Bombay High Court
Akhil Bhartiya Mahatma Phule ... vs Babulala Sataji Jadeja And Ors on 16 October, 2023
Bench: G.S. Patel, Kamal Khata
2023:BHC-AS:30891-DB Popatbhai Hirji Shah & Ors vs State of Maharashtra & Ors
903-ASWP-3519-2010+-J.doc
Arun
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 3519 OF 2010
WITH
INTERIM APPLICATION NO. 2528 OF 2023
1. Popatbhai Hirji Shah,
Age 50 years, Occ-Business,
Re/at Dhanraj Co-op. Hsg. Society,
1224 Apte Road, H-Building, 4th Floor,
Flat No. 401, Pune 411 004.
2. Mahindra M Kothari,
Age 62 years, Occ-Advocate,
Re/at Datta Niwas, Subhashnagar,
Lane NO. 2, M.H. Kothari Chowk,
Pune 411 002.
3. (a) Ajit Pashankar,
ARUN
Age Adult, Occ. Business,
RAMCHANDRA
SANKPAL
(b) Narendra Pashankar,
Digitally signed by Age Adult, Occ. Business,
ARUN
RAMCHANDRA
SANKPAL
Date: 2023.10.17
10:46:28 +0530 Both Available at 257, Budhwar
Peth, Pune 411 002.
4. New Verities Stores,
A partnership firm-through its partner
Babulal Sataji Jadeja, Re/at, 39/A,
Gultekdi Shrikrishna Society,
B-2 Bldg., Flat No. 10,
Shankarsheth Road, Pune.
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5. Padmavati Rajendra Katare,
Age adult, Occ. Business, Available at
257, Budhwar Peth,
Pune 411 002.
6. VG Gokhale & Co,
257, Budhwarpeth,
Pune 411 002. ...Petitioners
~ versus ~
1. State of Maharashtra,
To be served through Government
Pleader, High Court, Bombay.
2. Pune Municipal
Corporation,
Shivaji Nagar, Pune 411 005.
3. City Engineer,
Pune Municipal Corporation,
Shivaji Nagar, Pune 411 005.
4. Chairman,
Standing Committee,
Pune Municipal Corporation.
5. Administrative Officer,
Municipal School Board, Pune,
Shivaji Nagar, Pune 411 005.
6. Special Land Acquisition
Officer No. 15,
Kshetriya Karyalay, Tilak Road,
Pune 411 030.
7. Pune Merchant Co-
operative Bank Ltd,
257, Opp. Ganesh Temple,
Budhwarpeth, Pune 411 002. ...Respondents
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WITH
WRIT PETITION NO. 3090 OF 2010
WITH
INTERIM APPLICATION NO. 2096 OF 2023
WITH
CIVIL APPLICATION NO. 356 OF 2013
1. Babulala Sataji Jadeja,
New Verities Stores,
A partnership firm-through his partner,
Babulala Sataji Jadeja, Re/at-39/A,
Gultekadi Shrikrishna Society,
B-2 Bldg, Flat NO. 10,
Shankarsheth Road, Pune.
2. Jayashri Dhiraj Shah,
VG Gokhale & Co,
Through their Proprietor,
Available at 257, Budhwarpeth,
Pune 411 002.
3. Mahindra M Kothari,
Age 59 years, Occ.-Business,
Re/at Datta Niwas, Subhashnagar, Lane
No. 2, MH Kothari Chowk,
Pune 411 002.
4. RV Dharod,
Champion Stores,
Available at 257, Bhudhwar Peth,
Pune 411 002.
5. MR Dhadge, ...Petitioners
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Flower Merchant Age - adult,
257, Budhwarpeth,
Pune 411 002.
~ versus ~
1. State of Maharashtra,
Notice to be served through
Government Pleader, High Court,
Mumbai.
2. Pune Municipal
Corporation,
Shivaji Nagar, Pune 411 005
(Notice to be served upon
Commissioner).
3. City Engineer,
Pune Municipal Corporation,
Shivaji Nagar, Pune 411 005.
4. Chariman,
Standing Committee,
Pune Municipal Corporation.
5. Administrative Officer,
Municipal School Board, Pune.
