Bombay High Court
Bhawarlal Shankarlal Sarda vs State Of Maharashtra on 18 January, 2014
Author: A. S. Chandurkar
Bench: B.R. Gavai, A.S.Chandurkar
WP4492.12.odt 1/42
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
WRIT PETITION NO.4492 OF 2012
PETITIONER: Bhawarlal Shankarlal Sarda, aged
about 65 years, Occ. Business, R/o
Canal Road, Ramdaspeth Nagpur,
Tq. Dist. Nagpur.
ig -VERSUS-
RESPONDENTS: 1 State of Maharashtra, through its
Secretary, Urban Development
Department, Mantralaya, Mumbai-
32.
2 City of Industrial Development
Corporation of Maharashtra Ltd.
Thr. Its administrator, 6th Floor,
Bhivapurkar Chambers, Opp.
Yashvant Stadium, Dhantoli,
Nagpur-32.
3 Maharashtra Area Development
Company Limited, having its office
at Central Administrative Building
(MIHAN) Khapri Railway, Nagpur,
thr. Its Chief, MADC, Nagpur.
4 Special Land Acquisition Officer
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No.3, Vidarbha Irrigation
Development Corporation, having
its office at Collectorate, Nagpur.
5 M/s Reatox Builders and Developers
Pvt. Ltd. Being incorporated under
the Companies Act, 1956 having its
office at 3/341 1A, Rajiv CHSL
Madhusudan Kalelkar Marg, next to
FDA, Bandra Kurla Complex, Bandra
(East) Mumbai - 400 051.
6 M/s Maitreya Services Pvt. Ltd. Thr.
ig Its Director Janardan Arvind
Parulekar, having its registered
office at Shop No.3, ground floor,
Siddhivinayak Apartment, Virar
(West), Tq. Vasai, Dist. Thane.
7 M/s Maitreya Plotters and
Structures Pvt. Ltd. Thr. Its Director
Janardan Arvind Parulekar, having
its office at 1st floor Indrakuna,
Behind Balaji Hospital, Virar (East)
Dist. Thane 401 303.
Shri J. T. Gilda Advocate for the petitioner.
Mrs. Bharti Dangre, Additional Government Pleader for
Respondent Nos.1 & 4.
Shri V. G. Wankhede Advocate for respondent No.2.
Shri M. G. Bhangde, Senior Advocate with Shri V. V. Bhangde
Advocate for respondent No.3.
Shri Atul Pande, Advocate for respondent Nos.6 & 7.
AND
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WRIT PETITION NO.4493 OF 2012
PETITIONER: Lasmikant Shankarlal Sarda, aged
about 53 years, Occ. Business, R/o
Canal Road, Ramdaspeth Nagpur,
Tq. Dist. Nagpur.
-VERSUS-
RESPONDENTS: 1 State of Maharashtra, through its
ig Secretary, Urban Development
Department, Mantralaya, Mumbai-
32.
2 City of Industrial Development
Corporation of Maharashtra Ltd.
Thr. Its administrator, 6th Floor,
Bhivapurkar Chambers, Opp.
Yashvant Stadium, Dhantoli,
Nagpur-32.
3 Maharashtra Area Development
Company Limited, having its office
at Central Administrative Building
(MIHAN) Khapri Railway, Nagpur,
thr. Its Chief, MADC, Nagpur.
4 Special Land Acquisition Officer
No.3, Vidarbha Irrigation
Development Corporation, having
its office at Collectorate, Nagpur.
5 M/s Reatox Builders and Developers
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Pvt. Ltd. Being incorporated under
the Companies Act, 1956 having its
office at 3/341 1A, Rajiv CHSL
Madhusudan Kalelkar Marg, next to
FDA, Bandra Kurla Complex, Bandra
(East) Mumbai - 400 051.
6 M/s Maitreya Services Pvt. Ltd. Thr.
Its Director Janardan Arvind
Parulekar, having its registered
office at Shop No.3, ground floor,
ig Siddhivinayak Apartment, Virar
(West), Tq. Vasai, Dist. Thane.
7 M/s Maitreya Plotters and
Structures Pvt. Ltd. Thr. Its Director
Janardan Arvind Parulekar, having
its office at 1st floor Indrakuna,
Behind Balaji Hospital, Virar (East)
Dist. Thane 401 303.
Shri J. T. Gilda Advocate for the petitioner.
Mrs. Bharti Dangre, Additional Government Pleader for
Respondent Nos.1 & 4.
Shri V. G. Wankhede Advocate for respondent No.2.
Shri M. G. Bhangde, Senior Advocate with Shri V. V. Bhangde
Advocate for respondent No.3.
Shri Atul Pande, Advocate for respondent Nos.6 & 7.
CORAM: B.R. GAVAI AND A.S.CHANDURKAR,JJ.
DATED: 18TH JANUARY, 2014.
ORAL JUDGMENT : (Per A. S. Chandurkar, J)
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1. As both writ petitions involve similar questions and seek identical reliefs, they are heard together and are decided by this common judgment.
