Bombay High Court
Dr. Laxman Somnath Bidwe vs State Of Maharashtra, Through ... on 3 May, 2023
Bench: R.D. Dhanuka, M. M. Sathaye
2023:BHC-AS:13365-DB
Shubham Talle
WP 6172-2012 (J).doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 6172 OF 2012
Arvind Narayan Golande Age adult, Occ-Business
Manish Medicals, Jyotiprasad Vidyalaya Building,
Main road, At & Taluka Daund, Dist. Pune ... Petitioner
Versus
1. State Of Maharashtra,
Through its Chief Secretary, Mantralaya
Mumbai 400 032.
2. The Collector, Pune Collector Office
Compound, Pune 411 001.
3. The Commandant, State Reserve Police Force,
Group No. V. Having his Office At Daund, Dist. Pune.
4. The Commandant, State Reserve Police Force,
Group No. VII. Having his Office At Daund, Dist. Pune.
5. The Special Land Acquisition Officer No. 19
Pune, having his officer at Collector Office
Compound, Pune 411 001. ... Respondents
WITH
WRIT PETITION NO. 6175 OF 2012
Mahesh Kantilal Bhayani 101, Rajdeep Apartments,
S.No. 29-47/48, Chaitanya Nagar, Pune-Satara road,
Pune 411 043. ... Petitioner
Versus
1. State Of Maharashtra,
Through its Chief Secretary, Mantralaya
Mumbai 400 032.
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2. The Collector, Pune Collector Office
Compound, Pune 411 001.
3. The Commandant, State Reserve Police Force,
Group No. V. Having his Office At Daund, Dist. Pune.
4. The Commandant, State Reserve Police Force,
Group No. VII. Having his Office At Daund, Dist. Pune.
5. The Special Land Acquisition Officer No. 19
Pune, having his officer at Collector Office
Compound, Pune 411 001. ... Respondents
WITH
WRIT PETITION NO. 6188 OF 2012
Iqbal Usman Shaikh Age Adult, R/at Flat No. 304,
Third Floor, Daud Manzil Building, Opposite
Asmita Supermarket, Naya Nagar, Mira Road
Mumbai. ... Petitioner
Versus
1. State Of Maharashtra,
Through its Chief Secretary, Mantralaya
Mumbai 400 032.
2. The Collector, Pune Collector Office
Compound, Pune 411 001.
3. The Commandant, State Reserve Police Force,
Group No. V. Having his Office At Daund, Dist. Pune.
4. The Commandant, State Reserve Police Force,
Group No. VII. Having his Office At Daund, Dist. Pune.
5. The Special Land Acquisition Officer No. 19
Pune, having his officer at Collector Office
Compound, Pune 411 001. ... Respondents
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WITH
WRIT PETITION NO. 7576 OF 2012
Sudhakar Shantaram Jogalekar Age Adult,
Occ-Retired from Service. R/at post and Taluka
Daund, Dist. Pune. ... Petitioner
Versus
1. State Of Maharashtra,
Through its Chief Secretary, Mantralaya
Mumbai 400 032.
2. The Collector, Pune Collector Office
Compound, Pune 411 001.
3. The Commandant, State Reserve Police Force,
Group No. V. Having his Office At Daund, Dist. Pune.
4. The Commandant, State Reserve Police Force,
Group No. VII. Having his Office At Daund, Dist. Pune.
5. The Special Land Acquisition Officer No. 19
Pune, having his officer at Collector Office
Compound, Pune 411 001. ... Respondents
WITH
WRIT PETITION NO. 8992 OF 2012
Dr. Raja Kushadhwaj Kulkarni Occ-Medical Practice
R/at Shalimar Chowk, Daund-Kurkumbh Road
Daund, Taluka Daund, Dist. Pune
(deceased through legal heirs)
1A] Sushrut Raja Alias Rangnath Kulkarni Occ-Service
R/at Yogeshwari Hospital, shalimar Chowk, Daund,
Taluka Daund, Dist. Pune
1B] Smt. Suman Raja Alias Rangnath Kulkarni
Age-74 years Occ-Household work, R/at R/at
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Yogeshwari Hospital, shalimar Chowk, Daund,
Taluka Daund, Dist. Pune
1C] Dr. Siddharth Raja Alias Rangnath Kulkarni
R/at Yogeshwari Hospital, shalimar Chowk, Daund,
Taluka Daund, Dist. Pune. ...Petitioner
Versus
1. State Of Maharashtra,
Through its Chief Secretary, Mantralaya
Mumbai 400 032.
