2. Mr. Vasant Kantitlal Jain
101/102, Darshan Tower, Seth Motisha Lane,
Byculla, Mumbai-400010 Being one of the
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Trustees of the above Trust, authorized
to represent on behalf of the Trust
vide a Board Resolution passed
by the Trust ..Applicants/Interveners
..Versus..
IN THE MATTER BETWEEN
1. Mr. Salim Naim Khan
Age: 47 years, Occupation: Business
2. Mrs. Reshma Salim Khan
Age: 40 years, Occupation: Business
Both residing at 209, Shama Plaza,
Salim Compound, Ansari Nagar,
Opp. Prince Park, Virar Road, Nalasopara (E) ..Petitioners
..Versus..
1. State of Maharashtra
Through its department of Urban Development
Mantralaya at Mumbai
2. Ld. Additional Commissioner
Konkan Division at Belapur
2-a. Ld. District Collector of Palghar
3. Ld. Compentent Authority, @ Sub Divisional
Officer, Vasai Division, Vasai
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Having office of Old Government Auditorium
Killa Bandar Road, Malonde, Vasai Gaon,
Vasai, Dist. Plaghar
4. Bochasanvasi Shree. Akshar Purhottam
Swaminarayan Sanstha
19, Swami Narayan Chowk, Dadar (CR)
Mumbai-400014
5. Vasai Virar Municipal Corporation
Through its Commissioner
Dist. Palghar. ..Respondents
ALONG WITH
WRIT PETITION NO. 9712 OF 2016
1. Mates Luis Soz (since deased)
Through his legal heirs
1(a) Johna Mathew D'souza (wife)
1(b) Wilson Mathew D'souza (son)
1(c) Johnson Mathew D'souza (son)
1(a) to 1(c) residing at "Nanani",
Behind Gas Godown, PO. Nirmal, Tal. Vasai,
Dist. Palghar, Pin code-401 304 ..Petitioners
..Versus..
1. State of Maharashtra
Through its department of Urban Development
Mantralaya at Mumbai
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2. Ld. Additional Commissioner
Konkan Division at Belapur
2-a. Ld. District Collector of Palghar
3. Ld. Compentent Authority, @ Sub Divisional
Officer, Vasai Division, Vasai
Having office of Old Government Auditorium
Killa Bandar Road, Malonde, Vasai Gaon,
Vasai, Dist. Plaghar
4. Bochasanvasi Shree. Akshar Purhottam
Swaminarayan Sanstha
19, Swami Narayan Chowk, Dadar (CR)
Mumbai-400014
5. Vasai Virar Municipal Corporation
Through its Commissioner
Dist. Palghar.
6. Asha Mathew D'souza
Residing at "Nanani",
Behind Gas Godown, PO. Nirmal, Tal. Vasai,
7. Mabel Prakash Vaz
Residing at Darsingh. P.O. Nirmal
Taluka Vasai, Palghar - 401304. ..Respondents
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ALONG WITH
CIVIL APPLICATION NO. 1542 OF 2019
IN
WRIT PETITION NO. 9712 OF 2016
1. Atma Vallabh Samaj Utkarsh Trust,
a Public Trust registered with the
registrar of Public Trust under the Bombay Public
Trust Act, 1980 having the office at
Bldg. No. 7, Achole Road, Nallasopara (E)
also at Shree Atmanad Jain Sabha, 39/41,
Dhanji Street, 2nd floor, Mumbai 400003.
2. Mr. Vasant Kantitlal Jain
101/102, Darshan Tower, Seth Motisha Lane,
Byculla, Mumbai-400010 Being one of the
Trustees of the above Trust, authorized
to represent on behalf of the Trust
vide a Board Resolution passed
by the Trust ..Applicants/Interveners
IN THE MATTER BETWEEN :
1. Mats Luis Soz
@ Mathew Luis D'souza,residing
at Navale, Post Nirmal, Tal. Vasai,
Dist. Palghar. ..Petitioners
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..Versus..
1. State of Maharashtra
Through its department of Urban
Development Mantralaya at Mumbai.
2. Ld. Additional Commissioner
Konkan Division at Belapur.
2-a. Ld. District Collector of Palghar
3. Ld. Compentent Authority, @ Sub
Divisional Officer, Vasai Division, Vasai
Having office of Old Government
Auditorium Killa Bandar Road,
Malonde, Vasai Gaon, Vasai, Dist. Plaghar
4. Bochasanvasi Shree. Akshar Purhottam
Swaminarayan Sanstha
19, Swami Narayan Chowk, Dadar (CR)
Mumbai-400014
5. Vasai Virar Municipal Corporation
Through its Commissioner
Dist. Palghar. ..Respondents
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Mr.R.S. Apte, Senior Advocate with Mr. Datta Mane, for the
Petitioner in WP No. 4858/2016.
Ms. Neeta Karnik with Ms.Rushali Kshirsagar for the Petitioner in
WP No.9712/2016.
Mr.Vishal Kanade i/b Ms.Rushita Jain for the Applicants in CAW
Nos. 1542 of 2019 and 1545 of 2019.
Dr.Milind Sathe, Senior Advocate with Mr. Arun Mehta a/w Mr.Girin
Pandit, Mr.Aniket Srivastav and Ms.Sanika Mehta i/b Akshar Laws for
Respondent No.4 in both WPs.
Ms. Swati H. Sagvekar for Respondent No.5 in both Writ Petitions.
Mr. A. I. Patel, Addl. G.P. a/w Mr. P. V. Nelsan Rajan, AGP for the
State.
CORAM : R.D. DHANUKA &
M.M. SATHAYE , JJ.
RESERVED ON : 17 FEBRUARY, 2023.
PRONOUNCED ON: APRIL, 2023.
JUDGMENT: (Per R.D. Dhanuka, J.)
1. Rule. Dr.Sathe, learned Senior Counsel waives
service for Respondent No.4 in both Petitions. Ms. Sagvekar
waives service for Respondent No.5 in both Petitions. Mr.
Patel waives service for the State. By consent of parties, Rule
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made returnable forthwith and heard finally.
FACTS, SUBMISSIONS, REASONS AND CONCLUSIONS
IN WRIT PETITION No. 4858 OF 2016
2. The Petitioners in Writ Petition No. 4858 have
prayed for writ of certiorari, order and/or direction for
quashing and setting aside the impugned Award dated 18 th
February, 2016 passed by the learned Competent Authority in
respect of Survey No. 84 Part (area admeasuring 723.75
sq.mtrs.), Survey No. 85 Part (area admeasuring 8850
sq.mtrs.) and Survey No. 93 (area admeasuring 540 sq.mtrs.).