2. This Court, on 18-9-2012, had issued notice for final disposal. Accordingly, we have heard Shri J.
T. Gilda, learned Counsel appearing for the petitioners in both the writ petitions, Smt. B. H. Dangre, learned Additional Government Pleader for respondent Nos.1 and 4, Shri V. G. Wankhede, learned Counsel appearing for respondent No.2, Shri M. G. Bhangde, learned Senior Counsel with Shri V. V. Bhangde for respondent No.3, Shri A. V. Khare, learned Counsel appearing for respondent No.5 and Shri Atul Pande, learned Counsel appearing for respondent Nos.6 and 7.
3. Rule. Heard finally with the consent of the parties.
4. The facts giving rise to the present petitions are as follows:-
::: Downloaded on - 29/03/2014 18:48:20 ::: WP4492.12.odt 6/425. The petitioner in Writ Petition No.4492/2012 and the petitioner in Writ Petition No.4493/2012 are brothers. While the petitioner in Writ Petition No.4492/2012 was the owner of lands bearing Survey No.148, 149/1 and joint owner of 149/2 - Patwari Halka No.42 of Mouza Khapri (Railway) District Nagpur, the petitioner in Writ Petition No.4493/2012 was the joint owner of Survey No.149/2 Patwari Halka No.42 of mouza Khapri (Railway), District Nagpur. According to the petitioners, respondent Nos.1 & 2 were intending to undertake a project by name "Meghdoot City" and for said project, various lands were proposed to be acquired. According to the petitioners, notification under Section 4 of the Land Acquisition Act, 1894 (for short the Act of 1894) came to be issued on 22-10- 1998 and 23-10-1998. Thereafter, the notification under Section 6 of the Act of 1894 was published on 13-1-2000 and 20-1-2000. Finally, on 24-12-2004, an award under Section 11 of the Act of 1894 came to be passed. As per said award land admeasuring about ::: Downloaded on - 29/03/2014 18:48:20 ::: WP4492.12.odt 7/42 434.64 Hectares was acquired for said project.
According to the petitioners, they were called upon to accept compensation under said award. However, actual possession of the land of the petitioners that was acquired, was not taken till 2010. According to the petitioner in Writ Petition No.4492 of 2012, he submitted the representations to the Collector, Nagpur and the respondent No.4 on 8-11-2005 pointing out that a Petrol Pump was being run on the land owned by him in which about 25 employees were working. It was stated that alternate land be allotted to the petitioner for doing business. It is stated that similar representations thereafter made on 16-1-2008 and 27- 12-2008. There was, however, no response to the same. Similarly, the petitioner in Writ Petition No.4493 of 2012 submitted representation on 27-12-2008.
6. It is further the case of the petitioners that though it was pointed out to the concerned authorities that lands belonging to certain influential families abutting to the lands of the petitioners and situated at village Chinchbhuvan and village Somalwdada on ::: Downloaded on - 29/03/2014 18:48:20 ::: WP4492.12.odt 8/42 Wardha Road, Nagpur had been released from acquisition and the petitioners being similarly situated, they were also entitled for similar treatment, but such treatment was not meted out to them. According to the petitioners, for the purposes of rehabilitation of persons affected by "Meghdoot City Project", private agencies were appointed by respondent No.3 -
Maharashtra Airport Development Company Limited.
The respondent No.5 was initially appointed as an agency to carry out the work of construction of houses for the purposes of rehabilitation of persons affected by the Project. For said purpose, land admeasuring 18.21 Hectares was to be leased out to respondent No.5. According to the petitioners, agreement dated 18-2-2009 was entered into between respondent No.3 and respondent No.5 and thereafter, a lease deed between the said parties also came to be executed on 5-10-2011. According to the petitioners, in the said process prime valuable land was being disposed of at the rate of Rs.41/- per acre per annum to be paid by respondent No.5 to respondent No.3. It is further the case of the petitioners that immediately after lease ::: Downloaded on - 29/03/2014 18:48:20 ::: WP4492.12.odt 9/42 deed dated 5-10-2011 was executed, on the same day i.e. on 5-10-2011, the respondent No.3 gave no objection to the respondent No.5 to transfer/assign its lease hold rights in favour of respondent Nos.6 and 7 Thereafter, on 10-10-2011, a deed of exchange was entered into between respondent No.5 and respondent nos.6 and 7 thereby giving the right of development of said lands to respondent No.6. All these transactions having taken place in a very short span of time and in a hasty and clandestine manner indicated that the same were done to enable private players to profiteer from the same. Thus, according to the petitioners, lands acquired for public purposes cannot be permitted to be disposed of in such a manner to private parties. The petitioners, therefore, have filed the present petitions praying that respondent Nos.1 to 4 be directed to return the lands of the petitioners by quashing award dated 24-12-2004 to that extent. A prayer is also made to quash the transaction entered into by respondent No.3 with respondent No.5 and respondent No.6. It is stated that as the petitioners got knowledge about transaction entered into between ::: Downloaded on - 29/03/2014 18:48:20 ::: WP4492.12.odt 10/42 respondent No.3 and respondent No.5 in August, 2012, the aforesaid writ petitions came to be filed on 14-9-2012.
