Bombay High Court
Madhao S/O Atulchandra Bapat vs The State Of Maharashtra on 5 May, 2009
Author: D.D.Sinha
Bench: D.D.Sinha, A.P. Bhangale
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO.413 OF 2008
Madhao s/o Atulchandra Bapat, aged
about 51 years, occupation : Advocate,
resident of 75, Park View, Farmland,
Ramdaspeth, Nagpur. ... Petitioner
- Versus -
1) The State of Maharashtra, through
its Secretary, Urban Development
Department, Mantralaya, Madam
Cama Road, Mumbai - 400 032.
2) The Collector, Nagpur, District
Nagpur.
3) Additional Special Land Acquisition
Officer, Pench Prakalpa, Nagpur.
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4) Maharashtra Airport Development
Company Limited, 12th Floor, World
Trade Centre, Cuffe Parade, Mumbai
400 005, through its Superintending
Engineer, Mr. Samaresh s/o Khudiram
Chatterjee. ... Respondents
-----------------
Shri S.V. Manohar, Advocate for the petitioner.
Mrs. B.H. Dangre, Additional Government Pleader for the
respondent nos. 1 to 3.
Shri M.G. Bhangde, Senior Advocate with Shri G.R. Agrawal,
Advocate for the respondent no.4.
----------------
Date of reserving the judgment : 24/03/2009
Date of pronouncing the judgment : 05 /05/2009
CORAM : D.D.SINHA AND A.P. BHANGALE, JJ.
DATED : MAY 05, 2009
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JUDGMENT (PER D.D.SINHA, J.) :
Heard Shri Manohar, learned Counsel for the petitioner, Mrs. Dangre, learned Additional Government Pleader for the respondent nos. 1 to 3, and Shri Bhangde, learned Senior Counsel for the respondent no.4. Civil Application No.345/2009 filed by the respondent no.4 is also heard finally.
2) Shri Manohar, learned Counsel for the petitioner, submitted that Section 11-A of the Land Acquisition Act, 1894 provides for time limit of two years for passing award from the date of publication of notification under Section 6 of the Land Acquisition Act. It was contended that provisions of Section 11-A of the Land Acquisition Act are applicable to the acquisition proceedings initiated under the provisions of the Maharashtra Regional and Town Planning Act, 1966 (hereinafter referred to as "the MRTP Act" for brevity) for MIHAN project. It was submitted ::: Downloaded on - 09/06/2013 14:34:46 ::: 4 that notification under Section 126 of the MRTP Act, which is equivalent to declaration under Section 6 of the Land Acquisition Act was published in the Official Gazette on 7.2.2005 and since award was not passed within a period of two years from that date, the said notification and the land acquisition proceedings stand terminated.
3) Learned Counsel Shri Manohar submitted that though the Apex Court in State of Maharashtra vs. Sant Joginder Singh (1995 Suppl (2) SCC 475) has held that provisions of Section 11-A of the Land Acquisition Act, which were inserted vide Amending Act 68 of 1984, are not applicable to the acquisition proceedings under the MRTP Act, however, in view of the subsequent decision of the Apex Court in Girnar Traders vs. State of Maharashtra (2004 (8) SCC
505) (hereinafter referred to as "Girnar-I case") as well as decision of the Apex Court in Girnar Traders vs. State of Maharashtra (2007 (7) SCC 555) (hereinafter referred to as "Girnar-II case"), the law ::: Downloaded on - 09/06/2013 14:34:46 ::: 5 laid down by the Apex Court in Sant Joginder Singh's case loses its binding force. It was contended that in view of the observations of the Apex Court in paras (18), (19) and (20) of the judgment in Girnar-I case as well as opinion expressed by the Apex Court in paras (2) and (3) of the judgment in Girnar-II case, the law laid down by the Apex Court in Sant Joginder Singh's case no more holds water and, therefore, cannot be relied on. The learned Counsel further contended that the issue about applicability of provisions of Section 11-A of the Land Acquisition Act to the acquisition proceedings under the MRTP Act having been referred by the Division Bench of the Apex Court in Girnar-I case, to the three Judges' Bench, which also referred the said issue to the five Judges' Bench where it is pending for decision, it is not open for this Court to place reliance on the law laid down by the Apex Court in Sant Joginder Singh's case at this stage. It was submitted that another issue involved in the present petition is whether Section 11-A of the Land Acquisition Act, which has been introduced in the Land ::: Downloaded on - 09/06/2013 14:34:46 ::: 6 Acquisition Act by amending Act 68 of 1984 is not applicable to the land acquisition proceedings under the MRTP Act at this stage when the reference on this subject is pending for consideration and decision before the Constitution Bench of the Apex Court.
4) Learned Counsel Shri Manohar contended that the Apex Court in paragraphs (18) and (20) of the decision in Girnar-I case has observed that there are no reasons to shut out or preclude the amendment introduced by the Central Act 68 of 1984 in the Land Acquisition Act, 1984 whereby Section 11-A was introduced in the Land Acquisition Act, from applying it to the acquisitions under Chapter VII of the MRTP Act or else the consequence would be that in respect of two landholders, there would be arbitrary discrimination in the matter of acquisition of their lands, merely because in one case, the acquisition is by the direct route of the Land Acquisition Act, 1984 and in another case, through indirect route of the MRTP Act. The Apex Court further observed that in view of the ::: Downloaded on - 09/06/2013 14:34:46 ::: 7 law laid down by the Apex Court in Nagpur Improvement Trust vs. Vitthal Rao (1973 (1) SCC 500), the provisions of Section 11-A of the Act 68 of 1984 can be applied to the acquisition under the MRTP Act. The Apex Court in para (20) of the judgment in Girnar-I case has observed thus :
"We, therefore, see no good reason as to why the provisions introduced in the Land Acquisition Act, 1894 by the Central Act 68 of 1984 should not be read into an acquisition under Chapter VII of the MRTP Act, to the extent not precluded by the MRTP Act, 1966. Section 11-A being one such Section, it may have to be applied to the acquisition under Chapter VII of the MRTP Act."
Learned Counsel Shri Manohar submitted that the Apex Court after recording its above referred observations in the case of Girnar-I, in para (21) of the said decision has expressed that decision of the Apex Court in Sant Joginder Singh's case requires re-consideration by the larger Bench and, therefore, Registry of the Apex Court was ::: Downloaded on - 09/06/2013 14:34:46 ::: 8 directed to place the papers before the Hon'ble Chief Justice of India for appropriate directions in the matter.
5) Learned Counsel Shri Manohar submitted that pursuant to reference order of the Apex Court, the matter was placed before the Constitution Bench of three Judges and the judgment of the Constitution Bench is reported in 2007 (7) SCC 555 - Girnar Traders vs. State of Maharasthra (hereinafter referred to as "Girnar II case"). The majority view in the said case agreed that the issue needs to be referred to the Constitution Bench of five Judges, however, expressed its opinion in paras (2) and (3) of the said judgment as to why Section 11-A of the Land Acquisition Act would be applicable to the land acquisition proceedings under the MRTP Act.
6) Learned Counsel Shri Manohar contended that it is not the ratio of Sant Joginder Singh's case that Section 11-A of the Land ::: Downloaded on - 09/06/2013 14:34:46 ::: 9 Acquisition Act does not apply to the proceedings under the MRTP Act in all eventualities. It was contended that a bare perusal of the decision in Sant Joginder Singh's case will reveal that submission made before the Apex Court in the said case was that by virtue of Section 11-A of the Land Acquisition Act, the reservation under Section 125 of the MRTP Act would lapse. This contention is recorded in paragraph (7) of the said decision. The Apex Court has held that a declaration under Section 125 of the MRTP Act would not lapse by virtue of Section 11-A of the Land Acquisition Act and that the State Government would be free to issue a fresh declaration under Section 126(4) of the MRTP Act. It was submitted that in the present case, it is not the case of the petitioner that declaration under Section 125 of the MRTP Act lapses by application of Section 11-A of the Land Acquisition Act. It is the case of the petitioner that Section 11-A would be applicable to all the proceedings under the Land Acquisition Act and hence, the proceedings from the stage of Section 6 of the Land Acquisition Act would lapse. It was submitted ::: Downloaded on - 09/06/2013 14:34:46 ::: 10 that the decision of the Apex Court in Sant Joginder Singh's case is the authority for the proposition that by virtue of Section 11-A, the declaration under Section 125 of the MRTP Act does not lapse.
