: JUNE 12, 2008.
DATE OF PRONOUNCING THE JUDGMENT : OCTOBER 24, 2008.
1. About 114 years after the enactment of a law which is very commonly enforced and consequently very often analysed-reanalysed as also interpreted-reinterpreted by various Courts in the country, including the Supreme Court, in this group of matters, we have an occasion, for the first time since its enactment, to interpret the provisions of section 7 of the Land Acquisition Act, 1884 (hereinafter referred to as the "said Act") as also pronounce upon the true and correct scope thereof. In the submission of the learned counsels appearing on behalf of all the parties in this group of matters, neither any High Court nor the Supreme Court previously had an occasion to deal with such an issue.
2. The respondent herein, the Municipal Corporation of the city of Pune (hereinafter referred as the "said Corporation" for the sake of brevity) established under the Bombay Provincial Municipal Corporation Act 1949 (Hereinafter referred to as 'the BPMC Act' for the sake of brevity) is said to have decided to set up what is titled as "Forest Garden" (in local language
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Marathi - "ou&m|ku"), comprising of 50 hectares of land, situate at Pachgaon, Mauze Parvati Pune. An award under section 11 of the said Act has been declared, for acquiring the lands on which such "Forest Garden" is to be set up. This group of petition challenges the acquisition proceedings and in turn the award so made on 31st May, 2008 for acquiring survey Nos.
67 to 73.
3. Some of the Writ Petitions from this Group have been filed before declaration of the award, whereas some have been filed after the declaration of the award. In some petitions, admittedly possession is already obtained by the Land Acquisition Officers and has already been handed over to the said Corporation, whereas in some cases the possession is not so obtained, particularly in view of the interim orders passed by this Court preventing dispossession of such petitioners from the acquired sites. The factual details in this regard we will give little later. Hereunder we are setting out as usual first the chronology of events with some particulars.
One of the defenses of the respondents to the Writ Petitions is that these petitions are filed with gross delay and latches and that on that ground itself, the same are liable to be dismissed.
1997 :- The revised development plan for the area of which the land under acquisition forms part, was brought into the force. In this development plan prepared under the Maharashtra Regional Town Planning Act, 1966 (hereinafter referred to as the "MRTP Act"), the land under
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acquisition is shown in the "Hill Top-Hill Slope" zone. Consequently in the Development Control Regulations (DCRs) only restricted development has been permitted in this zone.
5th July, 2000 :- The Garden-Superintendent of the said Corporation sent a letter to the Assistant Municipal Commissioner (Special) of the said Corporation, requesting that the lands set out in this letter be acquired for developing "Forest Gardens" at three places in the city of Pune. One of the locations set out is "Pachgaon- Parvati" and the lands therefrom admeasuring 50 hectares are described as bearing Survey Nos. 67 to 73 (which includes all the land in issue in this group of matters), excluding area of Shahu College, area of Forest Department and area of temple. The other two places are :-
(i)About 110 to 125 acres situated at Parvati Hill.
(ii)About 100 acres from Chatushrungi Hill.
2nd February, 2002 : The Chief Garden Superintendent of the said Corporation issued a follow up letter, reiterating request made by the aforesaid letter dated 5th July, 2000.
15th June, 2002 : The Dy. Municipal Commissioner (Special) sent a letter to the Commissioner of the said Corporation requesting to sign a letter enclosed with it. This letter to be signed was a letter to be sent for obtaining approval of the Standing Committee of the said Corporation, for acquiring the aforesaid 50 hectors land from "Pachgaon-Parvati" in accordance with the said Act. It further states that actual acquisition will be carried out in accordance with the availability of finance.
6th August, 2002: The Commissioner of the said Corporation requested the Secretary of the said Corporation to obtain sanction of the Standing Committee to acquire aforesaid 50 hectors lands, in accordance with the said Act, for the purpose of "Forest Garden".
6th August, 2002 : The Standing Committee of the Corporation
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passed a resolution bearing No. 638, approving a proposal to acquire aforesaid 50 hectors of land for "Forest-Garden".
12th September, 2002 : A proposal was accordingly made to the Collector.
30th January, 2003 : The Assistant Municipal Commissioner of the said Corporation applied to the District Collector, Pune for acquiring the lands under the said Act for "Forest-Garden".
20th February, 2003 : The Collector sanctioned the said proposal and forwarded it to the Special Land Acquisition Officer (15) Pune for further action.
20th February, 2004 : The Assistant Director of Town Planning issued no objection letter for such acquisition.
30th September, 2004 : An appropriate notification under section 4 of the said Act, published in the official gazette.
4th October, 2004 : The notification under section 4 was published in the local daily newspapers. Notices under Section 4(1) of the said Act were also served upon all the interested persons.
28th December, 2004 : The said notification published on the notice board of the office of Tahsildar, Pune.
29th December, 2004 : The said notification was published on site.
20th December, 2004 : The Commissioner issued declaration under section 6 of the said Act.
24th December, 2005 :The said notification under section 6 published in the local daily newspapers.
26th December, 2005 :The declaration issued under section 6, dated 20th December, 2005 published in the Official Gazette.
16th January, 2006 :Notices were issued under section 9 of the said Act to the interested persons, fixing the dates of hearing as 30th
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January, 1st February, 2nd February, 2006, etc. on which dates, the petitioners claimed to have sought for adjournments.
2nd February, 2006 : The declaration issued under section 6 of the said Act was published at the site and also on the notice boards of Talathi office, Tahsil office, city survey office and the office of acquiring body.
29th January, 2008 : The Govt. of Maharashtra accorded approval to the proposed award, submitted to it by the Special Land Acquisition Officer.
31st January, 2008 : Award under section 11 was finally declared under the said Act. On the same day, notices were issued to the petitioners, intimating that possession of the acquired lands will be taken on 20th February, 2005.
19th February, 2005 : Two petitioners ( i.e. Writ Petition Nos. 1644 and1648 of 2008) submitted letters with the Land Acquisition Officer to the effect that without prejudice to the following, they were ready to hand over the actual possession of their acquired lands.
a) To claim that the acquisition proceedings be quashed andthe possession be restored;
b) To apply for enhanced compensation;
c) To seek transferable development rights (TDR), in lieu of the compensation.
20th February, 2008 :- In the aforesaid cases only accordingly, the possession of acquired lands was obtained.
However in some of the cases, as detailed hereunder separately, actual possession of the acquired land was not obtained.
4. The Writ Petitions from this group have been filed on the
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following dates-
i) 2nd May 2007: W. P. No. 3648 of 2007.
ii) 4th October 2007: W. P. No. 7736 of 2007.
iii) 18th February, 2008: W. P. Nos. 1149/08, 1154/08, 1227/08, 1173/08.
st
ii) 21 February, 2008: W.P.Nos.1296/08,
ii) 1st March, 2008: Writ Petition Nos. 1644/08, 1648/08.
Thus it is clear that two Writ Petitions have been filed before the declaration of the award dated 31st January 2008 and the balance Petition have been filed within a very short time thereafter.
5. When the aforesaid group of matters was placed before us for final hearing, it was heard for considerable length of time, on 2nd April, 21st April, 22nd April and 23rd April, 2008. During the course of hearing when the notification issued under section 6 was being read out and submissions in that regard were being made by the parties, we noticed that it contained a sentence to the effect -
त्यास भूसंपादन अधिनियम कलम 7 खाली संपादनासाठी आदेश घेण्यासाठीही निर्देशित करण्यात येत आहेThe appropriate translation of this sentence would be thus :
"He is also directed to take order for acquisition under section 7 of the Land Acquisition Act."
(emphasis ours) We therefore obviously tried to find out from the record and the parties as to whether any such order was in fact "taken" or not and if so taken, the particulars as also a copy thereof. However it was conceded by
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the Respondents that no such order was ever taken till then.
6. In this background, the petitioners sought leave, which have been granted by us, to amend the writ petitions, for raising issues relating to non-compliance with the directions contained in section 7 of the said Act, in as much as the respondents admitted during the course of hearing through their learned counsel that the Collector (in this case the Special Land Acquisition Officer (15), Pune) had not taken any such order for the acquisition of the land, specifically in terms of the aforesaid directions contained in the notification issued under section 6 of the said Act. On behalf of the State, when these petitions were pending as part-heard, following steps have been taken, in addition to filing replies to the amended portions of the petition.
25th April, 2008: In accordance with the communication sent by the learned AGP appearing in this group on behalf of the State, the Special Land Acquisition Officer (15) Pune issued letter to the Divisional Commissioner Pune, seeking orders contemplated by section 7 of the said Act with retrospective effective.
. On the same date, the Collector also issued letter to the Dy.
Commissioner (Entertainment Tax) recommending that the proposal so made by the Special Land Acquisition Officer be granted.
. On the same date, the Commissioner issued order contemplated by section 7 of the said Act, directing the Special Land Acquisition Officer
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(15) Pune to take further action for acquisition of the lands. By this communication, the Commissioner also granted post facto sanction and that too with retrospective effect, to everything that was done by that time from 20th December, 2005, by the Land Acquisition Officer (15) Pune for the acquisition of the lands in issue.
28th December, 2008 : Copy of the said order was communicated to the Special Land Acquisition Officer.
30th April, 2008 : The learned AGP produced copies of these documents evidencing these developments that had occurred.
2nd May, 2008 : The petitioners again amended the writ petitions and thereby impugned the aforesaid actions that were taken by the Respondents to get over the objections that were raised by the petitioners in regard to the non-compliance with procedure contemplated by section 7 of the said Act.
. The respondents filed affidavits in reply to these amended portions of the petitions, justifying their actions.
7. These matters have been argued at length by the learned counsels appearing on behalf of the various petitioners and the respondents.
Instead of setting out herein separately arguments advanced on behalf of each of the petitioners and replies given thereto by each of the respondents, for the better understanding thereof, we will like to refer to these arguments point-wise or issue-wise and deal with the same at appropriate places.
These arguments have lead us to decide the following issues.
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a) Whether proceedings for acquisition of land for the purpose of "Forest Garden" can be initiated by the Commissioner of a Municipal Corporation with the mere approval of the Standing Committee of such Corporation or is it mandatory that the General Body of such Corporation should resolve accordingly, in view of the provisions of the Bombay Provincial Municipal Corporation Act, 1949 (hereinafter referred to as the "BPMC Act" for the sake of brevity) ?
b) What is the true and correct scope of provisions of Section 7 of the Land Acquisition Act 1894 (hereafter referred to as 'the said Act' for the sake of brevity) ?
c) Whether the award is declared in breach of provisions of Section 5-A of the said Act ?
d) Whether action under Section 9 of the said Act can be initiated before completion of all the steps to be taken under Section 6 of the said Act ?
e) When does the time start to run under Section 11- A of the said Act for making an award under Section 11 of the said Act ?
AND Whether the award declared on 31st January 2008, in view of the facts and circumstances of the present case is beyond time, as contemplated by provisions of Section 11A of the said Act and as to whether the entire proceedings for acquisition of the lands in issue have lapsed ?
f) Whether the acquisition proceedings are unsustainable on the ground that the same are
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initiated without complying with the provisions of Section 128 of the Mahrashtra Regional and Town Planning Act 1960 Act ?
g) Whether the Land Acquisition Officer (15) Pune was not legally competent to conduct the land acquisition proceedings in issue in the present cases ?
h) Whether those Writ Petitions that are filed after the declaration of award under Section 11 of the said Act are not maintainable ?
i) Whether the High Court cannot interfere with the acquisition proceedings once an award is declared under Section 11 of the said Act ?
j) Whether the Writ Petitions are liable to be dismissed merely on the ground of delay and latches ?
k) Whether these Writ Petitions are liable to be dismissed solely on the ground that some other Writ Petition(s) filed by some other holders of the some other lands was dismissed earlier by the Division Bench of this Court ?
General observations and clarifications
8. At the outset, we must refer to an important, crucial and admitted fact which has been stated in the affidavit-in-reply filed by the Officer on special duty, Land Acquisition Department of the said Corporation, in Writ Petition No. 1296 of 2008 (page 99). The paragraph (XI) of this affidavit states that total land sought to be acquired, admeasures
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43.93 Hectares and that possession of land admeasuring 41.13 Hectares has already been taken and in turn handed over to the said Corporation. It is further stated that the total area of the land under litigation in this group of matters is hardly 2.80 Hectares i.e. About 6.37 % of the total land under acquisition. These factual assertions are not controverted by any of the petitioners and therefore we take these facts as admitted facts.
. It is thus, clear that the present group of matters does not cover the entire land acquired by the acquisition proceedings in issue. Therefore, we make it abundantly clear at the threshold of this judgment itself that the directions that will be issued hereunder will not govern such lands which though are covered by the award dated 31st January, 2008, are not the subject matter of any of the petitions that fall in the present group of matters. In other words this judgement and the consequent directions issued hereunder will apply only and only to such lands which are the subject matter of the present group of Petitions.
. In this regard we may refer to the following judgments of the Supreme Court : -
(iii)Abhay Ram Vs. Union of India (1997) 5 SCC 421.
(iv)Delhi Administration Vs. Gurdip Singh Uban and Ors (1997) 7 SCC 44.
. In the light of the observations made in these judgments, we make it clear that any observation made, conclusions drawn and consequent
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directions issued herein/hereby will not amount to re-opening of the entire acquisition proceedings that have resulted into the declaration of award dated 31st January 2008 in issue in the present group of matters and that this judgment will apply only and only to the lands that are subject matter of the present group of Petitions. The reference hereunder made as "the lands under acquisition" therefore should be considered as "lands covered only by the present group of Petitions" and no "the entire land that has been acquired by and under the aforesaid award dated 31st January 2008".
The acquisition in issue is not supported by a decision i.e. by a resolution passed by the General Body of the said Corporation
9. The petitioners have impugned the entire acquisition in issue on the ground that the impugned acquisition was initiated only on the basis of decision of the Commissioner of the said Corporation backed by the approval of the Standing Committee of the said Corporation and that the General Body of the said Corporation has not taken any decision in that regard, one way or the other. It is contended by the petitioners that the General Body of the said Corporation under Section 63(1) or 66(10) of the said Act has to take decision firstly to set up "Forest Garden" at the location where the land in issue is situate. It is submitted that in the absence of appropriate resolution passed by the General Body of the said Corporation, merely on the basis of the resolution passed by the Standing Committee of
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the said Corporation, it was impermissible in law for the Commissioner of the said Corporation to initiate the acquisition in issue.
. It is further submitted that even otherwise the acquisition proceedings have been illegally initiated in as much as the Commissioner of the said Corporation ought to have submitted appropriate application to the State Government in this regard, whereas the Commissioner of the said Corporation has submitted the application to the Collector instead of the State Government.