6. Special Land Acquisition
Officer No. 15. ...Respondents
A PPEARANCES
for the petitioners Mr YS Jahagirdar, Senior
in both petitions Advocate, with Monisha Mane,
Bijal Vora, i/b Parinam Law
Associates.
for intervenor in Mr Akshay Shinde, with Sudarshan
ia/2096/2023 Khawase.
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for respondents Mr AA Kumbhakoni, Senior
nos. 2 to 5 PMC in Advocate, with Abhijit P
both petitions Kulkarni, Sweta Shah, Krushna
Jaybhay, Gourav Shahane,
Manoj Badgujar, Snehal
Bhanage.
for respondent no. 7 Mr Atul Damle, Senior Advocate,
in wp/3519/2010. i/b Dushyant Purekar, Rajat
Dedhia.
for respondent- Dr Birendra Saraf, Advocate
STATE General, with PP Kakade,
Government Pleader and MP
Thakur, AGP.
Present in person Ms Nisha Chavan, Chief Law Officer
of PMC.
CORAM : G.S.Patel &
Kamal Khata, JJ.
DATED : 16th October 2023
ORAL JUDGMENT (Per GS Patel J):-
1. Heard.
2. These Petitions have unfortunately been pending since 2010.
Prayer clauses at pages 24 and 25 in the Writ Petition No. 3519 of
2010 read thus:
"(a) The Hon'ble Court be pleased to issue Rule in this
Petition.
(b) The Hon'ble Court be pleased to issue Writ of
Mandamus or any other appropriate Writ, Direction or
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Order quashing/setting aside the declaration under Section
6 of the Land Acquisition Act and the resolution passed by
the Respondent School Board Numbering 180, reference
dated 29-10-2005, Respondent Corporation's General Body
bearing Resolution No. 557 dated 21-2-2006 and the
Standing Committee Resolution No. 1535 dated 4-1-2008
passed by the Standing Committee of the Pune Municipal
Corporation.
(c) The Hon'ble Court be pleased to direct the State
Government to quash/set aside the resolution passed by the
Respondent School Board Numbering 180 reference dated
29-10-2005, General Body of the Respondent, Corporation
bearing Resolution No. 557 dated 21-2-2006 and the
Standing Committee Resolution dated 4th January 2008.
(d) The Hon'ble Court be pleased to issue Writ of
Mandamus or any other appropriate Writ, Direction or
Order directing the Respondent Corporation to provide
additional F.S.I to the Respondent developer so as to enable
him to construct any hall on the top floor of the property by
utilizing such additional F.S.I in the memory of late
Mahatma Phule and Smt Savitribai Phule."
3. Prayer clauses in the Writ Petition No. 3090 of 2010 read
thus:
"(a) The Hon'ble Court be pleased to issue Rule in this
Petition.
b) The Hon'ble Court be pleased to issue Writ of
Mandamus or any other appropriate Writ, Direction or
Order quashing/setting aside the resolution passed by the
Respondent Corporation's General Body bearing
Resolution No. 557 dated 21/2/2006 and the Standing
Committee Resolution No. 1535 dated 4.1.2008 passed by
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the Standing Committee of the Pune Municipal
Corporation.
(c) The Hon'ble Court be pleased to direct the State
Government to quash/set aside the said resolution passed
by the General Body of the Respondent, Corporation
bearing Resolution No. 557 dated 21/2/2006 and the
Standing Committee Resolution dated 4.1.2008.
(d) The Hon'ble Court be pleased to issue Writ of
Mandamus or any other appropriate Writ, Direction and
Order quashing/setting aside notices issued by Land
Acquisition Officer No. 15 dated 9/4/2009 under Section 4
so also the notification U/S. 4 published to that effect by the
Land Acquisition Act.
(e) The Hon'ble Court be pleased to issue Writ of
Mandamus or any other appropriate Writ, Direction and
Order quashing/setting aside the notification/declaration
under S. 6 of the Land Acquisition Act given under the
signature of Commissioner, Pune division and published in
a newspaper namely Times of India dtd.18/02/2010.
(f ) The Hon'ble Court be pleased to issue Writ of
Mandamus or any other appropriate Writ, Direction and
Order directing the respondent Corporation to provide
additional F.S.I to the respondent Developer so as to enable
him to construct any hall on the top floor or the property by
utilizing such additional F.S.I. in the memory of late
Mahatma Phule and Smt Savitribai Phule."