3. Civil Application No.1545 of 2019 is filed by the
Applicants claiming to be trustees, inter alia, praying for
intervention in this Writ Petition on the ground that the
erstwhile owners had transferred the writ property in the
name of the intervenors' trust and thus, any order, if passed in
favour of the Petitioners would prejudice the rights of the
Applicants.
4. The Petitioners have also prayed for quashing and
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setting aside the impugned notification dated 11 th December,
2013 issued by the learned Additional Commissioner, Konkan
Bhavan, Navi Mumbai under Section 126 (4) of the
Maharashtra Regional Town Planning Act, (for short "MRTP
Act"), 1966 read with Section 6 of the Land Acquisition Act,
1894, in respect of the Petitioners' land out of Survey No.84
Part (area admeasuring 723.75 sq.mtrs.), Survey No. 85 Part
(area admeasuring 8850 sq.mtrs.) and Survey No. 93 (area
admeasuring 540 sq.mtrs.)
5. It is the case of the Petitioners that the writ
properties were owned by Atmavallabh Samaj Utkarsha Trust,
Paydhuni, Mumbai. The names of the Trustees, namely, Mr.
Suresh Devchand Shaha, Mr. Jitendra Devchand Shaha, Mr.
Atul Devchand Shaha and Mr. Jayantilal R. Shaha stood
recorded in the Revenue records of Gat Nos. 84 Part, 85 Part
and 93 Part situated at Tulinj, Dist: Palghar. According to the
Petitioners, one Harishchandra Shankar Jadhav claimed that
he was having right, title, interest and possession in respect of
the writ properties.
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6. On 29th March, 2006, the Petitioners and the said
Harishchandra Jadhav entered into an Agreement for Sale in
respect of the writ properties. Under the said Agreement for
Sale, the consideration agreed between the parties was in the
sum of Rs. 7,58,48,000/-. According to the Petitioners under
the said Sale Deed, the Petitioners were put in possession of
the entire properties.
7. It is the case of the Petitioners that the Petitioners
subsequently came to know that there was a dispute between
Mr. Harishchandra Jadhav and Trustees of Atmavallabh Samaj
Utkarsha Trust. According to the Petitioners, the Petitioners
settled the dispute with the Trustees of Atmavallabh Samaj
Utkarsha Trust.
8. It is the case of the Petitioners that Mr.
Harishchandra Jadhav and all the Trustees of the Atmavallabh
Samaj Utkarsha Trust admitted the possession of the
Petitioners about the writ properties. The possession of the
Petitioners of the writ properties was alleged to have been
obstructed by the third parties. The Petitioners were informed
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that the Trustees of Atmavallabh Samaj Utkarsha Trust,
namely, Suresh Shaha and another intended to sell those
properties. The Petitioners therefore filed a Suit bearing
Regular Civil Suit No. 619 of 2013 before the Civil Judge,
Junior Division at Vasai inter-alia praying for injunction
against the Trustees namely, Mr. Jayantilal R. Shaha, Mr.
Suresh D. Shaha, Mr. Jitendra D. Shaha, Mr. Atul D. Shaha and
Mr. Harishchandra S. Jadhav.
9. On 30th January, 2015, the learned Assistant
Commissioner, Ward C, Nalasopara, Vasai Virar Municipal
Corporation issued a notice under Section 52, 53 and 54 of
the MRTP Act to the Petitioner No.1 alleging that the
Petitioner No.1, had carried out illegal construction over the
land bearing Survey No. 84. It is alleged in the said notice
that in the Development Plan of Vasai Virar Municipal
Corporation, the Survey No. 84 Part, 85 Part and 93 Part had
been reserved by way of Reservation No. 333 for the
Community Centre. The Petitioner No.1 filed a Regular Civil
Suit bearing No. 140 of 2015 inter-alia praying for declaration
and injunction in respect of the impugned notice dated 30 th
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January, 2015 issued by the Assistant Commissioner, Ward C,
Nalasopara, Vasai Virar Municipal Corporation.
10. On 30th April 2015, the 2nd Joint Civil Judge, Junior
Division at Vasai passed Order below Exhibit-5 restraining the
Defendant from demolishing the suit properties without due
process of law till further orders. The Respondent No.5, in its
development plan, reserved the area of Petitioners from
Survey No. 84 Part, Survey Nos. 85 Part and Survey No. 93
Part for Community Centre. The development plan sanctioned
by the Respondent No.1 on 15 th March, 2007 is in force till
date.
11. On 11th December, 2013, the State Government
issued a Notification/Declaration under Section 6 of the Land
Acquisition Act, 1894 read with Section 126(4) of the MRTP
Act. Under the said Notification, it was declared that the writ
properties were required for the public purpose. After
following the procedure prescribed under the provisions of
the Land Acquisition Act, 1894, an Award came to be made on
18th February, 2016 by Respondent No.3.
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12. On 24th July, 2014, the Petitioners raised an
objection before the Sub Divisional Officer contending that
the Predecessors of the Petitioner Mr. Salim N. Khan was
cultivating rice in the Survey No. 84 Hissa No. Part
admeasuring 43 Gunthas and alleged that he was in
possession of the writ property for very long period and
requested to stop the acquisition proceedings immediately.
13. On 18th February, 2016, the Competent Authority
made an Award. It is the case of the Petitioners that in the
said impugned Award, the name of the original Petitioner Mr.
Salim N. Khan was mentioned. The certain amount of
compensation was also offered to him.
14. Mr. Apte, learned senior counsel for the Petitioners
invited our attention to the averments made and the prayers
in the Civil Suit filed by his client. He submitted that notices
under Section 9(3) (a) and Section 10(1) of the Land
Acquisition Act, 1894 were issued to the predecessors of the
Petitioners as the person interested. He submitted that on 11 th
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April, 2016 notices were issued to the original Petitioners
under Section 12(2) of the Land Acquisition Act, 1894 offering
payment of some compensation.
15. Learned Senior Counsel invited our attention to the
definition of the 'Appropriate Authority' under Section 2(3) of
the MRTP Act, the definition of the 'Development Authority'
under Section 2(8) and the definition of the Planning Authority
under Section 2(19) of the MRTP Act. He also relied upon
Section 126(1) of the MRTP Act and submitted that the
acquisition of the land could be made after the publication of
a draft Regional Plan, a development or any other plan or
town planning scheme, only if such land is required or
reserved for any of the public purposes specified in any plan
or scheme under the MRTP Act at any time only by Planning
Authority, Development Authority or as the case may be any
Appropriate Authority may, except otherwise provided in
Section 113(A) of the MRTP Act in the mode and manner
prescribed in Section 126.