.
Thirdly it is submitted that such an application is not even made by the Commissioner but is made by only Assistant Commissioner, of the Corporation who in law has no authority to make such an application.
10. On the other hand, it is contended on behalf of the said Corporation that the power to acquire the land basically vests with the Government and that the same is delegated to the said Corporation, by virtue of provisions of Section 76 of the said Act. It is further contended that the manner and the method of such an acquisition is thereafter prescribed by sections 77 and 78 of the said Act. In the submission of the said Corporation, appropriate steps were accordingly taken by the Commissioner, and that therefore, the acquisition proceedings were validly initiated and completed. In the submission of the learned counsel for the said Corporation therefore, there was no need in law for the General Body of the Corporation to take any decision and/or pass any resolution for initiation of such an acquisition proceedings.
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11. In our view before starting any acquisition proceeding for acquiring land for the establishment of a 'Forrest Garden' the said Corporation was required to decide as to : -
(a) Whether there was any need at all to establish a "Forest Garden" ? AND if such need at all was there, Whether one or more than one such gardens were needed ?
(b) Where should such Forest Garden(s) be located ?
(c) What should be the total area of such a Forest Garden(s) ?
(d) Whether is it possible to establish such "Forest Garden" at a place/land which is already available with Corporation?
(e) If no such place/lands are available, as aforesaid, what are the ways and means of getting such place/land i. e. can the Corporation get it from State Government or Central Government as "Forest Department"?
(f) Is it necessary for this purpose to acquire land?
(g) Whether the financial condition of the Corporation permits incurring of such an expenditure, firstly for acquisition of the land to establish such a "Forest Garden
(s)", and secondly the total expenditure that would go in for actual establishment of the "Forest Garden(s)" at the acquired site, including the recurring expenditure for its maintenance etc. ?
We will however hasten to add that these aspects are only illustrative and
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that this is not an exhaustive list of various aspects to be considered by the Corporation.
12. Now, in view of the rival contentions of the parties, the issue is as to who should actually be taking the aforesaid decisions. In other words the question is as to who amongst the three authorities/bodies viz. the General Body, the Standing Committee, the Commissioner, of the said Corporation is required to consider inter-alia the aforesaid aspects and take decisions in that regard.
. Before we answer this issue, we must make it clear that it is not in dispute that the issue of establishment of a "Forest Garden" was never placed before the General Body of the said Corporation for any purpose, whatsoever. Admittedly, in this regard all the decisions have been taken at the level of the Standing Committee and/or Commissioner of the said Corporation. In view of these admitted facts of the present case, we are called upon to decide the aforesaid issue.
13. The aforesaid section 63(1b) of the B.P.M.C. Act reads thus-
"Section 63 - It shall be incumbent on the Corporation to make reasonable and adequate provision, by any means or measures which it is lawfully competent to it to use or to take, for each of the following matters, namely:-
(1b) urban forestry, protection of the environment and promotion of ecological aspects;"- 25 -
The aforementioned section 66(10) and (22) of the B.P.M.C. Act reads thus-
"Section 66 - The Corporation may in its discretion, provide from time to time, either wholly or partly, for all or any of the following matters, namely:-
(10) the provision of public parks, gardens, play-grounds and recreation grounds;
(22)the establishment and maintenance or the aiding of libraries;
museums and art galleries, botanical or zoological collections and the purchase of construction on buildings therefor;"
. It is true that in neither of these two provisions we can find any reference, for the establishment of specifically "Forest-Garden". In our view however on that ground it cannot be said that a Corporation cannot at all provide for establishment of a 'Forest Garden'.
14. The perusal of section 63 of the BPMC Act shows that it is the duty of the Corporation to make reasonable and adequate provision for each of the matters set out in section 63. On the other hand, perusal of section 66 of the BPMC Act shows that the same deals with powers of the Corporation to provide for the matters set out therein either wholly or partly in its discretion. Thus, section 63 deals with the matters that the Corporation is duty bound to provide, whereas section 66 deals with the matters which the Corporation may or may not provide in its discretion.
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15. The decision taken by the Corporation to set up a "Forest Garden" may fall under section 63(1b) or may be covered by section 66(10) of the B.P.M.C. Act. In our view, this decision will not be covered by the provisions of section 66(22) of the B.P.M.C. Act, in as much as the said provision really pertains to setting up of a botanical or zoological collections as such and not to Botanical or Zoological garden as such, much less a "Forest Garden". In our view the term 'a botanical or zoological collections' will have to be considered in the context of the accompanying words that are appearing in the said provision, on the principle of "noscitur-
a-sociis" which is explained by the Supreme Court in the case of Municipal Corporation of Greater Bombay Vs. Bharat Petroleum Corporation reported in (2002) 4 SCC 219 ( Paragraph 7) as under :-
This extract is taken from Municipal Corpn. of Greater Bombay v. Bharat Petroleum Corpn. Ltd.,(2002) 4 SCC 219, at page 226 :
7. ............The principle underlying noscitur a sociis is that, two or more words which are susceptible of analogous meaning when are coupled together are to be understood as used in their cognate sense, taking, as it were, their colour from each other, that is, the more general is to be restricted to a sense analogous to the less general. ..............................."
16. If we construe 'botanical or zoological collections' words in the light of the aforesaid doctrine of interpretation it will become clear that such 'collections' are those that are to be kept in libraries, museums and art galleries or buildings thereof. We hold that under Section 66(22) of the BPMC Act 'botanical or zoological collections' are those that are not meant
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to be found in gardens but are those that are to be found in libraries, museums, art galleries or buildings thereof.
17. However, we are not called upon to decide whether the setting up of a 'Forest Garden' falls under aforesaid section 63 or 66. For the purpose of issues posed before us for consideration it hardly matters whether it falls under section 63 or 66. For our purposes, in view of the controversy raised in the present group of matters, it is enough to note that the same may fall either under section 63(1b) or 66(10) of the BPMC Act.
In either of the cases, none the less it will be for the Corporation to take all the decisions pertaining to the establishment of such a "Forest Garden".
Suffice to say that in the light of these provisions certainly a Corporation can make an appropriate provision for setting up a 'Forest Garden'. As has been demonstrated hereunder in detail, only after the Corporation accordingly decides to set up a "Forest Garden" then and then only it can be said that the land on which the said "Forest Garden" is to be established will be "a property required by the Corporation" for the purpose of the BPMC Act.
18. When the BPMC Act lays down that it is for the "Corporation"
to make such a provision, in our view, such a provision will have to be made by 'the General Body' of the Corporation with which the entire affairs of the Corporation vest. The affairs of every Municipal Corporation
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established under the said Act are required to be conducted and managed by the democratically elected General Body. Obviously, whenever and wherever the said Act contemplates taking of any decision by the said Corporation, such decision must be taken by the General Body of the Corporation, of course, unless otherwise expressly provided by the provisions of the BPMC Act. Therefore we hold that unless there is a provision contained in the BPMC Act which specifically empowers either the Standing Committee, or the Commissioner or any other authority/body of the Corporation to take any decision for or on behalf of the said Corporation, any decision as to the affairs of the said Corporation must be taken by the General Body of the said Corporation. It goes without saying that if there is any provision under the BPMC Act that empowers either the Standing Committee, or the Commissioner or any other authority/body of the Corporation to take any decision for or on behalf of the said Corporation, it will be open for such an authority/body to take any such decision for and on behalf of the Corporation. However if there is no such express provision in the BPMC Act that empowers/authorizes such other body/authority accordingly, then in that event any such body/authority cannot take any decision for and on behalf of the Corporation.
19. In view of our aforesaid conclusions, we must try to find out as to whether there is any provision in the BPMC Act which expressly/specifically empowers either the Standing Committee or the
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Commissioner of the said Corporation to take decisions in the aforesaid regard for and on behalf of the Corporation. This is more so because a decision to establish a "Forest Garden" especially by acquiring large track of lands under the said Act involves payments of enormous amounts towards compensations as also incurring of huge further expenditure towards creating an infrastructure for its establishment and maintenance.
The decisions as to the various aspect listed out hereinabove therefore involve issues causing a heavy financial drain on the financial resources of the said Corporation. The said Corporation may have its own priorities to spend its monies and it is highly probable that the General Body in its wisdom may not think it necessary to establish a "Forest Garden" at the cost of huge expenditure by keeping aside other public purposes. However, it is the General Body, which has to take such a decision, and it is not for others, at least for us, to comment upon it one way or the other.
20. On behalf of the said Corporation, reliance was placed only on section 77 and 78 of the BPMC Act to support the action, taken by the Commissioner at his own level, backed by the resolution passed by the Standing Committee of the said Corporation.
. Chapter VIII of the BPMC Act deals with "Municipal property".
Sections 76, 77 and 78 deal with acquisition of property and section 79, 80 and 81 of this Chapter deal with disposal of property. In this case, we are not concerned with that group of sections from this Chapter, which deal
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with disposal of property. We are concerned with that group of provisions which deal with acquisition of property in this Chapter.
21. Section 76 deal with power of Corporation as to acquisition of property. There is nothing in this provision which can assist us in deciding the aforesaid issue, raised before us. Therefore, it leaves with only the provisions of Section 77 and 78, which read thus -
"77. Acquisition of immovable property- (1) Whenever it is provided by this Act that the Commissioner may acquire or whenever it is necessary or expedient for any purpose of this Act that the Commissioner shall acquire, any immovable property, such property may be acquired by the Commissioner on behalf of the Corporation by agreement on such terms and at such rates of prices or at rates or prices not exceeding such maximum as shall be approved by the Standing Committee either generally for any class of cases or specially in any particular case.
(2) Whenever, under any provision of this Act, the Commissioner is authorized to agree to pay the whole or any portion of the expenses of acquiring any immovable property, he shall do so on such terms and at such rates or prices or at rates or prices not exceeding such maximum as shall be approved by the Standing Committee as aforesaid.
(3) The Commissioner may on behalf of the Corporation acquire by agreement any easement affecting any immovable property vested in the Corporation, and the provisions of sub-sections (1) and (3) shall apply to such acquisition.
78. Procedure when immovable property cannot be acquired by agreement:- (1) Whenever, the Commissioner is unable under section 77 to acquire by agreement any immovable property or any easement affecting any immovable property vested in the Corporation or whenever any immovable property or any easement affecting any immovable property vested in the Corporation is required for the purposes of this Act, the [State] Government may, in its discretion, upon the application of the Commissioner made with the approval of the Standing Committee and subject to the other provisions of this Act, order proceedings
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to be taken for acquiring the same on behalf of the Corporation, as if such property or easement were land needed for a public purpose within the meaning of the Land Acquisition Act, 1894 (I of 1894).
(2) Wherever an application is made under sub-section (1) for the acquisition of land for the purpose of providing a new street or for winding or improving an existing street it shall be lawful for the Commissioner to apply for the acquisition of such additional land immediately adjoining the land to be occupied by such new street or existing street as is required for the sites of buildings to be erected on either side of the street, and such additional land shall be deemed to be required for the purposes of this Act.
(3) The amount of compensation awarded and all other charges incurred in the acquisition of any such property, shall, subject to all other provisions of this Act, be forthwith paid by the Commissioner and thereupon the said property shall vest in the Corporation."
22. A perusal of both these provisions will demonstrate that the provision of section 77 has no role to play in the facts and circumstances of this case in as much as that provision deals with acquisition of property by way of agreement, whereas we have a matter before us where property is acquired as and by way of compulsory acquisition under the provisions of the said Act. Thus, it leaves only one provision to be considered by us viz.
Section 78 of the BPMC Act, which we do hereunder-
. The provisions of section 78 of the BPMC Act are attracted when an immovable property is required for the purpose of the BPMC Act, and that it is found that as it is not possible to acquire the same by way of an agreement it has become necessary to compulsorily acquire the same by taking steps under the said Act. In such a case the Commissioner with the
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approval of the Standing Committee has to apply to the State Government, seeking an order for taking out proceedings for acquisition of such a property on behalf of the Corporation, as if such property was land needed for a public purpose within the meaning of the said Act.
23. In the facts of the present case, it is the Assistant Municipal Commissioner who has applied to the Collector, with the approval of the Standing Committee seeking an order to take proceedings for acquisition of the properties in issue. Upon receipt of such a proposal, the impugned action of acquisition has been initiated and completed.
24. We do not find any substance in the contention of the petitioner that it is not the Assistant Municipal Commissioner but the Commissioner himself who should have applied for initiation of proceedings under the said Act. Along with affidavit dated 29th May, 2008 filed in Writ Petition No. 1296 of 2008 on behalf of the said Corporation, at Exhibit 4 (page 120) a document is produced on behalf of the said Corporation showing that on 6th August, 2002 the then Municipal Commissioner under his own signature had proposed to the Secretary of the said Corporation that an approval of the Standing Committee be obtained for acquiring under the said Act, the lands which are subject matter of present group of petitions along with other lands admeasuring about 50 hectares, in accordance with availability of finance. In response thereto, the Secretary of the said Corporation
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communicated approval vide communication dated 6-8-2002, produced at Exhibit 5 (page 122). The official notings reflected from the xerox copy of the document dated 15th June, 2002 produced at Exhibit 3 (page 116) along with the same affidavit aforesaid, also show that the proposal was routed through the Municipal Commissioner, of the said Corporation. Therefore, even if contention of the petitioner is accepted that the actual application sent to the Collector seeking to initiate proceedings under the said Act for compulsory acquisition of the lands in issue was signed and sent by the Assistant Municipal Commissioner and not by the Commissioner of the said Corporation himself, we do not find that this will constitute a gross illegality in the initiation of the acquisition proceeding in issue. In our view, once the proposal is shown to have been accepted by the Commissioner, processed by the Commissioner and sent to the Collector in terms of the directions of the Commissioner, only because the same was formally signed not by the Commissioner himself but by the Assistant Municipal Commissioner, in law, would not be so vital to warrant vitiating of the entire acquisition proceeding. In our view, if it is demonstrated that substantial compliance is done with the statutory requirement of section 78 of the said Act, no fault can be found with these acquisition proceedings, on this ground as claimed by the petitioners.
25. We also do not find any substance in the contention of the petitioners that the proposal for acquisition of the lands in question ought to
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have been moved by the Commissioner of said Corporation with the "State Government" alone and that the same has been wrongly and incorrectly moved with the Collector of District Pune. In our view, the Collector was fully empowered under the BPMC Act to take appropriate decisions in this regard. In our view, there is no force in the contention of the petitioners that approval/order for taking out proceedings for compulsory acquisition under the said Act for acquiring the properties in issue was passed by the Collector and not by the State Government, and that therefore initiation of acquisition proceedings was illegal.