7) Learned Counsel Shri Manohar contended that even otherwise, there is no reason why decision of the Seven Judges' Constitution Bench in Nagpur Improvement Trust vs. Vitthal Rao and others {(1973) 1 SCC 500)} should not be followed in the present case. In para (30) of the said judgment, the Apex Court has observed thus :
"30. It is equally immaterial whether it is one Acquisition Act or another Acquisition Act under which the land is acquired. If the existence of the two Acts could enable the State to give one owner different treatment from another equally situated, the owner who is discriminated against, can claim the protection of Article 14."::: Downloaded on - 09/06/2013 14:34:46 ::: 11
It was contended by learned Counsel Shri Manohar that there is no reason to restrict the said ratio laid down in the case of Nagpur Improvement Trust only to the aspect of payment of compensation.
The said ratio of the judgment would also apply to other provisions, such as Section 11-A of the Land Acquisition Act. It was submitted that judgment in the Nagpur Improvement Trust's case has not even been considered by the Apex Court in Sant Joginder Singh's case and, therefore, decision in Sant Joginder Singh's case does not lay down good law on the subject. Similarly, decisions of the Apex Court in Girnar-I case and Girnar-II case show that there is no reason why ratio in Nagpur Improvement Trust's case should not be extended insofar as Section 11-A of the Land Acquisition Act is concerned. It was further submitted that in paragraphs (2) and (3) of the judgment in Girnar-II case and in paragraphs (16) to (20) of the judgment in Girnar-I case, it has been expressed by the Apex Court that Section 11-A of the Land Acquisition Act will have to be read into the provisions of the MRTP Act so as to save the provisions ::: Downloaded on - 09/06/2013 14:34:46 ::: 12 from the vice of discrimination as pointed out by the Bench of seven Judges in the Nagpur Improvement Trust's case. This aspect has been dealt with in paragraph (18) of the judgment in Girnar-I case where the Apex Court has referred to the Constitution Bench decision in Nagpur Improvement Trust's case. It was further submitted that the ratio laid down in the Nagpur Improvement Trust's case is the law laid down by the Constitution Bench and will also apply in the present case as has been held by the Apex Court in the decisions in Girnar-I case and Girnar-II case.
8) Learned Counsel Shri Manohar further submitted that the Apex Court in the Maharashtra State Road Transport Corporation vs. State of Maharashtra and others (2003 (4) SCC 200) has not only not followed the decision in Sant Joginder Singh's case, but has taken a different view, which is evident from the observations in para (20) of the judgment, which reads thus :
::: Downloaded on - 09/06/2013 14:34:46 ::: 13"..... In our view, the provisions contained in Section 126 or any other provisions occurring in Chapter VII (discussed supra) far from manifesting an intention not to apply provisions of the LA Act as amended from time to time vis-
a-vis compensation, seem to suggest that the Legislature did not intend to make a marked departure from the LA Act on the subject of compensation and other allied monetary benefits. Reiterating the observations made in U.P. Avas Parishad's case in para 31, we hold that there is nothing in the MRTP Act, which precludes adopting the construction that the provisions of L.A. Act, as amended by the 1984 Act relating to award of compensation would apply with full vigour to the acquisition of land under that Act. Unless such interpretation is placed on Section 126(3), the acquisition under the MRTP Act will be afflicted with the vice of invidious discrimination and palpable arbitrariness hit by Article 14 of the Constitution....."
The learned Counsel for the petitioner submitted that there is no reason why this ratio should not be applied to Section 11-A of the Land Acquisition Act also.
::: Downloaded on - 09/06/2013 14:34:46 ::: 149) Learned Counsel Shri Manohar contended that in the statement of Objects and Reasons of the Land Acquisition Amendment Act of 1984 (Act No.68 of 1984), it has been clearly stated as under :
"The pendency of acquisition proceedings for long periods often causes hardship to the affected parties and renders unrealistic the scale of compensation offered to them."
It was submitted that it is apparent that Section 11-A was introduced along with proviso to Section 6 so as to bring speed in the acquisition proceedings, otherwise the compensation becomes illusory, unrealistic and meaningless. Section 11-A, therefore, not only creates a right, but also has a direct impact on the compensation because if no time limit is prescribed for acquisition of the land, then the prices of the land will be stepped down to the date of Section 4 notification and hence, compensation received would be ::: Downloaded on - 09/06/2013 14:34:46 ::: 15 unreasonable and illusory. It was, therefore, submitted that it could not be said that Section 11-A of the Land Acquisition Act does not relate to compensation at all and there is no reason why Section 11-A, which also deals with compensation should not be made applicable to the acquisition proceedings under the MRTP Act.
10) Learned Counsel Shri Manohar submitted that if Section 11-A of the Land Acquisition Act is not read into the provisions of the MRTP Act by reference, then the provisions would result in arbitrariness and would attract the vice of Article 14 of the Constitution. It was contended that the stand of the respondent no.4 that there can be no inequality and Article 14 of the Constitution would not apply where alleged discrimination is on account of laws made by two different Legislatures is also unsustainable in law. It was submitted that it would be appropriate to refer to the observations of the Apex Court in paragraph (28) of its judgment in U.P. Avas Evam Vikas Parishad vs. Jainul Islam and another ::: Downloaded on - 09/06/2013 14:34:46 ::: 16 {(1998) 2 SCC 467)}, which read thus :
"28. The principle laid down by this Court in State of M.P. v. G.C. Mandawar that Article 14 cannot be invoked when the alleged discrimination is on account of laws made by two different Legislatures has no application in the present case because under the LA Act as well as under the provisions of Adhiniyam, the acquisition is to be made by the same authority, viz. the State Government of Uttar Pradesh and discrimination arises on account of action taken by the same authority."
It was submitted that in the present case, the ratio of the above decision applies since the acquiring authority is the same, viz. the State Government.
11) Learned Counsel Shri Manohar contended that in view of the above referred decisions of the Apex Court, the decision in Sant Joginder Singh's case no more holds the field and in such situation, this Court can choose between the reasons of the conflicting authorities and come to its own conclusion while ::: Downloaded on - 09/06/2013 14:34:46 ::: 17 deciding the issue. It was further submitted that another option open to this Court is to wait till the reference is decided by the Constitution Bench of the Apex Court.
12) Learned Counsel Shri Manohar also stated that for the first time, in the written note of arguments, it is stated by the respondent no.4 that the present petition and other connected petitions are filed only in respect of 5% of the total area under acquisition and the locations of these lands are scattered and hence, the entire acquisition cannot be permitted to suffer on account of challenge to the very small portion of the land under acquisition. It was contended that these facts are not stated by the respondents on affidavit and maps showing locations of the lands are also not filed.
Hence, the statement made in the written note of arguments is without any basis and deserves no consideration.
13) Shri Manohar further submitted that contention of the ::: Downloaded on - 09/06/2013 14:34:46 ::: 18 respondents that considering the public interest, this Court needs to interfere is also misconceived. In the instant case, question is of applicability of provisions of Section 11-A of the Land Acquisition Act, which provides that acquisition lapses, if not completed within the specific period. This effect is statutory and, therefore, law must take its own course and if the State fails to give effect thereto, then this Court must show indulgence and restore rule of law.
14) Shri Bhangde, learned Senior Counsel for the respondent no.4, submitted that the judgment of the Apex Court in Sant Joginder Singh's case is the only direct decision of the Apex Court on the subject, which lays down that provisions of Section 11-A of the Land Acquisition Act are not applicable to the acquisition of lands under the provisions of the MRTP Act. This decision is followed by this Court in Writ Petition No. 1896/2005, decided on 9.6.2005. It was contended that the Apex Court having already concluded that the provisions of Section 11-A of the Land ::: Downloaded on - 09/06/2013 14:34:46 ::: 19 Acquisition Act cannot be applied to the land acquisition proceedings under the MRTP Act, the said decision being the law of the land concludes the issue and is binding on this Court.
15) Learned Senior Counsel Shri Bhangde submitted that the Apex Court in Girnar-I case has doubted correctness of the ratio of Sant Joginder Singh's case and referred the issue to the larger Bench.