2. The Collector, Pune Collector Office
Compound, Pune 411 001.
3. The Commandant, State Reserve Police Force,
Group No. V. Having his Office At Daund, Dist. Pune.
4. The Commandant, State Reserve Police Force,
Group No. VII. Having his Office At Daund, Dist. Pune.
5. The Special Land Acquisition Officer No. 19
Pune, having his officer at Collector Office
Compound, Pune 411 001. ... Respondents
WITH
WRIT PETITION NO. 8974 OF 2012
Dr. Laxman Somnath Bidwe Age Adult
Occ-Medical Practice. R/at Daund, Taluka
Daund, Dist. Pune. ...
Petitioner
Versus
1. State Of Maharashtra,
Through its Chief Secretary, Mantralaya
Mumbai 400 032.
2. The Collector, Pune Collector Office
Compound, Pune 411 001.
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3. The Commandant, State Reserve Police Force,
Group No. V. Having his Office At Daund, Dist. Pune.
4. The Commandant, State Reserve Police Force,
Group No. VII. Having his Office At Daund, Dist. Pune.
5. The Special Land Acquisition Officer No. 19
Pune, having his officer at Collector Office
Compound, Pune 411 001. ... Respondents
******
Mr. P. K. Hushing Advocate for Petitioners in Writ Petition No. 6172
of 2012, Writ Petition No. 6188 of 2012 & Writ Petition No. 7576 of
2012
Mr. P. H. Bhoite Advocate for the Petitioners in Writ Petition No. 6175
of 2012, Writ Petition No. 8992 of 2012 And Writ Petition No. 8974
of 2012
Mr. N. K. Rajpurohit - AGP for the State/Respondent Nos. 1 to 5 In
Writ Petition No. 6172 of 2012.
Mr. A. P. Vanarase - AGP for the State/Respondent Nos. 1 to 5 in Writ
Petition No. 7576 of 2012
Mr. V. S. Gokhale 'B' Panel Counsel for State in Writ Petition No. 8992
of 2012 with Interim Application No./19653 of 2022 & Writ Petition
No. 8974 of 2012 and.
******
******
CORAM: R. D. DHANUKA AND
M.M.SATHAYE , JJ.
RESERVED ON: 3rd FEBRUARY, 2023
PRONOUNCED ON : 3rd MAY, 2023
JUDGMENT [ Per M.M.SATHAYE, J.]
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1. Rule. Ld. AGPs waive service in all the Writ Petitions.
Rule is made returnable forthwith. Taken up for final disposal with
consent. By this group of 6 Writ Petitions filed under Article 226 of
the Constitution of India, the Petitioners are praying for direction to
the Respondents to consider notices issued by Petitioners and
withdraw their subject matter lands from acquisition u/s. 48 of the
Land Acquisition Act, 1894 ("the said Act" for short) and put
Petitioners in possession thereof. The Petitioners are also praying in
the alternative for return of subject matter lands to them by
accepting consideration from the Petitioners at the current
Government rate or consideration as may be fixed by the Court and
take all steps including executions of documents so as to transfer full
and complete title of the subject lands in favour of the Petitioners
and to put them in physical and peaceful possession thereof. The
Petitioners are also praying in the alternative for appropriate writ or
direction directing the Respondents to sell the subject matter lands
by public auction and permit the Petitioners to take part in the said
public auction. All the petitions stand on similar factual footing and
common questions are involved for decision. In that view of the
matter, these petitions are being heard together and disposed of by a
common order.
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SUBMISSIONS AND CASE
2. Learned Counsel Mr. Hushing has made his submissions
in Writ Petition No. 6172 of 2012, Writ Petition No. 6188 of 2012,
Writ Petition No. 7576 of 2012 and Mr. Bhoite has made submissions
in support of Writ Petition No. 8992 of 2012, Writ Petition No. 8974
of 2012 and Writ Petition No. 6175 of 2012. They have assisted the
Court with following charts showing details of subject matter lands/
properties involved in the Petition.