16. It is submitted that under Section 113A of the
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MRTP Act, the State Government is empowered to acquire
land for corporation or company declaring to be the New
Town Development Authority. He submitted that admittedly in
this case, the State Government has not invoked Section 113A
of the MRTP Act. It is submitted by the learned Senior
Counsel that in this case, admittedly, a plan for acquisition of
the writ property was made by Respondent No.4 i.e.
Bochasanvasi Shree. Akshar Purshottam Swaminarayan
Sanstha is neither the Planning Authority nor the
Development Authority or an Appropriate Authority within the
meaning of Sections 2(19), 2(8) or 2(3) respectively.
17. It is submitted that at the first instance, no plan for
acquisition could be made by a private party. It is submitted
that the payment of compensation for such acquisition could
have been made only by the Planning Authority or
Development Authority or Appropriate Authority who could
have applied for acquisition of such plot after publication of a
draft Regional Plan or Development or any other plan of the
Town Planning scheme and not by a private party.
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18. The learned Senior Counsel invited out attention to
the averments made by Respondent No.3 i.e. Sub Divisional
Officer in affidavit in reply dated 8 th July, 2016 contending that
it is immaterial whether the Respondent No.4 Trust falls
within the ambit of the definition of 'appropriate authority' as
per the provisions of Section 2(3) of the MRTP Act. He
submitted that the contentions raised by Respondent No.3 is
ex-facie and contrary to the provisions of Section 126 (1) of
the MRTP Act.
19. Learned Senior Counsel for the Petitioners invited
our attention to the affidavit in reply filed by the Municipal
Corporation affirmed on 6th August, 2016 and contended that
the Reserve Site No. 333 situated in Survey No. 84 and 85
was reserved for Community Centre and the Respondent No.1
had appointed Swami Narayan Trust to be its implementing or
acquiring body which cannot be disputed. He submitted that it
is admitted in the said affidavit that the Municipal Corporation
was the Planning Authority of the Vasai Virar Sub Region as
also the Appropriate Authority and that the Respondent No.4-
Trust was the beneficiary, implementing and acquiring body of
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the said reservation as per DP report which is sanctioned by
the Respondent No.1. It is submitted by the learned Senior
Counsel that even according to the Municipal Corporation,
Respondent No.4 is not the Planning Authority or the
Appropriate Authority within the meaning of Section 126(1) of
the MRTP Act.
20. Learned Senior Counsel for the Petitioners invited
our attention to the modified development plan of Vasai Virar
Sub Region annexed at Exhibit-E to the affidavit in reply filed
by the Municipal Corporation and submitted that in the said
plan, the name of the implementing or acquiring body in
respect Reservation Site No. 333 was Swami Narayan Trust.
21. Learned Senior Counsel placed reliance on the
Judgment of the Supreme Court in case of Valjibhai
Muljibhai Someji and Others Vs. State of Bombay and
Others AIR 1963 SC 1890 and in particular paragraph Nos.
5, 6, 9 and 15 in support of the submission that the powers
exercised by the State Government in acquiring the property
of the Petitioners on the application made by a private party is
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colourable being collusive action. He submitted that, in that
case also, the acquisition was initiated at the instance of the
private company and the entire funds for payment of entire
compensation came out of funds of such private company.
22. It is submitted that the Supreme Court has held
that the acquisition having been made for the benefit of a
private company, though for a public purpose, is bad because
no part of the compensation has come out of public revenues
and provisions of Part VII of the Land Acquisition Act have not
been complied with. Learned Senior Counsel for the
Petitioners also placed reliance on the Judgment of the
Supreme Court in case of Amarnath Ashram Trust Society
and Anr. Vs. Governor of U.P. & Ors. (1998) 1 SCC 591
and in particular paragraph No. 6 in support of his submission
that since the costs of acquisition was entirely borne by a
private party, no such acquisition could have been permitted
contrary to the provisions of Section 126(1) of the MRTP Act.
23. Learned Senior Counsel also placed reliance on the
judgment of Supreme Court in case of State of Gujarat vs.
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Bhogilal Keshavlal & Anr. 1980(1) SCC 308 in particular
paragraph 4 and 8 in support of his submission that since the
compensation in this case was paid by a private body, such
acquisition could not have been initiated at the instance of
such private party by the State Government under Section
126(1) of the MRTP Act.
24. Dr. M.R. Sathe, learned Senior Counsel for the
Respondent No.4 Trust on the other hand invited our attention
to the averments pleaded by the Petitioners in Writ Petition
No.4858/2016 and more particularly in paragraphs Nos.2 and
3 and submitted that the Petitioners are claiming through
Harishchandra Shankar Jadhav. He invited our attention to
the Affidavit in Reply filed by his client and submitted that
under a Government Notification dated 7 December, 1988,
MMRDA (formerly known as BMRDA) established under the
Bombay Metropolitan Regional Development Act, 1974 was
appointed as Special Planning Authority under Sectin 40 of
the MRTP act 1966 for the Vasai Virar Sub-Region.
25. It is submitted by learned Senior Counsel that on
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15 May, 1990 CIDCO was replaced by MMRDA vide
Government notification. Thereafter CIDCO became Special
Planning Authority under Sectin 40 MRTP Act, for the Vasai
Virar Sub-Region. On 13 September, 1990 CIDCO declared its
intention under Section 23(1) of the MRTP Act to prepare
development plan for the Vasai Virar Sub-Region and public
notice to that effect was published in Maharashtra
Government Gazette. On 25 June,1992 CIDCO exercises
powers under Section 32(1) of the MRTP Act and published a
notice in Maharashtra Government Gazette to prepare an
interim Development Plan for the Vasai Virar Sub-Region.
26. It is submitted by Dr. Sathe, learned Senior Counsel
for Respondent No.4 that on 10 September, 1992 CIDCO
published draft interim Development Plan for the Vasai Virar
Sub-Region under Section 32(1)(2) r/w. Section 26(1) of the
MRTP Act. On 7 September,1995 CIDCO published a notice
having prepared a draft development plan under Section 26(1)
of MRTP Act for inviting suggestions/objections from public.
27. It is submitted by the learned Senior Counsel that
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on 31 August, 1998 CIDCO has submitted draft Development
Plan to the Government of Maharashtra for sanction under
Section 30 of MRTP Act. On 19 January, 2000. Government of
Maharashtra republished the said draft Development Plan
submitted by CIDCO by giving notice under Section 29 of the
MRTP Act, under the Maharashtra Government Gazette. On
20 January, 2000 State of Maharashtra invited
suggestions/objections from the public on draft Development
Plan submitted by CIDCO. The State of Maharashtra
appointed three Member Committee under Chairmanship of
the Metropolitan Commissioner, MMRDA for performing
functions under Section 28(4), 29 and 30 of the MRTP Act in
respect of the said draft Development Plan.
