Nusli N. Wadia And Others v. State Of Maharashtra And Others

S.S Parkar, J.:— The petitioners, whose lands were sought to be acquired by the Central Government for Respondent No. 5 seek to challenge by this petition the acquisition of their lands bearing Survey No. 504, situated at Malad.

2. The petitioners are the trustees of F.E Dinshaw Trust, which is a public charitable trust registered with the Charity Commissioner. The Trust is the owner of the land bearing Survey No. 504 (Part), which is the subject matter of acquisition by Respondent No. 3 in case No. BAQ/329. The said lands were sought to be acquired for the public purpose namely for construction of staff quarters for the employees of Post and Telegraph Department being a purpose of Union of India. Since the said land was subsequently being acquired for the employees of Mahanagar Telephone Nigam Ltd. (MTNL) for construction of the staff quarters, the General Manager, MTNL has been, by amendment of the petition, added as Respondent No. 5 to this petition. For the purpose of the acquisition of the land by the Central Government, section 4 Notification was issued by the Commissioner of Bombay Division, on 7th June, 1997, a copy whereof is annexed at Exhibit-A to the petition. The said notification was issued by the Commissioner. Bombay Division, pursuant to the Notification dated 23rd April, 1966 issued by the Department of Agriculture, Government of India, bearing No. GSR 675 whereby the Commissioner had been delegated power to exercise powers under the provisions of the Land Acquisition Act on behalf of the Central Government. Thereafter section 6 Notification was issued on 19th July, 1979 by the Additional Commissioner, Bombay Division, a copy whereof is annexed at Exhibit-B to the petition.

3. On behalf of the petitioners, the said acquisition was challenged on various grounds. The above petition was admitted on 8th January, 1988. Interim relief was granted in terms of prayer clause (h) of the petition on 8th March, 1988 whereby Respondent No. 3 was injuncted from proceeding with the said acquisition proceedings in respect of Survey No. 504 at Malad, i.e the land owned by the petitioners-trust.

4. Although the land acquisition is challenged on various grounds, this petition could be disposed of on the first ground, which was canvassed by Mr. Korde, the learned Counsel appearing on behalf of the petitioners. It was contended by Mr. Korde, that section 6 Notification is illegal as the Additional Commissioner, Bombay Division, who had issued the said Notification was not empowered or delegated any Authority in that behalf, by the Central Government, who are the acquiring body. In support of his contention Shri Korde relied on the Notification issued by the Department of Agriculture, Government of India dated 23rd April, 1966 bearing No. GSR-675 which reads as follows:—

“G.S.R 675 — In exercise of the powers conferred by clause (1) of Article 258 of the Constitution and in supersession of the Notification of the Government of India in the Ministry of Home Affairs No. 2/17/60-Judl. II dated the 12th July, 1961, the president hereby entrusts, with the consent of the Government of Maharashtra, to the Commissioners of Divisions in the State of Maharashtra, the Functions of the Central Government under the Land Acquisition Act, 1894 (1 of 1894), (except the Function Exercisable by the Central Government under the proviso to sub-section (1) of section 55 of that Act) in relation to acquisition of land for the purposes of the Union within the limits of the respective territorial jurisdiction of the said Commissioners, subject to the same control of the State Government as is from time to time exercisable by it in relation to acquisition of land for the purpose of the State.

Provided that notwithstanding this entrustment, the Central Government may itself exercise the said functions either generally or in any particular case or class of cases.”

5. According to Mr. Korde, under the said Notification, power was delegated by the Central Government to the Commissioner, Bombay Division and accordingly section 4 Notification was rightly issued by the Commissioner, Bombay Division, on 7th June, 1997. However section 6 Notification issued by the Additional Commissioner, Bombay Division on 19th July, 1997 is without any authority given to him in that behalf. In this connection he also placed reliance on section 3-1A of the Land Acquisition Act which reads as under:—

“3-1A. The powers conferred on the Commissioner by or under this Act shall be the powers exercisable by him in relation to the acquisition of land for those purposes only for which the State Government is the appropriate Government.”

6. The above provision makes explicitly clear that powers, conferred under Land Acquisition Act on the Commissioner are those which are exercisable by him in relation to the acquisition of land for which the State Government is the appropriate Government. Relying on the aforesaid provision and the above notification of the Central Government, it is submitted on behalf of the petitioners that the delegation of power made by the State Government in favour of the Additional Commissioner by virtue of the Notification dated 30th August, 1974 of the Revenue and Forest Department, Maharashtra, a copy whereof is annexed at Exhibit-1 to the affidavit of Shri Gopal Mahadeo Deshpande; Special Land Acquisition Officer (3), dated 21st January, 1988 would not entitle the Additional Commissioner to exercise the functions conferred on the Commissioner by the Central Government. The notification dated 30th August, 1974 is with reference to the powers, duties and functions conferred on the Commissioner inter alia under the Land Acquisition Act, which is mentioned at Sr. No. 3 in the schedule appended thereto. The said notification is in the following words.