Civil W.P. Property Description Date of Award Date of Order
No. Under Land Under Sec.7 of
Acquisition Act, Bombay Land
1894 Requisition
Act, 1948
7576/2012 Survey No. 121/3 (New) 23/09/1986 06/04/1951
i.e. 198A/3(Old)
Admeasuring 00 H 27R,
Situated at Daund, Tal.
Daund Dist. Pune.
6172/2012 Survey No. 196/1, 15/07/1982 06/04/1951
Admeasuring 01 H 20R,
Daund, Tal. Daund Dist.
Pune
6188/2012 Survey No. 99/1/A (New) 23/09/1986 06/04/1951
i.e. 201/1/A (Old),
Admeasuring 00H 41R,
Situated at Daund, Tal.
Daund Dist. Pune.
Civil W.P. Property Description Date of Award Date of Order
No. Under Land Under Sec.7 of
Acquisition Act, Bombay Land
1894 Requisition
Act, 1948
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8992/2012 Survey No. 197-4A/3, 1986 06/04/1951
admeasuring H 00 Ares
7.5, Situated at Daund,
Tal. Daund Dist. Pune.
8974/2012 Survey No. 197-4A/3, 1986 06/04/1951
admeasuring H 00 Ares
7.5, Situated at Daund,
Tal. Daund Dist. Pune.
6175/2012 Survey No. 99/1 (New) & 1986 06/04/1951
201/1/1 (old),
admeasuring H 00 Ares
41, Situated at Daund, Tal.
Daund Dist. Pune.
3. Mr. Bhoite has relied upon the Judgment of the Apex
Court in the matter of H.D. Vora Vs. State of Maharashtra and Ors.
Reported in (1984) 2 SCC 337, specially the portion of para 6 in
which distinction between the concept of acquisition or requisition of
property is explained.
4. Learned Counsel for the Petitioners submitted that the subject
matter lands were requisitioned under the old Defence of India Act
some time in 1941 as part of big chuck of lands at Village Daund,
Dist. Pune. These lands then continued to remain under requisition
even post independence under provisions of Bombay Land
Requisition Act 1948 and were transferred to Police authority
(presently SRPF). It is submitted that during the period from 1982 to
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1986, notifications were issued under Section 4 and 6 of the Land
Acquisition Act and awards were passed.
5. It is submitted that this group of petitions were decided earlier
by this Court under Order dated 30th November 2015, which was
carried to the Supreme Court by Respondents, where the said order
was set aside and the matters were remanded back for fresh
consideration. He submitted that even today, the lands do not vest in
Government free from all encumbrances and whether the
Respondents have come into possession legally or illegally is required
to be seen.
6. It is submitted that the Respondents are trespassers in the eyes
of the law and their possession is illegal. He raised serious objections
about the mode of taking possession. He submitted that the
Petitioners, who are owners of the subject matter lands have never
surrendered the possession but the possession taken under Land
Requisition Act is simply continued as possession under Land
Acquisition Act, which is not permitted under law, in view of Section
9(3) of the Maharashtra Land Requisition Act, which reads as
under :
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"9(3) When any land is to be released from requisition, the
State Government may, after making such inquiry, if any, as it
deems fit, specify by order in writing the person to whom
possession of the land shall be given"
7. Relying on the said provision, learned Counsel for the
Petitioners submitted that there has to be an Order in writing when
the land is to be released from requisition specifying therein the
person to whom possession of the said land shall be given. He
submitted that this exercise has not been done in the present matter
and as such the possession of the subject matter land has not passed
legally to the Respondents. He urged that there is no provisions for
automatic conversation of possession from "requisition to
acquisition" and the procedure as contemplated under Section 9(3)
ought to be followed. Learned Counsel went to the extent of arguing
that even if the acquisition proceedings are complete, it cannot be
held as legal, in view of absence of legal transfer of possession.
8. Learned Counsel relied upon definition of the word
"completed" which according to him, includes "absence of any
omission or deficiencies". Relying on para 136 of the judgment of
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Indore Development Authority vs. Manoharlal and Ors (2020) 8 SCC
129, he further submitted that the land cannot vest in Government if
possession has not been taken by following the due process of law.