28. It is submitted by Dr. Sathe, learned Senior Counsel
that on 29 May, 2003 the three member committee considered
the suggestions and objections received by the Government
and carried out the modification in the draft development
Plant and published Notice under Section 29 of the MRTP Act
in the Maharashtra Government Gazette inviting suggestions
and objections from the public in respect of modification. The
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Government sanctioned the Development Control Regulations
for Vasai Virar Sub-Region on 16 February, 2004.
29. It is submitted that on 30 November, 2005 changes
of substantial nature came to be sanctioned by the
Government Notification. On 9 February, 2007 a
development plant of Vasai Virar Sub-Region came to be
sanctioned by the State Government vide the Urban
Development Department Order and is in force with effect
from 15 March, 2007. Learned Senior Counsel submitted that
the Petitioner No.1 filed a Suit bearing No. 619/2013 on 16
December, 2013 after about six years of the publication of the
final Development Plan and published by the State
Government vide notification dated 9 February, 2007.
Respondent Nos. 1 to 5 were not impleaded as party to the
said suit. The said suit has nothing to do with final
Development Plan approved and made public by the State
Government.
30. It is submitted by the learned Senior Counsel that
the cause of action if any in favour of the Petitioners arose in
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the year 2007 when the Development Plan of Vasai Virar Sub-
Region came to be sanctioned by the State Government. The
present Writ Petition is filed in the year 2016. Petitioners
have not explained the gross delay/laches in filing the petition
after several years.
31. Learned Senior Counsel for Respondent No.4
submitted a copy of the report submitted under Section 30 of
the MRTP Act, by the Committee appointed by Government of
Maharashtra under Section 162 of MMRDA Act, relating to
Development Plan of the Vasai Virar Sub-Region for 2001-
2021. It is submitted that the said Committee accepted the
report of Planning Committee and corrections as well as
changes/modifications. He invited our attention to the
Appendix-E appended to the said Report, providing details of
the reserved site and their Implementing Bodies. It is
submitted that in respect of several reserved sites, names of
various Trusts were mentioned as Implementing or Acquiring
Bodies including names of the Respondent No.4. Name of
Respondent No.4 is mentioned at page E-11 in respect of the
Site No.333 at Serial No. 337 of said Appendix-E.
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32. Learned Senior Counsel placed reliance on Section
22(f) of the MRTP Act and submitted that the reservation of
the land can be for Community Facilities and Services. He
relied upon Section 31 of the MRTP Act and submitted that
the development plan has been sanctioned having reservation
for Trust. He relied upon Section 125 of the MRTP Act and
submitted that once there is compulsory acquisition in
respect of any land, such acquisition is deemed to be a public
purpose. He submitted that the Petitioners at the most would
be entitled to seek compensation if they are able to show any
right, title and interest in the property under acquisition and
can apply for enhancement of such compensation upon
providing their entitlement.
33. Learned Senior Counsel for Respondent No.4 relied
on Section 126 of the MRTP Act and submitted that
admittedly in this case Site No.333 was reserved for public
purposes. Entire procedure required to be followed for
acquiring land for public purpose is followed in this case. He
submitted that who has made an application for acquiring the
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land is thus in consequential. He submitted that it is not the
case of the Respondent No.4 that it is an Appropriate
Authority or Public Authority according to Section 126 of the
MRTP Act. He submitted that there is no challenge made by
the Petitioners that after issuance of notification under
Section 126(4) of the MRTP Act, any part of procedure is not
complied with. He submitted that Section 126 of the MRTP
Act, is equivalent to Section 4 of the Land Acquisition Act. He
submitted that once Award is made, acquisition proceedings
cannot be challenged.
34. Learned Senior Counsel relied upon the following
Judgments:
1. Municipal Council, Ahemednagar And Anr. Vs.
Shah Hyder Beig and Others [(2000)2 SCC 48]
2. Northern Indian Glass Industries Vs. Jaswant
Singh And Others [(2003) 1 SCC 335]
3. Girnar Trader (3) Vs. State of Maharashtra
And Ors. [(2011) 3 SCC 1]
4. Mehta Laiq Ahmed Shaikh and Anr. Vs. State
of Maharashtra and Ors. [(2017) SCC Online Bom 8841]
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5. Bajirao T. Kote (Dead) By LRS. And Anr. Vs.
State of Maharashtra And Ors. [(1995) 2 SCC 442].
35. It is submitted by the learned Senior Counsel that
the Petitioner could at the most challenge the notification
issued by the State Government sanctioning the final
Development Plan in the year 2007 which is admittedly done
by the Petitioners after 9 years of the issuance of such
notification. He submitted that the second Proviso to Section
6 of the Land Acquisition Act relief upon by Shri Apte learned
Senior Counsel for the Petitioners in Writ Petition No.
4858/2016 is not applicable. He submitted that the MRTP Act
is self contained code.
36. It is submitted by the learned Senior Counsel that
Respondent No. 4 is implementing Development Plan
prepared by the State Government for Community Service.
The Petitioners cannot be allowed to contend that the
application was made by the Respondent No.4. The
acquisition is made on behalf of the Planning Body. He
submitted that the land is acquired for free Community
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Service which is a deemed public purpose. He invited our
attention to prayer Clause (a-1) of the Writ Petition filed by
these two Petitioners. It is submitted by learned Senior
Counsel that land can be acquired by private negotiation.
The Petitioner in Writ Petition No. 4858/2016 have no locus to
file this petition.
37. Mr. Patel, learned Additional Government Pleader
for the State also challenged the locus of Petitioners in both
the petitions to file these petitions. He invited our attention to
the documents annexed in the Writ Petition No. 4858/2016
and submitted that the Petitioners claim title under
Memorandum of Understanding to purchase which does not
create any right in favour of the Petitioners. Petitioners have
not filed any suit for Specific Performance.
38. Ms. Sagvekar, learned counsel for Municipal
Corporation invited our attention to the averments made in
para 7 to 10 of the Affidavit in Reply filed by Municipal
Corporation and submitted that Petitioners in Writ Petition
No. 4858/2016 have constructed structures without
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permission of the Municipal Corporation. She opposed both
these petitions on the grounds raised in Affidavit in Reply.
39. Mr. Vishal Kanade, learned counsel for the
Intervenors submitted that his clients have rights in the
property under acquisition and thus this Court shall not
adjudicate upon the claims of the Petitioners in the writ
property which would affect and prejudice the rights of his
clients in the writ property. He submitted that Intervenors
thus shall be allowed to intervene in this petition and to
oppose this petition.
40. Mr.Apte learned counsel for the Petitioners in Writ
Petition No.4858/2016 fairly submitted that the "Community
Purpose" is a public purpose. This proposition is not in
dispute. He, however, submitted that procedure prescribed
under Section 126 of MRTP Act has not been followed by the
Respondents.
