Bombay High Court
Anna Shankar Walvekar vs The State Of Maharashtra And Ors. on 7 November, 1996
Equivalent citations: 1997(2)BOMCR369, 1997 A I H C 3436, (1997) 1 MAH LJ 470, (1997) 2 MAHLR 86, (1997) 1 LACC 250, (1997) 2 ALLMR 639 (BOM), (1997) 2 BOM CR 369
Author: S.S. Nijjar
Bench: S.S. Nijjar
JUDGMENT N.D. VYAS, J.
1. As the facts and the questions involved in both the writ petitions are common, they have been directed to be heard together. By this common Judgment, both the writ petitions are disposed of. By Writ Petition No. 5960 of 1988 under Article 227 of the Constitution of India, the petitioner has challenged the Judgment and Order of the Civil Judge, Junior Division, Kolhapur, dated 5th July 1988 whereby petitioner's Execution Application was dismissed and he has also prayed for setting aside of the order passed by the State of Maharashtra dated 1st October, 1984 in its Urban Development Department and has prayed for restoration of the order dated 31st March, 1984 passed by the same department earlier. By Writ Petition No. 173 of 1989 under Article 227 of the Constitution of India, the petitioner has again prayed for quashing and setting aside the said order dated 1st October, 1984 and also prayed for quashing the communication dated 16th July, 1986 received from the said Department of the State of Maharashtra. From the above, it is apparent that even some of the reliefs prayed for are common.
2. The petitioner claims to be the owner of Revision Survey No. 633-B, Hissa No. 2A, admeasuring 71 Ares situated at Ichalkaranji. From the petitions following facts emerge : The 4th respondent viz., Vadgaon Agricultural Produce Market Committee decided to have a sub-market for Agricultural Produce at Ichalkaranji and entered into correspondence with Ichalkaranji Municipality. The Chairman of the said Committee requested the authorities to obtain land for sub-market yard at Ichalkaranji. The said Committee in fact wished to have about 16 acres of land. A Notification was published under section 4 of the Land Acquisition Act (hereinafter referred to as "the said Act"), dated 6th May, 1972 for acquiring 16 acres 24 gunthas of land which also included the land belonging to the petitioner. The petitioner filed his objections under section 5A of the said Act. The main contention raised by the petitioner in the objections was that the Committee was in possession of a large piece of land at Wadgaon and in view of the fact that Ichalkaranji was a commercial town having powerloom industry, large area of 16 acres was not at all necessary. A Notification under section 6 of the said Act was published on 11th October, 1972 and the Award was passed on 19th March, 1974. The petitioner being aggrieved by the fact that despite his filing objections, he was not given hearing under section 5A of the said Act, filed Regular Civil Suit No. 640 of 1974 in the Court of the Civil Judge, Senior Division, Kolhapur, on 17th May, 1974. In the plaint, the petitioner inter alia contended that though the petitioner had filed his objections under section 5A of the said Act, no hearing was given to him and, therefore, the section 6 Notification as well as the Award were vitiated. The suit was heard and by a Judgment and Decree dated 15th April, 1978, the Court passed the following order :---
"The defendants, their servants and agents are restrained perpetually from acquiring the suit land, described in paragraph 1 of the plaint pursuant to the notification and declaration under section 6 dated 11-10-1972 as no hearing had been given to the plaintiff as required under section 5A(2) of the Land Acquisition Act."
An appeal was preferred by the State, but the same was withdrawn on 11th January, 1979. It is the petitioner's contention that without issuing any fresh Notification under section 4 of the said Act, a fresh Notification under section 6 was published on 7th July, 1979 and an Award was passed by the Special Land Acquisition Officer on 15th March, 1980. Under these circumstances, the petitioner filed Regular Execution Darkhast No. 31 of 1980 in the Court of the Civil Judge, Senior Division, Kolhapur on 11th January, 1980. The complaint of the petitioner was that ignoring the decision of the said Court, the authorities were contemplating fresh proceedings in respect of the said land, and therefore, he prayed for injunction restraining the authorities from taking any action. In the mean while, the petitioner received a notice from the authorities intimating him that possession would be taken on 28th March, 1980 and, therefore, another application was made for necessary injunction. Temporary injunction was in fact granted on 28th March, 1980 as applied for by the petitioner. However, by the time such an order was passed, actual physical possession of the land was taken by the authorities. The petitioner in both the petitions thereafter referred to the representation which he made to the Urban Development Department, State of Maharashtra, requesting for deletion of the said land from acquisition (SIC). He was informed by a letter dated 20th December, 1983 that the Deputy Chief Minister had convened a meeting to discuss the request made by the petitioner to drop the proceedings and the petitioner was informed that the meeting was called by the Deputy Chief Minister on 23rd January, 1984. He attended the said meeting and according to the petitioner a decision was taken by the Deputy Chief Minister to delete the land from reservation. This decision was conveyed to the Administrator, Municipal Council, Ichalkaranji, and the Town Planning, Kolhapur, was also asked to pursue the matter with the Municipal Council, Ichalkaranji, in view of the said decision of the State Government. According to the petitioner, the petitioner was assured by the Administrator of Municipal Council that steps would be taken to delete the land of the petitioner. Subsequently, however, the petitioner was informed by a letter dated 1st October, 1984, which is impugned in both the petitions, that the State Government had taken a fresh decision that the land belonging to the petitioner should not be deleted from acquisition and that the Administrator, Municipal Council, Ichalkaranji, was informed accordingly. It is the petitioner's grievance, therefore, in the petitions that this decision cancelling the earlier decision was taken without giving any opportunity to the petitioner. As far as the order of the Civil Judge, Senior Division, Kolhapur dated 5th July, 1988 is concerned, the grievance made in the petitions is that there was total non-application of mind as was evident from the fact that the learned Judge erred in equating "Notice" with "Notification" and by holding that an opportunity was given to the petitioner as required under the provisions of the said Act. Thus according to the petitioner, the learned Judge erred in holding that the petitioner had no right to execute the decree against the respondents through the said Darkhast.