He submitted that the award is bad in law and there is no surrender
of possession under Section 9(3) of the Maharashtra Land
Requisition Act. The Petitioners are deprived of their right since 1951
and under the guise of land requisition, the authorities have acquired
the land and continued with the possession. He therefore, made an
additional alternate prayer for determining the compensation under
the said Act of 2013.
9. Per contra learned AGPs appearing for Respondent/State
in various matters, opposed the present petitions. According to him
following dates, details and chronological events are necessary to be
considered for proper adjudication in the matter.
9.1) On 09/10/1972, notification was issued u/s 4 of the said Act
and corrigendum was issued on 26/05/1974 and many lands
including the subject matter lands have been proposed to be
acquired for the building, residential quarters and training grounds
for SRPF Group V and VII.
9.2) On 26/04/1974, notification was issued u/s 6 of the said Act.
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9.3) On 15/07/1982 & 23/09/1986 Awards under the said Act
have been passed thereby acquiring the subject matter land of the
Petitioners
9.4) On 05/11/1982, mutation entry no.7646 was effected,
whereby the name of SRPF Group No.5 & 7 was mutated in the 7/12
extract of the acquired lands.
9.5) On 07/11/1988, notice u/s 12(2) of the said Act came to be
issued and compensation has been deposited in the Revenue Deposit
account.
9.6) In 2012, the Petitioners filed various petitions before this
Hon'ble Court and by amendment during pendency of the petitions,
prayed that, the acquisition of the subject matter lands should lapse
in view of the provisions of Sec.24(2) of the Right to Fair
Compensation and Transparency in Land Acquisition, Rehabilitation
and Resettlement Act, 2013 (For short "Fair Compensation Act")
9.7) In 2013 and 2015, Respondents filed their affidavits in reply
alongwith relevant documents such as Panchnama, Kami Jast Patrak
(a chart showing change in record) & M. E. No. 7646 and prayed to
dismiss the writ petitions.
9.8) On 30/11/2015 and 15/12/2015, this Court allowed these
writ petitions thereby holding that the proceedings in relation to the
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lands of the Petitioner stand lapsed in view of Sec.24(2) of the said
Fair Compensation Act.
9.9) The State of Maharashtra & Ors filed SLP(Civil) No.256/2016
and others before the Hon'ble Apex Court and challenged the Orders
passed by this Court.
9.10) On 14/11/2017, the Hon'ble Supreme Court was pleased to
set aside the common Judgment & Order of the Hon'ble High Court
passed in WP No.6172 of 2012 & Ors and remanded the matter back
to this Court for fresh consideration.
10. On the aforesaid set of facts, learned AGP submitted that no
objection has ever been taken by any of the Petitioners since 1972
when notification was issued under Section 4 of the said Act and
when corrigendum was issued in May, 1974. It is submitted that the
notices issued by the Petitioners in April, 2012 before filling the
present Petitions, are belated ones. It is submitted that there is gross
and unexplained delay / laches on the part of the Petitioners and
therefore no indulgence should be shown in the extraordinary writ
jurisdiction of this Court.
11. Learned Counsel relied upon para 345 of the Judgment of the
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Apex Court in the matter of Indore Development Authority vs.
Manoharlal and Ors (supra) and submitted that even umbrella of
Section 24(2) of the Fair Compensation Act cannot be taken in the
present case, because there is no lethargy of Authorities involved in
the present matter. It is urged that even according to Petitioners the
awards are passed in 1982 and 1986 of which copies are placed on
record, which show that due process of law is followed. It is
submitted that Petitioners have come before the Court after a lapse
of many years when much water has already flown and there is no
explanation for the same. Ultimately, it is urged that petitions be
dismissed.
REASONS AND CONCLUSIONS
12. The case of the Petitioners, as can be seen from the averments
in the Petitions, is that their respective lands were already acquired
under award dated 15th July, 1982 and 23rd September, 1986. It is
specifically contended that the Petitioners' lands were in possession
of Respondents under the Maharashtra Land Requisition Act, and is
not under Land Acquisition Act. It is contended that in March, 2000
some of the lands from the said chunk, were returned to the
respective owners under the order of the Respondents. However
though their lands were near such returned lands, their lands were
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not returned to Petitioners and they were not put in possession as is
the case with some of the other owners. It is contended that they
have not received compensation for requisition/acquisition of the
their lands and their lands are not at all used for the purpose for
which it was either requisitioned (required) or acquired and the
same are being wasted.