41. A Short question that arises for consideration of
this Court is whether Respondent No.4 Trust has acted as a
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Planning Authority or the Appropriate Authority within the
meaning of Section 126(1) of the MRTP Act for acquiring the
land in question or not?
42. Insofar as Writ Petition 4858/2016 is concerned
the Petitioners had admittedly filed a suit bearing Regular
Civil Suit No. 619/2013 before the Learned Civil Judge, Junior
Division at Vasai, inter alia, praying for an injunction against
the trustees of the Respondent No.4 Trust. The Assistant
Commissioner of Vasai Municipal Corporation had issued a
notice under Sections 52, 53 and 54 of the MRTP Act to
Petitioner No.1, alleging that the Petitioner No.1 had carried
out illegal construction over the land bearing Survey No. 84.
43. The Petitioners were further informed that in the
Development Plan of Vasai Virar Municipal Corporation, the
Survey No.84 Part, 85 Part and 93 Part, situated at Tulinj, Tal.
Vasai, Dist. Palghar was reserved by way of Reservation No.
333 for the Community Centre. It is not in dispute that, the
development plan sanctioned by Respondent No.1 on 15
March, 2007 is in force till date. The Petitioners have
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however, filed the Writ Petition on 25 April, 2016 i.e. after
about 7 years, inter alia praying for quashing and setting
aside the Award dated 18 February, 2016, without challenging
the development plan sanctioned as far as back on 15 March,
2007.
44. Learned Senior Counsel for the Petitioners, did not
dispute that on 11 December, 2013, the State of Maharashtra
had already issued a Notification/Declaration under Section
126(1) of the MRTP Act declaring that the writ property was
required for public purpose. The Award was accordingly made
on 18 February, 2016. The Petitioners raised an objection
only on 24 July, 2014 before the Sub-Divisional Officer
contending that predecessor of the Petitioner i.e. Salim Naim
Khan was cultivating rice in Survey No.84 (Part) admeasuring
43 gunthas and that the said Mr. Salim Naim Khan was in
possession of the writ property since long period.
45. The Petitioners in the said Writ Petition have been
claiming through Harichandra Shankar Jadhav. It is not in
dispute that on 14 May, 1999, CIDCO was replaced by
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MMRDA vide Government Notification. CIDCO became
Special Planning Authority under MRTP for Vasai Virar Sub-
Region.
46. On 7 September, 1995, CIDCO published a notice
that the draft development plan was being prepared under
Section 26(1) under the MRTP Act and invited suggestions
from the public and thereafter submitted a draft development
plan to the State Government under Section 126 (1) of the
MRTP Act. The State Government had appointed three
member committee under the Chairmanship of Metropolitan
Commissioner, Mumbai for performing functions under
Section 28(4), 29 and 30 of the MRTP Act in respect of the
said draft Development plan. After considering the
suggestions and objections received by the Government the
three members' committee carried out the modification in the
draft Development Plan and published a notice under Section
29 of the MRTP Act for inviting suggestions and objections
from the public in respect of the modifications. The
Government sanctioned the Development Control Regulations
for Vasai-Virar Sub-Region submitted by said Committee on 16
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February, 2004.
47. It is a common ground that the said Development
Plan for Vasai Virar Sub-Region which was sanctioned on 9
February, 2007, came in force with effect from 15 March,
2007. The Petitioner No.1 filed a Suit bearing No. 619/2016
on 16 December, 2016 after the final plans were sanctioned
and published in the Government Gazette vide Notification
dated 9 February, 2007. The Respondents No.4, however, was
not impleaded as party to the suit. In our view Dr. Sathe,
Learned Senior Counsel for Respondent No.4 is right in his
submission that the cause of action if any, in favour of the
Petitioners arose in the year 2007 when the development
plan for Vasai Virar came to be sanctioned by the State
Government. The Writ Petition is also filed belatedly after
more than 8 years without explaining delay and laches
caused in filing the petition.
48. The report submitted under Section 30 of the
MRTP Act by the Committee appointed by the Government of
Maharashtra, accepted the report of the Planning Committee
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and the corrections as well as changes / modifications.
49. A perusal of the said report clearly indicates that
in respect of several reserved sites, the names of various
trusts were mentioned as implementing or acquiring bodies
including the name of Respondent No.4 in respect of the site
No.333 at Serial No. 337 at Appendix-E. It is not the case of
the Petitioners that the names of other trusts or private
bodies were only mentioned as implementing or acquiring
bodies. None of the Petitioners have disputed that the
reservations of the land can be for community facilities and
services, which is a public purpose. The purposes mentioned
in the development plan for reservation are public purposes.
50. It is not in dispute that the Development Plan has
been sanctioned and has been reserved for the trust. Section
125 of MRTP clearly provides that once there is a compulsory
acquisition of land, such acquisition is deemed to be a public
purpose. Hence, the right of the Petitioners, if any, in the said
land, acquired for the public purposes would be in the nature
of seeking compensation. Learned Senior Counsel for the
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Petitioners could not demonstrate that the entire procedure
required to be followed for the acquisition of land for the
public purpose was not complied with. It is not disputed by
the learned counsel for the Petitioners that the Respondent
No.4 is a Trust for whose benefit, the said land was acquired
for community centre.
51. We have perused the Affidavit in Reply filed by
Respondent No.3 contending that the structure possessed by
the Petitioners, admittedly is an unauthorized structure.
Notices under sections 52 and 53 of the MRTP Act have
already been issued against the Petitioners. Respondent No.3
has rightly contended in the Affidavit that it is immaterial
whether the Respondent No.4 falls within the ambit of
definition of the Appropriate Authority as per provisions of
Section 2 (3) of the MRTP Act or not. It is rightly contended
that the said definition is clear that the public authority is one
on whose behalf the land is designated for public purpose.
The definition implies that the land can be designated not only
for the purpose of such Public Authority but also can be for
public purpose designated by such public authority.
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52. The Respondent No.4 also has filed an Additional
Affidavit in this Petition stating that the State of Maharashtra
created the Vasai Virar Sub-Regions on 31 August, 1998 in
order to provide basic amenities on account of rapid
urbanization of the Vasai Taluka for planned development,
which is near Mumbai, due to connectivity of Western Railway
and National Highway and for planned development. The
Municipal Corporation also mentioned that the State
Government had appointed Committee in the Chairmanship
of Principal Secretary of Urban Development Department of
State of Maharashtra, to examine the entire area and
possibility of the said entire area to the declared as a
Municipal Corporation and submit its report.
