Bombay High Court
Shashikant Sadashiv Bagwe And Etc. vs State Of Maharashtra, And Others on 13 September, 1994
Equivalent citations: AIR1995BOM172, 1995(3)BOMCR646, 1995(2)MHLJ692, AIR 1995 BOMBAY 172, (1995) 2 MAH LJ 692 (1995) 3 BOM CR 646, (1995) 3 BOM CR 646
ORDER Pendse, J.
1. All these four petitions filed under Art. 226 of the constitution of India can be conveniently disposed of by common judgment as the issues raised in these petitions are identical and interrelated. The facts to be set out hereinafter would bring into focus the contentions urged in support of the reliefs sought in the petitions.
2. Shashikant Sadashiv Bagwe, petitioner in Writ Petition No. 1919 of 1987 along with his brothers is owner of property bearing Survey No. 173/C, City Survey Nos. 3627 to 3631 known as "Bagwe Mansion" which is situated on Mahatama Gandhi Road, Ghat-kopar (West), Bombay. The Municipal Corporation of Greater Bombay decided to widen the road to meet the growing traffic in this busy locality. On March 8, 1966, the Government of Maharashtra sanctioned Development Plan for "N" Ward in which the property in dispute is situated. The plan came into force with effect from April 9, 1966 and it is not in dispute that the property is designated or reserved in the Plan for the purpose of road widening. The Municipal Corporation passed Resolution on October 8, 1973 providing that the road should be widened to make it 60' road.
3. The Special Land Acquisition Officer published declaration under sub-section (4) of Section 126 of the Maharashtra Regional and Town Planning Act, 1966 (hereinafter referred to as the 'Act') to the effect that the State Government is satisfied that the land included in the plan is needed for public purpose. The notification was published in the Government Gazette on September 8, 1983. Chapter VII of the Act provides for land acquisition and Section 126, inter alia, provides that in respect of lands reserved in the plan for a public purpose, the declaration in the Official Gazette is equivalent to the publication of notification under Section 6 of the Land Acquisition Act. In pursuance of the declaration under Section 6 of the Act, on June 7, 1984, the Land Acquisition Officer served notices on the occupiers in accordance with sub-section (3) of Section 9 of the Land Acquisition Act. After compliance with the other provisions of the Land Acquisition Act, Award was declared on September 22, 1986.
The land Acquisition Officer then served notices under S. 12(c) of the Land Acquisition Act on the occupiers on December 19, 1986. After service of the notice, some of the occupiers have filed Petitions under Art. 226 of the Constitution and these petitions are Writ Petitions Nos. 59, 68 and 76 of 1987. By these three petitions, the occupiers are challenging the validity of the Award.
Some of the other occupiers had filed Writ Petition No. 1541 of 1989 but that petition was summarily dismissed by learned single Judge by order dated June 7, 1989. Appeal No. 645 of 1989 preferred before Division Bench of this Court was withdrawn on August 8, 1989 and undertaking was given to hand over possession to the Corporation as soon as the Corporation demands the same.
Writ Petition No. 1919 of 1987 is filed by the landlord Bagwe seeking writ of mandamus directing the Land Acquisition Officer to take possession and make payment of compensation in respect of the property acquired under the Award. As the dispute in the petition is inter-connected, all the petitions are heard together.