3. No affidavit is filed on behalf of respondent Nos. 1, 2 and 3. However, affidavits in both the writ petitions are filed on behalf of Wadgaon Agricultural Produce Market Committee, who is respondent No. 4 in both the petitions. From the said affidavits several facts not disclosed by the petitioners in both the petitions are brought on record. It is stated in the said affidavits that fresh notices under section 4(1) of the said Act were issued after withdrawal of the said Appeal preferred by the State and that regular enquiry under section 5A of the said Act was also conducted. Objections of all the interested persons including the petitioner were heard and report to the Commissioner, Pune Division, was submitted for issuance of final Notification under section 6. Thus the Notification dated 16th August, 1979 happened to be published. Thereafter all further proceedings required to be taken under the said Act have been followed and an Award has been passed on 15th March, 1980. As far as the earlier acquisition is concerned, it is stated in the affidavit that the petitioner in fact had received full compensation on 18th July, 1974 although the same was accepted by the petitioner under protest. After the physical possession of the land in question was handed over to the 4th respondent on 28th March, 1980, they prepared a lay out plan which was sanctioned by the Deputy Director, Town Planning, Kolhapur on 18th March, 1981. The same was also sanctioned by Ichalkaranji Municipal Council on 26th March, 1981. Thereafter the 4th respondent has fully developed the entire land which was acquired, meaning thereby the whole of 16 acres and 24 gunthas including the land of the petitioner. The entire land has been fenced. It is divided into 66 plots. Internal roads are prepared and plantation of trees is completed. A pipeline has been laid down to provide water supply to various plots. A huge entrance is constructed along with its office building and shopping centre. Respondent No. 4 has also constructed places of residence for the agriculturists as also a huge water storage tank. As far as the 66 plots are concerned, they have been allotted to various parties like Banks, traders etc. under registered lease deeds each of 30 years duration. The possession of these various leased plots has already been handed over to the various lessees under their respective leases. The leases were entered into around 1983-84. One of the lessees viz., Shetkari Sahakari Sangh has also constructed a huge godown by spending about two lacs of rupees. The construction was completed as far back as May, 1987. Dealing with the initial deletion from reservation, it is the grievance of the 4th respondent that the same was done behind the back of the 4th respondent as no hearing was given to them.
4. As indicated, respondent Nos. 1, 2 and 3 have not filed any affidavit. However, Mr. D'gama, the learned A.G.P. appearing for the said respondents produced original Award dated 15th March, 1980 in Court, a copy whereof has been taken on record. As far as the petitioner is concerned, there is no rejoinder to the affidavits filed by the 4th respondent in both the petitions. Thus the averments made in the affidavits of the 4th respondent go unchallenged.