7. As stated earlier, this Court on 18-9-2012 issued notice for final disposal in both the writ petitions and by ad interim order directed the respondents not to create any third party rights in respect of the lands in question or any structure thereon. The respondents have filed their replies on record and opposed the writ petitions. The respondent No.2 has filed its submissions stating the manner in which it was appointed as development authority.
The respondent No.3 in its reply has stated that the possession of the lands in question had been taken over by the Special Land Acquisition Officer No.3 on 29-7-2006 and hence, the petitioners were not entitled for the relief of return of the lands. It is further stated that the writ petitions suffer from delay and laches as public advertisement was issued on 28-5-2008 in the newspaper "Times of India" by calling bids from eligible developers for construction of social ::: Downloaded on - 29/03/2014 18:48:20 ::: WP4492.12.odt 11/42 infrastructure for the project affected persons. In the advertisement itself it had been mentioned that respondent No.3 would grant nearby land as consideration for said work. It is further submitted that though respondent No.5 had quoted an area of about 45 acres (18.21 Hectares) of land for construction, lease deed was entered into only with regard to 21.452 acres of land. It is further stated that by passing resolution on 7-10-2011, the State Government had decided to apply the provisions of the Maharashtra Project Affected Persons Rehabilitation Act, 1999 (Rehabilitation Act for short) to the MIHAN Project. It is further stated that the respondent No.3 had terminated the lease agreement dated 18-2-2009 entered into with respondent No.5 on 2-4-2013 and proceedings challenging the said action were pending in the Court of Law. It is further stated that the petitioner in Writ Petition No.4492/2012 had filed Regular Civil Suit No.456 of 2010 against respondent No.3 for a declaration that the respondent No.3 had no right, title or interest in field bearing Khasra No.149/1, mouza Khapri (Railway). In so far as ::: Downloaded on - 29/03/2014 18:48:20 ::: WP4492.12.odt 12/42 allegations regarding release of lands belonging to influential families was concerned, it was submitted that the instances given in the writ petition pertained to land at village Chinchbhuvan which land was not included in the Notification under Section 4 of the Act of 1894 and was not under acquisition. In so far as instance pertaining to land at Somalwada is concerned, it was submitted that though said land was included in the Notification under Section 4 of the Act of 1894 dated 18-9-2002 as well as the declaration under Section 6 dated 13-10-2003 along with various other lands, the acquisition proceedings in respect of all lands included in notification dated 18-9-2002 were not pursued further as none of the said lands were required by respondent No.3. Said respondent, therefore, prayed for dismissal of the writ petition.
The respondent Nos.6 and 7 have also filed reply on record and have opposed the prayers made by the petitioners. They have basically submitted that they have come in picture pursuant to the deed of exchange dated 10-10-2011 entered into by respondent No.5 with it. The possession of the petitioner's lands having ::: Downloaded on - 29/03/2014 18:48:20 ::: WP4492.12.odt 13/42 been taken, they had no locus to challenge subsequent transactions.
8. During pendency of the proceedings, the petitioners moved civil application for issuance of direction to the respondent Nos.1 & 3 to produce necessary records for substantiating the allegations regarding malafides and colourable exercise of power.
This Court on 27-9-2013 directed the respondent Nos.1 and 4 to keep necessary records available for perusal by respective Counsel of the parties. This Court also recorded the statement made by the learned Senior Counsel for respondent No.3 that the record was not at all necessary for adjudicating the present controversy. Further, during the course of hearing, on 18-1-2014, the respondent No.3 filed an affidavit to place on record the present status of the matter. It has been stated that the lease deed was executed with respondent no. 5 only in respect of 21.425 acres of land and it is further stated that the value of work done by respondent No.5 as on 16-8- 2011 was Rs.34,39,71,267.00/-.
::: Downloaded on - 29/03/2014 18:48:20 ::: WP4492.12.odt 14/429. The grounds of challenge as urged by Shri J. T. Gilda, learned Counsel for the petitioners can be broadly stated as under:-
(a) That in exercise of the power of 'eminent domain', respondent Nos.1,3 & 4 have excluded the lands of certain influential families. Though the lands of the ig petitioners were abutting the lands of said influential families, the petitioners despite being similarly situated have been discriminated against and their lands have not been excluded from the process of acquisition. This, the learned Counsel submitted, resulted in breach of provisions of Article 14 of the Constitution of India.
It was further submitted that the aforesaid exercise of picking and choosing certain lands for exclusion amounted to abuse of power of 'eminent domain'. To buttress the aforesaid submissions, the learned Counsel for the petitioners placed heavy reliance on ::: Downloaded on - 29/03/2014 18:48:20 ::: WP4492.12.odt 15/42 the following judgments:-
[1] 2011 (12) SCC, 375, Greater Noida Industrial Development Authority V. Devendra Kumar and others.
[2] (2011) 10 Supreme Court Cases 608, Royal Orchid Hotels Limited and another vs. G. Jayarama Reddy and others.