4. On the face of it, these reliefs cannot be granted. Principally,
both challenge a notification under Section 6 of the Land
Acquisition Act, 1894 ("the LA Act") on the basis that there is no
'public purpose' involved. No such challenge can be sustained.
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5. The Petitioners themselves are not the owners of the property
in question, which is situated at Budhwar Peth, Pune. The property
belonged and belongs to the Bhide family. The land owners have
never challenged the acquisition. These Petitions accept that the
Petitioners are tenants in the property. This is the first issue in the
Petitioners' way.
6. In light of this, it is not necessary to consider the
development history of the land in question. There are various dates
and events going up to 2004 or 2005. The Notification under
Section 6 is at page 153. It is dated 13th February 2009. A translation
is at page 153 A.
7. It was preceded by a Section 4 Notice under the LA Act. It
specifies land in the schedule and says that the lands are required for
a public purpose as specified in that schedule. The public purpose is
the acquisition of what is described as Bhidewada for a national
memorial.
8. Mr Jahagirdar for the Petitioners contends that there is no
national 'monument' either possible or proposed here and, in any
event, the necessary steps to declare the area covered by the Section
6 Notification as an archaeological site, a national monument or a
historical monument have never been taken in accordance with law.
It is his submission that those steps were required to be taken. There
is also a challenge in the Petition to the Resolutions passed by the
Municipal School Board, the 5th Respondent, being Resolution No.
180, dated 29th October 2005, the Municipal Corporation General
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Body Resolution No. 557 dated 21st February 2006 and the
Standing Committee Resolution No. 1535 dated 4th January 2008 of
the Standing Committee of the Pune Municipal Corporation. The
School Board Resolution No. 180 says that the property was where
the first girls' schools was started by Savitribai Phule and Mahatma
Phule. It was, therefore, proposed to be converted or to be
recognized as a National Memorial (the word used in Marathi is
'Lekjd'). The General Body Resolution of 21st February 2006 and
the other Corporation Resolution, including the 4th January 2008
Standing Committee Resolution at page 131, were all in furtherance
of this avowed public purpose.
9. The only argument canvassed before us is that the public
purpose stated in the Section 6 Notification of 16th February 2010
and in the Notices under Section 4 on 9th April 2009 has never been
realised and is not justified.
10. But this is not the frame of the law when it comes to questions
of public purpose under the LA Act. The power to forcibly acquire a
property is part of the police power of the State. The principles
governing compensation are set out in statute such as the earlier LA
Act and now, the Right to Fair Compensation and Transparency in
Land Acquisition, Rehabilitation and Resettlement Act 2013 ("the
RTFC Act"). The State may always notify land for acquisition for
one purpose and may change that public purpose without there
being a resultant invalidation of the Section 6 Notification issued
under the LA Act. It is not necessary for the acquiring authority to
show a nexus between the stated purpose of the acquisition and any
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historical background. A Division Bench of this Court considered
substantially the same issue though under the Maharashtra Village
Panchayat Act 1959, in Ashok Maruti Rawoot v State of Maharashtra. 1
The Division Bench held that it is entirely in the discretion of the
authority to decide the purpose of the acquisition and whether or
not it should be used as a Memorial.
11. The law in this regard is well settled. There is enough
authority to indicate that a memorial, a monument, or any other
mark or built structure is sufficiently a public purpose. There is no
law that states that a public purpose must only be a public utility,
such as a dam or a bridge. The business of the Government
concerns a wide range of activity and also has to deal necessarily
with public and popular sentiment and the emotive needs or desires,
expectations and demands of citizens. That honouring the persons
is part of the power and authority of the State Government is well
settled: BMC v Ramchandra Laxman Belosay,2 Kanaiyalal Maneklal
Chinai v State of Gujarat,3 and Annarao Baloba Gaikwad v Solapur
Municipal Corporation.4
12. It is also clear that it is the sole discretion of the Government
to determine what is and is not a public purpose. That discretion is
absolute. The issuance of a Section 6 Notification is purely an
1 2013 SCC OnLine Bom 329 : (2013) ()Mah LJ 733. We may note, just
out of interest, that Mr Jahagirdar appeared for the Respondents in that matter.