4. Shri Sankaranarayanan, learned counsel appearing on behalf of the petitioner in Writ Petition No. 59 of 1987, Shri Vashi, learned counsel appearing on behalf of the petitioners in Writ Petition No. 68 of 1987 and Shri Chhatrapali, learned counsel appearing on behalf of the petitioners in Writ Petition No. 76 of 1987, urged that the Special Land Acquisition Officer had no jurisdiction to declare the Award because the proceedings could not have been adopted under subsection (4) of Section 126 of the Act, Indeed, this is the principal contention urged by the occupiers who have filed three petitions to challenge the validity of the Award. To appreciate the contention, it is necessary to refer to certain provisions of the Act. As mentioned hereinabove, Chapter VII of the Act deals with the subject of the land acquisition. Section 125, inter alia, provides that any land required, reserved or designated in Regional Plan or the Development Plan for a public purpose shall be treated as for public purpose within the meaning of the Land Acquisition Act, 1894. Sub-section (1) of Section 126 of the Act then provides that the planning authority or the development authority may either by agreement acquire the land or make an application to the State Government for acquiring land so reserved under the Land Acquisition Act. Sub-section (2) of Section 126 of the Act reads as follows :
"On receipt of such application, if the State Government is satisfied that the land specified in the application is needed for the public purpose therein specified, or if the State Government except in cases falling under Section 49 and except as provided in Section 113A itself is of opinion that any land included in any such plan is needed for any public purpose, it may make a declaration to that effect in the Official Gazette, in the manner provided in Section 6 of the Land Acquisition Act, 1894, in respect of the said land. The declaration so published shall, notwithstanding anything contained in the said Act, be deemed to be a declaration duly made under the said section:
Provided that, no such declaration shall be made after the expiry of three years from the date of publication of the draft Regional plan, Development plan or any other plan."
The proviso to sub-section (2) was inserted by Maharashtra Act 14 of 1971 and came into force from February 17, 1971. The obvious intention of the Legislature in inserting the proviso was that the land reserved for public purpose in the Development plan should be acquired within a period of three years because the amount of compensation payable to the owner is determined with reference to the date on which the Development plan came into force. The provisions of Section 125 of the Act make it clear that the plan coming into force shall be deemed to be the date of publication of Section 4 notification and consequently, the compensation payable is to be determined with reference to the date irrespective of the fact as to when the Government proceeds to make declaration under Section 6 of the Act. In consequence of the insertion of the proviso to sub-section (2), the Legislature also inserted sub-section (4) of Section 126 and that sub-section reads as follows:
"If a declaration is not made within the period referred to in sub-section (2) or having been made, the aforesaid period expired on the commencement of the Maharashtra Regional and Town Planning (Amendment) Act, 1970, the State Government may make a fresh declaration for acquiring the land under the Land Acquisition Act, 1894, in the manner provided by sub-sections (2) and (3) of this section, subject to the modification that the market value of the land shall be the market value at the date of declaration in the Official Gazette made for acquiring the land afresh."
The learned counsel appearing for the occupiers in the three petitions submitted that the power of the State Government to make declaration under Section 6 of the Land Acquisition Act can be exercised only within a period of three years from the date of publication of the development plan. It was urged that in case the declaration under Section 6 of the Land Acquisition Act is not published under sub-section (2) of Section 126 of the Act within a duration of three years from the date of the publication of the plan, then the reservation lapses and it is not open for the State Government to make any declaration under sub-section (2) and proceed to acquire the land. It was urged that after expiry of three years, the only power available to the State Government is to acquire the land under the provisions of the Land Acquisition Act. In support of the submission, strong reliance was placed on the decision of the Division Bench of this Court reported in 1989 Mah LJ 819, Sant Joginder Singh Kishinsingh v. State of Maharashtra. Shri Saraf, learned counsel appearing on behalf of the State Government and Shri Rao, learned counsel appearing on behalf of the Corporation, on the other had, submitted that the plain reading of sub-section (4) of Section 126 of the Act makes it clear that power to acquire the land in accordance with sub-sections (2) and (3) of Section 126 of the Act is not lost by mere passage of three years from the date of publication of the Development plan. It was urged that what sub-section (4) provides is that in case such declaration is made after passage of three years from the date of publication of the plan, then the market value of the land shall be determined with reference to the date of declaration under Section 6 in the Official Gazette and not with reference to the date on which plan came into force and which is the date considered as publication of notification under Section 4 of the Land Acquisition Act. It was urged on behalf of the State Government that sub-section (4) of Section 126 of the Act was inserted with a view to ensure that prejudice is not caused to the owner of the land which is reserved for a public purpose in the Development plan because of delay in acquiring such land. It was further contended that the contention that the reservation lapsed at the expiry of three years and so also power to acquire in accordance with sub-sections (2) and (3) of Section 126 of the Act is fallacious by mere perusal of Section 126 of the Act. Shri Saraf submitted that the reliance on the decision of the Division Bench of this Court is not correct and the decision relied upon is no longer good law in view of the decision of the Supreme Court Municipal Corporation of Greater Bombay v. Dr. Hakimwadi Tenants Association.