[3] (2011) 5 Supreme Court Cases 553, Radhy Shyam (Dead) through Lrs. And others vs. State of Uttar Pradesh and others. ig [4] (2012) 9 Supreme Court Cases 503, Patasi Devi vs. State of Haryana and others. [5] (2013) 4 Supreme Court Cases 210, Usha Stud and Agricultural Farms Private Limited and others vs. State of Haryana and others. [7] 2010 (4) Mh.L.J., 586 (SC), Hari Ram and another Vs. State of Haryana and others. (b) It was then urged that the action of
respondent No.3 of appointing a private agency i.e. respondent No.5 to carry out the work of construction of houses for the purposes of rehabilitation and the subsequent deed of exchange entered into by respondent No.5 in favour of respondent ::: Downloaded on - 29/03/2014 18:48:20 ::: WP4492.12.odt 16/42 No.6 immediately thereafter indicated that the entire exercise was aimed at profiteering in the process. The learned Counsel was quite critical about the manner in which respondent No.3 hastily granted no objection to respondent No.5 for transferring lease hold rights to respondent No.6 on 5-10-2011 itself i.e. the ig date on which the lease deed was executed.
According to the learned Counsel when the land was acquired for a particular purpose, it could not be clandestinely transferred for some other purpose in exercise of the power of 'eminent domain'. In this regard the learned Counsel placed reliance on para 17 of the judgment reported in 2012 (9) SCC 503 .
Similarly, the learned Counsel for the petitioners also referred to the judgment of the Division Bench in Writ Petition No.227 of 2013 decided on 5-12-2013 by the Panji Bench of this Court ::: Downloaded on - 29/03/2014 18:48:20 ::: WP4492.12.odt 17/42 to which one of us (B.R Gavai J) was a party. Similarly, the Full Bench decision of this Court reported in 2009 (4) Mh.L.J. 961 was referred to. The learned Counsel also took the Court through the judgment of the Division Bench in the case of T he Industrial Development and Investment Co. Pvt. Ltd., and another vs. State of ig Maharashtra and others reported in 1988 Mh.L.J. 1027 and the decision of the Supreme Court arising out of appeal from the said judgment in the case of Municipal Corporation of Greater Bombay Versus Industrial Develop0ment Investment Co.
Pvt. Ltd. And others reported in (1996) 11 SCC 501 .
The learned Counsel, therefore, vehemently urged that the present were fit cases for this Court to interfere and grant reliefs as prayed for.
10. On the other hand, the learned Counsel for ::: Downloaded on - 29/03/2014 18:48:20 ::: WP4492.12.odt 18/42 the respondents opposed reliefs as sought by the petitioners. Shri M. G. Bhangde, the learned Senior Counsel appearing for respondent No.3 submitted as under:-
(a) The pleadings in support of the writ petitions did not make out any case of hostile discrimination against the petitioners. It was submitted that the ig instances as quoted by the petitioners in para 5 of the writ petitions were of no avail to the petitioners in as much as the case of the petitioners was not similar with the cases of the parties as mentioned therein.
There were no sufficient pleadings made to demonstrate any hostile discrimination.
It was further submitted that in absence of any discrimination in the matter of release of lands, no relief could be granted to the petitioners. The learned Senior Counsel in this regard relied upon the decision of the Supreme Court in the case of Rajasthan State Industrial Development and ::: Downloaded on - 29/03/2014 18:48:20 ::: WP4492.12.odt 19/42 Investment Corporation Versus Subhash Sindhi Cooperative Housing Society, Jaipur and others reported in (2013) 5 SCC 427 .
(b) It was thereafter submitted that right from commencement of the 'Meghdoot Project' till grant of no objection to respondent No.5 to transfer its lease hold rights in ig favour of respondent No.6 was concerned, the respondent No.3 had acted in a transparent manner without favouring any party. It was submitted that the picture as sought to be projected by the petitioners was non- existent and that there was no violation of provisions of Article 14 of the Constitution of India. It was submitted that in matters of this nature, the Courts are required to adopt a holistic approach.
In this regard reliance was placed on the decision of the Supreme Court in the case of Sooraram Pratap Reddy v. District Collector, Ranga Reddy District reported ::: Downloaded on - 29/03/2014 18:48:20 ::: WP4492.12.odt 20/42 in (2008) 9 SCC 552 .
(c) It was then submitted that the possession of the petitioners' land having been taken on 29-7-2006, the petitioners became persona non grata . They were not entitled in any event to seek return of their lands.
In support of the aforesaid submissions, the learned Senior Counsel placed reliance on ig the decision of the Supreme Court in case of Sulochana Chandrakant Galande v.
Pune Municipal Transport reported in
2010 (8) SCC 467 and Mahadeo v. State
of U.P . reported in (2013) 4 SCC 524 .
(d) It was further submitted that the
petitioners had approached this Court belatedly in as much as public advertisement was issued on 28-5-2008 and after considering the bids of various applicants, the bid submitted by respondent No.5 came to be accepted.
Agreement with respondent No.5 was entered into on 18-2-2009 while the ::: Downloaded on - 29/03/2014 18:48:20 ::: WP4492.12.odt 21/42 petitioners had approached this Court on 14-9-2012. It was submitted that as a matter of fact, part of road had been constructed on the petitioners' lands.
As third party rights were already created, the petitioners were not entitled for grant of relief.