13. It is contended that Respondent/SRPF has committed
breach of conditions in as much as some lands so requisitioned and
acquired, are disposed by way of auction, or used for sugarcane
growing or some Mangal Karyalaya is constructed or Temple is
constructed etc. It is further contended that the Petitioners' lands
also ought to have been included in the order dated 28 th March,
2000 and should have been returned to them as is done with some
others land owners. It is also contended that Respondents ought to
have withdrawn the Petitioners' land from the acquisition under the
provisions of Section 48 of the said Act. It is contended that the
Respondent/Government is expected under law to acquire the land
only if genuine public purpose exists and should not sit over the
acquired lands without utilizing the same. It is also contended that in
appropriate cases, such as the Petitioners', the Government is bound
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to exercise power under Section 48 of the said Act and withdraw
their lands from acquisition. The Petitioners have also alleged that
certain illegal allotments have also taken place in similarly situated
lands at Taluka Daund.
14. It appears that in the earlier round of litigation, when the
matter was argued, a ground was taken by the Petitioners by way of
amendment about lapsing of acquisition in view of provisions of
Section 24(2) of the said Fair Compensation Act. It is seen from the
record that on 30th November, 2015, this Court had allowed these
batch of Writ Petitions by a common order, holding that the
acquisition proceedings in relation to the subject matter lands had
lapsed and the Respondent/Government/SRPF was directed to
restore the possession of the acquired land to Petitioner's.
15. It is a matter of record that these cases were carried to
the Apex Court, where the said common order 30th November, 2015
was set aside and the matters were remanded back to this Court for
fresh consideration. In this view of the matter, now the matter is
argued again and a fresh line of arguments are adopted by the
Petitioners.
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16. Now the main argument of the Petitioners is based on
Section 9(3) of the Maharashtra Land Requisition Act. What is now
being argued is that there is no proper "taking of possession" either
by way of surrender from the Petitioners or under an order of release
from requisition specifying the person to whom possession of the
land shall be given u/s. 9(3) of the Maharashtra Land Requisition
Act.
17. It is not in dispute that the Petitioners lands are already
acquired under the awards dated 15th July, 1982 and 23rd September,
1986. It is further not in dispute that the Petitioners lands were
actually taken in possession under the old Defence of India Act,
1915 which possession continued with the Respondents under the
Bombay Land Requisition Act, 1948. The Petitioners in para 6 of the
petitions, have specifically taken a stand that the possession of the
Respondents is continued under Land Requisition Act, however the
same is not under Land Acquisition Act. With such specific case, the
factual aspect of possession of the Petitioners' lands with the
Respondent cannot be disputed. However the question is what is the
effect of absence of order under Section 9(3) of the Maharashtra
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Land Requisition Act on the facts of the case, in the light of the
argument advanced by learned Counsel for the Petitioners.
18. Bare reading of the said provision shows that when the
land is to be "released" from requisition, the Government "may",
after making such inquiry, if any, as it deems fit, specify by order in
writing the person to whom possession of the land shall be given. In
the first place, there is no mandate of law. The word used is "may".
In the facts and circumstances of the present case, it is not disputed
that the procedure under Land Acquisition Act, viz. issuance of
notification under Section 4 and 6 thereof have been followed and
thereafter the acquisition proceedings have been completed and
awards have been passed. Therefore, it is obvious that Respondents
never intended to "release" the lands in order to give it back in
possession of the owners or anybody else for that matter. This is a
case where the Respondents changed the nature of its holding from
requisition to acquisition and therefore the very first condition of
Section 9(3) is not met. The Respondents have decided to change its
'right of dominant control over the property without acquiring the
right of ownership' to 'acquiring the lands and getting its ownership'
by following the procedure under law i.e. Land Acquisition Act. In
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view of this fact, not passing of order under Section 9(3) of
Maharashtra Land Requisition Act, in our considered view, does not
have material effect.
19. The prayers made in the petitions are, in essence, a direction
to Respondents to take all necessary steps for transfer of full and
complete title in favour of the Petitioners and ultimately place them
in possession of the subject matter lands. It is settled law that once
the award is passed, the land vests free from all encumbrances in the
government / acquiring body. It is seen in this matter that after
following due process of law, the subject matter lands were acquired
and they vested in Respondents.