26. Thus, if we come to the conclusion that the land which forms subject matter of the present group of petitions was required by the said Corporation for setting up of "Forest Garden", then in that event it becomes clear that appropriate procedure contemplated by section 78 has been followed in the present case.
. However, as discussed hereinabove it is for the said Corporation i.e. the General Body of the said Corporation under Section 63 and/or 66 of the BPMC Act to provide for the establishment of a "Forest Garden". Once it is so provided by the said Corporation i.e. by its General Body by taking appropriate decisions in regard to all the afore-mentioned as also other connected issues in that regard (relating to location, extent/area etc.) then and then alone it can be said that, in law, the land under acquisition is "required by the said Corporation". If it is so found then, the Commissioner
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under the aforesaid Section 77 may acquire the same by agreement or under Section 78 may acquire the same compulsorily under the said Act. In absence of any specific provision under the BPMC Act empowering either the Commissioner or the Standing committee to take any decision in regard to any of the afore-listed issues pertaining to the need for establishment of a 'Forest Garden', mere decision of the commissioner backed by an approval of the standing committee of the said Corporation will not be enough, particularly in absence of any decision of the General Body of the said Corporation to that effect, to come to a conclusion that the lands under acquisition "are required by the said Corporation" for establishment of a 'Forest Garden', warranting an action for the acquisition under Section 77 or 78 of the said Act at the hands of the Commissioner of the said Corporation.
27. Though it may not be strictly applicable in the facts of this case, we may note that even when the land is reserved in a Development Plan and when provisions of section 126 and 127 of the MRTP Act are attracted in a case, the concerned Municipal Council or Corporation is required to pass a resolution for acquisition of such a land, failing which the reservation lapses. If this scheme laid down by the Legislature is considered in the context of the question posed before us, it will become clear that even where the General Body of the Corporation has approved the Development Plan, containing reservations, meant for public purposes (thereby
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concluding that the lands under the reservations are needed for public purposes) still when the occasion arises to acquire such lands under reservation and to conclusively hold that these lands are needed for public purposes, the Corporation, meaning thereby the General Body of the Corporation, has to specifically pass a resolution for acquisition of such land. Now it is settled position of the law at least under the MRTP Act that such a reservation lapses in absence of such a resolution of the Corporation (of course coupled with other requisite steps to be taken as contemplated by the MRTP Act). In this regard we may usefully refer to the latest judgments of the Supreme Court in the case of Girnar Traderes Vs. State of Maharashtra, reported in (2007) 7 SCC 555.
28. Thus, if it is necessary for the General Body of the Corporation to pass a resolution for acquiring lands even in cases where admittedly earlier it is held and concluded by the General Body of the Corporation (by making reservation(s) in the Development Plan) that particular lands are needed for public purpose, in a cases like the one with which we are presently dealing, it will be all the more necessary for the General Body of the Corporation to pass a resolution for initiating the acquisition proceedings. As explained hereinabove, while passing such resolution the General Body of the Corporation is bound to decide on various aspects/issues of the matter, some of which are set out hereinabove.
29. In view of the aforesaid discussions we hold that the scheme of
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the BPMC Act in the matters of compulsory acquisitions of immovable properties are concerned is as under :-
. There has to be a purpose contemplated by the BPMC Act for which the Corporation needs such immovable property. Then a proposal for acquisition is to be prepared after an appropriate home work by the concerned department of the Corporation for the consideration thereof by the General Body of the Corporation. Then the General Body of the Corporation passes a resolution that such property is required by the Corporation. At the time of passing such a resolution the General Body inter-alia considers various aspects, some of which are listed our hereinabove, relating to such requirement, especially the financial burden that it is going to cast on the Corporation. This financial burden will include not only the initial 2/3rd amount of compensation the Corporation will have to deposit with the Land Acquisition officer for initiation of proceedings for acquisition under the said Act, the balance 1/3rd thereof to be deposited before the award but also the one that the Corporation will have to pay in case of references that are most likely to be made under section 18 of the said Act.
After considering all the relevant aspects, once the General Body takes a decision ( by passing an appropriate resolution ) that the immovable property in issue is required by the Corporation then and then alone it can be said that such an immovable property is required by the such Corporation.
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Thereafter comes the role of the Municipal Commissioner. The Commissioner has to hold negotiations with the land-holders and try to acquire the lands by way of mutually agreed consideration. If the Commissioner succeeds therein it saves the Corporation from being exposed to unnecessary risks of ending up paying compensation that is not even reasonably anticipated by the Corporation, as a result of proceedings initiated Section 18 of the said Act. The Commissioner while negotiating may offer TDR or alternative immovable property in exchange instead of monitory compensation, which neither a Land Acquisition officer nor a Court entertaining proceedings initiated Section 18 of the said Act can offer while making an award.
If the Commissioner fails to acquire the lands by way of negotiations then comes the role of the Standing Committee of the Corporation. The Standing Committee has to pass a resolution proposing to acquire such lands compulsorily under the said Act, by examining the proposal especially from the point of financial implications thereof.
After the Standing Committee passes such a resolution then the a commissioner has to submit the proposal for the compulsory acquisition of such lands under the said Act with the Collector.
. Thus the Commissioner of the Corporation gets himself clothed with the power to take steps under the BPMC Act for acquisition of such immovable property once such a resolution is passed by the General Body, backed by the appropriate resolution of the Standing Committee and not till
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then. Armed with such a decision of the Corporation and the resolution of the Standing Committee the Commissioner can initiate proceedings for compulsory acquisition under the said Act.
30. Therefore we hold that, in absence of any decision/resolution of the General Body of the said Corporation on any of the afore-stated issues relating to requirement of establishment of a 'Forest Garden', it cannot be said that the land under acquisition is an immovable property required for the purposes of the BPMC Act by the said Corporation, as contemplated by the provisions of Section 77 r/w 78 of the BPMC Act. Consequently we also hold that the commissioner of the said Corporation, even if backed by the approval of the Standing Committee of the said Corporation, in absence of such resolution/decision of the General Body of the said Corporation could not have initiated the acquisition proceedings for acquiring the lands in issue in this group of petitions.
What is true and correct scope of provisions of section 7 of the Land Acquisition Act, 1894 ?
31. The provisions of section 7 of the said Act reads thus-
"7. Whenever any land shall have been so declared to be to be needed for a public purpose for a Company, the [appropriate Government], or some officer authorized by the [appropriate Government], in this behalf [or, as the case may be, the Commissioner] shall direct the Collector to take order for the acquisition of the land."- 40 -
(Emphasis supplied)
32. In the present case a notification has been issued under section 6, which contains a specific direction that has been re-produced hereinabove in Marathi language with its English translation. For the sake of convenience, the translated portion is once again re-produced hereinunder-
"He is also directed to take order for acquisition under section 7 of the Land Acquisition Act."
33. There is nothing produced on record by the Respondents to show that this part of the Notification is with application of any mind on the part of the authority which has issued such Notification. This portion appears to have been included therein only mechanically as and by way of formality.
No exercise appears to have been gone into for issuing such an order as provided by Section 7 of the said Act. This becomes more glaring from what has transpired during the pendency of these petitions, which is considered at length hereunder.
34. Admittedly, initially in terms of the aforesaid specific directions, the Collector (in this case the Special Land Acquisition Officer (15) Pune) did not take any order at all from the appropriate Government or an officer authorized by the appropriate Government in that behalf or the
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Commissioner, for the acquisition of the lands in issue. Therefore, the petitioners were allowed to amend the petitions, permitting the petitioners to raise specific contentions in this regard, which have been done. In response to these amended portions of the petitions, on behalf of the respondents not only affidavits have been filed but also needful has been done "to take order" from the Commissioner to acquire the lands in issue.
Such directions have been issued by the Commissioner as aforesaid, as post facto and that too with retrospective effect.
35. These steps that were taken have triggered of another debate between the parties viz.
Whether the Commissioner could have granted such post facto sanction and that too with retrospective effect, especially when, these petitions were part-heard before this Court ?
. It is the contention of the petitioners firstly that such ex-post-
facto sanction could not have been granted by the Commissioner and secondly that the Commissioner did so without application of mind. It is also further contended that various steps are required to be taken under the said Act in a chronological sequence only and therefore, after declaration of award in a post-facto manner, steps cannot be taken as contemplated by under section 7, which if permitted, makes a mockery of the provisions of the Land Acquisition Act.
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36. On the other hand, it is submitted by the respondents that the provisions of section 7 are to be considered only as procedural one and not as substantive in character. It is further submitted that taking steps as contemplated by section 7 i. e. taking order as contemplated thereby, is only directory in nature and not mandatory. In the submission of the Respondents a clear indication that the aforesaid provision is directory and not mandatory is that the said Act does not provide for any consequences for its non-compliance. It is therefore, submitted by the respondents that now since the Commissioner has issued such an order as contemplated by section 7 of the said Act and that too with retrospective effect, nothing survives in this objection of the petitioners.
37. If we consider the entire scheme of the said Act in the light of the aforesaid controversy raised by the parties, it becomes clear that the procedure to be followed under the said Act can be conveniently divided into two parts to be followed in three stages. The first part i.e. the first stage deals with taking a decision or coming to a definite conclusion as to whether the lands in issue are required for any public purpose or not. Once a conclusion is drawn and a decision is taken that the concerned lands are required for a public purpose and that it is necessary to acquire them the first part comes to an end. The second part i.e. the third stage comprises of various steps to be taken for implementation of such a decision and consequent action to be taken in that regard for actual acquisition of the
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lands in issue. In between the aforesaid first and third stage is a second stage with which we will deal hereunder, at length.
38. The aforesaid first part comprises of Sections 4 to 6 of the said Act and gets concluded with the issuance of notification or making of a declaration under section 6 of the said Act, to the effect that a particular land is needed for a public purpose. Requisite procedure is to be followed under this group of Sections 4 to 6 only to conclude that the lands in issue are required for a public purpose. Various issues are considered during this exercise, the main issue being whether the purpose for which the lands are sought to be acquired is a public purpose or not. Once such a declaration is made under Section 6 of the Said Act then it is presumed that a particular land is needed for a public purpose. Thereafter further steps are required to be taken under various provisions of the said Act that are set out in the section 7. After appropriate exercise is accordingly carried out, the thirds stage comes for actual compulsory acquisition of such a land which is needed for a public purpose.
. The second stage obviously requires the Collector, to "take an order", contemplated by section 7 from the appropriate government or some officer, authorized by the appropriate government in that behalf or as the case may be, Commissioner, for acquisition of such lands which are needed for the public purpose. In our view the requirement of law " 'to take an order' for the acquisition" of the land is obvious for the reasons set out
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hereunder. This second stage, as explained hereunder in true sense is the bridge between the aforesaid two parts of the said Act i.e. the first and the third stage.
39. Only because the Appropriate Government as the case may be, the Commissioner, is satisfied that any particular land is needed for a public purpose, and only because such a declaration is made under section 6 of the said Act, does not necessarily mean that further steps under the said Act must be taken to compulsorily acquire such a particular land, needed for the public purpose. There may be overwhelming circumstances and/or reasons and/or grounds that may be placed before the appropriate government or as the case may be, the Commissioner, showing that though a particular land is needed for a public purpose, it may not be compulsorily acquired. One of the most common such circumstance would be that the appropriate government or the acquiring body may not be having sufficient funds to pay for the compensation of such a land. It may also be that in view of the other priorities before the acquiring body or the appropriate government, which are more urgent and pressing, the particular land though needed for a public purpose may not be acquired immediately and the acquisition may be postponed to a future date or a future event. There are very many things we see in our day to day life that are required to be done to satisfy public needs or public purposes. Many such things are required to be done on very urgent basis. But on account of various limitations (mainly financial) the
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public bodies and/or local bodies and/or the Government is found unable to take any steps in that regard.
40. In this regard we are reminded of a case that came to this court in regard to some other dispute, which can give us an idea of such an eventuality. The facts may not be accurately reproduced hereunder but roughly the same were as set out hereinafter. In that case after appropriate exercise it was concluded that large track of land was required for public purpose of an approach road to a sizable residential area near an airport.
After issuance of Section 6 notification declaring that the land was so required for public purpose of an approach road, the concerned statutory authorities of the Central Government stepped in claiming that the air-strip was required to be extended for expansion of the airport and therefore the proposed approach road be not set up in the land so Notified for acquisition under Section 6. It was claimed that the airport was also being used by Air Force i.e. for Defense operations. Now under such circumstances in spite of issuance of a Section 6 notification an order as contemplated by Section 7 will not be granted/issued and the Collector or the Lad Acquisition Officer will not be permitted under the said Act to proceed with the acquisition.
We are also reminded of an incident that occurred in our state of an airplane crash on account of paying of a vehicle on a road just adjacent to a domestic airport, which resulted into shifting of the road itself to another location away from the boundary of the airport. Under such
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circumstances even if a Notification is issued under Section 6 the collector will not be able "to take order" as contemplated by Section 7 of the said Act.
It will not be possible to pen down herein all such eventualities and possibilities that may require the appropriate government as the case may be, the Commissioner, not to permit and consequently order/direct the Collector to acquire the particular land though it is concluded that the same is needed for the public purpose. In case of such eventualities even if declaration is made under section 6 of the said Act, the appropriate government, as the case may be, the Commissioner may not direct the Collector to acquire the particular land, needed for a public purpose. In case if such direction is not issued, obviously the Collector will not be authorized and or empowered to take steps as contemplated by the provisions of section 8 or 9 or 10 etc. of the said Act for compulsory acquisition of the lands that are needed for the public purpose.
41. This aspect becomes clearer from the section 8 of the said Act, which reads thus-
"8. The Collector shall thereupon cause the land (unless it has been already marked out under section 4) to be marked out. He shall also cause it to be measured and if no plan has been made thereof, a plan to be made of the same."
(Emphasis ours) . Section 8 of the said Act uses a specific term viz. "thereupon"
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which clearly demonstrates that only upon issuance of an order to the Collector for acquisition of the land, as contemplated by section 7 of the said Act, the Collector can take steps under section 8. Similarly, section 9 of the said Act also uses a specific language viz. "the Collector shall then .....", which shows that only after taking steps under section 8, the Collector can go ahead and take steps under section 9. Thus, in the absence of "an order for acquisition of land", issued to the Collector, as contemplated by the section 7, the Collector cannot proceed under section 8 and unless the Collector take steps under section 8, the Collector cannot proceed to take further steps, such as under section 9 etc. of the said Act.