2 1959 SCC OnLine Bom 26 : AIR 1960 Bom 58 : (1959) 61 Bom LR 1129..
3 (1969) 3 SCC 456.
4 (2004) ()Mah LJ 101.
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executive exercise. It is not susceptible to judicial review: Daulat
Singh Surana v First Land Acquisition Collector.5
13. We need say nothing about the entitlement of the Petitioners
to compensation. Dr Saraf, learned Advocate General, says that
compensation was earlier offered but was refused. We return no
finding and make no observation in that regard either. But the
Award could not be passed because of the present challenge in these
proceedings. It is, however, well settled that even if an acquisition is
initiated under the LA Act, because of the specific provisions of the
Right to Fair Compensation Act, compensation may well be an
entitlement under the later Act. This will depend on the facts and
circumstances of this case: Aligarh Development Authority v Megh
Singh,6 and Jairam Gangaram Burke v State of Maharashtra.7
14. We reject Mr Jahagirdar's argument that the acquisition has
lapsed in the 10 years since these Petitions have been filed. Not only
does the explanation to Section 11A of the LA Act clarify this
position, but there is an order of 8th December 2010 which says that
the time spent in the Petition can be considered at the time of
declaring the Award, if any. In any case, even without these two
references, it is clear that the act of the Court (and in this we include
the act of the Court in not dismissing these Petitions on the very
first day of hearing) cannot possibly prejudice the Government. The
correct test however is this that on the dates when these Petitions
were filed the acquisition had not lapsed. If the Government has
5 (2007) 1 SCC 641.
6 (2016) 12 SCC 504.
7 2017 SCC OnLine Bom 1835 : 2017 (5) MhLJ 354.
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stayed its hands since because of the service of the Petitions, that
cannot count towards a lapsing.
15. There is some controversy here. There is an order of 8th
December 2010 which says that since the matter is pending and the
corporation is unable to take possession, the time spent in the
Petition would be taken into account at the time of the Award. It
hardly seems to us just to hold that a Petitioner can challenge a
Section 6 Notification and then claim that because the stay that the
Petitioner obtained was later the Notification had lapsed simply
because the Government, perhaps out of deference to this Court
and not wanting to overreach the Court, took no further steps. Or it
may be that for certain reasons that are not fully reflected in the
order of 8th December 2010, the Respondent itself was unable to
take possession and therefore the Court made the order that it did
saying that the time spent in the Petition could be considered at the
time of making the Award.
16. The learned Advocate General asked us to take a note of a
communication addressed to the Special Land Acquisition Officer
that due to an understanding between the parties that during the
pendency of these Writ Petitions, the Award would not be passed. It
is pointless for Mr Jahagirdar to say that this communication is
internal to the Government. It refers to an understanding between
the parties to the Petitions. We cannot understand why the
Petitioners persist in this line of argument that a stay order was
obtained at a much later date and by that time the acquisition had
lapsed. The stay order was obtained by the Petitioners. If the
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acquisition had lapsed, there was no reason for the Petitioners to
have obtained a stay in the first place. The argument is self-defeating
and unacceptably mischievous: first, tenants come to court
challenging the public purpose of a land acquisition notification; the
government stays its hands in passing an award; it instructs the
authority not to proceed and says this is on an understanding in
court; the court makes an order saying the time spent would be
reckoned at the time of the award; then the Petitioners apply for and
obtain a stay; and now they contend that the acquisition has now
'lapsed' -- and, in any event, lapsed before the stay (which, if true,
meant that no stay would be required at all). Indeed, the stay order
itself is a complete answer to any case of lapsing, viewed from either
perspective.
17. The argument that the site first be declared as a monument
before acquisition is entirely without substance and is only to be
stated to be rejected. It proceeds on the basis that what is being
proposed here is a 'monument' when Mr Kumbhakoni is at some
pains to point out not once but at least half a dozen times that it is a
proposal for the construction of a memorial, completely outside any
statutory protection for monuments or archaeological sites.
18. The Petitions are entirely without substance. Both are
rejected. All interim and ad-interim orders are vacated.
19. Any pending Interlocutory Applications stands disposed of as
infructuous.
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20. In the facts and circumstances of the case, there will be no
order as to costs.
(Kamal Khata, J) (G. S. Patel, J)
16th October 2023