(e) It was further submitted that on 2-4-2013, ig respondent no.3 had terminated the agreement with respondent No.5 and said action of termination was being contested by the said parties. The proceedings in that regard were pending and order dated 11-6-2013 passed in Writ Petition No.911/2013 at the Principal Seat as well as order dated 10-5-2013 passed in Arbitration Petition No.629 of 2013 also before the Principal Seat were referred to.
The learned Senior Counsel also referred to the judgment in the case of Nag. Land Dev. Asso. vs. State of Maharashtra reported in 2005(3) ::: Downloaded on - 29/03/2014 18:48:20 ::: WP4492.12.odt 22/42 Mh.L.J., 881 with regard to the initial steps taken for acquisition of lands for the purposes of "Meghdoot Project".
The respective Counsel for all other respondents adopted the stand taken by respondent No.3 and all of them jointly sought dismissal of the writ petitions.
11. ig The principal challenge raised by the petitioners is with regard to abuse of the power of 'eminent domain' and the resultant violation of provisions of Article 14 of the Constitution of India.
While considering a plea of differential treatment thereby resulting in violation of provisions of Article 14 of the Constitution of India in a writ petition, the pleadings of the party raising such ground would be material. In this regard, it would be apposite to refer to the observations of the Constitution Bench of the Supreme Court in the case of State of Madhya Pradesh Vs . Bhopal Sugar Industries Ltd. reported in 1964 Mh. L. J. 697 . In para 11 thereof, it has been stated as under :
::: Downloaded on - 29/03/2014 18:48:20 ::: WP4492.12.odt 23/42"11. The petition filed by the Company was singularly deficient in furnishing particulars which would justify the plea of infringement of Article 14 of the Constitution. It cannot be too strongly emphasized that to make out a case of denial of the equal protection of the laws under Article 14 of the Constitution, a plea of differential treatment is by itself not sufficient. An applicant pleading that equal protection of the laws has been denied to him must make out that not only he had been treated differently from others but he has been so treated ig from persons similarly circumstanced without any reasonable basis, and such differential treatment is unjustifiably made. A mere plea that the Company and other agriculturists within the region of the former Bhopal State had to pay the agricultural income-tax, whereas the agriculturists elsewhere had not to pay such tax is not sufficient to make out a case of infringement of the fundamental right under Article 14 of the Constitution".
According to the petitioners, the lands of certain influential families abutting the lands of the petitioners were released from acquisition.
The instances as given are in relation to land Survey Nos.21 & 29 at mouza Chinchbhuvan, Tah. Nagpur, and land bearing Survey Nos.132/2 and 133/3 of mouza Somalwada, Tah. Nagpur. It has been further stated in para 5 of the writ petitions that the lands of ::: Downloaded on - 29/03/2014 18:48:20 ::: WP4492.12.odt 24/42 several similarly situated persons had been released from acquisition and though the petitioners' land were similarly situated, their lands were not excluded/released. There are no details given as regards lands of similarly situated persons as averred in para 5 of the writ petition.
In reply to these assertions, respondent No.3 has denied the allegations of favouring certain influential families in the matter of releasing land from acquisition. It has been stated that the lands involved in the present writ petition relate to village Khapri (Railway), whereas one of the instances given was in relation to land situated in village Chinchbhuvan, Tah.
Nagpur. It has been stated that said land was never included in the notification issued under Section 4 of the Act of 1894. In so far as the instance given in relation to land at Somalwada, it has been stated that said land along with various other lands were included in the Notification issued under Section 4 dated 18-9-2002 as well as the declaration made under Section 6 of the Act of 1894 dated 13-10-2003.
However, as it was subsequently found that none of ::: Downloaded on - 29/03/2014 18:48:20 ::: WP4492.12.odt 25/42 the lands included in Notification dated 18-9-2002 were required by respondent No.3, the acquisition proceedings in respect of all such lands were not persued.
12. From the aforesaid assertions made in the writ petitions and the reply thereto given by respondent No.3, it is clear that the lands referred to at Chinchbhuvan were not at all acquired and in so far as the lands at Somalwada are concerned, the acquisition proceedings in respect of the lands included in the Notification dated 18-9-2002 were not persued further. Therefore, it cannot be said that the case of the petitioners is similar to the instances as given in para 5 of the writ petition. It may be noted that the lands of the petitioners were situated at Mouza Khapri (Railway) and it is clear that certain development activity pursuant to acquisition of said lands has already taken place there. The lands at Chinchbhuvan and Somalwada have not been acquired at all. It cannot be said that the petitioners were similarly situated as the owners of the lands at ::: Downloaded on - 29/03/2014 18:48:20 ::: WP4492.12.odt 26/42 Chinchbhuvan and Somalwada. As stated above, except for stating that the lands of several similarly situated persons had been released from acquisition, no details therein have been placed on record. Hence, a mere plea of being discriminated against in absence of material particulars cannot be accepted. Hence, on the basis of the pleadings in both the writ petitions, in absence of any specific instance of hostile accepted.
discrimination, the challenge in that regard cannot be
13. In so far as the reliance placed by the learned Counsel for the petitioners on various decisions of the Supreme Court in Greater Noida (supra), Royal Orchid (supra), Patasi Devi (supra), Usha Stud (supra) and Hariram (supra) are concerned, the said decisions proceed on the basis of specific facts noted therein. In Greater Noida (supra), in para 42 of the report, it was observed from the facts on record that the entire exercise of acquisition was designed to serve the interest of builders " and the veil of public purpose was used to mislead the people in believing that ::: Downloaded on - 29/03/2014 18:48:20 ::: WP4492.12.odt 27/42 land was being acquired for a public purpose i.e. planned industrial development".
