Bombay High Court
Shri. Mangal Bhauso Patil And Ors vs The Commissioner, Pune Division, Pun ... on 8 August, 2024
Author: G. S. Kulkarni
Bench: G. S. Kulkarni
2024:BHC-AS:32943-DB
1.WP5634_2014.DOC
Vidya Amin
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 5634 OF 2014
WITH
CIVIL APPLICATION NO. 2197 OF 2019
Mangal Bhauso Patil & Ors. ... Petitioners
vs.
The Commissioner, Pune Division, Pune & Ors. ...Respondents
WITH
WRIT PETITION NO. 5653 OF 2014
Nitin Algonda Patil & Ors. ... Petitioners
vs.
The Commissioner, Pune Division, Pune & Ors. ...Respondents
Mr. Sanjeev Kadam a/w. Ms. Varsha Thorat, Mr. Prashant Raul, Ms. Aditi
Rajput, Mr. Mayur Sanap and Mr. Pratik Deshmukh for the petitioner in
WP/5653/2014.
Mr. Kuldeep U. Patil a/w. Mr. Prasad Avhad for the petitioner in
WP/5634/2014.
Mr. A.I. Patel, Addl. G.P. a.w, Ms. M.S. Bane. AGP for the State/respondent
nos. 1 to 7.
Mr. Tanaji Mhatugade for respondent nos. 8 to10 in WP/5653/2014.
Mr. Chetan Patil a/w. Mr. Mandar G. Bagkar for respondent nos. 11 to 15
in WP/5653/2014.
Mr. Kalpesh U. Patil for respondent nos. 16 to 20 in WP/5653/2014.
_______________________
CORAM: G. S. KULKARNI &
SOMASEKHAR SUNDARESAN, JJ.
DATED: 8 August, 2024
_______________________
P.C.
1. This petition, in our opinion, is a total abuse of process of law and more
particularly when the petitioners have invoked the jurisdiction of this Court
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for a discretionary and equitable relief under Article 226 of the Constitution of
India. The substantive prayers as made in the petition is required to be noted,
which reads thus:
"a) This Hon'ble Court may be pleased to issue writ of certiorari or any
other appropriate writ, order or direction, thereby quash and set aside
the impugned judgment and order dated 10.04.2014 passed by the ld.
Divisional Commissioner, Pune in Appeal bearing No.
Punarva/Appeal/SR/11/2012.
b) Be pleased to issue writ Certiorari or any other appropriate writ
thereby quash and set aside the impugned award/Niwada dated
19.11.1988 as well as the impugned communication dated 30.05.2012
(Exhibit F1 herein) issued by the respondents.
c) Be pleased to issue a writ of Mandamus thereby directing the
respondent not to acquire the said land of the petitioners specifically
mentioned in paragraph 1 in the present petition.
d) This Hon'ble Court may pleased to issue appropriate writ, order,
direction, interim in nature, during the pendency of the present petition,
thereby stay the effect and implementation of the impugned award dated
19.11.1988 and further direct the respondents/their agents not to take
any coercive action/possession of the petitioner's said land specifically
mentioned in the paragraph 1 of the petition."
2. At the outset, we are constrained to make the aforesaid observations for
the reason that this is a second round of proceedings before this Court and
without any justification as also sans an appropriate disclosure of the material
events and documents being made in the present petition, to the effect that the
petitioner's father had earlier approached this Court by filing Writ Petition,
being Writ Petition No. 975 of 1989, in regard to the very land acquisition in
question seeking extensive reliefs. The canvass of the prayers as made in such
petition included a challenge to the notification issued under section 15(1)
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dated 29 May, 1982 under the Maharashtra Resettlement of Project Displaced
Persons Act, 1976 as also notifications under Sections 4 and 6 issued under the
Land Acquisition Act, 1894. The prayers as made in the Writ Petition No.
975 of 1989 are required to be noted, which reads thus:
"a) issue a writ of certiorari and/or any other appropriate writ or
direction or order in the nature of such writ to quash the notification
under section 15(1) dated 29 May, 1982 of the Maharashtra
Resettlement of Project Displaced Persons Act, 1976 by holding that the
said notification is ultra vires the Maharashtra Resettlement of Project
Displaced Persons Act, 1976 as amended by the Maharashtra Act No.
XIII of 1985, assuming the said amending and validation Act, i.e.,
Maharashtra Act No. XIII of 1985, is valid.
b) issue a writ of certiorari and/or any other appropriate writ and/or
direction and/or order quashing the notifications under sections 4 and 6
of the Land Acquisition Act, 1894 issued by the respondent no. 4, which
are at Exhibits."
3. It appears that on the proceedings of the said petition, on 17 March,
1989, an order of status quo until further orders was passed. The fate of the
said petition, however, was met by the petitioner making a request to this
Court to withdraw this petition. The said petition was accordingly permitted
to be withdrawn by an order dated 2 February, 1996. The said order passed by
this Court reads thus:
"CORAM : A.P. SHAH AND
D.K. TRIVEDI, JJ.
DATE : 02/02/1996
On the oral request of Mr. Pandit, Petition is allowed to be
withdrawn as dismissed. No costs."
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4. Thus, referring to the said order passed about 28 years back, it is urged
on behalf of the respondents that all the contentions of the petitioners in
regard to the acquisition of land and subject matter of said petition had come
to an end when the proceedings were withdrawn that too in the absence of any
liberty granted by the Court to institute fresh proceedings on the same cause of
action.