5. In view of the rival contentions, the first point which requires determination is whether the power to acquire the property under sub-sections (2) and (3) of Section 126 of the Act was lost because of the expiry of period of three years from the date of publication of the Development plan. As mentioned hereinabove, the Regional plan was published and came into force on April 9, 1966. The notification under sub-section (4) of Section 126 of the Act is published long after the passage of three years from the date of publication and so also more than three years from the date when the Amended Act of 1970 came into force. The contention that the power conferred under sub-sections (2) and (3) of Section 126 of the Act automatically conies to an end on expiry of three years from the date of publication of the plan cannot be accepted. The plain reading of sub-section (2V of Section 126 of the Act and sub-section (4) of Section 126 of the Act makes it clear that the power to acquire is not lost by passage of three years from the date of publication of the plan but what is prescribed is that if notification under Section 6 of the Land Acquisition Act is published more than three years after the date of publication of the plan, then compensation payable shall be determined with reference to the market value prevalent on the date of the publication of declaration under Section 6 of the Land Acquisition Act and not with reference to the date of S. notification of the Land Acquisition Act. The contention urged on behalf of the occupiers that the power to acquire is lost cannot be sustained by the terms of sub-section (4) of Section 126 of the Act. The plain reading of sub-section (4) of Section 126 of the Act makes k clear that even if a declaration is not made within the period of three years still the State Government has power to make a declaration for acquiring the land under Land Acquisition Act in the manner provided by sub-sections (2) and (3) of Section 126 of the Act. The expression "in the manner provided" by sub-sections (2) and (3) of Section 126 of the Act makes it crystal clear that the power conferred under sub-sections (2) and (3) is not lost. It hardly requires to be stated that the acquisition is always under the provisions of the Land Acquisition Act and the only departure made by Sections 125 and 126 of the Act is that the publication of notification under Section 4 and the enquiry under Section 5A of the Land Acquisition Act is dispensed with. The requirement of publication of notification under Section 4 and enquiry under Section 5A of the Land Acquisition Act is dispensed with because such enquiry is completed before any land is reserved in the Development plan for a public purpose. A notice is issued and hearing is given to the owner of the land before any land is designated or reserved in the Development plan for a public purpose. The Legislature, therefore, provided that the State Government can proceed to acquire the land by publication or declaration under Section 6 of the Act. The power to publish declaration under Section 6 of the Land Acquisition Act is not lost merely by passage of three years and in case that power is exercised after period of three years, then the Government will be required to pay compensation in accordance with market value of the land on the date of declaration under Section 6 of the Land Acquisition Act.
The contention that the power to acquire under sub-sections (2) and (3) of Section 126 of the Act is lost after period of three years from the date of publication of the plan is not sustainable in view of the provisions of Section 127 of the Act. Section 127 of the Act, inter alia, provides that if any land is reserved in the plan and is not acquired by the Government within 10 years from the date on which the plan comes into force, then the owner of the land may serve notice on the Planning Authority. In case, the Planning Authority fails to acquire the land within a period of six months from the date of service of notice, then the reservation lapses. It is, therefore, obvious that the reservation continues for a period of 10 years and even thereafter and can lapse only in case no steps are taken to acquire the land within a period of six months from the date of service of the notice. The provisions of Section 127 of the Act, therefore, make it clear that the power to acquire is available for a period of 10 years and even thereafter unless notice is given by the owner and the Authority fails to acquire the land within a period of six months. In face of provisions of Section 127 of the Act, it is futile to contend that the power to acquire in the manner prescribed under sub-sections (2) and (3) of Section 126 of the Act is not available after passage of three years from the date of publication of the plan.