Similarly, in Royal Orchid (supra), it was noted in para 37 thereof that the transactions therein reveal " the true design of the officers of the Corporation, who first succeeded in persuading the State Government to acquire a huge chunk of land for a public purpose and then transferred a major portion of the acquired land to a private individual and corporate entities by citing poor financial health of the Corporation as the cause for doing so".
In Radhy Shyam (supra) also, the Supreme Court found merit in the plea of the appellant therein as regards violation of the doctrine of equality as it had been demonstrated that a large chunk of land belonging to an ex-member of the Legislative Assembly had not been acquired and though the appellants therein were similarly situated, it had not been explained by the respondents therein as to why their lands had not been left out from acquisition.
Similarly, in Patasi Devi (supra), it was found by the Supreme Court in para 16 that "the State ::: Downloaded on - 29/03/2014 18:48:20 ::: WP4492.12.odt 28/42 Government had misused the provisions of Sections 4 and 6 of the Act for making land available to a private developer".
In Usha Stud (supra), on the basis of material on record, the Supreme Court found that there was no justification for not according similar treatment to the appellants therein and hence, the plea of discrimination was upheld.
ig In Hariram (supra) while considering the manner of exercise of powers by the State Government while releasing the land under Section 48 of the Act of 1894, it was found that there was no firm policy with regard to release of land from acquisition. In that contest, it was observed in para 24 of the report that "where the State Government exercises its power under Section 48 of the Act for withdrawal from acquisition in respect of a particular land, the landowners who are similarly situated have right of similar treatment by the State Government".
The learned Counsel for the petitioners drew our specific attention to the following observations in para 20 of the report which are quoted ::: Downloaded on - 29/03/2014 18:48:20 ::: WP4492.12.odt 29/42 as under:-
"20.................................................... .......................................................... ..........................................................
....................................... "Rather it is seen that neither the aforesaid policy nor any other policy has been followed by the State Government while releasing land of various landowners whose lands have been acquired in the same acquisition proceedings. As a matter of fact, the only policy that seems to have been followed is: you show me the face and ig I'll show you the rule. In so far as policy of 2007 is concerned, apparently that has not been applied to any of the landowners whose land was acquired along with the appellants' land under the same acquisition proceedings and released later on"....................................................
......................................................... .......................
14. The law as laid down by the Supreme Court that if there is an abuse of the power of eminent domain so as to benefit private parties and that there has been a hostile discrimination in the matter of release of lands of similarly situated persons resulting in violation of provisions of Article 14 of the Constitution of India, the same would enable a similarly situated land owner to seek appropriate relief ::: Downloaded on - 29/03/2014 18:48:20 ::: WP4492.12.odt 30/42 is well settled. However, the aforesaid law would be required to be applied to the facts obtaining on record.
The law cannot be applied by using a strait jacket formula. As observed by the learned author Justice C. K. Thakker who has also adorned the Supreme Court of India in Law of Writs - 6 th Edition, it has been rightly said that "invariably matters of law go downwards into roots of fact, and the matters of fact reach upward, without a break, into matters of law".
Thus, in absence of any factual foundation in the writ petitions to demonstrate hostile discrimination in the matter of release/acquisition of lands thereby resulting in discrimination to the petitioners on account of being similarly situated, we are unable to uphold the aforesaid submission made on behalf of the petitioners with regard to abuse of power of "eminent domain" and resultant violation of the provisions of Article 14 of the Constitution of India. The challenge therefore on said ground fails.
15. This takes us to consider the next limb of challenge. According to the learned Counsel for the ::: Downloaded on - 29/03/2014 18:48:20 ::: WP4492.12.odt 31/42 petitioners though the work of rehabilitation of persons affected by the project in question, was required to be undertaken by respondent No.3, the respondent No.3 had appointed a private agency to undertake said work of rehabilitation. It is submitted that though respondent No.5 was doing work to the tune of Rs.80/- crores only, respondent No.3 had disposed of valuable land of more than Rs.400 to Rs.500 crores to respondent No.5 in that regard.
Thus, it was submitted that the State and its authorities had undertaken a commercial activity by disposing of lands to private entrepreneurs at throw away prices. It was further urged that respondent No.5, in turn, had executed a deed of exchange and had transferred the lands to respondent Nos.6 and 7, in the result, causing prejudice to the agriculturists whose lands had been acquired for said project. It was submitted, therefore, that this was impermissible and the same also resulted in abuse of powers of eminent domain. Further relying upon Para 38 of the Full Bench judgment of this Court in Rajendra (supra), it was submitted that a duty was cast upon the State ::: Downloaded on - 29/03/2014 18:48:20 ::: WP4492.12.odt 32/42 Government to ensure complete rehabilitation of project affected persons. However, instead of the State doing its duty of complete rehabilitation of project affected persons, it was the respondent No.3 that was purportedly doing the work of rehabilitation along with private agencies like respondent Nos.5 to 7.