53. The said development plan, proposals were made in
the form of zoning, roads, and reservation and accordingly
872 sites were reserved along with their areas and
implementing or acquiring bodies as reflected in Appendix E
of the sanctioned development plan. Insofar as referred site
No. 333 is concerned, implementing or acquiring body, name
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of Respondent No.4 was mentioned. The Petitioners did not
challenge the said schedule appended to the development
plan. At no point of time, the Petitioners challenged the said
reservation in respect of Site No. 333 for the community
centre and that Respondent No.1 had appointed the
Respondent No.4 to be its implementing or acquiring body.
54. The said notification dated 11 December, 2013
indicates that it was made clear that the Vasai Virar Municipal
Corporation is the Planning Authority of the Vasai Virar Sub-
Region as also the Appropriate Authority and that
Respondent No.4 is the beneficiary/implementing/acquiring
body of the said reservation as per DP Report sanctioned by
the State of Maharashtra. It is not the case of the Petitioners
that Municipal Corporation as well as Respondent No.4 were
Planning Authority and Appropriate Authority.
55. In paragraph 13 of the Affidavit of Respondent
No.5, the Municipal Corporation has stated that since the
beneficiary implementing/acquiring body with respect to the
reservation No.333 was the Respondent No.4, the Municipal
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Corporation granted its no objection, as done by the CIDCO
for acquiring the land in question for the said public purpose.
Petitioners have not disputed that the acquisition was for the
benefit of the Respondent No.4 for the public purpose.
56. It is not in dispute that the Respondent No.4 is
Registered Public Charitable Trust and is also designated as
Non-Government Organization (NGO) by the United Nation
Organization. In our view at the first instance the Petitioners
have no locus to invoke an ex-ordinary jurisdiction of this
Court under Article 226 of the Constitution of India for
challenging the Award dated 18 February, 2016 passed by the
Competent Authority.
57. The Notification dated 11 December, 2013 issued
by the State Government after following the procedures in
the Chapter III under the provisions of Section 21 to 42 r/w.
Section 126, sub-section 1, 2 and 4 of MRTP Act wherein it
has been clearly mentioned that land which has been
acquired and allotted to Respondent No.4 is for public
purpose and the Respondent No.5 will act as an Appropriate
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Authority. It was confirmed in the said Notification that the
land allotted to the Respondent No.4 is to be used for public
purpose under the provisions of the MRTP Act.
58. The Petitioners have not challenged the
Notification dated 11 December, 2013 or the Notification
dated 9 February, 2007 issued by the State Government.
Admittedly, the Petitioners had participated in the hearing
before the competent authority. The development plan
having been finalized and notified, writ jurisdiction cannot be
invoked by the Petitioners. The Supreme Court in the case
of Municipal Council Ahmednagar and Anr. Vs. Shah
Hayder Beig and Ors. [(2000) 2 SCC 48], has held that
after the Award is passed, no writ petition can be filed
challenging the acquisition notice or against any other
proceeding thereunder. In our view, the principles laid down
in the case of Municipal Council Ahmednagar (Supra).
would apply to the facts of the case. The remedy, if any, of the
Petitioner would be to claim compensation if the Petitioner
succeeds in establishing their rights, if any, in the writ
property.
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59. The Supreme Court in the said judgment of
Municipal Council Ahmednagar and Anr. (Supra) also
adverted to the judgment of the Supreme Court in the case of
Municipal Corporation of Greater Bombay Vs. Industrial
Development Investment Co. (P) Ltd. [(1996) 11 SCC
501] in which it has been held that when there is inordinate
delay in filing the Writ Petition and when all steps taken in
the acquisition proceedings, have become final, the Court
should be loath to quash the notifications. The High Court
has, no doubt, discretionary powers under Article 226 of the
Constitution of India to quash the notification under Section
4(1) and declaration under Section 6, but it should be
exercised taking all relevant factors into pragmatic
consideration. When the award was passed and possession
was taken, the Court should not have exercised its power to
quash the award which is a material factor to be taken into
consideration before exercising the power under Article 226.
60. Supreme Court in case of Northern Indian Glass
Industries Vs. Jaswant Singh and Ors. [(2003) 1 SCC
335], has held that the delay in filing the writ to challenge
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notifications under Sections 4 and 6 would be relevant factor
for reason to grant relief. In this case, the Petitioners neither
challenged the acquisition proceedings at any stage earlier,
not challenged notification issued from time to time at any
stage.
61. Supreme Court in case of Girnar Traders (3) Vs,
State of Maharashtra and Ors. [(2011) 3 Supreme Court
Cases 1] has held that all the provisions under the Land
Acquisition Act cannot be applied to the MRTP Act. The
provisions of MRTP Act can be implemented in their own
field. It is held that there can hardly be any hesitation in
concluding that the MRTP is a self contained code and does
not lose its colour or content of being a self-contained code
merely because it makes a reference to some of the
provisions of the Land Acquisition Act for acquiring the land
for the purpose of MRTP Act and determination of
compensation in that behalf. It is held that referring the
provisions of the Land Acquisition Act may only be taken
recourse to that limited extend within the extensive
framework and for the purpose of MRTP Act. Thus, Court
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accordingly held that MRTP Act is complete Code in itself.
The principles laid down are applicable to the facts of this
case. In our view, reliance placed by Mr. Apte, on some of the
provisions of the MRTP Act is thus totally misplaced.
62. The Full Bench of this Court in case of Mehtab
Laiq Ahmed Shaikh and Anr. Vs. State of Maharashtra
and Ors. [ (2017) SCC Online Bom 8841] has held that
while carrying out the planned development, a balance has to
be achieved between the individual rights and larger good of
the society. The MRTP Act has its own scheme for achieving
such a balance. The MRTP Act has an elaborate methodology
of identification and finalization of the need for public
amenities and to initiate the process for acquisition of the land
for fulfilling the need so determined. In our view, the
principles laid down by Full Bench of this Court in case of
Mehtab Laiq Ahmed Shaikh and Anr. (supra) apply to the
facts of this case.
63. The fact remains that the land was acquired for
public purpose and for the benefit of Respondent No.4. The
involvement of Respondent No.4 is even otherwise necessary
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for the purpose of acquisition. The nomenclature used by the
State Government or the Municipal Corporation would not
make Respondent No.4 as a planning authority or acquiring
body within the meaning of Section 126 of the MRTP Act or
within the definition of the Appropriate Authority. The
acquisition proceedings cannot be set aside on this ground.
Respondent No.4 was not the stranger to the acquisition
proceedings. The payment of compensation was to be made
by the Respondent No.4. Admittedly, it is not the case of the
Petitioners that the land was not acquired for Respondent
No.4 or that the payment has been made by some other party.