6. The Supreme Court examined the ambit of Sections 125, 126 and 127 of the Act and Section 6 of the Land Acquisition Act in the decision Municipal Corporation of Greater Bombay v. Dr. Hakimwadi Tenants Association, Mr. Justice Sen, speaking for the Bench, after quoting the relevant Sections, observed in Paragraph 9 of the judgment :
"The conjoint effect of sub-sections (1), (2) and (4) of Section 126 is that if no declaration is made within the period referred to in sub-section (2), that is to say, before the expiry of three years from the date of publication of the draft regional plan, development plan or any other plan, the compensation payable to the owner of the land for such acquisition, in that event, shall be the market value on the date of the fresh declaration under Section 6 of the Land Acquisition Act i.e. the market value not at the date of the notification under Section 4(1) of the Land Acquisition Act but the market value at the date of declaration under Section 6. That is one of the safeguards provided under the Act."
The contention raised on behalf of the occupiers really stands concluded by the decision of the Supreme Court. The reliance on the decision of the Division Bench of this Court reported in 1989 Mah LJ 819, Sant Joginder Singh Kishinsingh v. State of Maharashtra, is not appropriate in face of the decision of the Supreme Court. The Division Bench held that the provisions of sub-section (4) of Section 126 apply to plan which existed prior to February 17, 1971 and there cannot be any declaration in respect of the plans which were not existing on the date when the amended Act 14 of 1971 came into force on February 14, 1971. The Division Bench futher held that if the provisions of sub-section (4) of Section 126 of the Act are interpreted to mean that even after the expiry of period of three years, the State Government can issue fresh declaration that the provisions of proviso to sub-section (2) become redundent and meaningless. The decision of the Division Bench is no longer good law in view of the decision of the Supreme Court referred to hereinabove.
The reliance on decision of Division Bench is not appropriate as the said decision was specifically overruled by Full Bench of this Court by judgment dated March 30, 1993 in Writ Petition No. 2821 of 1981 filed before Nagpur Bench. The reference was made to Full Bench to consider the correctness of Division Bench Judgment delivered at Aurangabad Bench in Sant Joginder's case (1989 Mah LJ 819) (supra), Chief Justice M.K. Mukherjee, as he then was, speaking for Bull Bench after reference to objects and reasons for enactment of Amending Act 14 of 1971 and decision of Supreme Court in Hakimwadi's case observed :
"From the above observations of the Supreme Court, it is patently clear that the proviso to sub-section (2) and sub-section (4) of Section 126 have not been brought into the Statute book to put on absolute embargo upon making of future declarations beyond the period of three years, but to furnish a different yardstick for quantifying the compensation to be paid to the owners, in case the declaration is beyond the period of three years."
In our judgment, the challenge to the action of the State Government in acquiring the land on the ground that the State Government lacked power to make a declaration under Section 6 of the Land Acquisition Act and under sub-section (2) of Section 126 of the Act is without any merit and is required to be repelled.