5. In the above factual background, we shall now examine the contentions raised before us. Mr. Jahagirdar appearing for the petitioner submitted that section 6 of the said Act as applicable at the relevant time by its proviso to sub-section (1) provided that no declaration in respect of any particular land covered by a Notification under section 4, sub-section (1), published after the commencement of the Land Acquisition (Amendment and Validation) Ordinance, 1967 shall be made after the expiry of three years from the date of such publication. It was his submission that in the instant case section 4 Notification was dated 6th May, 1972. However, the fresh section 6 Notification after the decree in the suit filed by the petitioner was made on 7th July, 1979. Thus it was clearly beyond time. It was, therefore, his submission that in view of this, the entire acquisition proceedings stood vitiated. Mr. Kumbhakoni, the learned advocate appearing for the 4th respondent, repelled this submission by relying on a Full Bench decision of the Madras High Court in the matter of K. Chinnathambi Gounder and another v. Government of Tamil Nadu and another, reported in A.I.R. 1980 Madras 251 (Full Bench). The Full Bench while dealing with identical submission raised by Mr. Jahagirdar inter alia held "that even assuming that the 1st Proviso to section 6(1) is mandatory, the same was complied with in the instant case as first declaration under section 6(1) was well within 3 years from the Notification under section 4(1). It was not therefore a case where no declaration was at all effected by Government under section 6(1) of the Act within a period of three years from the date of Gazette Notification under section 4(1). In such a case, it could not be said that a second declaration had been made beyond a period of three years and was therefore invalid, merely because the first declaration under section 6(1) had been quashed by an order of Court, the first declaration did not become non est and it was not necessary that the second declaration should also be made within a period of three years from the date of the notification. Though the first declaration had been quashed, the factum of declaration could not be disputed or effaced. The first proviso to section 6(1) refers only to a declaration under section 6 and does not say that an effective declaration should be made within three years. Nor does it say that in the event of the declaration being quashed by Court, subsequent declaration too should be made within three years." We are in full agreement with the above view of the Full Bench of Madras High Court. We, therefore, cannot accede to Mr. Jahagirdar's submission.
6. Mr. Jahagirdar next contended that once section 6 notification is quashed as it in effect happened when a decree was passed in petitioner's favour in the suit filed by him, section 4 Notification also perished and if the authorities still wished to pursue acquisition, a fresh section 4 Notification was required to be published and this has not been done in the instant case. Mr. Kumbhakoni, on the other hand relied on the decision of the Supreme Court in the matter of Raghunath and others v. State of Maharashtra and others, , wherein it has been inter alia held that once there is a valid declaration under section 6, the scope of the Notification under section 4 will get exhausted, that this principle however, does not apply to a case where the declaration under section 6 proves to be invalid, ineffective or infructuous for some reason, that where a Notification under section 6 is invalid, the Government may treat it as ineffective and issue in its place a fresh notification under section 6 and that in principle, there is no distinction between a case where a declaration under section 6 is declared invalid by the Court and a case in which the Government itself withdraws the declaration under section 6 when some obvious illegality is pointed out. In view of the above, we see no substance in the submission of Mr. Jahagirdar. In our opinion, section 4 Notification dated 6th May, 1972 remained valid and operative.
7. Dealing with the order dated 1st October, 1984 passed by the State of Maharashtra in its Urban Development Department, Mr. Jahagirdar submitted that the decision which was earlier taken to dereserve was legal and binding on the State Government and that the State Government had no power to cancel the earlier decision. Moreover, he submitted that the said cancellation was done without affording any opportunity to the petitioner of being heard. In reply to this submission, Mr. Kumbhakoni relied on the decision of the Supreme Court in the matter of Lt. Governor of Himachal Pradesh and another v. Sri Avinash Sharma, . The Supreme Court while dealing with vesting of land in the Government as a result of Notification under section 17(1) of the said Act inter alia held that after possession has been taken pursuant to a Notification under section 17(1) the land is vested in the Government, and the Notification cannot be cancelled under section 21 of the General Clauses Act, nor can the Notification be withdrawn in exercise of the powers of the Land Acquisition Act under section 48. It was further held that when possession of the land is taken under section 17(1), the land vests in the Government and that there is no provision by which land statutorily vested in the Government reverts to the original owner by mere cancellation of the Notification. It was Mr. Kumbhakoni's submission, which in our view is correct, that in the instant case compensation has been received by the petitioner way back in 1974 as a result of the first acquisition. Possession has been taken on 28th March, 1980 and since then the 4th respondent and through the 4th respondent several lessees are in possession of the entire land admeasuring 16 acres 24 gunthas which includes petitioner's land also. It was further submitted by him that there was no question after the land has vested in the State to dereserve the same. Moreover, even the decision to dereserve was taken behind the back of the 4th respondent. We see considerable merit in this submission of Mr. Kumbhakoni. As the land absolutely vested in the Government, the entire acquisition proceedings came to an end. The reservation was for setting up a market for the 4th respondent. That purpose is fulfilled. There is no question of the whole thing being set at naught by dereserving the said land. In fact in our view, although for different reasons the State Government ultimately took a correct view and decided not to dereserve the said plot. We may only say that in any view of the matter the earlier decision of dereserving the petitioner's plot could not have stood the scrutiny of a Court. In this view of the matter, we see no substance in this submission of Mr. Jahagirdar also.