64. The Supreme Court in case of Bajirao T. Kote
(Dead) by Lrs. Vs. State of Maharashtra and Ors. [(1995)
2 sSCC 442], held that it cannot be gainsaid that providing
access to the temples is not a public purpose. The exercise
of power under Section 4(1) of the Act, therefore, is neither
colourable nor malafide. Mr. Apte, Learned Senior Counsel
for the Petitioners fairly did not dispute that the land was
reserved for public purpose i.e. for community services.
65. Insofar as the judgment of the Supreme Court in
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case of Amarnath Ashram Trust Society Vs. Govertment
of UP and Ors. [(1998) 1 SCC 591] relied upon by Mr.
Apte, Learned Senior counsel for the Petitioner in Writ
Petition No. 4858/2016 is concerned, the Supreme Court had
considered the situation where the entire cost of acquisition
was borne by the Trust society and acquisition was for a
company and not for a public purpose. Since it is an admitted
position that the purpose for which land was acquired is a
public purpose, the judgment cited by the Shri Apte, learned
Senior Counsel for the Petitioner in case of Amarnath
Ashram Trust Society (supra) would not apply to the facts of
this case.
66. Insofar as judgment of State of Gujarat and Anr.
Vs. Bhogilal Keshavlal & Anr. [(1980) 1SCC 308] and in
case of Valjibhai Sonji & Anr. Vs. State of Bombay & Ors.
[1964 (3) SCR 686] relied upon by the Learned Senior
Counsel for the Petitioners is concerned, the said judgments
do not apply even remotely to the facts of this case.
67. Insofar as the reliance placed on Section 113A of
the MRTP Act by the Learned Senior Counsel for the
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Petitioner is concerned, the reliance placed on the said
provision is totally misplaced. It is the case of the Petitioners
themselves that admittedly, in this case the State Government
has not invoked Section 113 of the MRTP Act. The Respondent
No.4 is not a Corporation or company, have been declared to
be new Town Development Authority.
68. Insofar as the submission of the Learned Counsel
regarding payment of compensation for acquisition could have
been only made by Planning Authority or by Development
Authority or Appropriate Authority who could have applied
for acquisition of such offer is concerned, the Petitioners have
not disputed that the land was acquired for a public purpose
and for benefit of Respondent No.4. Even if the beneficiary of
the acquisition is permitted to make payment for acquisition
of the property for public purpose directly and not routed
through the Planning Authority or Development Authority or
through the Appropriate Authority would not vitiate the
acquisition proceedings. Respondent No.4 has not claimed its
status as a planning Authority or Development Authority or
Appropriate Authority as sought to be canvassed by the
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Petitioners.
69. Writ Petition is devoid of merits and deserves to be
dismissed.
70. Insofar as the Civil Application No.1545 of 2019
for intervention in this Writ Petition is concerned, since we do
not propose to pass any order in favour of the Petitioners,
rights of the Applicants, if any, in the writ property are not
affected and thus, we are not inclined to entertain this Civil
Application for intervention and same is accordingly disposed
of.
FACTS, SUBMISSIONS, REASONS AND CONCLUSIONS
IN WRIT PETITION No.9712 OF 2016.
71. Prayers in this Petition are similar to the prayers in
Writ Petition No.4858 of 2016.
72. Civil Application No.1542 of 2019 is filed by the
Applicants claiming to be trustees, inter alia, praying for
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intervention in this Writ Petition on the ground that the
erstwhile owners had transferred the writ property in the
name of the intervenors' trust and thus, any order, if passed in
favour of the Petitioners would prejudice the rights of the
Applicants.
73. It is the case of the Petitioners that the predecessor
of the Petitioners became owner of the writ property
admeasuring 0-25-10 from Gat No. 85 part under the
provisions of the Bombay Tenancy and Agricultural Land Act
(for short 'BTAL Act') as he was the original tenants of the
landlord Mr. Bandukwala. The said declaration was made by
the Tenancy Court in 1983. It is the case of the Petitioners
that the predecessor of the Petitioners was issued certificate
under Section 32-M of the BTAL Act. It is the case of the
Petitioners that the Respondent Trust entered into an MOU on
14 June, 1993 with the predecessor of the Petitioners, which
was never acted upon.
74. According to the Petitioners, trustees of
Respondent No.4 admitted the possession of the predecessor
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over the said property and thus the Petitioners have right,
title and interest over the said property. The Respondent
No.4 filed Special Civil Suit No. 57 of 2004 in the Court of
Civil Judge, Senior Division at Vasai against the Petitioners
and the same is pending. The trustees of Respondent No.4
Trust filed Suit bearing RCS No. 154 of 1997 against the
Petitioners which came to be dismissed. The Appeal filed by
the trustees of Respondent No.4 bearing No. 208 of 1999,
however, came to be allowed. The Petitioners have
challenged the said order before this Court and the said
proceedings are pending. The predecessor of the Petitioners
had filed Tenancy Case No. 25 of 1983 wherein he came to be
declared as a Tenant. The Maharashtra Revenue Tribunal
passed an order recommending the matter back before the
authority.
75. It is the case of the Petitioner that Respondent
No.5, in its Development Plan reserved the area for the
Respondent No.4 from Survey No. 84 Part, Survey No. 85 Part
and Survey No. 93 Part for Community Centre i.e. Reservation
No. 333. The said Development Plan is sanctioned by
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Respondent No.1 and it is in force since 15 th March, 2007.
The Petitioners filed this Petition on 16 th August, 2016,
impuging the Award dated 18th February, 2016.
76. It is the case of the Petitioners that the Award
made by the Competent Authority is without following the
procedure prescribed under the Land Acquisition Act.
77. Respondent No. 4 filed an affidavit in reply to this
Petition, opposing the Writ Petition. It is contended in the
Affidavit in Reply that the Petitioners have not challenged the
Notification dated 11th December, 2013. The Petitioners had
participated in the hearing and had filed their objections and
only after considering the objections pressed by the
Petitioners, the Competent Authority has made an Award on
18th February, 2016. The other objections raised by
Respondent No.4 will be dealt with in the later part of this
Petition.
78. Respondent Nos.3 and 5 also filed Affidavits in this
Petition, opposing this petition on various grounds.
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78. Ms. Neeta Karnik, learned counsel for the
Petitioner submitted that the predecessor of the Petitioners
was a protected tenant and had been issued certificate under
Section 32-M of the BTAL Act. She submitted that the
predecessor of the Petitioners was the owner in respect of the
writ property. She invited our attention to the Affidavit in
Reply filed by Respondent No.4 Trust and submitted that
Respondent No.4 has raised false contentions about their
authority to acquire the writ property. She submitted that
Respondent No.4 is neither an appropriate authority or public
authority nor a acquiring body, who could invoked the
provisions of Section 126 (4)of the MRTP Act.
