Bombay High Court
Shyamrao Rajeshwarrao Potdukhe And ... vs State Of Maharashtra And Ors. on 30 August, 1991
Equivalent citations: (1991)93BOMLR727
JUDGMENT H.D. Patel, J.
1. The petitioners in each of the above petitions are owners of land situated at village Wadgaon, Tahsil and District Chandrapur. They are in possession of their respective lands. The respondent/State Government sought to acquire those lands by exercising powers under Section 41 of the Maharashtra Housing and Area Development Act, 1976 (hereinafter referred to as 'the Act').
2. A notice dated 17th April, 1984 hence came to be published in the Official Gazette on 24th April, 1984. Individual notices to land holders and persons interested therein were alleged to have been served by the State Government. By this notice, the State Government called upon the persons whose names appeared in Column 5 of Part II of the Schedule, to show cause, if any, within a period of 30 days from the date of publication of the notice in the Official Gazette as to why the lands mentioned against their names in Part II of the Schedule should not be acquired for the purpose of construction of residential tenements under the Economically Weaker Section, Low Income Group, Middle Income Group and to undertake Area Development Scheme at the said village Wadgaon. Thereafter, the .State Government issued another notice dated 27th June, 1984 which was published in the Official Gazette on 12th July, 1984 as Corrigendum to the earlier notice dated 27th April, 1984. In this Corrigendum, Part II was substituted in place of Part II of the earlier notice dated 17th April, 1984 with the result that certain lands came to be excluded from acquisition. Again on 30th November, 1984 the State Government issued further corrigendum which came to be published on 14th December, 1984 in the Official Gazette cancelling its earlier Corrigendum dated 27th June, 1984 as a result of which lands which were excluded by that Corrigendum again came to be included for acquisition. Consequently, the first notice dated 17th April, 1984 was the one which remained in force. All the petitioners were then noticed to appear before the ex officio Secretary for personal hearing in the matter of objections that were raised by some of them. The hearing took place in the month of May, 1985. Ultimately, a final notification dated 20th February, 1986 for acquisition of lands was published on 20th March, 1986. By these petitions under Article 226 of the Constitution, both the notice dated 17th April, 1984 (hereinafter referred to as "the preliminary notice") and the final notifiation dated 20th February, 1986 are challenged by the petitioners on various grounds.
3. Before proceeding further, it is necessary to set out the circumstances under which the preliminary notice dated 17th April, 1984 came to be issued. The Nagpur Housing and Area Development Board (hereinafter referred to as "the Board had proposed to take sizable housing scheme at Chandrapur considering the demand registered by the Municipal Council, Chandrapur. For implementation of the scheme, the Municipal Council, Chandrapur had sent land acquisition proposal for 13.06 hectares of land of Mouza Chanda Reyatwari. Though steps were taken to acquire the required lands by the Maharashtra Housing and Area Development Authority (hereinafter referred to as "the Authority") no substantial progress could be made for one reason or the other. However, in view of the demands having been registered by the Municipal Council, the Board selected other lands from Mouza Wadgaon and proceeded ahead to take steps for acquiring 79.01 hectares of land. In furtherance thereof a proposal for acquiring the lands was put up before the Authority. It appears that the said Authority forwarded that proposal to the State Government vide their letter dated 5th March, 1984. It further appears that the State Government processed the said proposal and on being satisfied, published the preliminary notice dated 17th April, 1984.
4. The petitioners claimed that neither the Authority nor the Board had prepared a draft scheme for housing. In the absence of any such scheme, it was not possible for the petitioners to effectively raise objection contemplated by proviso to Sub-section (1) of Section 41 of the Act. It was hence contended on behalf of the petitioners that they were denied the opportunity to show cause that the proposed acquisition of their lands was unreasonable, arbitrary and unwarranted. Mere bald statement that the proposed acquisition of land is for the purpose of constructing the tenements for economically weaker section, low and middle income group is not enough. The very purpose of giving opportunity to raise objections stands frustrated.