7. Shri Chhatrapati, learned counsel appearing on behalf of the petitioners in Writ Petition No. 76 of 1987, urged that the provisions of Section 126 of the Act are not attracted to the facts of the case because the land acquired under the Award was not reserved for a public purpose in the Development plan. The submission is controverted by the Corporation by filing return sworn by Vijay Lalji Shah, Assistant Engineer on September 5, 1994. The extract of the development plan annexed to the return leaves no manner of doubt that the land under acquisition was reserved for a public purpose. Shri Rao, learned counsel appearing on behalf of the Corporation, pointed out that the land was earmarked for the purpose of road widening and the development plan clearly establishes the said fact. In our judgment, the contention that the land under acquisition was not reserved for public purpose in the Development plan and consequently, the provisions of Sections 125 and 126 of the act are not applicable is incorrect and is required to be turned down. Shri Chhatrapati then submitted that the petitioners in Writ Petition No. 76 of 1987 are a public charitable trust represented by the Trustees. It was urged that the Land Acquisition Officer failed to serve notice under S. 9 of the Land Acquisition Act on the trustees and consequently, the proceedings in pursuance of the alleged notice under Section 9 of the Land Acquisition Act are invalid and Award should be struck down on that count. It is not possible to accede to the submission of the learned Counsel. Our attention was invited to the original record of the Land Acquisition Officer and which clearly demonstrates that on June 18, 1984 notice under Section 9 of the Land Acquisition Act was sent by registered post acknowledgment due to petitioner No. 2 who is one of the trustees of the Charitable Trust. The record further indicates that the notice was duly received and acknowledgment on the record indicates that it has been signed by the person receiving it. It was urged on behalf of the Land Acquisition Officer that the notice was received by petitioner No. 2 who is the trustee and the claim now made that notice was not tendered is false and frivolous. Shri Chhatrapati submitted that the trustees are denying that notice was tendered and, therefore, it was incumbent upon the Land Acquisition Officer to secure an affidavit of the person who is alleged to have tendered the notice and has received the acknowledgment duly signed. It was contended that unless the person who had tendered the nolice is examined, the claim of the petitioners that it was not tendered is not rebutted. In support of the submission, reliance was placed on the decision reported in AIR 1981 SC 1284, Har Charan Singh v.
Shiv Rani. There is no merit in the contention. In the first instance, we are unable to accept the claim made by the trustees that the notice was not received. In the ordinary course, the notice which was addressed to the trustees at residential address can be taken to have been duly tendered. The postal authorities had received back the acknowledgment duly signed and we are unable to imagine why the Land Acquisition Officer should prepare a false record on this count. The reliance upon the decision of the Supreme Court is misconceived because in the case before the Supreme Court, in addition to other circumstances, one of the circumstances was that the person who had tendered the notice was examined at the trial. The mere fact that the Supreme Court took that circumstance into consideration cannot lead to the conclusion that unless the postman who tenders the registered packet was examined, the Court cannot accept that the notice was duly tendered and received by the addressee. In our judgment, the presumption arises when an acknowledgment of the registered packet is returned duly signed by the addressee. We have no hesitation in concluding that the contention that the notice was not tendered to the trustees and consequently proceedings under sub-sections 2 and (3) of Section 126 of the Act are null and void is without any merit.
8. Shri Vashi, learned Counsel appearing on behalf of the petitioners in Writ Petition No. 68 of 1987, submitted that the Award was not declared within the stipulated period as required under the Land Acquisition Act and consequently, the Award is null and void. The submission is that Section 11A of the Land Acquisition Act demands that the Award should be published within a period of two years from the date of publication or the declaration of Section 6 notification and in case such Award is not declared, then the acquisition proceedings lapse. Shri Vashi submitted that the Award was not declared within a period of two years from the date of publication of the notification. The notification was published in the Government Gazette on September 8, 1983 while the Award was declared on September 22, 1986. The contention of Shri Vashi is not correct because the return filed by the Land Acquisition Officer clearly establishes that the Award was signed long before the expiry of two years from the date of publication of the declaration. It is now well settled by catena of decisions that the crucial date to determine whether the award was declared within period of limitation under Section 11A of the Land Acquisition Act is the the date of signing of the award. A reference can be usefully made to the decision of the Supreme Court Kaliyappan v. State of Kerala, in this conneciton.