It was contended that the said judgment is, therefore, an order of reference to the larger Bench only and it does not lay down any law of binding nature. Moreover, reason for doubting correctness of the decision in Sant Joginder Singh's case is based on the decision in the case of Nagpur Improvement Trust. The argument advanced before the Apex Court in Girnar-I case was that it is necessary to apply provisions of Section 11-A of the Land Acquisition Act to the acquisition proceedings under the MRTP Act, else vice of arbitrariness and discrimination will creep in, which will invite wrath of Article 14 of the Constitution was based on the decision of ::: Downloaded on - 09/06/2013 14:34:46 ::: 20 the Apex Court in the Nagpur Improvement Trust's case. However, in the judgment of the Apex Court in Girnar-I case, it has not been observed by the Apex Court that in view of decision in Nagpur Improvement Trust's case, the provisions of Section 11-A of the Land Acquisition Act are applicable to the acquisition under the MRTP Act, otherwise provisions of Article 14 of the Constitution would be attracted. It was submitted that ratio of decision of the Apex Court in Nagpur Improvement Trust's case is applicable only vis-a-vis determination of amount of compensation under different enactments providing for compulsory land acquisition. Similar is the situation in respect of decision of the Apex Court in the case of State of Kerala vs. T.M. Peter {(1980) 3 SCC 554)} (paragraphs 11, 18 and 19), and S.A. Jalaluddin vs. Bangalore Development Authority {(2003) 4 SCC 686)} (paras 2, 4 and 6).
16) Learned Senior Counsel Shri Bhangde further contended that it is well settled that Article 14 of the Constitution is not ::: Downloaded on - 09/06/2013 14:34:47 ::: 21 applicable when the source/authority of two enactments flows from different entries stipulated in Union and State Lists as well as legislations enacted by the Parliament and State on the basis thereof.
In order to substantiate this contention, reliance was placed on the decision of the Apex Court in State of Madhya Pradesh vs. C. Mandawar (AIR 1954 SC 493) and Ashutosh Gupta vs. State of Rajasthan and others {(2002) 4 SCC 34)}.
17) Learned Senior Counsel Shri Bhangde further contended that lands in question are being acquired for the project of national importance, which is undoubtedly in public interest and only a meagre percentage of land owners, i.e. owners holding less than 1/20th of the total land under acquisition have filed the present petition and, therefore, in the larger interest, this Court may not show indulgence under Article 226 of the Constitution. It was submitted that the total land under acquisition under the two awards, i.e. award dated 29.1.2008 for Mouza Shivangaon and award dated ::: Downloaded on - 09/06/2013 14:34:47 ::: 22 30.6.2008 for Mouza Chinchbhuvan is 270.50 + 147.19 = 417.69 hectares. The present petitioner and other petitioners in connected petitions own approximately 23.88 hectares of land, which are located in small pockets spread over the entire area under acquisition and, therefore, in order to serve the public cause of national importance, no interference is called for. In order to substantiate this contention, reliance was placed on the decisions of the Apex Court in Ram Chand and others vs. Union of India {(1994) 1 SCC
44)}, Om Prakash and another vs. State of U.P. {(1998) 6 SCC 1)} and Indian Bank and another vs. N. Venkatramani {(2007) 10 SCC
609)}.
18) Learned Senior Counsel Shri Bhangde further contended that so far as present petition is concerned, there is suppression of material facts. The respondent no.4, therefore, has filed Civil Application No. 345/2009 in the present writ petition to revoke the rule issued by this Court and dismiss the petition with exemplary ::: Downloaded on - 09/06/2013 14:34:47 ::: 23 costs. It was submitted that on 30.6.2008, the Additional Special Land Acquisition Officer passed award in the instant land acquisition proceedings. On 29.7.2008, the Additional Special Land Acquisition Officer paid compensation of Rs.1,35,98,213/- to the petitioner by Cheque No.968225 as per aforesaid award dated 30.6.2008. On 29.7.2008, the petitioner delivered possession of the land, which is subject matter of the instant petition, to the Additional Special Land Acquisition Officer. Copy of the possession receipt signed by the petitioner is annexed to the civil application. On 20.1.2009, the petitioner filed application under Section 18 of the Land Acquisition Officer seeking reference to the Civil Court for enhancement of the compensation amount. On 22.1.2009, the Additional Special Land Acquisition Officer handed over possession of the land in question to the respondent no.4. Learned Senior Counsel Shri Bhangde submitted that the above referred undisputed facts make it clear that in the instant case, land acquisition proceedings have culminated into award. The petitioner has ::: Downloaded on - 09/06/2013 14:34:47 ::: 24 accepted the same, received the compensation amount as per award, handed over possession of the land and the land in question vests in the State Government/acquiring Body. It was contended that rule issued by this Court in the present petition on 6.10.2008 is, therefore, liable to be revoked firstly on the ground of suppression of material facts and secondly, in view of the above referred conduct of the petitioner, it is not open for the petitioner to question validity of the land acquisition proceedings in view of provisions of Section 11-A of the Land Acquisition Act. The petition is, therefore, liable to be dismissed with exemplary costs.
19) We have given anxious thought to the various contentions canvassed by the learned Counsel for the respective parties. At the outset, we want to express that in the present petition as well as in other connected petitions, which are heard together, it is not open for us to independently adjudicate upon whether Section 11-A of the Land Acquisition Act, which was inserted by the amending Act 68 ::: Downloaded on - 09/06/2013 14:34:47 ::: 25 of 1984, is applicable to the acquisition proceedings under the MRTP Act since the said field is already occupied by the decision of the Apex Court in this regard. The issue, which this Court has to consider, is :-
"whether decision of the Apex Court in Sant Joginder Singh's case whereby it was held that provisions of Section 11-A of the Land Acquisition Act were not applicable to the acquisition proceedings under the MRTP Act is still holding the field irrespective of decisions of the Apex Court in Girnar-I case, Girnar-II case as well as during the pendency of reference in this regard before Constitution Bench of the Apex Court for decision ?"
20) In order to understand whether the decision of the Apex Court in Sant Joginder Singh's case is the direct decision on the subject, it will be appropriate to take into consideration the facts and law involved in the said case. In the said case, the provisions of the MRTP Act were invoked for acquiring the land by the Regional and ::: Downloaded on - 09/06/2013 14:34:47 ::: 26 Town Planning Board for planned development in the State of Maharashtra. The MRTP Act was amended by the Amendment Act of 1970, which came into force on 17.2.1974 as Act 14 of 1971. A notification under Section 125 of the MRTP Act was published on 28.12.1972. The notification under Section 125 is treated as one under Section 4(1) of the Land Acquisition Act and declaration under sub-section (2) of Section 126 as declaration under Section 6 of the Central Act. Dr. Ghatate, learned Senior Counsel for the respondents, contended before the Apex Court that since acquisition of the land is compulsory expropriation, restrictive interpretation should be given. It was further contended that though there was no express provision that notification published under Section 125 of the MRTP Act would lapse by operation of Section 11-A of the Central Act introduced by the Land Acquisition Amendment Act 68 of 1984, award had to be made within two years from the date of declaration published under Section 6 of the Central Act, i.e. under Section 126(2) of the Act and this period of limitation must be ::: Downloaded on - 09/06/2013 14:34:47 ::: 27 deemed to have been incorporated in the MRTP Act. Hence, the only course open to the State was to issue notification under Section 125 afresh, if law permits and it should not resort to the publication of the declaration under sub-section (4) of Section 126. The Apex Court in para 8 of its decision in Sant Joginder Singh's case has observed thus :
"8.
igWe find no force in the contentions. The legislature being cognizant of the consequences that would flow from long delay in the publication of the declaration in the Official Gazette under sub-section (2) of Section 126, provision was made in that behalf to put a fetter on the exercise of power under Section 126(2) and simultaneously mitigate the hardship to be caused to the public purpose as well as to private interest of the owner of the land. In other words, while permitting the State to exercise its power of eminent domain, the owner of the land or the person interested in the land has been relieved of hardship of payment of the compensation as per the price prevailing as on the date of publication of the notification under Section 125 (Section 4(1) of the Central Act) and directed that ::: Downloaded on - 09/06/2013 14:34:47 ::: 28 market value be determined as on the date of publication of the fresh declaration under sub-section (4) of Section 126."