20. The nature of averments and the prayers show that the
Petitioners have made broad-based prayers on very specious
averments, such as Respondents ought to have deleted Petitioners'
lands from award; Respondents should have returned Petitioners'
lands as was allegedly done with some lands in the vicinity;
Respondents should have passed order u/s. 9(3). The Petitioners
seem to be oblivious to the moot question that when all this was not
being done, what steps they were taking? The real and material
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question on which we must record our subjective satisfaction is -
what Petitioners have done? What action Petitioners have taken in so
many years that passed in the interregnum? Can judicial discretion
be exercised in favour of party who has slept over his rights and has
knocked the doors of this Court, far too late in a day ? We are afraid,
the answer to these questions is "no" because there is nothing on
record to show what steps Petitioners took prior to April, 2012, when
they issued notices.
21. The Petitions are filed in the year 2012. Admittedly, the
notification under Section 4 of the Land Acquisition Act was issued
sometime in 1972, for which corrigendum was issued in the year
1974. Even notification under Section 6 of the said Act is issued in
the year 1974 and final awards have been passed in July, 1982 and
September 1986. Perusal of the affidavits in reply and annexures
thereto, filed by the Respondents, show that the notices under
Section 12 (2) of the said Act were issued in the year 1988 and the
compensation amount as per the said Act has been deposited in the
revenue deposit accounts and even mutation entries have been
effected in the name of Respondent after the final awards are passed.
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22. It appears from the record that after the petitions were
filed in 2012, the said Fair Compensation Act came into effect from
1st January, 2014 and incidentally when the matter was being argued
in the year 2015 leave to amend was sought and the grounds
regarding lapsing of acquisition proceedings under Section 24(2) of
the Fair Compensation Act was raised, which is now not pressed in
service. The conduct of the Petitioners who have slept over their
rights and issued 1st notice sometime in April 2012, in our view, has
its own effect on the propriety in exercising the extra-ordinary writ
jurisdiction under Article 226 of the Constitution of India.
23. The argument of the Petitioners that they have never
surrendered possession of the subject lands is ex-facie not
maintainable in view of specific pleadings in the body of the petition
that the subject matter lands were requisitioned under The Defence
of India Act and even after the Bombay Land Requisition Act came
into force, possession continued with Respondents under that Act.
24. Learned AGP has rightly placed reliance on para 345 of
the Judgment of the Apex Court in the matter of Indore
Development Authority vs. Manoharlal and Ors (supra). Indeed, in
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the present matter, at such belated stage, even umbrella of Section
24(2) of the said Fair Compensation can not be taken, because there
is no case of lethargy of Authorities involved in the present matter.
So also in view of admitted fact of possession of Respondents,
continued from "under Requisition" to "under Acquisition", once
vesting takes place, possession is presumed to be of Government. For
the same reason, the reliance placed by Petitioners on para 136 of
the said Judgment is misplaced. Therefore such challenges (as raised
in these petitions) cannot be entertained at this stage.
25. So far as the case of H.D. Vora Vs. State of Maharashtra
(supra) relied upon by Mr. Bhoite is concerned, it is clear from
opening part of para no. 2 of the said judgement that, the question
involved there was 'whether an order of requisition can be continued
for an indefinite period of time or it must necessarily be of
temporary duration ?' Careful reading of the said judgment shows
that Hon'ble Apex Court, in the said judgment has held that - "We do
not think that Government can under the guise of requisition
continued for an indefinite period of time, in substance acquire the
property, because that would be a fraud on the power conferred on
the Government. If the Government wants to take over the property
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for an indefinite period of time the Government must acquire the
property but it cannot use the power of requisition for achieving that
object"
26. There is no doubt about said proposition of law and we
respectfully agree with it. But, in the present matter, admittedly the
Respondent/Government has acquired the subject matter lands by
passing awards after following due process of law. Therefore, present
case being clearly distinguishable, the said judgment will not help
the case of the Petitioners.
27. Therefore in the peculiar facts and circumstances
narrated above, this is not a fit case to exercise our extra ordinary
writ jurisdiction for grant of any relief. All the petitions are
accordingly dismissed. Rule is discharged. No order as to cost.
[M.M.SATHAYE,J.] [R. D. DHANUKA, J.]
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