This according to the learned Counsel for the petitioners was impermissible in law.
ig It is clear from the reply filed on behalf of respondent No.3 that on 28-5-2008, an advertisement was published in daily "Times of India" inviting offers for construction of social infrastructure for the benefit of project affected persons. In the advertisement itself, it was stated that respondent No.3 would grant lands at a nearby site as consideration for said work. It has been further stated that in the bid quoted by respondent No.5, it had quoted 45 acres (18.21 hectares) of land towards consideration for executing the said work. According to the respondent No.3, the bid of respondent No.5 was the lowest. It has been further stated that on 5-10-2011, lease deed in respect of 21.452 acres only was executed with respondent ::: Downloaded on - 29/03/2014 18:48:20 ::: WP4492.12.odt 33/42 No.5. These facts indicate that respondent No.3 had issued public advertisement for the purposes of inviting bids to undertake the work of construction of social infrastructure for rehabilitation of project affected persons. The bid of respondent No.5 being lowest, the same was duly accepted. Out of the total land acquired, a lease deed only to the extent of 21.452 acres was executed in favour of respondent No.5 as consideration for the work to be done. It is, therefore, clear that though in the agreement dated 18-2-2009 respondent No.3 had agreed to lease out land admeasuring 45 acres (18.21 hectares) for the purposes of development of lease for 99 years, in fact, the land actually leased out on 5-10-2011 was 21.452 acres. This cannot, therefore, be said to be an exercise undertaken to benefit respondent No.5 or to profiteer in the process. The acceptance of the bid of respondent No.5 was pursuant to a public advertisement in the year 2008.
In so far as the contention regarding duty of the State Government to carry out the work of rehabilitation is concerned, it would be relevant to ::: Downloaded on - 29/03/2014 18:48:20 ::: WP4492.12.odt 34/42 note that the Rehabilitation Act has come into force from 1-4-2002. As per provisions of Section 1(4)(b), the Act is made applicable to all projects specified therein. It is further stated that the entire responsibility to execute such projects and to rehabilitate the project affected persons would rest with the concerned department of the State Government by entering into an agreement with the concerned project authority or body. Though said provisions were not in existence when Notification under Section 4 and Declaration under Section 6 of the Act of 1894 was issued, on the date when the award was passed i.e. 24-12-2004, the Rehabilitation Act had come into force. In terms of provisions of Section 1(4)(b) of the Rehabilitation Act, respondent No.3 had come into the picture and has thereafter executed the work of rehabilitation of project affected persons. It is, therefore, clear that in view of provisions of Section 1(4)(b) of the Rehabilitation Act, the State was discharging its duty by undertaking the work of rehabilitation of project affected persons through respondent No.3. As stated earlier, respondent ::: Downloaded on - 29/03/2014 18:48:20 ::: WP4492.12.odt 35/42 No.3, in turn, by issuing advertisement had invited offers for construction of social infrastructure for the benefit of project affected persons. The role of respondent No.3 in that regard, therefore, cannot be faulted.
Hence, we do not find any material on record to hold that the appointment of respondent No.5 as an agency to carry out the work of construction of social infrastructure was either arbitrary, illegal or in that matter resulting in rights of agriculturists being compromised.
16. Thereafter, the aspect of assignment of rights of development by respondent No.5 in favour of respondent Nos.6 and 7 is required to be considered.
From the material on record, it can be seen that respondent No.5 pursuant to the initial agreement dated 18-2-2009 had commenced the work of construction of infrastructure facilities and houses. As respondent No.5 was faced with the problem of liquidity, on 8-9-2011, it was resolved by respondent No.5 to transfer its rights under the aforesaid ::: Downloaded on - 29/03/2014 18:48:20 ::: WP4492.12.odt 36/42 agreement in favour of respondent Nos.6 and 7. It was further resolved that 50% of construction advance that was to be received by respondent No.5 from respondent Nos.6 and 7 being a sum of Rs.21,75,52,543/- be directly paid to respondent No.3.
Pursuant to aforesaid resolution on 5-10-2011, respondent No.3 granted its no objection for aforesaid transfer/assignment of lease hold rights. Thereafter on 10-10-2011 respondent No.5 executed a deed of assignment in favour of respondent Nos.6 and 7.