The observations made by the Apex Court in para (11) of the judgment are relevant for the issue in question, which read thus :
"11. It is next contended by Dr. N.M. Ghatate that in appeal arising from SLP No. 5251 of 1990 since the award has not been made within two years from the date of the declaration under sub-section (2) of Section 126, by operation of Section 11-A of the Central Act, the notification published under Section 125 shall be deemed to have been lapsed and, therefore, the authorities are devoid of jurisdiction to proceed further. We find no force in this contention too. It is seen that the State Legislature amended the Act by the Amendment Act and introduced 3 years' limitation for publication of the declaration under sub-
section (2) of Section 126. In Section 128, it had expressly engrafted the provisions of Sections 16, 17 and 24 of the Central Act as its part. In other words, wherever the legislature intended to apply the specific procedure or the fetters in exercising the power as visualised by the Central ::: Downloaded on - 09/06/2013 14:34:47 ::: 29 Act, it did so specifically. After the Central Act 68 of 1984 has come into force, no attempt was made by the State Legislature to amend the Act introducing or incorporating Section 11-A of the Central Act as part of the Act. Since the legislature had incorporated specific provisions of the Central Act, the necessary conclusion is that the legislature did not intend to apply the unspecified provisions of the Central Act to the exercise of power under the Act. In this behalf, it is to be remembered that there is a distinction between incorporation and adoption by reference. If the legislature would have merely adopted the Central Act, subsequent amendments to that Act made under Act 68 of 1984 would have become applicable per force."
Similarly, in para (13) of the judgment, the Apex Court has observed thus :
"13. It is next contended that since no separate procedure was prescribed by the Act for determining the compensation, by necessary inference, the Central Act was intended to be applied mutatis mutandis to the acquisition under the Act. He seeks support from the award made by ::: Downloaded on - 09/06/2013 14:34:47 ::: 30 the Collector in that behalf. It is true that there is no express provision under the Act to determine compensation for the land acquired under the Act. Therefore, by necessary implication, compensation needs to be determined by applying the principles in Section 23 of the Central Act. But, there is a distinction between procedural and substantive compensation provisions of a statute. Determination of compensation by applying appropriate principles is relatable to substantive provision, whereas making of award within a prescribed period is basically procedural. So, merely because Section 23 of the Central Act would apply to acquisition under the Act, it is not enough to hold that what is contained in Section 11-A would also apply. Further, what has been provided in sub-section (4) of Section 126 of the Act is a clear indication that failure to make the award within two years from the date of the declaration under sub-
section (2) of Section compensation n 126 of the Act would not render the notification published under Section 125 of the Act non est."
It is, therefore, evident that the Apex Court after taking into ::: Downloaded on - 09/06/2013 14:34:47 ::: 31 consideration purport of Sections 125, 126(2)(4) and 128 of the MRTP Act as well as Sections 23 and 11-A of the Land Acquisition Act in the case of Sant Joginder Singh, in no uncertain terms, declared that Section 11-A of the Land Acquisition Act would not apply to the acquisitions under the MRTP Act. This is the direct decision of the Apex Court under Article 141 of the Constitution on the issue of applicability of Section 11-A of the Land Acquisition Act to the acquisition proceedings under the MRTP Act. Whether the conclusion recorded by the Apex Court is sustainable or not in view of the doctrine of legislation by incorporation, adoption or reference cannot be gone into by this Court nor it is open for us to adjudicate upon the said aspect. The declaration given by the Apex Court that the provisions of Section 11-A of the Land Acquisition Act are not applicable to the acquisition proceedings under the MRTP Act is the law declared by the Apex Court under Article 141 of the Constitution and, therefore, is binding on this Court at this stage.
::: Downloaded on - 09/06/2013 14:34:47 ::: 3221) The next question, which needs our consideration, is whether decision of the Apex Court in Girnar-I case is the law laid down by the Apex Court on the subject, which either takes away the efficacy of the law declared by the Apex Court in Sant Joginder Singh's case or dilutes its binding force.
22) The contentions canvassed by Mr. V.A. Mohta, learned Senior Counsel before the Apex Court in Girnar-I case are reflected in para (10) of the judgment, which are relevant for the issue in question. Para (10) reads thus :
"10) Mr. Mohta submitted that barring the above special modification introduced in the scheme of acquisition of land, in all other respects, the provisions of the Land Acquisition Act, 1894 would mutatis mutandis apply to an acquisition under Chapter VII of the MRTP Act. He pointed out that the MRTP Act contains neither any provision for payment of compensation, nor does it prescribe the time within which the ::: Downloaded on - 09/06/2013 14:34:47 ::: 33 award has to be made after a declaration is made under sub-
sections (2), (3) or (4) of Section 126. It is urged that the legislature could not have left it vague and indefinite. In the submission of the learned counsel, this is a situation of invocation of the provisions of the Land Acquisition Act, 1894, not by incorporation, but by reference. In other words, as and when the provisions of the Land Acquisition Act, 1894 are amended, all the amended provisions would be attracted to an acquisition under Chapter VII of the MRTP Act, unless barred expressly or by direct implication. The amendments introduced in the Land Acquisition Act, 1894 by Central Act 68 of 1984 would all automatically apply. Consequently, the period of limitation prescribed under Section 11-A for making the award would squarely apply."
23) In the case of Girnar-I, the contentions canvassed before the Apex Court by the learned Counsel for the respondents are mentioned in para (14) of the judgment, which reads thus :
"14) Learned Counsel for the respondents, refuting the ::: Downloaded on - 09/06/2013 14:34:47 ::: 34 contentions urged on behalf of the appellant, placed heavy reliance upon the judgment of a Bench of two learned Judges in State of Maharashtra v. Sant Joginder Singh Kishan Singh.
Learned Counsel for the respondents strongly urged that this judgment clinches the arguments against the appellants. The same contention as urged by the appellant before us has been considered and negatived in Sant Joginder Singh wherein it is observed (vide para 13) as under : (SCC p.480) :
"13. It is next contended that since no separate procedure was prescribed by the Act for determining the compensation, by necessary inference, the Central Act was intended to be applied mutatis mutandis to the acquisition under the Act.
He seeks support from the award made by the Collector in that behalf. It is true that there is no express provision under the Act to determine compensation for the land acquired under the Act. Therefore, by necessary implication, compensation needs to be determined by applying the principles in Section 23 of the Central Act. But, there is a distinction between procedural and substantive provisions of a statute. Determination of compensation by applying appropriate principles is relatable to substantive provision, whereas making of award within a prescribed period is ::: Downloaded on - 09/06/2013 14:34:47 ::: 35 basically procedural. So, merely because Section 23 of the Central Act would apply to acquisition under the Act, it is not enough to hold that what is contained in Section 11-A would also apply. Further, what has been provided in sub-
section (4) of Section 126 of the Act is a clear indication that failure to make the award within two years from the date of the declaration under sub-section (2) of Section 126 of the Act, would not render the notification published under Section 125 of the Act non est."
Similarly, the Apex Court in para (15) of the judgment has observed thus :
"15) The appellant urges that Sant Joginder Singh needs reconsideration by a larger Bench."
24) The Apex Court after considering the above referred factual and legal aspects of the matter, in para (17) of the judgment in Girnar-I case has observed thus :
"17) Secondly, Sant Joginder Singh appears to have been doubted by a judgment of another Bench of two learned ::: Downloaded on - 09/06/2013 14:34:47 ::: 36 Judges in Maharashtra SRTC v. State of Maharashtra. This was a case under the provisions of the same Act viz. MRTP Act, 1966. After considering the judgments in U.P. Avas Evam Vikas Parishad v. Jainul Islam and Nagpur Improvement Trust it was held that the provisions with regard to compensation made by Central Act 68 of 1984, by addition of sub-section (1-A) to Section 23 and the increased amount of solatium under Section 23(2) and the interest payable under Section 28 would all apply to an acquisition under Chapter VII of the MRTP Act. Dealing with Sant Joginder Singh, the Division Bench of this Court explained away Sant Joginder Singh by observing (SCC p. 210, para
14) "The ultimate conclusion in Sant Joginder Singh case seems to rest on the ratio that there is sufficient indicia in the MRTP Act itself to exclude the applicability of Section 11-A of the LA Act in view of sub-sections (2) and (4) of Section 126. As we are approaching the question of correct interpretation of Section 126(3) from a different perspective, there is no need to enter into a further discussion as to whether and to what extent ::: Downloaded on - 09/06/2013 14:34:47 ::: 37 support can be drawn from this decision."