5. The respondents, on the other hand, submitted that the actual scheme including plans, estimate and other details are prepared only after the lands are actually acquired and comes in their possession. The intention of the State Government to use the lands proposed to be acquired can be seen from the Part I of the Schedule of the Preliminary Notice dated 17th April, 1984. In other words, it is not necessary to formulate even a tentative proposal, leave apart preparation of plans and projects of the intended scheme. Despite this stand adopted by the respondents, the Counsel for the Authority and the Board sought to introduce documents at the stage of hearing in order to show that the proposals for the scheme were prepared and those proposals were in existence when notice dated 17th April, 1984 was published and also issued to individual persons whose names appeared in Part II of the Schedule against the respective land survey numbers. In the interest of justice, the documents filed were accepted on record. Those documents are kept in Writ Petition No. 1825 of 1986 and will be read also in other petitions.
6. Before we examine the object and the scheme of the Act, it would be proper to glance at the preliminary notice dated 17th April, 1984, the relevant portion of which reads as follows :
Whereas, on a representation from the Maharashtra Housing and Area Development Authority, it appears to the Government of Maharashtra that in order to enable the said Authority to discharge its functions or to exercise its powers or to carry out its proposals, plans or projects set out in Part I of the Schedule hereto it is necessary that the land specified in Part II thereof (hereinafter referred to as "the said lands") should be acquired;
And whereas, the Government of Maharashtra, in exercise of the powers conferred by Sub-section (1) of Section 41 of the Maharashtra Housing and Area Development Act, 1976 (Mah. XXVIII of 1977) proposes to acquire the said lands.
Now, therefore, as required by the proviso to Sub-section (1) of Section 41 of the said Act, notice is hereby given to persons mentioned in column 5 of Part II of the Schedule hereto, who are the owners of, or who, in opinion of the Government of Maharashtra are interested in, the said land respectively mentioned in column 4 of the said Part II against them to show cause, if any, within a period of thirty days from the date of publication of this Notice in the Maharashtra Government Gazette why they should not be acquired. Any objection which may be received by the Ex Officio Secretary to the Government of Maharashtra, Housing and Special Assistance Department and Divisional Commissioner of Division, from any of the aforesaid person with respect to the said proposal before the expiry of the aforesaid person with respect to the said proposal before the expiry of the aforsaid period be considered by the Government.
7. The Part I of the Schedule is also extracted for proper appreciation:
Schedule - Part I:
For the purpose of construction of residential tenements under Economically Weaker Section, Low Income Group, Middle Income Group and to undertake Area Development Scheme at village Wadgaon, Taluka and District Chandrapur, by Nagpur Housing and Area Development Board.
8. The Preamble of the aforesaid notice states that in order to enable the Authority to carry out the proposals, plan and project set out in Part I of the Schedule, it is necessary to acquire lands specified in Part II thereof. The Part I of the Schedule simply narrates the purpose for acquitison of the lands in quesgtion and that purpose is of construction of the tenements of deferent types and it also refers to the Area Development Scheme that would be undertaken by the State Government. Obviously, the Part I of the Schedule describes only the purpose for which the lands are to be acquired and nothing more.
9. It will now be worthwhile to consider the object as well as the relevant provisions of the Act. The object of the Maharashtra Housing and Area Development Act, 1976 as contained in the preamble is to unify, consolidate and amend the laws relating to housing, repairing and reconstructing dangerous buildings and carrying out improvement works in the slum area. The object has been further elaborated in various clauses of the preamble. The main purpose appears to be that the State Government sought to unify the work carried out by various corporate and statutory bodies concerning the problem of housing accommodation, repairs and reconstruction of buildings which are dangerous and in a bad condition of disrepair and improvement work in, the slum area as also advancing loans for construction of houses. The State Government was also of the view that there appeared certain amount of overlapping in the of various statutory and corporate bodies which were more or less complementary and, therefore, it was necessary and expedient to integrate their activities to provide for more comprehensive and co-ordinated approach to the problem of housing development paying sufficient attention to ecology, pollution overcrowding and amenities required for leading a wholesome civil life. With this laudable view, it was desired by the Legislature to establish a single Corporate Authority for the whole State and establish new Boards to carry out the plans and programme of such Authority.