42. If the aforesaid reasoning and consequent conclusion is not correct, then one fails to understand as to why the said Act should at all have the provision of section 7 in it. On the plane reading of section 7 in the context of the entire scheme of the said Act, we do not see any purpose of having section 7 in the said Act other than that the Collector should " 'take order' for acquisition of the land" from the appropriate government or some officers authorized by it in that behalf or, as the case may be, from the Commissioner, before taking further steps towards the intended acquisition.
. We specifically note herein that none of the learned counsels appearing on behalf of either the Petitioners or the Respondents were able to point out to us any other object or purpose of Section 7 of the said Act.
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43. It is well settled : "Ut res magis valet quam pereat" (The court strongly leans against any construction which tends to refute a statute to a futility.) In Fawcett Properties Vs. Buckinghum Country council reported in 1961 A.C.363 (676) Lord Denning said :
"But when a statute has some meaning even though it is obscure, or several meanings, even though there is little to choose between them, the courts have to say what meanings the statute has to bear, than reject it as a nullity. As Farwell J. put it when speaking of statute : " Unless the words were so absolutely senseless that I could do nothing at all with them, I should be bound to find some meaning, and not to declare them void for uncertainty " : see Manchester Ship Canal Co. V. Manchester Racecourse Co......................"
44. Therefore, we have held that before proceeding to take steps for acquisition of any land compulsorily under the said Act the Collector is required to "take an order for acquisition of the land" that is declared under section 6 as needed for a public purpose. We have also held that if no such "order for acquisition of the land" is taken or obtained by the Collector, as contemplated by section 7 of the said Act, the Collector will have no jurisdiction and/or authority in law to take any steps for compulsory acquisition of land, as contemplated by and from section 8 onwards of the said Act.
45. We may note here itself that by its conduct the State Government has accepted the aforesaid legal requirement, in as much as, in response to the objections raised by the petitioners in this regard by way of
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their first amendment, the State Government has taken steps as depicted by the aforesaid chronology of events leading to the passing of an order as contemplated by Section 7 of the said Act by the commissioner on 25th April 2008. The fact that such steps were taken by the State Government to obtain (though in a post facto manner with retrospective effect) an order from the commissioner as contemplated by the provisions of Section 7 of the said Act clearly takes away the force of the submissions of the Respondent to the effect that the language of the Notification issued under Section 6 of the said Act itself amounts to grant of an order under Section 7 of the said Act. Even otherwise on perusal of the Notification issued under Section 6 of the said Act, more particularly the aforesaid translated sentence therefrom, we do not find substance in the contention of the Respondents that there was no need for a separate order as contemplated by Section 7 of the said Act, in the facts and circumstances of these cases and that issuance of Notification under Section 6 of the said Act itself amounts to granting of such an order as contemplated by Section 7 of the Said Act.
46. Having held that the Collector has to obtain an order for acquisition of the land in issue, as contemplated by section 7 of the said Act, the question that now needs to be considered by us is as to whether obtaining of such order by the Collector for acquisition of the land is only a procedural requirement of the said Act or not and also as to whether such a requirement it is only directory in nature and not mandatory in nature, as contended by the Respondents herein. In other words we have to test the
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legality and validity of the order issued by the commissioner in this case on 25th April 2008 as and by way of post-facto sanction with retrospective effect.
47. A bare perusal of the scheme of the said Act, in the background of aforesaid discussion will clearly indicate that the requirement of taking/obtaining 'an order for acquisition of land', as contemplated by section 7 of the said Act is a substantive requirement of law and not just a procedural requirement. Under the scheme of the said Act it is for the Appropriate Government or some officer authorized by it or as the case maybe, the commissioner who is conferred with the authority or power or jurisdiction to decide as to whether any land which is found as required for public purpose, is to be acquired or not. Unless such a decision is taken by the Appropriate Government, the collector cannot proceed further and take steps for acquiring the land compulsorily under the said Act. The collector has to only implement such a decision that is taken by the appropriate Government etc. The Collector himself has no jurisdiction/ authority / power to decide whether an action to acquire the land so needed for public purpose. If the collector fails to 'take an order for acquisition of land' the collector will not have jurisdiction and/or authority in law to take any further step contemplated by the provisions contained in section 8 onwards of the said Act. Therefore steps if any taken by the collector under any of the provisions of the said Act as contemplated by Section 8 onwards, the
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action of the collector in that regard will be clearly unauthorized and consequently illegal and unsustainable. Issuance of an order as contemplated by Section 7 of the said Act is thus the source for the authority of the collector to take steps for the actual compulsory acquisition of the lands under the said Act. We therefore hold that requirement of 'taking an order for the acquisition of the land' as contemplated by Section 7 of the said Act is a substantive requirement of the law and therefore we reject the contention of the learned AGP that it is only a formal or procedural requirement.
48. Having concluded that the aforesaid requirement of taking an order for acquisition of land, as contemplated by section 7 of the said Act, is a substantive and not just procedural requirement of law, we now consider the contention of the Respondents that it cannot be said to be 'a mandatory requirement' and that it is only directory in nature. In the submission of the learned AGP, as the said Act does not provide for the consequence, much less a penal consequence, for non-observance and/or non compliance with such a requirement as contemplated by Section 7 of the said Act, such a requirement of law will have to be treated as directory and not mandatory.
49. In support of his submission the learned AGP placed reliance on the following judgments of the Supreme Court :-
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a) Udayshankar Triyar Vs. Ramkaleshwar Prasad Singh AIR 2006 SC 289.
b) State of U.P. Vs. Manbodhanlal Srivastava AIR 1957 SC 912.
50. It is true that the said Act does not provide for any consequences that should follow in case the Collector does not "take order for acquisition of the land", as contemplated by section 7 of the said Act. A close reading of section 7 of the said Act in fact contemplates only issuance of 'a direction' to the Collector "to take order for acquisition of the land". Thus, it contemplated "only a direction" to take such an order. It does not even contemplate that the Collector has to take such an order and only thereupon the Collector can proceed further with the acquisition proceedings. It is also true that there is no specific and explicit provision in the said Act that requires, much less mandatorily the Collector 'to take an order' as contemplated by Section 7 of the said Act, before taking further steps towards the acquisition proceedings.
51. However, as discussed hereinabove and as held by us already, the object and purpose of section 7 is obviously that the Collector must be authorised and/or empowered to take further steps, contemplated by provisions of section 8 onwards, for the purpose of acquisition of the land that are declared to be needed for the public purpose under section 6 of the
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said Act. In the light of our aforesaid conclusion that requirement for the collector to take such an order is the substantive (and not just a procedural requirement) of the said Act, we are also of the view that such a requirement for the collect 'to take order' as contemplated by Section 7 of the said Act will have to be read into the Act to make the entire scheme of the said Act complete and meaningful. In our view absence of such an order as contemplated by the Section 7 of the said Act will amount to a missing link in the chain of requirements/steps that are to be taken for the compulsory acquisition of lands under the said Act. We hold that the true compliance with the letter and spirit of the provisions of Section 7 of the said Act is not in just 'directing' the collector 'to take order for acquisition of land' but in the collector factually and actually 'taking' such an order, as issuance of such an order alone will clothe the collector with jurisdiction and/or authority and/or power to proceed further with the compulsory acquisition of the lands under the said Act.
52. Strictly speaking, in our view, in the facts and circumstances of the present group of petitions the issue of compliance with the provisions of Section 7 of the said Act may not arise. This is because factually in the present group of matter a direction as contemplated by the said provision has been specifically issued to the collector by the Notification issued under Section 6 of the said Act. This factual aspect will be clear from the afore-
stated translated portion of the said Notification. Thus in the present matter
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the collector was directed to take the order for acquisition by the Notification itself issued under Section 6 of the said Act. But the Collector failed to take any such order for acquisition from the Appropriate Government or the Commissioner. Therefore there is non-compliance by the Collector and/or Appropriate Government and/or Commissioner with the provisions of the said Act. What was not done initially was, obtaining of such an order by the collector.
53. In our view since the Act itself does not contemplate specifically that Collector should take such an order as contemplated by Section 7 of the said Act, before proceeding with the acquisition, obviously the said Act also does not contemplate the consequence of the Collector not taking such an order but proceeding with the acquisition without taking such an order. It will be therefore, futile to even can tend and therefore, conclude that only because the Act does not contemplate of any consequence to follow in case the Collector fails to take an order for acquisition of the land, compliance with the requirement contemplated by the provision of section 7 of the said Act should be treated only directory and not as mandatory.
54. In our view, the appropriate Govt. is possessed of powers to take decision to acquire land or not. The power in some cases is delegated to Commissioner. What is more important is that the
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power to decide whether particular land is to be acquired or not is not with the Collector. Therefore, section 7 directs to Collector to take order from the appropriate Govt. or Commissioner. Therefore, where Collector approaches the Govt. or Commissioner to take order for acquisition of land, the appropriate Govt. or Commissioner has to take decision as to whether land is to be acquired by compulsory acquisition. This decision is original decision in whole acquisition proceeding. On performance of this procedure, two effects follows-
(1) that Government has decided to acquire land compulsorily thereby incurring liability to pay compensation at market rate; (2) the Collector is clothed with jurisdiction and power to acquire land, as provided by section 8 onwards. Therefore, such important provision cannot be said to procedural one or directory in nature, as contended by respondent. Therefore, post facto approval with retrospective effect will not protect the present acquisition proceedings.
55. Even otherwise it is settled position of law that it is not possible to formulate any universal rule to be made applicable for interpretation of a provision of any statute either as a mandatory or as a directory. There are various factors which the Court is required to take into consideration before determining such nature of the statutory provision in issue. This legal
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aspects of the matter is dealt with by numerous Supreme Court judgments, all of which may not be referred hereunder. Suffice it to refer to one of them delivered in the case of Govindlal Chhaganlal Patel Vs. Agriculture produce Market Committee reported in (1975) 2 SCC 482 the relevant portion of which reads thus:-
This extract is taken from Govindlal Chhaganlal Patel v. Agricultural Produce Market Committee, (1975) 2 SCC 482, at page 487 :
"13. Crawford on Statutory Construction (Edn. 1940, Article 261, p. 516) sets out the following passage from an American case approvingly:
"The question as to whether a statute is mandatory or directory depends upon the intent of the Legislature and not upon the language in which the intent is clothed. The meaning and intention of the Legislature must govern, and these are to be ascertained, not only from the phraseology of the provision, but also by considering its nature, its de- sign, and the consequences which would follow from con-
struing it the one way or the other."
Thus, the governing factor is the meaning and intent of the Legisla-
ture, which should be gathered not merely from the words used by the Legislature but from a variety of other circumstances and con- siderations. In other words, the use of the word "shall" or "may" is not conclusive on the question whether the particular re-
quirement of law is mandatory or directory. But the circumstance that the Legislature has used a language of compulsive force is al- ways of great relevance and in the absence of anything contrary in the context indicating that a permissive interpretation is permissi- ble, the statute ought to be construed as peremptory. One of the fundamental rules of interpretation is that if the words of a statute are themselves precise and unambiguous, no more is necessary than to expound those words in their natural and ordinary sense, the words themselves in such case best declaring the intention of the legislature.1 .............."
. In another case of Mohan Singh Vs. Internationsl Airport Au-
thority of India reported in (1997) 9 SCC 132 the Supreme Court, in this regard, has observed as under :
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This extract is taken from Mohan Singh v. International Airport Authority of India, (1997) 9 SCC 132, at page 146 :
"17................................ No universal principle of law could be laid in that behalf as to whether a particular provision or enactment shall be considered mandatory or directory. It is the duty of the court to try to get at the real intention of the legislature by carefully analysing the whole scope of the statute or section or a phrase under consideration. As stated earlier, the question as to whether the statute is mandatory or directory depends upon the in- tent of the legislature and not always upon the language in which the intent is couched. The meaning and intention of the legislature would govern design and purpose the Act seeks to achieve. In Sutherland's Statutory Construction, (3rd Edn.) Vol. 1 at p.
81 in para 316, it is stated that although the problem of mandatory and directory legislation is a hazard to all governmental activity, it is peculiarly hazardous to administrative agencies be- cause the validity of their action depends upon exercise of authority in accordance with their charter of existence -- the statute. If the directions of the statute are mandatory, then strict compliance with the statutory terms is essential to the validity of administrative ac- tion. But if the language of the statute is directory only, then varia- tion from its direction does not invalidate the administrative action. Conversely, if the statutory direction is discretionary only, it may not provide an adequate standard for legislative action and the dele- gation. In Crawford on the Construction of Statutes, at p. 516, it is stated that:
"The question as to whether a statute is mandatory or di- rectory depends upon the intent of the legislature and not up- on the language in which the intent is clothed. The meaning and intention of the legislature must govern, and these are to be ascertained, not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it the one way or the other...."
56. A perusal of these and such other judgments of the Supreme Court on this point will show that the most crucial aspect of the matter to be considered while dealing with such a question is that one must look into and find out the real intention of the legislature, in laying down the requirement (of the law) in issue. Whether the law provides or not, for a consequence that follows for non compliance with such a requirement is just one of the indicators and not the sole or decisive test to determine the nature of the requirement of the law in issue. Therefore we are unable to agree with the
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contention of the learned AGP that only because the said Act does not provide for a consequence to follow on the Collector's failure 'to taken order' as contemplated by section 7 of the Act, such a substantive requirement of the said Act (as held herein above by us) is to be treated merely as directory and not mandatory. In view of our aforesaid findings as also observations as to the true and correct scope of the provisions of Section 7 of the said Act and in view of the factual background of these matters, the ratio of the aforesaid two Supreme Court judgments relied by the learned AGP cannot be made applicable to our case.
57. In our view, the requirement of the said Act 'to take order for acquisition of land' by the Collector is really a bridge between the two parts of the said Act i. e. the second stage , the first part/stage being that part which concludes with issuance of notification under section 6 with the declaration that the lands in issue are required for public purpose and the second part i. e. third stage being one which starts with section 8 onwards, which deals with actual steps to be taken for the compulsory acquisition of the land. Crossing over of this bridge by the Collector, armed with such an order, alone will empower the Collector to proceed further with the acquisition of the land in issue. We therefore, hold that in view of the nature of provision of section 7 of the said Act in the context of the entire scheme of the said Act, it is mandatory for the Collect "to take order of acquisition the land" as contemplated by aforesaid Section 7. In our view, as held
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hereinabove, such requirement is a substantive requirement of the said Act and not just a procedural requirement. On this ground also, we reject the contention of the learned AGP that the nature of provision of section 7 of the said Act is directory and not mandatory in nature.