Reading the judgment in Maharashtra SRTC it appears to us that the Division Bench in that case did not seem to agree with the proposition that was laid down in Sant Joginder Singh."
25) The Apex Court in Girnar-I case, in para (18) of the judgment, has observed thus :
"18) There appears to be no good reason to shut out or preclude the amendments introduced by Central Act 68 of 1984 in the Land Acquisition Act, 1894 from applying to an acquisition under Chapter VII of the MRTP Act. Or else, the consequence would be that, in respect of two landholders there would be arbitrary discrimination in the matter of acquisition of their lands, merely because in one case the acquisition is by the direct route of the Land Acquisition Act, 1894 and, in another case, through the indirect route of the MRTP Act. The vice of discrimination pointed out by a ::: Downloaded on - 09/06/2013 14:34:47 ::: 38 Bench of seven learned Judges in Nagpur Improvement Trust (vide para 31) would affect such a situation. In order to avoid such a situation and to save the constitutionality of the provisions of the MRTP Act, the provisions of enhanced benefits introduced by Central Act 68 of 1984 were read into the provisions of the MRTP Act and an acquisition under the MRTP Act was held to be governed by the same provisions.
The same principle should apply in the matter of attracting the provisions of Section 11-A of Act 68 of 1984 also to the acquisition under the MRTP Act."
The Apex Court in para (19) of the judgment in Girnar-I case has observed thus :
"19) Thirdly, if the provisions of the MRTP Act are read as contended by the learned Counsel for the respondents, in the light of Sant Joginder Singh, then it would be open to the authorities after issuing a declaration under sub-section (3), to go into hibernation and leave the matter hanging in perpetuity.
That certainly would seriously affect the rights of the landholder preventing him from developing the land or alienating it, merely because the authority chooses to act under ::: Downloaded on - 09/06/2013 14:34:47 ::: 39 one Act instead of the other. This again, would attract the wrath of Article 14 of the Constitution, not only on account of discrimination, but also on account of arbitrariness."
26) The Apex Court after making observations in paras (17), (18), (19) and (20) has expressed its final opinion in paras (21) and (22) of its judgment, which reads thus :
"21) For these reasons, in our considered view, the decision in Sant Joginder Singh requires reconsideration by a larger Bench."
"22) The Registry is directed to place the papers before the Hon'ble Chief Justice for appropriate directions in the matter."
The observations of the Apex Court in paras (21) and (22) of the judgment clearly show that the observations made by the Apex Court in the earlier paragraphs of the judgment in Girnar-I case were in the nature of reasons given by the Apex Court as to why decision ::: Downloaded on - 09/06/2013 14:34:47 ::: 40 in Sant Joginder Singh's case requires re-consideration by the larger Bench and, therefore, it is the decision in Sant Joginder Singh's case, which is referred to the Larger Bench for re-consideration by the Apex Court vide decision in Girnar-I case. The observations in paras (18), (19) and (20), if read with the observations made in para (21) would show that the observations made in paras (18), (19) and (20) are the reasons given by the Apex Court and not the law declared on the subject, as to why the law laid down in Sant Joginder Singh's case needs re-consideration by the larger Bench and, therefore, referred the matter to the larger Bench. Therefore, the said decision neither concludes the issue nor takes away the force of law laid down in Sant Joginder Singh's case. It also does not affect the binding force thereof.
27) The Hon'ble Chief Justice of India in view of order of reference passed in the case of Girnar-I referred Civil Appeal No. 3703/2003, i.e. Girnar Traders vs. State of Maharashtra and others ::: Downloaded on - 09/06/2013 14:34:47 ::: 41 as well as Civil Appeal No. 3922/2007, i.e. S.P. Building Corporation and another vs. State of Maharashtra and others to the three Judges' Bench consisting of Justice B.N. Agrawal, Justice P.K. Balasubramanyan and Justice P.P. Naolekar. The three Judges' Bench granted special leave in Civil Appeal No.3922/2007 filed by S.P. Building Corporation Corporation and another, which became Special Leave Petition (C) No. 11446/2005 and the decision reported in 2007 (7) SCC 555 is rendered by the Apex Court in Special Leave Petition (C) No. 11446/2005, titled as S.P. Building Corporation vs. State of Maharashtra and others, which is clear from the observations of the Apex Court in para (6) of the judgment as well as opening line of the decision given by Justice P.K. Balasubramanyan. So far as Civil Appeal No. 3703/2003 referred to the three Judges' Bench by the Hon'ble Chief Justice of India whereby question of applicability of Section 11-A of the Land Acquisition Act to the acquisition proceedings under the MRTP Act was concerned, the same was again referred by the three Judges' ::: Downloaded on - 09/06/2013 14:34:47 ::: 42 Bench to the five Judges Bench. The order of reference was made by Justice P.K. Balasubramanyan. The observations made in this regard in para (70) read thus :
"70) Civil Appeal No. 3703 of 2003 is before us on the basis of an order of reference dated 14.10.2004 reported as Girnar Traders v. State of Maharashtra . Civil Appeal arising out of Special Leave Petition (Civil) No. 11446 of 2005 is before us by virtue of an order dated 11.7.2005 tagging the same along with Civil Appeal No. 3703 of 2003.
The question in Civil Appeal No. 3703 of 2003 and one of the questions in the civil appeal arising out of Special Leave Petition (Civil) No. 11446 of 2005 as posed by the order of reference is whether all the provisions of the Land Acquisition Act, 1894 as amended by Central Act 68 of 1984, can be read into the provisions under Chapter VII of the Maharashtra Regional and Town Planning Act, 1966 (for short, "the MRTP Act") for an acquisition under that Act.. According to the order of reference, the decision in State of Maharashtra v. Sant Joginder Singh Kishan Singh requires reconsideration. In the second of the appeals, this question arises along with a subsidiary question on the ::: Downloaded on - 09/06/2013 14:34:47 ::: 43 interpretation of Section 127 of the MRTP Act."
28) The majority decision in Girnar-II case given by Justice B.N. Agrawal and Justice P.P. Naolekar as well as minority view expressed by Justice P.K. Balasubramanyan is on the interpretation and applicability of Section 127 of the MRTP Act to the facts involved in Special Leave Petition (C) No. 11446/2005 titled S.P. Building Corporation vs. State of Maharashtra, whereas the three Judges' Bench (neither majority nor minority) has not expressed any view in respect of Civil Appeal No. 3703/2003 titled Girnar Traders vs. State of Maharashtra and others (Girnar II) in respect of applicability of Section 11-A of Central Act 68 of 1984 to the acquisition proceedings under the MRTP Act and the said issue is referred to five Judges' Bench and the decision of the Constitution Bench is awaited. The above referred factual aspect is evident from the observations made by the majority Judges in para (67) of the judgment, which reads thus :
::: Downloaded on - 09/06/2013 14:34:47 ::: 44"67) In view of our decision on the interpretation and applicability of Section 127 of the MRTP Act to the facts of the present case, the appellants are entitled to the relief claimed and the other question argued on the applicability of the newly inserted Section 11-A of the L.A. Act to the acquisition of land made under the MRTP Act need not require to be considered by us in this case."
29) Similarly, minority view expressed by the Hon'ble Judge in para (123) of the judgment reads thus :
"123) I would, therefore, hold that there has been sufficient compliance with the requirement of Section 127 of the MRTP Act by the authority under the Act by the acquisition initiated against the appellant in the appeal arising out of SLP (C) No. 11446 of 2005 and the reservation in respect of the land involved therein does not lapse by the operation of Section 127 of the Act. But since on the main question in agreement with my learned Brothers, I have referred the matter for decision by a Constitution Bench, I would not pass any final orders in this appeal merely based on my conclusion on the aspect relating to Section 127 of the ::: Downloaded on - 09/06/2013 14:34:47 ::: 45 MRTP Act. The said question also would stand referred to the larger Bench."