10. The Chapter III of the Act deals with the functions, duties and powers of the Authority and Boards. Section 28 lists the duties and powers of the Authority whereas Section 29 lists the powers, duties and functions of the Board. The relevant portion of Section 28(1) is extracted below:
Section 28(1):
(a) to prepare or direct the Board to prepare and execute proposals, plans or projects for-
(i) housing accomodation in the State or any part thereof, sale, including transactions in the nature of hire-purchase of tenements in any building vested in, or belonging to, the Authority lettering, or exchange or property of the Authority.
(ii) development including provision for amenities in area within the jurisdiction of the Authority;
(iii) clearance and re-development of slums in urban areas;
(iv) development of peripheral areas of existing urban areas to ensure an orderly urban overspill;
(v) development of commercial centres;
(vi) development of new towns in accordance with the provisions of the Town Planning Act;
(vii) development of lands vested in the Authority;
(viii) the closure or demolition of dwellings or portions of dwellings unfit for human habitation;
(ix) the demolition of obstructive or dangerous and dilapidated buildings or portions of such buildings;
(x) repairs to, or construction and reconstruction of buildings;
(xi) the slum improvement works and improvement of sanitary arrangements required in any slum improvement area, including the conservation and prevention of any injury or contamination to rivers or other sources and means of water-supply;
(xii) undertaking and promoting prefabrication and mass production of building components;
(b) ...
(c) to approve proposals, plans or projects prepared by Boards;
....
11. The aforesaid section provides that it would be the duty and function of the Authority to prepare and execute proposals, plans or projects for housing accommodation or direct the Boards to prepare such proposals, plans or projects and upon its approval by the Authority, execute those proposals, plans or projects. Correspondingly, the Section 29 empowers the Boards to prepare proposals, plans and projects for any of the matters referred to in Clause (a) of Sub-section (1) of Section 28 which includes matters relating to housing, accommodation and also execute them. Therefore, it is incumbent upon the Authonty or the Boards to first prepare the proposal or plans or projects for housing accommodation if they intend to execute them.
12. Chapter V of the Act, deals with acquisition of land and disposal of the property of the Authority. Sub-sections (1) and (2) of Section 41 are relevant for our purpose. It reads as follows :
Section 41(1) Where, on any representation from the Authority or any Board it appears to the State Government that, in order to enable the Authority to discharge any of its functions or to exercise any of its powers or to carry out any of its proposals, plans or projects, it is necessary that any land should be acquired, the State Government may acquire the land by publishing in the Official Gazette a notification to the effect that the State Government has decided to acquire the land in pursuance of this Section;
Provided that, before, publishing such notification, the State Government shall by notice published in the Official Gazette, and served in the prescribed manner, call upon the owner of, or any other person who, in the opinion of that Government, may be interested in, such land to show cause, why it should not be acquired and after considering the cause, if any, shown by the owner or any other person interested in the land, the State Government may pass such order as it thinks fit.
(2) The acquisition of land for any purpose mentioned in Sub-section (1) shall be deemed to be a public purpose.
13. Section 41 empowers the State Government on representation made by Authority or Board to acquire land for enabling the Authority to discharge any of the functions or to exercise any of its powers or to carry out any of its proposals, plans or projects. Such acquisition of land is made by publishing a notification to that effect in the Official Gazette. Needless to mention here that there must be sufficient materials in the form of proposals, plans or projects before the State Government can exercise powers under Section 41 of the Act. However, this power can be exercised by the State Government only after publishing a notice in the Official Gazette and also serving in the prescribed manner, calling upon the owners of the land or persons interested therein to show cause why their lands should not be acquired. The proviso contemplates issuance of individual notice to the landholders to be served in a prescribed manner. The service has to be effected as provided by the Maharashtra Housing Area Development (Land Acquisition) (Service of Notice), Rules, 1979 (hereinafter referred to as "the Rules"). It is only after consideration of the cause shown by the objectors, the State Government has to decide whether acquisition of the land should or should not be made by passing an order. If the State Government decides to acquire the land, the notification has to be published in the Official Gazette as envisaged by Sub-section (1) of Section 41 . Sub-section (2) of Section 41 is a deeming provision and it provides that the land upon acquisition for the purpose mentioned in Sub-section (1) shall be deemed to be for a public purpose. In other words, when the State Government acquires land for the Authority to carry out any of its proposals, plans or projects and execute them, the presumption arises that the acquisition made is for a public purpose. This in short is the scheme of the Act framed to fulfil the various objects enumerated in the preamble.