58. Having held that it is mandatory for the Collector "to take order for acquisition of the land", now we will have to decide as to whether such a mandatory and substantive requirement of the said Act can be fulfilled by way of ratification i.e. by issuing/obtaining post facto sanction with retrospective effect (as has been done in the present matters). It is contended by the learned AGP that the defect which was there in the present case in the beginning viz. the Collector had conducted the further acquisition proceedings without obtaining such an order, as contemplated by section 7 of the said Act, can be and has been in fact 'rectified' by obtaining an order from the Commissioner, by which post facto sanction with retrospective effect has been granted. In support of his contention that such an invalid act of the Collector viz. to proceed with the acquisition without obtaining such an order can be rectified, the learned counsel has relied upon following Supreme Court Judgments :-
a) Maharashtra State Mining Corporation Vs. Sunil AIR 2006 SC 1923( paragraph 7)
b) High Court of Judicature for Rajasthan Vs. P. P. Singh & Anr. (2003) 4 SCC 239.
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. In the aforesaid judgments it is held that ratification means making valid an act, already done and that the subsequent ratification of an act already done is equivalent to prior authority to perform such an act. It is therefore, concluded that ratification assumes an invalid act, which is retrospectively validated.
59. The Petitioners, without disputing the aforesaid legal aspect of the matter, have responded to the aforesaid submission of the learned AGP by contending that various steps laid down by the provisions of the said Act are required to be followed in the same sequence as is provided by the said Act. Our attention has been drawn to the specific language used by the provisions of Section 8 onwards, such as 'thereupon' etc. to buttress this contention and to further submit that grant of such a post facto sanction runs counter to the scheme of the said Act. It is therefore submitted that such order of the commissioner is unsustainable and that it cannot cure the inherent defect that has crept in the acquisition proceedings. In this regard reliance is placed on the following judgment of the Division Bench of this court :-
Ramrao s/o Pralhadrao Deshmukh Vs. Godavari w/o Rmrao Deshmukh 2008(2) Mh.L.J. 534 ( Paragraph 19)
60. The aforesaid principle derived from the Latin maxim "ratihabi-
tio mandato aequiparatur" viz. 'a subsequent ratification of an act is equiva-
lent to a prior authority to perform such act', in other words "rectification
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by way of ratification" laid down by the two Supreme Court judgements re-
lied on behalf of the learned AGP has been followed in a further judgment of the supreme court delivered in the case of Goa Shipyard Ltd. Vs. Babu Thomas reported in (2007) 10 SCC 662. The relevant portion of paragraph 13 thereof reads thus :
This extract is taken from Goa Shipyard Ltd. v. Babu Thomas,(2007) 10 SCC 662, at page 671 :
13.................................The High Court set aside the order of termination on the ground that the invalid act cannot be sub- sequently ratified by the Board of Directors. This Court after refer-
ring to various earlier decisions set aside the order of the High Court. This Court held as under: (SCC pp. 99-100, paras 7 & 10) "7. The High Court was right when it held that an act by a legally incompetent authority is invalid. But it was entirely wrong in holding that such an invalid act cannot be subse- quently 'rectified' by ratification of the competent authority.
Ratification by definition means the making valid of an act already done. The principle is derived from the Latin maxim ratihabitio mandato aequiparatur, namely, 'a subsequent ratification of an act is equivalent to a prior authority to perform such act'. Therefore ratification assumes an invalid act which is retrospectively validated.
* * *
10. In the present case, the Managing Director's order dismissing the respondent from the service was admittedly ratified by the Board of Directors on 20-2-1991 and the Board of Directors unquestionably had the power to termi-
nate the services of the respondent. On the basis of the au- thorities noted, it must follow that since the order of the Managing Director had been ratified by the Board of Direc- tors such ratification related back to the date of the order and validated it."
We, therefore, reject the contention that the order of dismissal passed by CMD is invalid for want of authority.
61. In our view, the aforesaid "ratihabitio mandato aequiparatur"
principle of law, as explained by the Supreme Court, and the action in issue taken by the respondents to derive benefit from it cannot bail out the respondents. Firstly, this principle of law cannot be applied in each and
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every case or for implementation of every statutory scheme indiscriminately, without appreciating the scheme of the relevant statute.
This principle of law can only be applied if the concerned statutory provision can, so to say, accommodate and permit in its fold such a post-
facto action. This principle of law does not have a universal application.
. Secondly, the aforesaid principle of law has only a limited application. It can validate an action that is taken without prior authority of law to perform a particular act, deed or thing. Where a great deal of exercise is to be gone into before taking a decision whether to permit taking of an action at all or not, this principle cannot apply. In the present case, unlike the aforesaid cases considered by the Supreme Court, the question is not of just authorizing or not authorizing the Collector to proceed with the acquisition, but the question is as to whether to permit or not to permit the compulsory land acquisition itself. In our view such decisions of substantive nature cannot be taken subsequent to passing an award in a post-facto manner by granting it a retrospective effect.
Thirdly, if we consider the entire scheme of the said Act in its proper perspective it will be clear that the said Act lays down a specific sequence in which steps are to be taken for compulsory acquisition of land.
The language used by the relevant provisions right from Section 4 clearly demonstrates that it is a well-woven scheme that contemplates taking of various steps in a well-defined sequence. If this sequence is changed the entire fabric of the scheme presented by the said Act will be destroyed,
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which cannot be countenanced. There is no scope and/or discretion to change the sequence. It cannot happen that first Section 6 notification is published followed by Section 4 or that first steps are taken under Section 8/9 and then Section 6 Notification is published. Such change of sequence even if it is made by giving retrospective effect by way of post-facto action cannot be permitted in law.
We therefore hold that by way of a post-facto sanction an order cannot be taken as contemplated by Section 7 of the said Act. Such order cannot be granted with retrospective effect especially after making of an award u/s 11 of the said Act. We hold that the requirement of issuance of such an order as contemplated by the Section 7 of the said Act is a substantive and mandatory requirement of the said Act and the same cannot be complied with as and by way of rectification by ratification i.e. by obtaining post facto order/sanction with retrospective effect.
62. However, it still leaves us with the contention of the petitioner that the Commissioner has issued such an order as contemplated by section 7 of the said Act, without application of mind. We find much substance in this ground of attack made by the petitioner on the aforesaid order of the Commissioner issued to rectify the defect by way of ratification. Here we must note that we had called for the entire original file i.e. all the original papers relating to the acquisition in issue from the office of the Special Land Acquisition Officer (15) Pune, for our perusal. Accordingly, the original entire file/papers was produced in this Court and the same was in
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the custody of this Court even before the aforesaid action of ratification was initiated by the said Land Acquisition officer, resulting into issuance of an order, as contemplated by section 7 of the said Act by the Commissioner on 25th April 2008. The chronology of events set out in this regard hereinabove will demonstrate that on a single day Special Land Acquisition Officer (15) Pune sought for such an order from the Commissioner through the Collector, on the same day the Collector forwarded such a proposal, on the very day the Commissioner was pleased to grant it and on the very same day the order has also been issued, rectifying the defect by ratification.
. It is obvious and very clear to us, in these set of events, that the Commissioner has not applied his mind at all, as required by the said Act and as extensively set out hereinabove by us on various issues before allowing the Collector to proceed with the acquisition of the land after issuance of notification, declaring that the lands in issue are required for public purpose. In our view, it was humanly impossible both for the Collector and thereafter for the Commissioner, especially in the absence of any papers relating to the acquisition, on one single day, to consider all these aspects of the matter and satisfy themselves that the lands were/are required to be acquired. As pointed out hereinabove this decision as to whether the lands Notified as needed for a public purpose are to be acquired or not is a very crucial decision required to be taken by considering very many factors and/or repercussions of such decision. It involves spending of huge public money, apart from other aspects involved therein, and therefore
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is a very serious matter.
. In our view such a decision could not have been taken and the consequent order could not have been issued, in one single day by both the collector and the commissioner, especially in absence of the original file/papers relating to the acquisition in issue maintained by the Land Acquisition Officer. A perusal of this order in issue will clearly demonstrate the casual manner in which it is passed. It contains no reasons, and on the face of it shows clearly non application of mind. The same order appears to have been passed mechanically, just for asking, without understanding the seriousness that it otherwise deserved, only and only to get over the difficulties which were pointed out in these matters during the course of hearing.
. We therefore, hold that the Commissioner by the aforesaid order dated 25th April 2008 had rectified the said defect by ratification and by way of issuing the aforesaid order in the nature of post facto sanction with retrospective effect without any application of mind.
63. We therefore hereby quash and set aside the aforesaid order dated 25th April 2008 issued by the Commissioner. Resultantly we will have to proceed in these matters on the basis that there is no order issued to the Collector as contemplated by the provisions of Section 7 of the said Act, for acquisition of lands in issue.
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61. We also do not find any substance in the contention of the learned AGP that as the State Government has granted an approval under the first proviso of the sub-section 1 of Section 11 of the said Act to the award in issue, an order be deemed to have been granted to the collector as contemplated by Section 7 of the said Act. The object and purpose of granting an approval to the award under the said provision and the object and purpose of granting an order as contemplated by Section 7 of the said Act are entirely and totally different. We are sure, from the entire aforesaid turn of events that have occurred pending these petitions as part-heard, that the concerned officer of the State Government while granting such an approval was not even aware of the requirement of steps to be taken in compliance of what is contemplated by the provision of the Section 7 of the said Act. In our view such an approval granted to the award made under Section 11 cannot considered as a overall cure to all lapses; by then committed by the collector; in complying with the requirements of the said Act, just like a Holy Bath in Ganga River which in terms of Hindu philosophy results into washing away of all the sins committed by then, by an individual Hindu.
64. In view of the aforesaid discussion, we hold :-
a) The requirement of the Collector "to take order for acquisition of the land" as contemplated by the provisions of
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Section 7 of the said Act is a substantive requirement of the said Act and is not just a procedural requirement.
b) The aforesaid requirement is mandatory in nature and is not just directory.
c) It is not open to the Collector to comply with such a requirement by way of ratification i.e. by obtaining a post facto sanction with retrospective effect from the appropriate government or from the officer authorised by it in this behalf, or as the case may be, the Commissioner.
d) Such order for acquisition of land must be granted/ issued with proper application of mind and by giving reasons in support thereof.
e) The previous approval granted by the appropriate government or its authorized officer under the first proviso to Section 11(1) of the said Act does not amount to and cannot be considered as sufficient compliance with this requirement.
Non compliance with section 5A of the Land Acquisition Act
65. It is the contention of some of the petitioners that no opportunity of hearing was given by the Land Acquisition Officer, as contemplated by section 5A of the said Act, before making the award. It was submitted that notices under Section 4(1) of the said Act were received on 22nd January 2005 and that on 19th January itself i.e. even before receipt of notices, the
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objections were filed in writing, in response to the notices issued under section 4 of the said Act, as also further time was sought to submit detail objection, in support of these contentions. An additional affidavit has been filed in Writ Petition No. 7736 of 2007, in addition to the contentions raised in the original petitions wherein it is further claimed that the time to file objections was granted by the Land Acquisition Officers to the petitioners till 4th February, 2005 and that on that date such additional objections were also submitted in writing. It is further stated on oath that no notice whatsoever under section 5A of the said Act was served on the petitioners, nor was an opportunity of being heard was offered to the petitioners in support of their objections, as contemplated by the provisions of section 5A of the said Act.
66. The respondents have refuted these contentions, though the respondents were unable to show from record that as a matter of fact notices of hearing, as contemplated by the provisions of section 5A of the said Act were served on the petitioners and that in fact the petitioners were heard in that regard. The learned AGP on the contrary relied upon the judgments of the Supreme Court in the case of Tej Kaur & Ors. Vs. State of Punbaj reported in (2003) 4 SCC 485 (paragraph 6) and contended that the petitioners have allowed the acquisition proceedings to go on until the award was passed and that this fact itself indicates that the petitioners did not have a genuine grievance against issuance of notices under section 5A
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inquiry held by the Collector.
67. It is far well settled principle of law that the compliance with Section 5-A of the said Act is mandatory and that such compliance is absolutely mandatory even to satisfy the principles of natural justice. In this regard see: (1975) 4 SCC 298, (1976) 3 SCC 719, (1995) 3 SCC 752 (Paragraph 5).
68. There is absolutely nothing on record to show that even in spite of written objections raised on behalf of some of the petitioners in response to the Section 4 notice/notification, the Land Acquisition officer had served a notice of hearing on the claimants under Section 5-A of the said Act or that opportunity of being heard was accordingly offered to these petitioner before declaration of the award in issue. There is also nothing on record to show that these objections that were raised in writing were even considered in their proper perspective before making the award in issue under Section 11 of the said Act. One of the important and most relevant contentions raised on behalf of the petitioners at the stage of Section 5-A inquiry that needed consideration in its proper perspective was that, just adjacent to these lands proposed to be acquired at that time, more than 100 acres of forest land is located. On this basis two fold contentions appear to have been raised by the petitioners herein. One is that on account of existence of such a large forest area it is not necessary to set up a Forest Garden at that
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place where it is proposed to be set up and secondly that, where in fact there is a forest, a part thereof can be used for setting up such a Forest Garden.
The Respondents even in these proceedings are not denying the fact that there is a forest area to such a large extent just adjacent to the land proposed to be acquired. All that what can be said in this regard is that at least such contentions of the objectors needed to be considered at the stage of inquiry that is mandatorily required to be conducted under Section 5-A of the said Act. May be that in spite of the fact that there is such a forest a decision might have been taken in its proper perspective that still the lands proposed to be acquired were so needed. However non-consideration of such an objection raised in behalf of the petitioner has resulted in to serious breach of the mandatory provisions of the said Act.
69. In as much as the judgment of the supreme court delivered in the case of Tej Kaur (supra) is concerned suffice it to say that the aforesaid chronology of events will demonstrate that in the present matters it can be made applicable in as much as in the facts and circumstances of this case it will not be possible to hold that the petitioners herein have allowed the acquisition proceedings to go on until the award in issue is passed without raising any objections in that regard and that therefore they did not have any genuine grievance in that regard. Suffice it to say that in the facts of these matters and in the light of the mandatory nature of the statutory provision, it will not be possible to apply the ratio of the said judgment to further defence of the Respondents.
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70. In view of the aforesaid set of facts and circumstances of these matters we have no other option but to hold that the impugned award has been made/declared without following the mandatory requirement of Section 5-A of the said Act and therefore is clearly unsustainable in law and in view of the facts of these matters.
Acquisition have lapsed under Section 11A
71. The learned counsel appearing on behalf of the petitioner have come out with one more attack on the award as also the acquisition pro-
ceedings in issue and it is launched by relying on Section 11-A of the said Act which reads thus :-
Section 11-A : Period within which an award shall be made. --
The Collector shall make an award under Section 11 within a period of two years from the date of the publication of the declaration and if no award is made within that period, the entire proceedings for the acquisi- tion of the land shall lapse:
Provided that in a case where the said declaration has been pub- lished before the commencement of the Land Acquisition (Amendment) Act, 1984, the award shall be made within a period of two years from such commencement.