30) We want to express that purport of the majority and minority view demonstrates that Justice P.K. Balasubramanyan has referred both the issues, i.e. interpretation and applicability of Section 127 of the MRTP Act as well as Section 11-A of Central Act 68 of 1984 to the five Judges' Bench for decision whereas the majority view expressed by Justice B.N. Agrawal and Justice P.P. Naolekar reflected in para (67) of the judgment, shows that they have delivered the decision on the interpretation and applicability of Section 127 of the MRTP Act and the question of applicability of newly inserted Section 11-A of the Land Acquisition Act to the acquisition proceedings under the MRTP Act has been kept open for decision to be taken by the Constitution Bench in view of order of reference passed by Justice P.K. Balasubramanyan. The said reference is pending before the five Judges' Bench.
::: Downloaded on - 09/06/2013 14:34:47 ::: 4631) Another aspect, which needs our consideration, is though the Hon'ble two Judges of the Apex Court in the case of Girnar Traders vs. State of Maharashtra (Girnar-I) in paras (18), (19) and (20) have observed that there appears to be no good reason to shut out and preclude the amendment introduced by the Central Act 68 of 1984 in Land Acquisition Act, 1894 from applying it to the acquisition under the MRTP Act, referred the law laid down in Sant Joginder Singh's case vis-a-vis applicability of Section 11-A of the Land Acquisition Act for re-consideration to the three Judges' Bench and, therefore, in such circumstances, what is the legal effect of the observations made by the Apex Court in paras (18), (19) and (20) of the said judgment ? We have already observed hereinabove that the observations made in paras (18), (19) and (20) of the judgment are in the nature of the reasons given by the Apex Court as to why law laid down in Sant Joginder Singh's case needs re-consideration by the larger Bench without concluding the issue on the subject and, therefore, it does not take away the efficacy of the decision in Sant ::: Downloaded on - 09/06/2013 14:34:47 ::: 47 Joginder Singh's case nor it affects the binding force thereof till the reference is answered by the Constitution Bench otherwise.
32) Another question, which falls for our consideration is what is the effect of the decision of three Judges' Bench in Girnar Traders vs. State of Maharashtra and others {(2007) 7 SCC 555) -
(Girnar II) on the issue in question, i.e. applicability of provisions of Central Act 68 of 1984 to the acquisition proceedings under the MRTP Act. On perusal of the decision of the Apex Court in the case of Girnar-II, the following situation emerges :
In view of observations made by the majority Judges in para (67) of the judgment, it is clear that they have not given any decision on the issue of applicability of provisions of Section 11-A of the Land Acquisition Act to the acquisition proceedings under the MRTP Act and kept the said issue open. Similarly, in view of order of reference made by Justice P.K. Balasubramanyan, the said issue has been referred to the five Judges' Bench, which has not yet ::: Downloaded on - 09/06/2013 14:34:47 ::: 48 pronounced its decision on the said issue. In sum and substance, the Division Bench of the Apex Court by decision in the case of Girnar-I referred the issue regarding interpretation and applicability of Section 11-A of the Land Acquisition Act to the acquisition proceedings under the MRTP Act to the three Judges' Bench. The three Judges' Bench also referred the said issue to the five Judges' Bench and the issue is now pending before the five Judges' Bench for decision.
33) It is necessary to consider what is the effect of the observations made by the Apex Court in the judgments rendered in the case of Girnar-I and Girnar-II. The observations of the Apex Court in paras (14), (15) and (16) of the decision in Sarva Shramik Sanghatana (KV), Mumbai vs. State of Maharashtra and others {(2008) 1 SCC 494} are relevant and those are as follows :
"14) On the subject of precedents Lord Halsbury L.C. said in Quinn v. Leathem (All ER p.7 G-1) :::: Downloaded on - 09/06/2013 14:34:47 ::: 49
"Before discussing Allen v. Flood and what was decided therein, there are two observations of a general character which I wish to make; and one is to repeat what I have very often said before - that every judgment must be read as applicable to the particular facts proved or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but are governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that a case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. Such a mode of reasoning assumes that the law is necessarily a logical code, whereas every lawyer must acknowledge that the law is not always logical at all."
(Emphasis supplied) We entirely agree with the above observations.
(15) In Ambica Quarry Works v. State of Gujarat (vide SCC p. 221, para 18) this Court observed :
"18. The ratio of any decision must be understood in the ::: Downloaded on - 09/06/2013 14:34:47 ::: 50 background of the facts of that case. It has been said long time ago that a case is only an authority for what it actually decides and not what logically follows from it."
16) In Bhavnagar University v. Palitana Sugar Mill (P) Ltd. (vide SCC p. 130 para 59) this Court observed :
"59. ... It is also well settled that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision."
In view of the above observations of the Apex Court, it is explicitly clear that the ratio of any decision must be understood in the background of the facts involved in that case and the said decision is an authority of what it actually decides and not what logically follows from it. Similarly, a little difference in facts or additional facts may make a lot of difference in the precedential value of the decision. Applying the said principle to the decision in the case of Girnar-I, the observations of the Apex Court in paras (18), (19) and (20) of the said decision go to show that the Division Bench of the ::: Downloaded on - 09/06/2013 14:34:47 ::: 51 Apex Court in the said case though has expressed its opinion on the subject, however, not concluded the issue finally by laying down the principles of law on the subject. On the other hand, the observations made by the Apex Court in para (21) in Girnar-I case show that the observations made by the Apex Court in earlier paras of the judgment were the reasons given by the Apex Court for referring the decision in Sant Joginder Singh's case to the three Judges' Bench for reconsideration. Hence, the law laid down by the Apex Court in Sant Joginder Singh's case under Article 141 of the Constitution continues to hold field in spite of decision of the Apex Court in the case of Girnar-I, which did not conclude the issue.
34) Similarly, the majority view of the three Judges' Bench reflected in paras (3) and (67) of the judgment in the case of Girnar- II reads thus :
"3) A two-Judge Bench of this Court in State of Maharashtra v. State Joginder Singh Kishan Singh has held ::: Downloaded on - 09/06/2013 14:34:47 ::: 52 that Section 11-A of the LA Act is a procedural provision and does not stand on the same footing as Section 23 of the LA Act. We find it difficult to subscribe to the view taken.
Procedure is a mode in which the successive steps in litigation are taken. Section 11-A not only provides a period in which the land acquisition proceedings are to be completed, but also provides for consequences, namely, that if no award is made within the time stipulated, the entire proceedings for the acquisition of land shall lapse. Lapsing of the acquisition of the land results in owner of the land retaining ownership right in the property and according to us it is a substantive right accrued to the owner of the land and that in view thereof, we fell Section 11-A of the LA Act is part of the law, which creates and defines right accrued to the owner of the land and that in view thereof we feel Section 11-A of the LA Act is part of the law which creates and defines right, not adjective law, which defines method of enforcing rights. It is a law that creates, defines and regulates the right and powers of the party. For this and the other reasons assigned by our learned Brother, we are in agreement with him that the question involved requires consideration by a larger Bench and accordingly, we agree ::: Downloaded on - 09/06/2013 14:34:47 ::: 53 with the reasons recorded by my learned Brother for referring the question to a larger Bench. However, on consideration of the erudite judgment prepared by our esteemed and learned Brother Balasubramanyan, J.
regretfully we are unable to persuade ourselves to agree to the decision arrived at by him on interpretation of Section 127 of the MRTP Act and also reference of the case to a larger Bench."
"67) In view of our decision on the interpretation and applicability of Section 127 of the MRTP Act to the facts of the present case, the appellants are entitled to the relief claimed and the other question argued on the applicability of the newly inserted Section 11-A of the LA Act to the acquisition of land made under the MRTP Act need not require to be considered by us in this case."