5. We may observe that whatsoever the circumstances, the litigant who
approaches the Court ought to approach with clean hands by making
appropriate disclosures which would be relevant for the Court to consider any
adjudication of the proceedings and more particularly when the proceedings
being instituted under Article 226 of the Constitution of India. It cannot be
accepted that the petitioners were not aware of the proceedings of earlier
petition filed by his father and more particularly when the said proceedings
were wholly relevant and would in fact have affected the course of adjudication
of the present proceeding. Neither a copy of the earlier writ petition nor the
orders passed on the said petition were annexed to the present proceedings.
Thus, to us it is certainly suppression on the part of the petitioners.
6. On this, Mr. Kadam's contention is that the petitioners were not aware
of the proceedings and therefore the petitioners did not annex the copy of the
order as also the copy of the earlier petition. Mr. Kadam's contention is totally
untenable inasmuch as, on the reading of the impugned order, we discover that
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the authority has made a specific reference to the earlier proceedings, when he
records that the petitioners had approached this Court in the proceedings of
Writ Petition No. 975 of 1989. Thus, the impugned order dated 10 April,
2014 passed by the Divisional Commissioner in paragraph 3 specifically
referred to the proceedings of Writ Petition No. 975 of 1989 and to the orders
passed by this Court on the said proceedings dated 18 October, 1996. Once
the proceedings of the Writ Petition and the orders passed thereon are
explicitly referred in paragraph 3 of the impugned order, the petitioners cannot
say that they were not aware of the said proceedings and therefore they did not
disclose the said proceedings. This appears to be an argument in desperation,
however, in our opinion, a false and a lame excuse/stand taken by the
petitioners. The petitioners are in fact guilty of suppressio veri and suggestio
falsi.
7. Be that as it may, even otherwise the facts are quite gross. The
notification under section 4 of the Land Acquisition Act to acquire the land
was issued on 27 January, 1983. Thereafter, Section 6 declaration came to be
issued on 24 January, 1986. Following an appropriate procedure, a land
acquisition award was rendered on 19 November, 1988. On 16 March, 1989
the petitioner's father moved this Court in the proceedings of Writ Petition
No. 975 of 1989. On such proceedings, an interim order was passed, as a
consequence of which the possession of land could not be taken over. It
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appears to be not in dispute that the possession of land was taken over on 11
June, 2012 and it is after two years of taking over possession of land, i.e.,on 25
June, 2014, the petitioner filed an application under section 48(1) of the Land
Acquisition Act seeking withdrawal of the land in question from acquisition.
Such application was filed before the competent authority/Divisional
Commissioner, Pune, who rejected the said application by the impugned order
dated 10 April, 2014, which is subject matter of challenge in the present
proceedings.
8. We may observe that the basic jurisdictional requirement under section
14(1) of the Land Acquisition Act, to maintain an application would be only
when the possession of the land is not taken over and remains with the owner
of the land. This apart, as seen from the prayers made in this petition, the
petitioners have also challenged the land acquisition award dated 19
November, 1988 in the present proceedings, which is almost after the period
of 26 years of the award being declared. The petitioners have not explained
such gross delay and laches in approaching the Court in the present
proceedings except for the following statement as made in paragraph 8, which
reads thus:
"8. There is no delay and/or laches in filing the present petition."
9. In the aforesaid circumstances, we are of the clear opinion that the
petition deserves to be dismissed for more than one reason. Firstly, on the
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ground that it is a gross abuse of process of law, as the petitioner has suppressed
material facts while invoking the discretionary and equitable jurisdiction of
this Court under Article 226 of the Constitution of India. The principles of
law on this are well settled; secondly, the delay and laches caused in filing the
present petition on 13 June, 2014 to assail the land acquisition award dated 19
November, 1988, have been not explained in the petition; thirdly, as to why in
the teeth of unconditional withdrawal of the earlier writ petition, such a relief
can be prayed by the petitioners when the Division Bench did not grant liberty
to the petitioners to file fresh petition, have also not been answered by the
petitioners and lastly, the challenge to the order dated 10 April, 2014 passed by
the Divisional Commissioner, Pune, in rejecting the petitioners application
under section 48(1) of the Land Acquisition Act also cannot be held to be
illegal, for the reason that apart from reasons as set out by the Divisional
Commissioner, Pune, justifying its rejection, the fundamental premise that the
jurisdictional requirement to maintain such application, namely, that an
application under section 48(1) of the Land Acquisition Act would be
maintainable only after the possession of the land is not taken over, itself was
not satisfied. Section 48(1) reads thus:
"48. Completion of acquisition not compulsory, but compensation to be
awarded when not completed
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(1) Except in the case provided for in section 36, the
Government shall be at liberty to withdraw from the acquisition of
any land of which possession has not been taken.
(emphasis supplied)
10. The possession of the land was taken over and thereafter such
application was made, the jurisdictional requirement to maintain such
application itself was not met by the petitioners.
11. Thus, looked from any angle, the petitioners are not entitled to reliefs as
prayed for in the petition. Unhesitantly, the petition deserves to be rejected. It
is accordingly dismissed. Although this was a fit case in which we should have
imposed cost, we refrain from doing so.
12. Insofar as this petition is concerned, learned counsel for the petitioners
fairly states that these petitioner also had approached this Court in the earlier
round of proceedings similar to what we have observed hereinabove. For the
reasons which we have set out in the aforesaid order, this petition would also
be required to be dismissed. It is accordingly dismissed. No costs.
13. Interim Application would also not survive, it is accordingly disposed
of.
(SOMASEKHAR SUNDARESAN, J.) (G. S. KULKARNI , J.)
Signed by: Vidya S. Amin 8 August, 2024
Designation: PS To Honourable Judge
Date: 17/08/2024 12:18:41