Explanation.--In computing the period of two years referred to in this section, the period during which any action or proceeding to be tak- en in pursuance of the said declaration is stayed by an order of a court shall be excluded."
. By relying on the aforesaid provisions of the said Act it is sub-
mitted that if the chronology of dates and events set out at the threshold of this judgement is considered in its proper perspective, it becomes clear that the Collector has failed to make the award in issue u/s 11 within a period of two years from the date of publication of the declaration u/s 6 of the said
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Act and, therefore, the entire proceedings for acquisition of the lands in is-
sue have lapsed. We may recapitulate hereunder only few relevant dates for better understanding of this submission.
20.12.2005 - Declaration made u/s 6 sent for its publication in the Gazette; 24.12.2005 - Declaration made u/s 6 published in local newspapers; 26.12.2005 - Declaration made u/s 6 published in the gazette;
16.1. 2006 - Individual notices issued u/s 9 (3) and (4) of the said Act; 27.1. 2006 - Notices served on the petitioners.
30.1. 2006 - Declaration made u/s 6 sent for publishing at the site.
2. 2. 2006 - Declaration u/s 6 of the said Act published at site, on the notice board of the Corporation, at the Talathi Office and at the office of City Sur-
vey Officer. On the same day notice given u/s 9(1) and (2);
31.1. 2008 - The impugned award declared.
72. On the contrary, it is the defence of the respondents that the award has been declared within the time prescribed by the aforesaid provi-
sions of Section 11-A of the said Act as the same is made within a period of two years from the last publication/declaration made u/s 6. With the afore-
said chronology of events, it is contended that declaration u/s 6 was pub-
lished at the site on 2nd February 2006 and the award has been declared on 31st January 2008 i.e. almost one month before expiry of the period of two years, as contemplated by provisions of Section 11-A of the said Act. Re-
liance is placed on the judgment of the Supreme Court delivered in the case of Bailamma (Smt) @ DodaBailamma Vs. Purnaprajana House Building Co-operative Society and others reported in (2006)2 SCC 416, which relies,
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in turn, on the passage of another Supreme Court judgment reported in 1995 Supp (2) SCC 423 (para 5).
73. While considering these rival submissions raised in this group of petitions in their proper perspective, we will have to first consider and de-
cide the event from which the time of two years will start to run against the Respondents. Though none of the parties have relied, in this regard, we may rely on following passage of Supreme Court Judgement delivered in the case of Bihar State Housing Board Vs. State of Bihar reported in (2003)10 SCC 1.
This extract is taken from Bihar State Housing Board v. State of Bihar,(2003) 10 SCC 1, at page 5 :
7. ........................Therefore, the expression "date of publica-
tion of declaration" appearing in Section 11-A, a stage subsequent to Section 6, answering the stipulation "hereinafter" has to be the last of the dates out of the three modes of publication ordained by the statute. In substance the triumvirate modes are cumulative and inseparable in the sense that unless all the three modes are resort- ed to and completed, there is no scope for the limitation period of two years beginning to run or for the penal consequences envis-
aged ensuing therefrom.
8. In Krishi Utpadan Mandi Samiti v. Makrand Singh2 while considering the various provisions (in which only the period of lim- itation was changed by amending Act 68 of 1984) it was noted that there are three modes of publication and the three steps are as in-
dicated supra.
9. If one takes note of the parenthesis appearing in sub-section (2) of Section 6, it is clear that reference to the subsequent provi- sions of the Act to the date of publication of declaration has to be determined as the last of the dates of the publication and the giving of public notice. As the date of publication by local publication was the last at that point of time i.e. 15-3-1991, the award on 25-3- 1992 was not beyond the prescribed period of limitation.
(Emphasis supplied)
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74. The aforesaid judgment of the Supreme Court thus clarifies in clear terms that the words "from the date of publication of declaration u/s 6" appearing in Section 11-A of the said Act refer to the date on which pub-
lications envisaged in section 6 of the said Act was carried out last in point of time amongst the various modes of publication set out in the Section 6 of the said Act. Thus, it is apparent that the term "date of publication of decla-
ration" appearing in section 11-A of the said Act, if considered in the light of the aforesaid chronology of events and the facts of the present case it is clear that the declaration made at site on 2nd February 2006 was the last in point of time and therefore that is the date from which the time to make an award as contemplated by the provisions of Section 11-A of the said Act will star to run against the present Respondents. A careful consideration of all the aforesaid legal aspects of the matter makes it clear that no other date can be taken by us as the point for starting of limitation for making an award u/s 11-A of the said Act.
75. If considered in this legal and factual perspective, the contention of the petitioner that the acquisition proceedings have lapsed under Section 11-A of the said Act is without any substance and, therefore, liable to be re-
jected. However, before we do that, we must also take care of another sub-
mission of the learned counsel appearing on behalf of the petitioner made in this regard, which is as under.
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76. It is submitted by the learned counsel appearing on behalf of the petitioner that if we accept and conclude accordingly, as we presently have done, in terms of the aforesaid observations, then according to the petition-
ers, in no case ever an award will get time barred u/s 11-A because the Land Acquisition Officers and/or Collectors will not publish the declaration u/s 6 of the said Act at site for several years together and in the mean while will continue to take such steps that are to be taken under various further provisions of the said Act after the stage of section 6, which in fact has also happened in the present case. The grievance of the learned counsel for the petitioners is that in the present case, the Land Acquisition Officer withheld the publication/declaration of section 6 under the said Act at site on one hand and on the other hand proceeded to take steps u/s 9 of the said Act by issuing individual notices on 16th January 2006 itself. In line with this argu-
ment it is also further contended that in terms of the scheme of the said Act various steps contemplated by the provisions of the said Act are to be taken in the same sequence in which these provisions appear in the said Act, fail-
ing which the actions taken in breach of the sequence will have to be stamped as illegal and unsustainable.
77. We do not find any substance in the first limb of the aforesaid contentions of the petitioner. If the said Act permits making of an award within a specific period/time and further provides for an event that will work as a triggering event for the starting of time so fixed to run, no fault
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can be found in the inaction of the Land Acquisition Officer that has result-
ed into preventing an event to occur which will result into starting of time prescribed by the said Act from running against the Respondents. Unfortu-
nately, the said Act does not provide for any specific time within which the action once initiated under Section 6 of the said Act is required to be com-
pleted. More over as held by the Supreme Court by the aforementioned judgement in the case of Bihar State Housing Board (supra) the time so prescribed by the Section 11-A will start to run only from the last of the dates out of the three modes of publication ordained by the Section 6 of the said Act.
It is also pertinent to note that the last publication under Section 6 was effected on 2nd February 2006 whereas the award has been declared on 31st January 2008 i.e just less than two years from the date of taking such a last step under Section 6 of the said Act. It is impossible to believe that about two years in advance the Land Acquisition Officer has thought about such an action and therefore has purposely prolonged the making of an award.
78. However we find force in the second limb of the aforesaid sub-
missions of the Petitioners i.e. impermissibility in law for taking action un-
der Section 9 simultaneously with part of an action under Section 6 of the said Act. It is correct that the Land Acquisition Officer is duty bound to fol-
low and take steps under the provisions of the said Act in a particular se-
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quence that is specifically laid down by the said Act. Obviously therefore, it was impermissible for the Land Acquisition Officer to proceed u/s 9 simul-
taneously when he was also proceeding with and/or taking steps for is-
suance of declarations to be made by various modes provided u/s 6 of the said Act. The requisite steps under Section 9 of the said Act could have been taken only after firstly all the actions required to taken under Section 6 were completed and secondly all the steps contemplated not only by Section 7 but also by Section 8 of the said Act were taken. It was impermissible for the Land Acquisition Officer to proceed with action under Section 9 of the said Act before completing the action under Section 6 of the said Act. We reject the contention of the Respondents to the contrary and to the effect that there was no need not wait for the completion of action u/s 6 of the said Act before initiating procedure under the subsequent provision of the said Act and further that such action, in the facts and circumstances of the case, has in fact enabled the Land Acquisition officer to shorten the time required for completing the requisite procedure and in making the award under sec-
tion 11, which is the object and true purpose in enacting Section 11-A of the said Act.
The applicability of provisions of section 128 of the MRTP Act
79. Admittedly all the land under acquisition is shown in the development plan, prepared under the MRTP Act in "Hill Top-Hill Slope
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Zone". On this basis, it is contended by some of the petitioners that without following the provision of section 128 of the MRTP Act, such lands cannot be acquired for the purpose of "Forest Garden". It is submitted that acquisition of said land for Forest Garden which falls in "Hill Top-Hill Slope Zone" amounts to acquiring land for a purpose other than the one for which such land is designated in the development plan or development scheme, and that therefore, the Respondents were required to meticulously follow and take steps contemplated by Section 128 of the MRTP Act.
Admittedly, since such steps are not taken by the respondents, in the submission of these petitioners, the acquisition in issue was bad-in law and liable to be quashed and set aside.
80. The relevant portion of Section 128 of the MRTP Act reads thus:-
Section 128 (1) Where any land is included in [any plan or scheme] as being reserved, allocated or designated for any purpose therein specified or for the purpose of Planning Authority or Development Authority or Appropriate Authority and the State Government is satisfied that the same land is needed for a public purpose different from any such public purpose or purpose of the Planning Authority, Development Authority or Appropriate Authority , the State Government may, notwithstanding anything contained in this Act, acquire such land under the provisions of the Land Acquisition Act, 1894.
(1A) . . . . .
(2) . . . . .
(3) . . . .
(Emphasis by us)
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81. It is pertinent to note that all the lands under acquisition have been shown in the development plan in the "Hill Top-Hill Slope Zone".
Admittedly, land under acquisition is neither reserved nor allocated nor designated as such in the development plan for "Hill Top-Hill Slope" only.
In the various Zones set out in the development plan, the land under acquisition falls in the "Hill Top-Hill Slope Zone". Mere placing of the land under acquisition in such a "Hill Top-Hill Slope Zone" can never amount to either reservation or allocation or designation of the land under acquisition for a specific purpose of "Hill Top-Hill Slope", as contemplated by section 22 r/w 128 of the MRTP Act.
82. Therefore in our view as the land under acquisition is not either reserved or allocated or designated for any specific purpose in the Development Plan, the provisions of section 128 of the MRTP Act are not at all attracted in these cases. Therefore, respondents were not obliged in law to take any steps whatsoever, as contemplated by the provisions of section 128 of the MRTP Act.
. Thus, in the present case acquisition of the land in issue to set up a "Forest Garden" will not amount to the said Corporation using the land for a purpose other than the purpose for which these lands have been "reserved or allocated or designated in the development plan". In fact these lands are neither reserved nor allocated nor designated in the development
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plan for any purpose whatsoever and therefore, it is open for the respondents to take steps for acquisition of the lands in issue for setting up a "Forest Garden" without following any steps contemplated by the aforesaid provisions of Section 128 of the MRTP Act.
83. The aforesaid observation also will take care of another contention raised by the petitioners viz. the Collector vide his order dated 20th February 2003 has ordered that the proposal of the said Corporation for acquisition dated 30th January, 2003 has been accepted only conditionally.
This condition is that an amendment of the sanctioned development plan which is presently in operation should be suggested to the State Government and further that the same be got approved by the said Corporation by following the prescribed procedure. Relying on the aforesaid condition set out by the Collector, it is contended on behalf of the petitioners that the said Corporation has admittedly not complied with this condition and that therefore, the acquisition is bad in law and unsustainable.
84. As set out herein above the land under the acquisition are neither reserved nor allocated nor designated in the development plan for any purpose whatsoever. The same only fall in a particular zone. Obviously, therefore before acquiring the lands, it was not at all necessary for the said Corporation to obtain any modification/sanction as such, in terms of the aforesaid condition, set out by the Collector in his approval. In our view,
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this condition imposed by the Collector itself was wholly illegal and unsustainable as also perverse. This condition appears to have been put on a factual as also legally incorrect basis that the lands to be acquired was reserved or allocated or designated in the development plan for some specified purpose and that the acquisition was sought to be effected for some other purpose. We therefore do not find any force at all in this objection raised on behalf of the Petitioners.
85. In as much as user of a land for a purpose other than the one set out by the Zone in which such a land falls, is concerned, the issue is not longer res-integra. The Supreme Court in case of Bhagat Vs. State of U.P.
and Ors. Reported in (1999) 2 Supreme Court Cases 384 has specifically observed in paragraph 22 as under -
This extract is taken from Bhagat Singh v. State of U.P., (1999) 2 SCC 384, at page 394 :
22. As pointed out in the above judgments, there is no need that the land proposed to be acquired by the Government for a particular public purpose should be for the same pur- pose or use mentioned in the Master Plan or Zonal Plan for the said area. Nor will the acquisition be invalid mere- ly because the land proposed to be acquired is for a pur- pose other than the one permitted by the Master Plan or Zonal Plan applicable to that locality. Acquisition will be valid if it is for a public purpose even if it is not for the type of user permitted by the Master Plan or Zonal Plan in force at the time the acquisition is made. It will be for the beneficiary of the acquisition to move the competent au- thority under the Development Act and obtain the sanction of the said authority for suitable modification of the Mas- ter Plan so as to permit the use of the land for the public purpose for which the land is acquired. In fact, it may be difficult for the beneficiary of the acquisition to move the competent authority under the Development Act seeking permission to change of land use even before the land is acquired or before possession is given to the beneficiary.
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On the principle stated in Aflatoon case6 it is clear that acquisition for a public purpose and obtaining permission from the competent authority under the Development Act concerned for change of land use are different from one another and the former is not dependent upon the latter.
86. The aforesaid judgment makes position of law in this regard abundantly clear and concludes this aspect of the matter in favour of the Respondents. We, therefore, reject the contention of the petitioner that the acquisition in issue is bad in law because the respondents have failed to comply with the condition imposed by the Collector while approving the process of acquisition of the land in issue, by failing to get modification of the development plan, approved from the State Government.
The special Land Acquisition Officer (15) Pune was not authorized to conduct the Land Acquisition Proceedings
87. It is contended by some of the petitioners that the land acquisition proceedings have been conducted by Mr. Kale, who at the relevant time was working as the Special Land Acquisition Officer (15) Pune. It is submitted that he was not authorized in law to conduct the land acquisition proceedings as no notification as required by the provisions of Section 3(eee) of the said Act has been published in the official gazette, empowering him to work as Special Land Acquisition Officer. It is therefore, contended that notification issued by him under section 4 of the said Act is void-ab-initio and consequently, all the further steps taken in that regard are not sustainable in law and in view of the facts of the case.