14. From what is discussed above, it is clear that the landholders or the persons interested in the land proposed to be acquired have a singular opportunity to raise the objections. Though the objections are to be raised with respect to land under acquisition, they have to be related to the contemplated scheme which may be in the form of proposals, plans or even projects. Obviously, the provisions in the Act do not contemplate raising of objections in isolation of the proposals, plans or projects. If it is so, then the opportunity afforded by the proviso to Sub-section (1) of Section 41 would be an empty formality serving no purpose whatsoever. The State Government is duty bound to place all material in their possession either by incorporating the details of the proposals, plans or projects in the preliminary notice itself, or make the material available to would-be-objectors before they can show cause as to why their lands not be acquired by mentioning in the said notice that the relevant documents concerning the proposals, plans or projects can be inspected by the persons interested.
15. As discussed above, the State Government simply disclosed the purpose for which lands are being acquired in preliminary notice dated 17th April, 1984 without disclosing the details of the proposals, plans or projects if there be any. The purpose as disclosed is for construction of tenements of particular class of people and for undertaking the Area Development Scheme. Neither the State Government nor the Authority could show what was contemplated under the Area Development Scheme. The State Government is emphatic in their stand that what is disclosed .in Part I of the Schedule and the notice is sufficient for the persons interested to raise the objections. This is also clear in the report of the Ex Officio Secretary to the Government, Housing and Special Assistance Department who heard the objections and opined for acquisitioning the land that the purpose of acquisition cannot be shown specifically at the initial stage unless it is known the extent of the land which would come in possession ultimately. This indicates that even proposals were not formulated or even if formulated, the Ex Officio Secretary who heard the objections was ignorant of the same. The Authority also supported the stand of the State Government that what was disclosed in the impugned preliminary notice was sufficient for the objectors to raise the objections but simultaneously came out with documents to show that the proposals were formulated in respect of housing accommodation which the State Government did consider before exercising power under Section 41 of the Act. It should be so but then, can it be said that the landholder or the persons interested had adequate and sufficient opportunity to raise the objections? Our answer must be in the negative.
16. Apart from the fact that even the documents purporting to be proposals were filed during the course of hearing, they do not reflect the area development scheme, which is specifically referred to the preliminary notice impugned in these petitions. It is also a moot question whether documents filed could constitute proposals as contemplated by Sections 28 and 41 of the Act, It is not necessary for us to enter into that controversy because the fact remains that none of these documents formed part of the preliminary notice. Even the gist of the proposals was not sought to be incorporated in Part I of the Schedule in the preliminary notice. The landholder and the persons interested in the land were thus prevented from raising objections effectively. In the absence of any scheme, may be in the form of proposal, the objectors could not show that the lands sought to be acquired are not suitable for the scheme and hence it is not likely to serve any public purpose or that far more suitable lands are available, leading to the conclusion that the proposed acquisition is mala fide. In no event, it can be said that the impugned preliminary notice did contain adequate and sufficient material so as to satisfy the requirements in Section 41 of the Act.
17. In support of the contentions raised on behalf of the respondents/ Authority, reliance was heavily placed upon the three decisions of the Supreme Court and they are , Aflatoon and Ors. v. Lt. Governor of Delhi and Ors. , Ram Sarup v. The land Acquisition Officer, Aligarh and Ors. and . Arnold Rodricks and another v. State of Maharashtra and Ors. There can be no quarrel with the law laid down in these decisions. The ratio as laid down is with reference to the provisions as contained in the Land Acquisition Act which are totally different than that contained in the Maharashtra Housing and Area Development Act, 1976. These decisions, therefore, could be of little assistance to the respondents.