Shri Vashi also contended that except petitioners Nos. 1, 3, 4 and 9 in Writ Petition No. 68 of 1987, the remaining petitioners were not served with notices under sub-section (3) of Section 9 of the Land Acquisition Act. It was urged that the Award qua these petitioners is, therefore, null and void. The submission cannot be accepted because the return filed by the Land Acquisition Officer points out that the Land Acquisition Officer secured the record of rights from the office of the D.I.L.R. and found that only the names of petitioners Nos. 1, 3, 4 and 9 were on the record and consequently notices were given only to these persons. Shri Vashi submitted that the remaining petitioners were also in occupation and that can be established with reference to the documentary evidence in the shape of the Shops and Establishment Licence, rent bills, etc. It was not possible to examine the record in exercise of writ jurisdiction under Article 226 of the Constitution of India when the Special Land Acquisition Officer specifically denies that these persons were in occupation. The contention of Shri Vashi that the Shops and Establishment Licence was issued by the Corporation and, therefore, the Corporation was conscious of the occupation is of no assistance because what is required to be established is that the Land Acquisition Officer had knowledge of the occupation of the persons. The Manual of the Land Acquisition Act provides that the Land Acquisition Officer shall serve notices on persons whose names appear on the official record and also on those persons, to the knowledge Land Acquisition Officer have interest in the land. It is not the case of Shri Vashi that the Land Acquisition Officer was aware of the occupation of these persons on the land and consequently, no fault can be found in the action of the Land Acquisition Officer in not serving the notices, even assuming that these persons were in occupation. In our judgment, the challenge to the Award on the ground of non-service of notices under sub-section (3) of Section 9 of the Land Acquisition Act is without any substance. In our judgment, the Award does not suffer from any infirmity and the challenge to the Award in the three petitions being Writ Petitions Nos. 59, 68 and 76 of 1987 is required to be turned down.
9. Writ Petition No. 1919 of 1987 is filed by the owner of the property and the relief sought is that the Land Acquisition Officer should be directed to take possession forthwith and pay the compensation. The counsel for the Land Acquisition Officer stated that the possession will be taken within a period of two weeks from today and the compensation amount would be paid to the owner. The counsel for the Corporation also stated that the Corporation will recover possession from the Land Acquisition Officer and necessary steps will be taken for widening of the road which is the absolute necessity taking into consideration the growing traffic and the population in the area. The counsel for respondents Nos. 4, 5, 6, 7, 9, 10 and 11 who are the occupiers of the property reiterated the identical contentions raised by the occupiers in other three petitions? Shri Mehere pointed out that respondents Nos. 4, 5, 6, 7, 9 and 11 had filed Writ Petition No. 1541 of 1989 and which was dismissed by the learned single Judge on June 7, 1989 holding that the challenge to the acquisition cannot be sustained. Appeal No. 645 of 1989 was withdrawn on August 8, 1989 and these respondents gave an undertaking to hand over possession to the Corporation, as and when called upon. It was contended that respondent No. 8 had already surrendered possession. Counsel for respondent No. 10 urged that respondent No. 10 was not party to the earlier proceedings and, therefore, is entitled to agitate the same contentions as urged by the occupants in the other three petitions. Respondent No. 10 is entitled to urge the contention but the contention must meet the same fate as those of the occupants in the other three petitions.
It is required to be stated that the Municipal Corporation has stated on affidavit that in case the owner of the property under acquisition seeks additional F.S.I. in respect of construction on the adjoining plot of the owner, then the Corporation will ensure that "such permission is granted only on condition that the owner accommodates the existing tenants on that property. The Municipal Corporation has also stated on affidavit that the Corporation will provide for alternate accommodation to all those bona fide tenants on land at the time of declaration under Section 6 of the Land Acquisition Act. It is for those occupiers who claim to be bona fide tenants on the land at the relevant time to approach the Corporation and establish their claim so as to entitle for alternate accommodation or accommodation in the property which may be constructed by the owner on the adjoining property. The Corporation has acted extremely fair in assuring the occupiers of alternate accommodation and, in our judgment, the public purpose of widening the road cannot now be postponed any further. In view of the fact that the Land Acquisition Officer has agreed to take possession within a period of two weeks from today, it is not necessary to issue any writ of mandamus to the Special Land Acquisition Officer as claimed in Writ Petition No. 1919 of 1987.
10. Accordingly, Writ Petitions Nos. 59 of 1987, 68 of 1987 and. 76 of 1987 are dismissed and rule in each of the petitions stand discharged but without any order as to costs.
In Writ Petition No. 1919 of 1987 no order is passed in view of the assurance of the Land Acquisition Officer and the Municipal Corporation that possession will be taken within a period of two weeks from today and the compensation will be paid to the owner of the property. There will be no order as to costs in this petition.
11. Order accordingly.