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88. The respondents on the other hand, have contended that the State Government by its circular dated 9th November, 1972 has appointed various officers, set out therein as the Land Acquisition Officers. Mr. Kale who has issued notification under section 4 of the said Act was at the relevant time working as the Town Planner in the Town Planning and Valuation department of the State Government. Mr. Kale was appointed as Special Land Acquisition Officer (15) Pune on 5th August, 2004 by office order dated 4th August, 2004. It is submitted that Mr. Kale was working as Special Land Acquisition Officer (14) Pune before his appointment as Special Land Acquisition Officer (15) Pune. It is therefore, contended that Mr. Kale was fully authorized to take all the steps that have been taken by him under the said Act till 30th June, 2006, i.e. the date till which he was working as Special Land Acquisition Officer (15) Pune.
89. It is worthwhile to note that Writ Petition bearing No. 8816 of 2005 was filed questioning the authority of Mr. Kale, who worked as Special Land Acquisition Officer (15) Pune, in connection with another Land Acquisition Proceedings. A Division Bench of this Court dealt with almost identical contentions raised therein and by its order dated 13th December, 2006 was pleased to hold that Mr. Kale was fully authorized to work as Special Land Acquisition (15) Pune. This judgment is not only binding on us but we respectfully agree with the same and hold that Mr.
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Kale was fully authorized to work as a Land Acquisition Officer and take steps that have been taken by him in the present case.
90. It is also worthwhile to note that by the notification issued under section 6 of the said Act, the Special Land Acquisition Officer (15) Pune has been specifically authorized by the Commissioner Pune to perform all duties, to be performed by the Collector in terms of section 3(eee) of the said Act. We therefore, do not find any substance in the contention of the petitioners that the steps taken by Mr. Kale as SLAO (15) Pune are illegal and unsustainable in law for want of notification to be published in the Official Gazette by the State Government under section 52A read with section 3(eee) of the said Act.
Award already made, therefore, these Writ Petitions are not maintainable
91. It was contended on behalf of the respondents that admittedly on 31st January, 2008 an award has been finally declared in accordance with section 11 of the said Act. It is submitted that after an award is made under section 11 of the said Act, no Writ Petition can be entertained challenging the acquisition notices or against any proceedings thereunder. It was submitted on behalf of the respondents that this has been a consistent view of the Supreme Court, and therefore, on this ground alone the present group of petitions needs to be thrown out. Reliance was placed on the following
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judgments-
a) 2008(4) SCC 695.
b) 1996 (11) SCC 501.
c) 2000 (2) BCR 678 [ para 17 ]
92. A perusal of all the aforesaid judgments will clearly demonstrate that the same were delivered obviously in view of the facts and circumstances of each of those cases it has been held that such petitions were filed under Article 226 of the Constitution with gross and an inordinate delay in impugning the acquisition proceedings, initiated under the said Act. The basis of the conclusion so drawn, would be clear from the following portion of the judgment :-
This extract is taken from Municipal Corpn. of Greater Bombay v. Industrial Development Invest-
ment Co. (P) Ltd., (1996) 11 SCC 501, at page 520 :
29. It is thus well-settled law 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 pow- ers under Article 226 of the Constitution to quash the notification under Section 4(1) and declaration under Section 6. But it should be exercised taking all relevant factors into pragmatic considera- tion. 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 ex- ercising the power under Article 226. The fact that no third party rights were created in the case is hardly a ground for interference. The Division Bench of the High Court was not right in interfering with the discretion exercised by the learned Single Judge dismiss- ing the writ petition on the ground of laches.
93. It is thus, clear that not as and by way of rule without an
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exception, the Supreme Court has held that in no case, High Court can exercise its extraordinary Constitutional jurisdiction to try, entertain and decide a writ petition, filed, questioning the sustainability of an acquisition proceedings, once an award under section 11 of the said Act is declared. We therefore, reject the contention of the respondents that merely because an award is already passed, on that ground itself all the present writ petitions be rejected without going into the merits of the matter.
. Obviously, if a writ petition is filed with gross and an inordinate delay, the same will be dismissed on that ground itself, whether it questions sustainability of the land acquisition proceedings or any other action under any other law. In the aforesaid matters, the Supreme Court held that the petitions were not maintainable, not just because the same were filed after declaration of an award but because the same were filed with an inordinate delay after the declaration of the award.
94. In the case before us, some of the petitions have been filed well-
before the declarations of the awards, though some of them were filed after the declaration thereof. It is pertinent to note that the award is dated 21st January, 2008 and some of the petitions that are filed after the awards have been filed even before the ink of the award could dry. These petitions are filed on 28th February, 21st February and 1st March, 2008. In view of these factual aspects of the matter, we are of the view that these petitions which are filed after the award, cannot be said to have been filed with an
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inordinate or gross delay and that too with such a delay that we should refuse to exercise our extra-ordinary writ jurisdiction, on the ground of delay and laches alone.
95. In this regard, one more crucial aspect of the matter cannot be lost sight of. As set out hereinabove, even during pendency of the present group of petitions, when the same were in fact part heard, post facto orders with retrospective effect have been issued by the Commissioner. This order has been issued by the Commissioner on 25th April, 2008 i.e. much after the filing of these writ petitions. In the present proceedings the petitioners have also impugned the validity of this order. In view of this controversy in the present case also, we are of the view that the present group of petitions cannot be dismissed, solely on the ground that some of the petitions have been filed after the declaration of the award. We respectfully say that the aforesaid Supreme Court judgments, relied on behalf of the respondents are clearly distinguishable on the facts of these cases, and therefore, cannot apply to the present group of petitions.
96. The learned counsel appearing on behalf of the petitioners on the contrary relied on the following Supreme Court judgments, in support of their contention that the petitions may not be dismissed solely on the ground of delay-
a) AIR 1970 Supreme Court 898 (para 10 & 11)
b) AIR 1971 Supreme Court 259 ( para 9.1)
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c) (2007) 9 SCC 304 (para 5 to 9)
97. In short, these judgments lay down that the party aggrieved must move the Court at the earliest possible time and explain satisfactorily the delay, if any that might have occurred in moving the court. It is further held that in India, each case will have to be considered on its own facts and that where there is apparent and avoidable delay and that such delay affects the merits of the claim, this Court would consider and hold, in a proper case, such party disentitled to invoke the extraordinary writ jurisdiction. It is further held that, it is always a question of discretion of the Court to be followed from case to case and that there is no lower nor upper limit.
98. In any event it is needed to be noted that a Writ Petition challenging an award that is declared in breach of Section 11-A of the said Act can be filed only and only after the award is so made and not till then.
If that be so, it is futile to contend that under any circumstances a Writ Petition filed after declaration and /or making of an award is not at all maintainable.
Effect of the dismissal of the earlier W.P. 5874 of 2006 on the maintainability of these petitions.
99. It is contended on behalf of the respondents that the validity and sustainability of the acquisition proceedings which are in the present group
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of matters was also questioned by the Writ Petition No. 5854 of 2006 before this Court and that the Division Bench of this Court was pleased to dismiss that petition by the judgment dated 28th March, 2007. It is contended that in view of the dismissal of such a petition, the present petitions were not maintainable.
100. In the light of these submissions, we have considered the aforesaid judgment delivered by the Division Bench of this Court, dated 28th March, 2007. By that petition, filed by some other land-holders (and not the petitioners herein), acquisition proceedings in issue were alleged to be unsustainable only and only on the grounds that the lands which were being acquired for development of "Forest Garden" were not reserved for such a purpose in the Development Plan of the said Corporation prepared under the MRTP Act. It was therefore, contended on that basis that it cannot be deemed that the lands under acquisition are required for the public purpose by the Planning Authorities. The Division Bench of this Court by the aforesaid judgment dealt with this single aspect of the matter and has concluded the same as under-
"8. It would be clear therefore, that even if a plot is not reserved under the Development Plan, if an exigency arises, the power of eminent domain can be exercised. This has been so exercised. The acquisition is for the "Forest Garden". The object being to improve the environment of Pune city. It is therefore, impossible to hold that what (sic: it) was not open to the respondents to acquire the land for public purpose, for which it has been acquired.
9. Then only major contention raised, in our opinion, is devoid of merits. In the light of that, this petition will have to be dismissed.
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Consequently, rule is discharged. There shall be no order as to costs."
101. A perusal of the aforesaid judgment will show that none of the aspects of the acquisition proceedings which have been considered by us hereinabove were dealt with in that case. In absence of copy of that petition on record of these proceedings we are also unable to find out as to whether these aspects that are dealt with by us hereinabove were at all raised there in or not. In any case even if raised, the same were certainly not argued, in as much as, there is not even a reference to the same made in the aforesaid judgement of the Division Bench. We therefore, reject the contention of the respondents that only because a Division Bench of this Court dismissed the Writ Petition No. 5854 of 2006 by its judgment dated 28th March, 2007, we cannot entertain the present group of matters.
102. Another Division Bench of this Court relying on the very same aforesaid judgment delivered in Writ Petition No. 5854 of 2007 was pleased to dismiss yet another Writ Petition No. 1405 of 2008 by its order dated 16th June, 2008. A perusal of copy of this order shows that that petition was dismissed at an admission stage itself with a non-speaking order of few lines, especially when none appeared for the petitioner. That petition was dismissed only and only by relying upon the aforesaid order, dated 28th March, 2007, delivered in Writ Petition No. 5854 of 2006. Consequently for the identical aforesaid reasons the aforesaid order dated 28th March 2007
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also need not detain us from entertaining the present group of petitions.
Reliefs in respect of each of these Writ Petitions
103. Having dealt with all the arguments advanced by all the learned counsels appearing on behalf of all the parties in this group of matters we will now deal with individual petitions separately as the facts of each peti-
tion, contentions raised therein and the reliefs sought for thereby though are characteristically as also materially same, the same differ from each other in specifics.
WRIT PETITION No. 3648 OF 2007
104. This petition has been filed on 2nd May 2007 i.e before making the award in issue dated 31st January, 2008. The properties that are the sub-
ject matter of this petition are as under :-
The Plots bearing nos. 32, 32-A and 39 out of survey Nos. 67 to 73 situate at Parvati, Pune.
This petition was moved before this Court for ad interim reliefs on 4th May, 2007. The Division Bench of this Court was pleased to pass an ad-interim order and thereby directed the respondents not to proceed to take possession of the aforesaid property from the petitioners. Thereafter the pe-
tition has been admitted for consideration by the Division Bench of this Court on 12th December 2007 at which time the aforesaid ad-interim order that was granted is directed to be continued.
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. In this case which is filed before declaration of award, validity of notification under section 6 alone is questioned on the following amongst other grounds-
a) Non-compliance with Section 128 of the MRTP Act,
b) The Special Land Acquisition Officer (15) Pune was not competent to conduct the acquisition proceedings.
. During the course of arguments the learned counsel appearing on behalf of the petitioner made it clear that the petitioner herein was not sup-
porting the case of other petitioners in as much as breach of provisions of section 7 of the said Act is concerned.
. We have rejected both the aforesaid contentions raised in this pe-
tition. However, on other grounds, we have held that the proceedings con-
ducted for acquisition of lands in issue are not sustainable in law and in view of the facts of the case. We are therefore granting reliefs to this peti-
tioner as well on the similar lines, as have been granted to the other peti-
tioners. We therefore allow this petition and pass the following order :-
"(a) The award dated 31st January 2008 made by the Special Land Acquisition Officer (15) Pune bearing No. Hkw la 173 pertaining to survey Nos. 67 to 73 of vil-
lage Parvati, taluka Pune city, district Pune, in so far as it relates to plot Nos. 32, 32-A and 39 out of survey Nos.
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67 to 73, situate at village Parvati Pune, is hereby quashed and set aside.
(b) Rule is made absolute accordingly with no order as to the costs."
WRIT PETITION No. 7736 OF 2007
105. This petition has been filed on 4th October 2007 i.e before mak-
ing the award in issue dated 31st January, 2008. The properties that are the subject matter of this petition are as under :-
The Plots bearing nos. Nos. 109 and 110 out of survey Nos. 67 to 73 situate at Parvati, Pune.
This petition was admitted on 17th December 2007 by the Divi-
sion Bench of this Court and an order directing maintenance of Status-quo was passed. However, during pendency of this petition, award was made and subsequent developments occurred which we have dealt with herein-
above in detail, and therefore, the present petition was amended with the leave of the Court from time to time by the petitioner.
. In this case validity of the award as also the acquisition proceed-
ings have been questioned on the following amongst other grounds-
a) Absence of resolution of General Body of the Corporation.
b) Non-compliance with the provisions of section 5A of the said Act.
c) Conditional approval granted by the Collector and that such condition is not complied with.
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d) The order of the Divisional Commissioner dated 28th April 2008 is unsustainable in law.
. We have dealt with all these aspects in detail hereinabove and have rejected the aforesaid third i.e. (c) contention, but have accepted all the other three i.e. (a), (b) and (d) contentions aforesaid. In view of all the aforesaid discussion and for these reasons we therefore allow this peti-
tion and pass the following order :-
"(a) The order dated 28th April, 2008 passed by the Divisional Commissioner Pune bearing No. भूसंपादन/ आर आर/3/54/08 is hereby quashed and set aside.
(b) The award dated 31st January 2008 made by the Special Land Acquisition Officer (15) Pune bearing No. Hkw la 173 pertaining to survey Nos. 67 to 73 of village Parvati, taluka Pune city, district Pune, in so far as it relates to plot Nos. 109 and lage Parvati Pune, is hereby quashed and set aside.
(c) Rule is made absolute accordingly with no order as to the costs."
WRIT PETITION No. 1149 of 2008
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106. This petition has been filed on 18th February 2008 i.e immediate-
ly after making the award in issue dated 31st January, 2008. The properties that are the subject matter of this petition are as under :-
The Plots bearing nos. Nos. 103 to 107 out of survey Nos. 67 to 73 situate at Parvati, Pune.
In this petition interim order has been passed on 18th February 2008 directing the respondents not to take possession of his lands from the petitioner.
.
In this case validity of the award as also the acquisition proceed-
ings have been questioned on the following amongst other grounds-
a) Non-compliance with the provisions of section 5A of the said Act.
b) The order of the Divisional Commissioner dated 28th April 2008 is unsustainable in law.
c) Non-compliance with the provisions of Section 7 of the said Act
d) The Special Land Acquisition Officer (15) Pune was not competent to conduct the acquisition proceedings.
e) The acquisition proceedings have lapsed u/s 11-A of the said Act.