The above referred observations of the majority Judges make it implicitly clear that the decision given by them is only on the issue of interpretation and applicability of Section 127 of the MRTP Act in view of the facts of the said case and the question of applicability ::: Downloaded on - 09/06/2013 14:34:47 ::: 54 of Section 11-A of the Land Acquisition Act to the acquisition of land under the MRTP Act was neither considered nor decided and is kept open. The three Judges' Bench unanimously agreed for referring the said issue to the five Judges' Bench, which has not yet decided the same. In the backdrop of these facts, it is evident that neither majority nor minority decision in the case of Girnar-II affects the law laid down by the Apex Court in the case of Sant Joginder Singh under Article 141 of the Constitution in respect of applicability of Section 11-A of Land Acquisition Act to the acquisition proceedings under the MRTP Act. On the other hand, the findings recorded in para (67) of the judgment in the case of Girnar-II show that the said issue was not at all considered and the findings recorded by the Hon'ble two Judges are only in respect of interpretation and applicability of provisions of Section 127 of the MRTP Act to the facts of the said case. Similarly, the view expressed by the minority decision in the case of Girnar-II is also not in respect of applicability of Section 11-A of the Land ::: Downloaded on - 09/06/2013 14:34:47 ::: 55 Acquisition Act to the acquisition proceedings under the MRTP Act. It is in such situation, in our considered view, the law laid down by the Apex Court in Sant Joginder Singh's case in respect of applicability of provisions of Section 11-A of the Land Acquisition Act to the acquisition proceedings under the MRTP Act continues to hold the field and is binding on this Court. Similarly, the Division Bench of this Court dismissed Writ Petition No. 1896/2005 (Ramesh Kashinath Kantode vs. The District Collector and others) in limine vide order dated 9.6.2005, which reads thus :
"The sole challenge as urged before us in this petition is that the award after acquisition proceedings of the petitioner's land under Section 6 has not been made within the period contemplated by Section 11-A of the Land Acquisition Act. The acquisition was under the provisions of MRTP Act. The issue of applicability of Section 11A had directly come up for consideration before the Apex Court in the case of State of Maharashtra and another vs. Sant Joginder Singh Kishan Singh and others - AIR 1995 Supreme Court 2181. After considering the scheme of the ::: Downloaded on - 09/06/2013 14:34:47 ::: 56 Act, the Apex Court held that the provisions of Section 11A of the Central Act are not applicable.
The learned Counsel for the petitioner points out that there has been a departure from the said principle by the Apex Court in the case of Maharashtra State Road Transport Corporation vs. State of Maharashtra and others
- AIR 2003 Supreme Court 1909. The learned Counsel specifically relies on the observations of the Apex Court in paras 14, 15, 20 as also 21 to contend that the Apex Court has further taken a view that the provisions of Section 11A are attracted. On going through the judgment in the case of State of Maharashtra (supra), it appears that what was before the Apex Court was the issue as to whether the compensation as payable under the provisions of the Land Acquisition Act as amended by the Act of 1984 would also be applicable to cases under the provisions of MRTP Act.
The Apex Court noted that if such an interpretation is not given for the payment of the compensation, it might give rise to a serious challenge to the validity of Section 23 itself and to obviate that the Apex Court has taken a view that compensation as payable under the Land Acquisition ::: Downloaded on - 09/06/2013 14:34:47 ::: 57 Act will also be made applicable to acquisition under MRTP Act. In our opinion, that is the ratio of the judgment of the Apex Court in the case of MSRTC supra.
The judgment does not in any way differ from the view taken by the Apex Court in the case of Sant Joginder Singh Kishan Singh and others (supra).
In the light of that, we do not find any merit in the petition. It is accordingly dismissed."
We agree with the view expressed by the Division Bench of this Court.
35) Another aspect, which needs our consideration, is what is the effect of the law declared by the Apex Court in the case of Sant Joginder Singh in regard to applicability of Section 11-A of the Land Acquisition Act during pendency of the reference in this regard before the larger Bench of the Apex Court. In order to consider this aspect, the observations made in the following decisions rendered by ::: Downloaded on - 09/06/2013 14:34:47 ::: 58 the Apex Court and High Courts in this regard are relevant :
The Apex Court in para (8) of its decision in State of Rajasthan vs. M/s. R.S. Sharma and Co. {(1988) 4 SCC 353} has observed thus :
"8. The law as it stands today is clear that unless there is an error of law apparent on the face of the award, the award cannot be challenged merely on the ground of absence of reasons. This is settled law by a long series of decisions. Interests of justice and administration of justice would not be served by keeping at bay final adjudication of the controversy in this case on the plea that the question whether an unreasoned award is bad or not, is pending adjudication by a larger bench. There have been a large number of sittings before the arbitrators. Parties have been heard. There was no misconduct in the proceedings. There has been no violation of the principles of natural justice. In such a situation, it would be inappropriate to postpone the decision pending adjudication of this question by a larger bench of this Court. We do not know how long it would take to decide that question and whether ::: Downloaded on - 09/06/2013 14:34:47 ::: 59 ultimately this Court would decide that unreasoned awards per se are bad or whether the decision would have prospective application only in view of the long settled position of law on this aspect in this country or not. Justice, between the parties in a particular case, should not be in suspended animation."
The Division Bench of this Court Yeshwant Natthuji Meshram vs. State of Maharashtra and others (1995 (1) Mh.L.J. 48), in para (22), has observed thus :
"22. True it is that the question whether a court can order the C.B.I. an establishment under the DSPE Act, to investigate a cognizable offence committed within a State without the consent of that State Government or without any notification or order having been issued in that behalf, is referred to the larger Bench by the order of the Supreme Court dated March 10, 1989 in Haryana Mahila Sanghatana's case (supra), but the law already laid down by the Apex Court in some of its judgments relating to section 6 of the DSPE Act does not cease to be binding on the High Court. We are of ::: Downloaded on - 09/06/2013 14:34:47 ::: 60 the view that the decision of the Supreme Court referred to larger Bench and sought to be examined does not make the law already laid down not binding on the High Court till the authoritative pronouncement is delivered by the larger Bench of Supreme Court."
The Division Bench of this Court in view of decision of the Apex Court in State of Rajasthan vs. M/s. R.S. Sharma and Co.
(cited supra), in para (13) of its judgment rendered in New India Assurance Co. Ltd. vs. Smt. Renu wd/o Major Nareshchandra Katoch and others (2008 (6) ALL MR 881) has observed thus :
"13. As regards tenability of the appeal by Insurer, Shri Pophaly submitted that the correctness of 3 Judges' Bench decision of the Apex Court in Nicolletta Rohtagi's case (2002 (4) ALL MR 874 (S.C.) (supra) has been referred to a Larger Bench by order dated 3.12.2007 in United India Insurance Co. Ltd. vs. Shila Datta and ors. In SLP Nos.
17301-17302/2007 by the Apex Court. Hence, he urged that this Court may wait till the decision of the Larger Bench."::: Downloaded on - 09/06/2013 14:34:47 ::: 61
In para (14), the Division Bench of this Court has observed thus :
"14. We are unable to agree with the suggestion made by Shri Pophaly because of the observations in State of Rajsthan vs. M/s. R.S. Sharma and Co. (1988) 4 Supreme Court Cases 353 that Justice, between the parties in a particular case, should not be kept in a suspended animation. Hence, in view of clear decision in Nicolletta Rohtagi's case (2002 (4) ALL MR 874 (S.C.) (supra), we are of the considered view that the present appeal preferred by the insurer is not tenable and it will have to be dismissed. We, therefore, pass the following order :
The appeal is dismissed with no order as to costs."
36) In view of the above referred observations of the Apex Court and the Division Benches of this Court, it is evident that justice between the parties should not be kept in suspended animation in view of pendency of reference for decision before the larger Bench. Similarly, the decision of the Apex Court referred to ::: Downloaded on - 09/06/2013 14:34:47 ::: 62 the larger Bench does not make the law already laid down by the Apex Court not binding on the High Court till the authoritative pronouncement is delivered by the larger Bench of the Apex Court.
In the instant case, the land acquisition proceedings were initiated much prior to 2005 and the award came to be passed by the Special Land Acquisition Officer on 20.6.2008. There is no challenge to the land acquisition procedure adopted by the Authorities nor validity of the award is questioned except on the ground of applicability of provisions of Section 11-A of the Land Acquisition Act. The Apex Court in the case of Sant Joginder Singh has already declared the law on the subject by holding that Section 11-A of the Land Acquisition Act is not applicable to the proceedings under the MRTP Act. In the subsequent decision in the case of Girnar-I, the Apex Court by giving reasons referred the decision in Sant Joginder Singh's case for re-consideration to the three Judges' Bench, which in turn, again referred the said issue to the five Judges' Bench without declaring the law on the subject, with the result the law ::: Downloaded on - 09/06/2013 14:34:48 ::: 63 declared by the Apex Court in Sant Joginder Singh's case continues to hold field and, therefore, for the reasons stated above, it is difficult for us to accept the contention canvassed by the learned Counsel for the petitioner in this regard.