18. A recent decision of the Supreme Court 1991 III SVLR (C) 150,State of Tamil Nadu and another v. A Mohammed Yousef and others, is more on the points involved in this bunch of petitions. In that case, identical situation arose while challenging Section 4 notification published under the Land Acquisition Act. It was challenged on the ground that the public purpose mentioned in the said notification was too vague in the absence of details relating to the housing scheme undertaken by the Authorities under the Madras State Housing Board Act, and for whom the lands were sought to be acquired. It was also the contention of the landholders that they could not effectively avail the benefit of Section 5A of the Land Acquisition Act, because the Authorities failed to frame the scheme for residential housing before the land in question could be acquired. After framing of the scheme, a procedure is prescribed in the Madras State Housing Board Act to fully publicize the scheme and inviting objections against it. The objections so raised are required to be considered before scheme is finalised. If any one is still aggrieved, he has even a right of appeal. Admittedly, the scheme as envisaged was not framed and their stand was that the details will be carved out only after the possession of the land is secured. It was held that the proceedings for acquiring lands could not have been commenced before the scheme is framed. While giving this finding it is observed that in case the notification under Section 4 is published without the scheme, it will not be possible for the land owners to object to the proposed acquisition on the ground that the land is not suitable for the scheme as all and, therefore, does not serve any purpose, or that another piece of land in the area concerned, is far more suitable, leading to the conclusion that the proposed acquisition is mala fide. It is thus clear that though first opportunity was available to the objectors at the stage of finalisation of the scheme, even then the Supreme Court was of the view that even second opportunity must be adequate and sufficient considering the provisions of Madras State Housing Board Act, and the scheme of Land Acquisition Act. Similar is the situation in the present bunch of petitions, There is no proposal for Area Development Scheme even in the documents made available at the last moment purporting to be the proposals of the respondent/Authority. In this background, it is difficult to uphold the validity of the preliminary notice dated 17th April, 1984. It is liable to be set aside.
19. One more contention in relation to Writ Petition No. 1825/86 was specifically urged remains to be decided. The grievance is that the petitioner Nos. 1 to 12 are the recorded owners of S. Nos. 120/1 and 120/2 and petitioner Nos.14 and 15 are recorded owners of S. No. 119 of village Wadgaon, the statutory notice under Section 41 of the Act was never served on these petitioners individually, thereby depriving them of an opportunity even to raise objections. Their names never did appear in the preliminary notice The situation did not change even though two Corrigendums were subsequently issued by the State Government. There is no reply in the returns filed by the respondents in this petition. They only contend that notice of hearing was served upon them and they did appear before the Ex Officio Secretary to Government, Housing and Special Assistance Department, who was duly authorised by the State Government to conduct enquiries and to function as such for the purposes of Section 41 of the Act and submitted their say and were also heard. There was thus sufficient compliance of the provision regarding service of notice according to the respondents. It is difficult for us to agree that the petitioners were served . with the statutory notice as required by law.
20. The Rules for service of the preliminary notice to individual landholders or persons interested therein have been framed. It provides that service of notice under Section 41 shall be effected in one of the three modes in Rule 3. Firstly, notice has to be served by delivering or tendering it to the person to whom it is addressed. Secondly, by registered post at the last known address. Thirdly, it provides for leaving the authentic copy of the notice with the adult member of the family or affixing such copy to some conspicuous part of the premises in which the person to be served last resided or carried on his business or he personally worked for gain or to some conspicuous part of the land to be acquired. The third alternative is to be used only when the person cannot be found or is avoiding service. These Rules, therefore, suggest that the service of notice is a must and the name of the person must also appear in the notice. It cannot be avoided under any circumstances. The obvious reason appears to be to provide the only opportunity that is available to the person whose lands are being acquired. Admittedly, this has not been done with respect to petitioner Nos. 1 to 12 and 14 and 15. No advantage can be derived by the respondents contending that notice of hearing is served on them without even mentioning what the hearing is about. No doubt the petitoners did file objections for granting them a hearing without service of proper notice statutorily required to be served but giving such a hearing cannot substitute the mandatory procedure required to be followed by the State Government. We fear that the preliminary notice impugned in Writ Petition No. 1825/86 is even otherwise bad, illegal and void and liable to be quashed and set aside.
21. Since we are quashing the preliminary notice itself, all other proceedings subsequently thereto including publishing of final notification must also fall through and deserve to be quashed. In this background, it is not necessary to consider other aspects urged by the respective Counsel of the parties.
22. In the result, the petitions are allowed. The impugned preliminary notice dated 17th April, 1984 under which the respective lands of the petitioners were sought to be acquired is hereby quashed and set aside. Rule is accordingly made absolute. The parties in each of the petitions are directed to bear the costs as incurred.