79. Learned counsel for the Petitioners invited our
attention to the Affidavit in Reply filed by Respondent No.5
and more particularly, paragraph 10 and submitted that there
was mentioning of the acquiring body or implementing body
under the provisions of the MRTP Act. She submitted that
Respondent No.4 cannot be described as Acquiring Body or
Implementing Body.
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80. Learned counsel for the Petitioner relied upon the
Judgments which were also relied upon by Mr.Apte learned
Senior Counsel for the Petitioner in Writ Petition
No.4858/2016 and submitted that Section 126 of the MRTP
Act has to be read with Section 2(2), 2(8) and 2(9) and
accordingly all the three authorities described in those
provisions would fall under Section 126 of the MRTP Act and
such authority can apply for acquisition of land under Section
126 of the MRTP Act, and not a private party as per procedure
prescribed by law.
81. Learned counsel for the Petitioners placed reliance on
the Judgments of this Court in case of Lakhichand Marotrao
Dhoble & Anr. Vs. Joint Charity Commissioner and
Others, 2020 (6) Bom.C.R.414 (Nagpur Bench) and in
particular para 9,11,12 in support of the submission that the
activities of the Trust are purely voluntary in nature. He
submitted that Respondent No.4 is not amenable to writ
jurisdiction under Article 226 of Constitution of India on the
ground, that it was not an authority within the meaning of
Article 12 of the Constitution of India.
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82. Learned Counsel for the Petitioners placed reliance on
the Judgment of Punjab & Haryana Court in case of DAV
College Trust and Management Society and others Vs.
Director of Public Instructions and Others, AIR 2008
Punjab And Haryana 117, in particular para 5 in support of
the submissions that the definition of 'public authority' itself
shows that the 'public authority' would include any
organization/body owned, controlled or substantially financed
directly or indirectly by funds provided by the Government or
even the non-Government Organization which is substantially
financed.
83. It is submitted that the Respondent No.4 Trust,
who is a party Respondent to the Petition filed by her clients
and does not get any grant in Aid or finance from the State
Government or has no directly or indirectly control or is
substantially financed by the Government or even the Non
Government Organization She submitted that the Respondent
No.4 has not relied upon any other provision to show that
Respondent No.4 is any of the Authority who has been
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permitted to make an application for acquisition of the
property.
84. Learned Counsel relied upon the following
judgments:
1. Amarnath Ashram Trust Society Vs. Government of
UP & Ors. (1998) 1 SCC 591.
2. State of Gujrat & Anr Vs. Bhogilal Keshavlal & Anr.
(1980) 1 SCC 208
3. Vajibhai Sonji & Anr Vs. State of Bombay & Ors.
(1964(3) SCR 686)
85. Insofar as Petitioners in Writ Petition No.9712/2016
filed by the clients of Ms.Karnik is concerned, Dr. Sathe
submitted that the Petitioners have agreed to sell the land
and thus have no locus to file said petition. Petitioners are not
even in possession of the land acquired. Acquisition is done by
the State Government and not by Respondent No.4.
86. Mr. Patel, learned Additional Government Pleader
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and Ms. Sagvikar reiterated the submissions made in Writ
Petition No.4856 of 2016.
87. Insofar as the submission made by Ms. Karnik in
Writ Petition No. 9712 of 2016 is concerned, the Petitioners
claim to be the owners under the provisions of Maharashtra
Tenancy and Agricultural Lands Act on the ground that their
predecessor was the original tenant of the landlord Mr.
Bandukwalla and was issued certificate under Section 32N of
the said Act. Admittedly, City Civil Suit No. 57/2004 in the
Court of Civil Judge, Senior Division filed by the Respondent
No.4 is pending against the Petitioners. The proceedings filed
by the Petitioners arising out of the suit bearing RCS No. 154
of 1997 is pending. In our view, even if the predecessor of
the Petitioners was a tenant or as deemed to have become
owner of the property in question, the right of the Petitioners,
if any, is only to claim compensation. The Petitioners have
not raised or demonstrated any ground for interference with
the acquisition proceedings, even if there are alleged
irregularities in acquiring the property for a public purpose.
Such alleged irregularities cannot vitiate the acquisition
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proceedings , terminating the impugned Award.
88. Insofar as the judgment of this Court of Nagpur
Bench in case of Lakhichand M. Dhoble & Anr. Vs. Joint
Charity Commissioner and Anr.[2020(6) Bom C.R. 414]
relied upon by Ms. Karnik, learned counsel for the Petitioners
in Writ Petition No. 9712/2016 is concerned, the said
judgment would not advance the case of the Petitioners over
the issue of maintainability of the petition against the trust.
The Petitioners have not demonstrated as to whether
Respondent No.4 Trust has received any financial assistance
from the State Government.
89. Insofar as judgment in the case of D.A.V. College
Trust and Management Society And Ors. Vs. Director of
Public Instructions and Ors. [AIR 2008 Punjab and
Haryana 117] is concerned, it is alleged that once a body is
substantially financed by the Government, the functions of
such body partake the character of 'public authority'. The
Petitioners have not produced any documents in this Court as
to what financial assistance is given to the Respondent No.4
by the State Government. The said judgment in the case of
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D.A.V. College Trust and Management Society And Ors.
(supra) thus, would not advance the case of the Petitioner.
90. Insofar as the submissions made by Ms. Karni
adopting the submissions made by Mr. Apte, learned Senior
Counsel for the Petitioners in Writ Petition No. 4858 of 2016
are concerned, the same are already dealt with in the earlier
paras of the judgment in Writ Petition No.4858 of 2016.
91. Insofar as the Civil Application for intervention in
this Writ Petition is concerned, since we do not propose to
pass any order in favour of the Petitioners, rights of the
Applicants, if any, in the writ property are not affected and
thus, we are not inclined to entertain this Civil Application or
intervention and same is accordingly disposed of.
92. We accordingly, pass the following order:
(i) Writ Petition Nos. 4858 of 2016 and 9712 of 2016
are dismissed.
(ii) Rule is discharged.
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WP 4858-16..doc
(iii) Civil Applications filed therein by the
Applicants/Intervenors are accordingly disposed of.
(iv) No order as to costs.
(M.M. SATHAYE. J.) ( R. D. DHANUKA, J. )
93. Mr. Apte, learned Senior counsel for the Petitioner
in Writ Petition No. 4858 of 2016 and Ms. Neeta Karnik,
learned counsel for the Petitioner in Writ Petition No.9712 of
2016 pray for continuation of ad-interim order passed by this
Court for sometime. The application for continuation of ad-
interim order is vehemently opposed by the learned counsel
for the Respondent Nos.3 and 4.
94. The application for continuation of ad-interim order
passed by this Court is rejected.
(M.M. SATHAYE, J.) (R.D. DHANUKA, J.)
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