. We have dealt with all these aspects in detail hereinabove and have rejected the aforesaid fourth and fifth i.e. (d) & (e) contentions, but have accepted all the other three i.e. (a), (b) and (c) contentions afore-
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said. In view of all the aforesaid discussion and for these reasons we there-
fore allow this petition and pass the following order :-
"(a) The order dated 28th April, 2008 passed by the Divisional Commissioner Pune bearing No. Hkwlaiknu@ vkj vkj@3@54@08 is hereby quashed and set aside.
(b) The award dated 31st January 2008 made by the Special Land Acquisition Officer (15) Pune bearing No. Hkw la 173 pertaining to survey Nos. 67 to 73 of village Parvati, taluka Pune city, district Pune, in so far as it relates to plot Nos. 103 to lage Parvati Pune, is hereby quashed and set aside.
(c) Rule is made absolute accordingly with no order as to the costs."
WRIT PETITION No. 1154 of 2008
107. This petition has been filed on 18th February 2008 i.e immediate-
ly after making the award in issue dated 31st January, 2008. The properties that are the subject matter of this petition are as under :-
The Plots bearing no. Nos. 71 to 73 out of survey Nos. 67 to 73 situate at Parvati, Pune.
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In this petition interim order has been passed on 11th February 2008 directing the respondents not to take possession of his lands from the petitioner.
. In this case validity of the award as also the acquisition proceed-
ings have been questioned on the following amongst other grounds-
a) The order of the Divisional Commissioner dated 28th April 2008 is unsustainable in law.
b) Non-compliance with the provisions of Section 7 of the said Act.
c) The acquisition proceedings have lapsed u/s 11-A of the said Act.
d) Conditional approval granted by the Collector and that such condition is not complied with.
. We have dealt with all these aspects in detail hereinabove and have rejected the aforesaid third and fourth i.e. (c) & (d) contentions, but have accepted all the other two i.e. (a) and (b) contentions aforesaid. In view of all the aforesaid discussion and for these reasons we therefore allow this petition and pass the following order :-
"(a) The order dated 28th April, 2008 passed by the Divisional Commissioner Pune bearing No. भूसंपादन/ आर आर/3/54/08 is hereby quashed and set aside.
(b) The award dated 31st January 2008 made by the Special Land Acquisition Officer (15) Pune bearing No. Hkw la 173 pertaining to survey Nos. 67 to 73 of
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108. This petition has been filed on 18th February 2008 i.e immediate-
ly after making the award in issue dated 31st January, 2008. The properties that are the subject matter of this petition are as under :-
The Plots bearing no. Nos. 20 out of survey Nos. 67 to 73 situate at Parvati, Pune.
In this petition interim order has been passed on 11th February 2008 directing the respondents not to take possession of his lands from the petitioner.
. In this case validity of the award as also the acquisition proceed-
ings have been questioned on the following amongst other grounds-
a) The Special Land Acquisition Officer (15) Pune was not competent to conduct the acquisition proceedings.
We have dealt with all these aspects in detail hereinabove and have rejected the aforesaid first i.e. (a) contentions, but have accepted all the other i.e. (b) contention aforesaid. In view of all the aforesaid discussion and for these reasons we therefore allow this petition and pass the following order :-
"(a) The award dated 31st January 2008 made by the Special Land Acquisition Officer (15) Pune bearing No. Hkw la 173 pertaining to survey Nos. 67 to 73 of village Parvati, taluka Pune city, district Pune, in so far as it relates to Plot No. 20 out of survey Nos. 67 to 73, situate at village Parvati Pune, is hereby quashed and set aside.
(c) Rule is made absolute accordingly with no order as to the costs."
WRIT PETITION No. 1173 of 2008
109. This petition has been filed on 18th February 2008 i.e immediate-
ly after making the award in issue dated 31st January, 2008. The properties that are the subject matter of this petition are as under :-
The Plots bearing no. Nos. 40,63,75,76 and 151 out of survey Nos. 67 to 73 situate at Parvati, Pune.
In this petition interim order has been passed on 11th February 2008 directing the respondents not to take possession of his lands from the petitioner.
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. In this case validity of the award as also the acquisition proceed-
ings have been questioned on the following amongst other grounds-
a) The Special Land Acquisition Officer (15) Pune was not competent to conduct the acquisition proceedings.
We have dealt with all these aspects in detail hereinabove and have rejected the aforesaid first i.e. (a) contentions, but have accepted all the other i.e. (b) contention aforesaid. In view of all the aforesaid discussion and for these reasons we therefore allow this petition and pass the following order :-
"(a) The award dated 31st January 2008 made by the Special Land Acquisition Officer (15) Pune bearing No. Hkw la 173 pertaining to survey Nos. 67 to 73 of village Parvati, taluka Pune city, district Pune, in so far as it relates to Plot No. 40, 63 ,75 ,76 and 151 out of survey Nos. 67 to 73, situate at village Parvati Pune, is hereby quashed and set aside.
(c) Rule is made absolute accordingly with no order as to the costs."
WRIT PETITION No. 1644 of 2008
110. This petition has been filed on 1st March 2008 i.e shortly after making the award in issue dated 31st January, 2008. The properties that are the subject matter of this petition are as under :-- 101 -
The Plots bearing no. Nos. 7, 101, 102, 103, 104, 105, 92, 93, 94, 99, 100, 107, 108, 109, 110, 111, 112, 120, 121, 87, 88, 113, 114, 118, 119, 117, 122, 123, 124, 125, 126, 127, 154, 32, 32A, 39, 40, 62, 63, 64, 65, 74, 75, 76, 77, 81, 82, 83, 84, 86, 91 and 151 out of survey Nos. 67 to 73 situate at Parvati, Pune.
. In this case validity of the award as also the acquisition proceed-
ings have been questioned on the following amongst other grounds-
a) The order of the Divisional Commissioner dated 28th
b) April 2008 is unsustainable in law.
Non-compliance with the provisions of Section 7 of the said Act
c) The acquisition proceedings have lapsed u/s 11-A of the said Act.
d) Conditional approval granted by the Collector and that such condition is not complied with.
e) Non-compliance with the provisions of section 5A of the said Act.
f) The Special Land Acquisition Officer (15) Pune was not competent to conduct the acquisition proceedings.
We have dealt with all these aspects in detail hereinabove and have rejected the aforesaid third, fourth and sixth i.e. (c), (d) & (f) con-
tentions, but have accepted all the other three i.e. (a), (b) and (e) contentions aforesaid.
. In as much as actual physical possession of the aforesaid proper-
ties involved in dispute are concerned, admittedly, factually the petitioners
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have handed over the actual physical possession thereof to the Special Land Acquisition Officer (15), Pune. While delivering such possession, specific letter dated 19th February, 2008 was issued by the petitioner to the said offi-
cer, which is produced at Exhibit-F. The relevant portion of this letter reads thus :-
" WITHOUT PREJUDICE We are in receipt of various Notices for handing over possession of our plots at S. No. 67 to 73 Parvati and al- so to receive compensation.
We are handing over the possession of the above plots, without prejudice to each of the following things.
a) To quash the land acquisition proceeding and restitute possession.
b) to apply for enhanced compensation.
c) to seek TDR in lieu of compensation."
. This shows that though the actual physical possession has been handed over by the petitioners to the respondent, the same is handed over without prejudice to the right and contentions of the petitioner to claim that the acquisition proceedings be quashed and possession be restored.
. In view of all the aforesaid discussion and for these reasons we therefore allow this petition and pass the following order :-
"(a) The order dated 28th April, 2008 passed by the Divisional Commissioner Pune bearing No. भूसंपादन/ आर आर/3/54/08 is hereby quashed and set aside.
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(b) The award dated 31st January 2008 made by the Special Land Acquisition Officer (15) Pune bearing No. Hkw la 173 pertaining to survey Nos. 67 to 73 of village Parvati, taluka Pune city, district Pune, in so far as it re-
(c) The Respondents are hereby ordered and directed to restore the actual physical possession, which was obtained by the Respondents from the petitioner on or about 20th February 2008, of the Plot Nos. 7, 101, 102, 103, 104, 105, 92, 93, 94, 99, 100, 107, 108, 109, 110, 111, 112, 120, 121, 87, 88, 113, 114, 118, 119, 117, 122, 123, 124, 125, 126, 127, 154, 32, 32A, 39, 40, 62, 63, 64, 65, 74, 75, 76, 77, 81, 82, 83, 84, 86, 91 and 151 out of survey Nos. 67 to 73 situate at village Parvati Pune to the Petitioners, within eight weeks from the date of this order.
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(c) Rule is made absolute accordingly with no order as to the costs."
WRIT PETITION No. 1648 of 2008
111. This petition has been filed on 1st March 2008 i.e almost imme-
diately making the award in issue dated 31st January, 2008. The properties that are the subject matter of this petition are as under :-
The Plots bearing no. Nos. 7, 115, 129, 130, 131, 132, 133, 134, 135, 136, 137, 138, 139, 140, 141, 142, 143, 144, 145, 146, 149, 153, 155, 156, 157, 158, 167, 168, 169, 170, 171, 172, 173, 180, and 182 out of sur-
vey Nos. 67 to 73 situate at Parvati, Pune.
In this petition interim order has been passed on 11th February 2008 directing the respondents not to take possession of his lands from the petitioner.
. In this case validity of the award as also the acquisition proceed-
ings have been questioned on the following amongst other grounds-
a) The order of the Divisional Commissioner dated 28th April 2008 is unsustainable in law.
b) Non-compliance with the provisions of Section 7 of the said Act
c) The acquisition proceedings have lapsed u/s 11-A of the said Act.
d) Conditional approval granted by the Collector and that such condition is not complied with.
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e) Non-compliance with the provisions of section 5A of the said Act.
f) The Special Land Acquisition Officer (15) Pune was not competent to conduct the acquisition proceedings.
. We have dealt with all these aspects in detail hereinabove and have rejected the aforesaid third, fourth and sixth i.e. (c), (d) & (f) con-
tentions, but have accepted all the other three i.e. (a), (b) and (e) contentions aforesaid.
. In as much as actual physical possession of the aforesaid proper-
ties involved in dispute are concerned, admittedly, factually the petitioners have handed over the actual physical possession thereof to the Special Land Acquisition Officer (15), Pune. While delivering such possession, specific letter dated 19th February, 2008 was issued by the petitioner to the said offi-
cer, which is produced at Exhibit-F. The relevant portion of this letter reads thus :-
" WITHOUT PREJUDICE We are in receipt of various Notices for handing over possession of our plots at S. No. 67 to 73 Parvati and al- so to receive compensation.
We are handing over the possession of the above plots, without prejudice to each of the following things.
a) To quash the land acquisition proceeding and restitute possession.
b) to apply for enhanced compensation.
c) to seek TDR in lieu of compensation."
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. This shows that though the actual physical possession has been handed over by the petitioners to the respondent, the same is handed over without prejudice to the right and contentions of the petitioner to claim that the acquisition proceedings be quashed and possession be restored.
In view of all the aforesaid discussion and for these reasons we therefore allow this petition and pass the following order :-
"(a) The order dated 28th April, 2008 passed by the Divisional Commissioner Pune bearing No. भूसंपादन/ आर आर/3/54/08 is hereby quashed and set aside.
(b) The award dated 31st January 2008 made by the Special Land Acquisition Officer (15) Pune bearing No. Hkw la 173 pertaining to survey Nos. 67 to 73 of vil-
lage Parvati, taluka Pune city, district Pune, in so far as it relates to Plot Nos. 7, 115, 129, 130, 131, 132, 133, 134, 135, 136, 137, 138, 139, 140, 141, 142, 143, 144, 145, 146, 149, 153, 155, 156, 157, 158, 167, 168, 169, 170, 171, 172, 173, 180, and 182 out of survey Nos. 67 to 73 situate at village Parvati Pune, is hereby quashed and set aside.
(c) The Respondents are hereby ordered and directed to restore the actual physical possession, which was obtained by the Respondents from the petitioner on or
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about 20th February 2008, of the Plot Nos. 7, 115, 129, 130, 131, 132, 133, 134, 135, 136, 137, 138, 139, 140, 141, 142, 143, 144, 145, 146, 149, 153, 155, 156, 157, 158, 167, 168, 169, 170, 171, 172, 173, 180, and 182 out of survey Nos. 67 to 73 situate at village Parvati Pune to the Petitioners, within eight weeks from the date of this order.
(c) Rule is made absolute accordingly with no order as to the costs."
WRIT PETITION No. 1296 of 2008
112. This petition has been filed on 21st February 2008 i.e very short-
ly after making the award in issue dated 31st January, 2008. The properties that are the subject matter of this petition are as under :-
. The Plots bearing no. Nos. 64, 65 and 74 out of survey Nos. 67 to 73 situate at Parvati, Pune.
. In this petition interim order has been passed on 26th February 2008 directing the parties to maintain status quo as on that date.
. In this case validity of the award as also the acquisition proceed-
ings have been questioned on the following amongst other grounds-
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a) The order of the Divisional Commissioner dated 28th April 2008 is unsustainable in law.
b) Non-compliance with the provisions of Section 7 of the said Act
c) The acquisition proceedings have lapsed u/s 11-A of the said Act.
d) Conditional approval granted by the Collector and that such condition is not complied with.
e) Non-compliance with the provisions of section 5A of the said Act.
f) Absence of resolution of General Body of the Corporation.
. We have dealt with all these aspects in detail hereinabove and have rejected the aforesaid third and fourth i.e. (c) and (d) contentions, but have accepted all the other three i.e. (a), (b), (e) and (f) contentions afore-
said. In view of all the aforesaid discussion and for these reasons we there-
fore allow this petition and pass the following order :-
"(a) The award dated 31st January 2008 made by the Special Land Acquisition Officer (15) Pune bearing No. भू सं 173 pertaining to survey Nos. 67 to 73 of village Parvati, taluka Pune city, district Pune, in so far as it relates to Plot No. 20 out of survey Nos. 64, 65 and 74, situate at village Parvati Pune, is hereby quashed and set aside.
(c) Rule is made absolute accordingly with no order as to the costs."
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Corporation and the State made a prayer and requested this court to stay the order passed by this Court for a period of eight weeks.
. In this group of Writ Petitions, wherever the parties are in possession of the property, the award has been set aside. In matters wherein the petitioners have delivered possession, apart from the setting aside of the award, eight weeks' time has been granted for restoration of possession so that the respondents can make appropriate arrangement. The said time can be utilized by them for approaching the Apex Court and, therefore, specific order of stay of the order is not necessary at this stage. Prayer rejected.
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