37) In the instant case, it is no doubt true that land is acquired for MIHAN project, which is of national importance and would serve a great public purpose. However, the statutory provisions as well as law laid down by the Apex Court and this Court, which occupy the field, cannot be ignored or given go-by merely on the ground that acquisition of land is for the public purpose. On the other hand, action of the Public Authorities/Bodies must always be consistent with the provisions of law and must be sustainable in law. Since by virtue of the law declared by the Apex Court in Sant Joginder Singh's case, the provisions of Section 11-A of the Land Acquisition Act are not applicable to the acquisition ::: Downloaded on - 09/06/2013 14:34:48 ::: 64 proceedings under the MRTP Act, we are of the view that the award dated 30.6.2008 passed by the Special Land Acquisition Officer is sustainable in law not merely because the land in question is acquired for public purpose, but in view of the decision of the Apex Court in Sant Joginder Singh's case, which also serves the public purpose.
38) The contention of Shri Manohar, learned Counsel for the petitioner, that by virtue of decisions of the Apex Court in Nagpur Improvement Trust and another vs. Vithal Rao and others {(1973) 1 SCC 500} and State of Kerala and others vs. T.M. Peter and others {(1980) 3 SCC 554}, the provisions of Section 11-A of the Land Acquisition Act can be applied to acquisition under the MRTP Act cannot be accepted since the ratio laid down by the Apex Court in these decisions pertains to payment of compensation only and, therefore, the said ratio cannot be extended to the provisions of Section 11-A of the Land Acquisition Act, which is evident from the ::: Downloaded on - 09/06/2013 14:34:48 ::: 65 decision of the Apex Court in S.A. Jalaluddin vs. Bangalore Development Authority and another {(2003) 4 SCC 686}. The relevant observations of the Apex Court in this regard are made in para (6) of the judgment, which reads thus :
"6. We are also not persuaded to countenance the challenge based on the decision reported in Nagpur Improvement Trust v. Vithal Rao. The very reasoning therein of the Constitution Bench of this Court was in the particular context of deprivation of the property of a citizen without payment of the due compensation by highlighting the fact that the right of the owner, who comes to be deprived of his property, to receive compensation should not depend upon the purpose or the law which enables such acquisition. This principle cannot be extended de hors the ratio or rationale behind it for all purposes, to the extent of contending that all acquisitions must be under the same law and under the same procedural formalities, de hors the special law to meet different contingencies or deal with various exigencies of situation. As a matter of fact, even in the later line of cases wherein this Court has specifically ::: Downloaded on - 09/06/2013 14:34:48 ::: 66 declined to read into the limitations on the exercise of powers importing such limitations under the Central Act, into the special enactments, the position was made clear in unmistakable terms that so far as the payment of compensation is concerned, there could be no different yardstick based on the purpose of acquisition or the provisions of law under which it is acquired. The ratio of the decision in Vithal Rao was not extended beyond its purpose, to apply the principle or the proposition of law sought to be raised to import a limitation on the very exercise of power of acquisition for and under the special and specific laws which as we have observed earlier has to be adjudged with particular reference in this case, to only the City of Bangalore Improvement Act, 1945."
The above referred observations of the Apex Court clearly demonstrate that the principles of law laid down in the Nagpur Improvement Trust's case are restricted to compensation and were laid down in order to avoid vice of Article 14 of the Constitution in determining the compensation irrespective ::: Downloaded on - 09/06/2013 14:34:48 ::: 67 of the fact that acquisition proceedings are under the Central or State Act. Since so far as payment of compensation is concerned, there could be no different yardstick based on the purpose of acquisition or provisions of law under which it is acquired, the provisions of Amending Act 68 of 1984 whereby sub-sections (1-A) and (2) are inserted in Section 23 of the Land Acquisition Act, are made applicable to the acquisition proceedings under the State Act.
However, same analogy cannot be extended in respect of Amending Act 68 of 1984 whereby Section 11-A of Land Acquisition Act is introduced in view of observations of the Apex Court in para (13) of the judgment rendered in case of Sant Joginder Singh. The relevant portion of the observations in para (13) is reproduced below :
"... So, merely because Section 23 of the Central Act would apply to acquisition under the Act, it is not enough to hold that what is contained in Section 11-A would also apply. Further, what has been provided in sub-section (4) of Section 126 of the Act is a clear indication that failure to ::: Downloaded on - 09/06/2013 14:34:48 ::: 68 make the award within two years from the date of the declaration under sub-section (2) of Section 126 of the Act, would not render the notification published under Section 125 of the Act non est."
39) The above referred observations of the Apex Court in S.A. Jalaluddin as well as Sant Joginder Singh's cases make it implicitly clear that merely because provisions of Section 23 of the Land Acquisition Act are made applicable for the purpose of determining compensation of the acquired land under the MRTP Act, the same cannot be the basis for applying the provisions of Section 11-A of the Land Acquisition Act to the acquisition under the MRTP Act. Hence, the contention canvassed by Shri Manohar, learned Counsel for the petitioner, in this regard is liable to be rejected.
40) So far as Civil Application No.345/2009 filed by the respondent no.4 is concerned, it is not in dispute that the petitioner ::: Downloaded on - 09/06/2013 14:34:48 ::: 69 after the award was passed by the Additional Special Land Acquisition Officer on 30.6.2008, received compensation amount of Rs.1,35,98,213/- by Cheque No. 968225 on 29.7.2008 and also delivered possession of land to the Additional Special Land Acquisition Officer on 29.7.2008 and also filed reference under Section 18 of the Land Acquisition Act before the Civil Court for enhancement of compensation amount on 20.1.2009. The Additional Special Land Acquisition Officer handed over possession of the land in question to the respondent no.4 on 22.1.2009. In such circumstances, in our view, the petitioner has no locus to file the present petition nor he is competent to question the legality of the award. We deprecate the conduct of the petitioner, who has invoked the extra-ordinary jurisdiction of this Court under Article 226 of the Constitution after accepting the compensation for the land in question and after filing reference under Section 18 of the Land Acquisition Act for enhancement of compensation. Since we are dismissing the petition, no further action in the Civil Application is ::: Downloaded on - 09/06/2013 14:34:48 ::: 70 called for.
41) In the instant case, Shri Manohar, learned Counsel for the petitioner, and Shri Bhangde, learned Senior Counsel for the respondent no.4, have cited various decisions of the Apex Court as well as High Courts. However, considering the nature of issue involved in the present case, we have only considered those decisions, which were relevant to the controversy in issue.
42) In the instant case, apart from the other issues, we have mainly considered the following issues, which we have answered accordingly :
(I) Whether the law declared by the Apex Court in Sant Joginder Singh's case whereby it was held that provisions of Section 11-A of Land Acquisition Act, which were introduced by Amending Act 68 of 1984, are not applicable to the acquisition proceedings under the MRTP Act, is the law declared by the Apex Court ::: Downloaded on - 09/06/2013 14:34:48 ::: 71 on the subject under Article 141 of the Constitution ?
(II) Whether the decisions of the Apex Court in Girnar-I and Girnar-II cases affect the binding nature of the law declared by the Apex Court in Sant Joginder Singh's case and whether it loses its efficacy ?
(III) Whether the law declared by the Apex Court in the case of Sant Joginder Singh in regards to applicability of Section 11-A of Land Acquisition Act to the acquisition proceedings under the MRTP Act loses its binding nature under Article 141 of the Constitution in view of pendency of reference in this regard before the larger Bench of the Apex Court for decision ?
(IV) Whether scope of the ratio of the judgments of the Apex Court in Nagpur Improvement Trust as well as MSRTC cases can be enlarged to hold that it also applies to the issue of applicability of provisions of Section 11-A of Land Acquisition Act to the acquisition proceedings under the MRTP Act ?::: Downloaded on - 09/06/2013 14:34:48 ::: 72
The above referred questions are answered by us in the following manner :
(I) We answer Question No.I in affirmative.
(II) We answer Question No.II in negative.
(III) We answer Question No.III in negative.
(IV) We answer Question No.IV in negative.
43) For the reasons stated hereinabove, the petition suffers
from lack of merit and hence, the same is dismissed. The rule is discharged. No order as to costs.
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