In the aforesaid process, it has not been demonstrated that any loss has been caused to respondent No.3. The lease deed that had been entered into with respondent No.5 in respect of 21.452 acres of land was proportionate to the work done by respondent No.5. The rights under the initial agreement dated 18-2-2009 that had accrued in favour of respondent No.5 were transferred with the consent of respondent No.3 in favour of respondent Nos.6 and
7. It, therefore, cannot be said that the deed of exchange had been entered into by respondent No.5 with a view to favour any particular party or to ::: Downloaded on - 29/03/2014 18:48:20 ::: WP4492.12.odt 37/42 profiteer from said exercise. The land that has been leased out is proportionate to the work actually done by respondent No.5. In the affidavit dated 18-1-2014, it has been specifically stated that respondent No.3 appointed a Project Management Consultant for evaluating the work done by respondent No.5. As per the report of said Consultant, the value of work done by respondent No.5 as on 16-8-2011 was to the tune of Rs.34,39,71,267.00. It is, therefore, clear that as on 16-8-2011 work executed by respondent No.5 was valued at Rs. 34,39,71,267.00, while the land leased out to respondent No.5 on 5-10-2011 admeasuring 21.45 acres was towards the entitlement of respondent No.5 to an amount of Rs.21,75,52,543/-. It is, therefore, obvious that the work executed by respondent No.5 is of a higher value than the value of land actually leased to it. Thus, it cannot be held that respondent No.5 has profiteered from aforesaid transaction while executing the deed of exchange with respondent Nos. 6 and 7 or that respondent No.3 has sustained any loss in the aforesaid process. This submission made on behalf of the petitioners must, ::: Downloaded on - 29/03/2014 18:48:20 ::: WP4492.12.odt 38/42 therefore, also fail.
17. Though much stress was laid by the learned Counsel for the petitioners as regards the short period within which the lease agreement was entered into between respondent No.3 and respondent No.5, the no objection letter issued by respondent No.3 to respondent No.5 on 5-10-2011 and the subsequent deed of assignment executed between respondent No.5 and respondent Nos.6 and 7 on 10-10-2011, for the reasons aforesaid it cannot be said that the entire exercise was hastily undertaken with a view to earn any profit therefrom. It may be observed that the speed with which a particular decision is taken may not by itself render such decision invalid or bad in law if otherwise the same is not contrary to law or the procedure prescribed for arriving at such a decision.
Similar view has been taken by the Division Bench of this Court in case of Manubhai P. Vashi Vs. Bar Council of India and others reported in 1990 Mh. L. J. 1093 wherein it has been observed that a decision cannot be said to be vitiated merely on ::: Downloaded on - 29/03/2014 18:48:20 ::: WP4492.12.odt 39/42 account of the speed with which it is taken if it is otherwise found to be legally valid. Hence, merely because within a short duration of executing the lease deed, respondent No.3 granted its no objection for transfer/assignment of lease hold rights of respondent No.5 and the fact that such deed of assignment was thereafter immediately executed on 10-10-2011 by itself would not render the same liable to be set aside on account of such steps being hastily taken.
18. It may be noted that respondent No.5 has on 2-4-2013 terminated the development agreement dated 18-2-2009 that it had entered into with respondent No.5. It has been stated that the aforesaid action of termination vide communication dated 2-4-2013 is subjudice. We make it clear that we have adverted to the aforesaid transactions only with a view to examine whether same have been entered into with a view to enable respondent No.5 to earn any profit in the process or that the same has caused any loss to respondent No.3. It is clarified that the observations made herein above would not prejudice the respective ::: Downloaded on - 29/03/2014 18:48:20 ::: WP4492.12.odt 40/42 rights of respondent No.3 and respondent Nos.5 to 7 in the litigation that is pending. The said transactions have been looked into from the perspective of the submissions made on behalf of the petitioners in the present writ petition as regards hostile discrimination and attempts to profiteer therefrom.
19. The Government Resolution dated 7-10-2011 by which it was resolved to grant compensation to the project affected persons under the Rehabilitation Act was also pressed into service on behalf of respondent no.3. As per aforesaid Government Resolution, as a special case, the persons affected by MIHAN Project were held entitled for compensation to the tune of 12.5% developed land/ex gratia compensation. It is not necessary to go into the applicability of the aforesaid Government Resolution.
Its issuance and applicability are not in dispute.
Moreover, the petitioners have already sought enhancement of compensation by making of reference under Section 18 of the Act of 1894 and said matters are still pending. The rights of the petitioners for ::: Downloaded on - 29/03/2014 18:48:20 ::: WP4492.12.odt 41/42 enhanced compensation would, therefore, be considered in said proceedings in accordance with law.
Suffice it to say that by Government Resolution dated 7-10-2011, additional funds have been made available with a view to rehabilitate the project affected persons in respect of MIHAN Project.
20. Hence, for the reasons aforestated, we find that the petitioners have failed to make out any case for grant of relief in the present writ petitions. The writ petitions are, therefore, dismissed with no order as to costs. Rule stands discharged accordingly.
21. At this stage, Shri J. T. Gilda, learned Counsel appearing for the petitioners states that since the interim order was operating since 18 th September, 2012, the same may be continued for further period of six weeks so as to enable the petitioners to approach the Apex Court.
22. Smt. B. H. Dangre, learned Additional Government Pleader appearing for State, Shri M. G. ::: Downloaded on - 29/03/2014 18:48:20 ::: WP4492.12.odt 42/42 Bhangde, learned Senior Counsel appearing for respondent No.3 and Shri Atul Pande, learned Counsel for respondents 6 and 7 vehemently oppose the prayer.
However, taking into consideration the fact that interim order is operating for a considerable period of time, we continue the interim protection as was granted by this Court vide order dated 18 th September, 2012 for a period period of four weeks from today.
JUDGE JUDGE
//MULEY//
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