“NOTIFICATION

Sr. No. 3 Revenue and Forests Department Sachivalaya, Bombay-32, Dated 30th August, 1974.

No. PWR-1074-96562-CB — In exercise of the powers conferred by sub-section (3) of section 13 of the Maharashtra Land Revenue Code, 1966, (Mah. XLI of 1966) the Government of Maharashtra hereby directs that every Additional Commissioner shall exercise all the powers and discharge all duties and functions conferred on the Commissioner under the Acts specified in the schedule appended hereto.”

7. A perusal of the provisions of the Land Acquisition Act and in particular section 3-1A makes it explicitly clear that the Act conferred powers on the Commissioner in relation to the acquisition of land only for those purposes for which the State Government is appropriate Government. In our view, the present acquisition having been made on behalf of the Central Government reliance placed on behalf of the Respondents on the Notification dated 30th August, 1974 issued by the State Government is of no assistance to the Respondents as the said notification does not confer any powers on the Additional Commissioner on behalf of the Central Government. We, therefore, find substance in the contention raised on behalf of the petitioners by Mr. Korde. In our view, since the Acquiring Body is Central Government either the Central Government should have exercised the power itself or the Commissioner who was delegated this power by virtue of notification dated 23rd April, 1966 issued by the Department of Agriculture, Government of India. The Additional Commissioner who has issued section 6 notification has thus acted beyond his powers and without authority and therefore section 6 notification, which is annexed at Exhibit ‘8’ to the petition, is null and void and cannot have any effect in law.

8. By virtue of clause (i) of proviso to section 6 of the Land Acquisition Act, Section 6 notification could not be issued beyond the period of three years from the date of issuance of section 4 notification. In this case section 4 notification was published on 7th June, 1977 and therefore section 6 notification ought to have been issued before 7th June, 1980. The section 6 notification having been issued without authority, the same is null and void. It is submitted by Mr. Korde that even section 4 notification issued on 7th June, 1977 would not survive in view of the decision of the Supreme Court in the case of Oxford English School v. Government of Tamil Nadu reported (1995) 5 SCC 206 : AIR 1995 SC 2398. In the said case section 6 declaration was held to be null and void by the High Court and the High Court granted six months time within which to issue fresh notification under section 6 of the Land Acquisition Act. Section 4 notification in that case was issued on 24th August, 1982. The Supreme Court held that fresh notification under section 6 could not be issued beyond period of three years after the publication of section 4 notification and the stay granted by the High Court in the month of April, 1987 i.e after a period of three years would not legalise section 6 notification by virtue of explanation 1 to the proviso which provides that in computing the period of three years the period during which any action or proceeding to be taken pursuant to the notification under section 4(1) is stayed by an order of the Court shall be excluded, since the prohibition under the proviso to section 6 to issue a declaration under section 6 after the expiry of three years from the date of the publication of the notification under section 4(1) had already become absolute before the grant of the stay by the High Court. We have no doubt that the ratio of the Supreme Court decision in the case of Oxford English School v. Government of Tamil Nadu (supra) squarely covers the instant case and, therefore, fresh section 6 declaration cannot be issued in this case on the basis of section 4 notification issued on 7th June, 1977. Therefore, second contention raised by Mr. Korde on behalf of the petitioners, also deserves to be accepted.

9. Reliance is also placed on section 11-A of the Land Acquisition Act whereby if the award is not made within a period of two years from the date of the publication of the declaration i.e from the date of section 6 notification, the entire proceeding for the acquisition of the land would lapse. In this case section 6 notification was published on 19th July, 1979 and the award was not made within a period of 2 years therefrom. In view of the said provision, it is submitted that, the petitioners are entitled to succeed even on this ground. The submission is not without substance. However, since we hold that section 6 notification itself was issued without any authority or power in that behalf by the Additional Commissioner, Bombay Division, and consequently the same is illegal and bad in law, the second contention raised on behalf of the petitioner is not required to be considered.

10. For the aforesaid reasons, we hold that section 6 notification issued by the Additional Commissioner, Bombay Division on 19th July, 1979 annexed at Exhibit-8 to the petition is unauthorised and illegal. Accordingly, the petitioners are entitled to succeed.

11. In the result, the Rule is made absolute in terms of prayer clause (a) of the petition. There shall, however, be no order as to costs.

12. Prayer clause (a)

(a) That this Hon'ble Court be pleased to issue a writ of Mandamus or any other appropriate writ, Order or Direction, under Article 226 of the Constitution of India directing the Respondents Nos. 1 to 3 not to take any further action in pursuance of the Notification Exhibit “A” and Exhibit “B” hereto for the acquisition of land from Survey No. 504 of Village Malad.

Rule made absolute.