8. Mr. Jahagirdar next contended that the policy of the State of Maharashtra has been not to acquire agricultural land owned by poor persons for various public purposes as as a result of such acquisition poor agriculturists are rendered landless and deprived of their only means of livelihood. Mr. Jahagirdar relied on Government Resolution dated 24th November, 1980 in support of his contention. There is no dispute as to the fact that this was the only piece of land owned by the petitioner. At first blush the submission seemed to be attractive till Mr. Kumbhakoni pointed out that the above policy was subject to certain conditions set out in the G.R. He submitted that the said policy as contained in the said G.R. says that the agricultural lands belonging to poor farmers should not be acquired when the same would result in rendering such a person landless. It also provides that this should be done only if the two conditions set out therein are satisfied-the first being that there is no alternative except to acquire the land held by the poor farmer for the public purpose and the second being that unless the land held by the poor farmer is acquired the society is not going to be benefited. Mr. Kumbhakoni laid emphasis on the conditions and pointed out that the land of the petitioner admeasuring 17 ares is a narrow strip of land situated right in the centre of the entire block of land admeasuring 16 acres 24 gunthas which has been acquired. This fact was not disputed by Mr. Jahagirdar. In view of this, it was Mr. Kumbhakoni's submission that it was impossible to leave out the land of the petitioner. We again see considerable merit in the submission made by Mr. Kumbhakoni. We are of the opinion that in a normal case this policy could have been made applicable, but looking to the facts of the case that the petitioner's land was situated in such a manner that the entire acquisition proceedings would have become infructuous and the public purpose sought to be achieved would have become meaningless, there was no point in adhering to the said policy.
9. Mr. Kumbhakoni at length addressed us on the facts which are disclosed in the affidavits filed by the 4th respondent from which it is clear that the fact regarding the petitioner receiving compensation and the fact regarding the extensive development of the land in question along with other lands surrounding the same have been cleverly left out from the petitions. When asked whether it was factually correct that the petitioner had received the compensation although under protest, Mr. Jahagirdar stated that it was so and showed readiness of the petitioner to return the said amount with whatever interest the Court directed the petitioner to pay. One wonders whether such an offer would have been made if no inquiry was made by the Court. When confronted with the facts relating to the development which has taken place after possession was taken by the 4th respondent which facts are again cleverly omitted in the petition. Mr. Jahagirdar voicing his client's attitude expressed total ignorance. It is unbelievable that the petitioner who is a resident of Ichalkaranji would not know of a huge project being set up by the 4th respondent taking a concrete shape. Least the petitioner was required to do was to point out to the Court as to what had happened to the land in the interregnum i.e. between 28th March, 1980 when the petitioner was dispossessed and the year 1988 when he approached this Court. One other fact which also came to light from the affidavit of the 4th respondent was the fact that in fact after receiving the compensation on 26th September, 1978 the land in question was in fact mortgaged by the petitioner to Union Bank of India and in fact after the 4th respondent came on the scene, they defended the said suit. There is no mention of this fact also in the petition. When asked as to why the petitioner after having dispossessed on 28th March, 1980 approached this Court as late as 1988-89, Mr. Jahagirdar pointed out that the Execution Darkhast which petitioner had filed on 11th January, 1980 was pending and that by itself would have taken care of all the troubles of the petitioner. We fail to understand as to how the petitioner whose land which was so important to him and which was lost, can remain so passive and allow the entire property to be developed. Significantly although the execution application was made on 11th January, 1980 and the petitioner was dispossessed on 28th March, 1980, the petitioner did not seek any further injunction against either respondent Nos. 1 to 3 or respondent No. 4 restraining them from further dealing with his land. A person who chooses to standby and allows third party rights being created, does not deserve any relief from the Court. When pointed out to us by Mr. Kumbhakoni that there have been several plots, to be exact 66 plots, which have been leased out by regular leases of 30 years and that innocent third parties are in possession, the least the petitioner could have done was to join them in the present petition so that they could be heard. A simple answer was again given by Mr. Jahagirdar that again this was not necessary as the result of the Execution Darkhast would have resulted in putting the clock back and would have entitled the petitioner to get back vacant possession of the land in question. It is settled law that even a trespasser who is in settled possession cannot be dispossessed without due process of law. However, the petitioner seems to be utterly unimpressed by the possible resultant displacement of rights and titles if the decision of the Civil Judge, Senior Division, Kolhapur in petitioner's Execution application was reversed by us. In our opinion, it was absolutely necessary to have not only pointed out all the above facts to the Court, but to have also joined all these parties who were likely to be adversely affected in the event of decision in the petitions going in favour of the petitioner.
10. Apart from the above, the petitioner is guilty of delay and granting reliefs to the petitioner would amount to putting a premium on dilatary tactics. Mr. Kumbhakoni rightly relied upon the decision of the Supreme Court in the matter of Babu Singh and others v. Union of India and others, . The Apex Court following its earlier decisions in the matter of Aflatoon v. Lt. Governor of Delhi, and Indrapuri Griha Nirman Sahakari Samiti Ltd. v. State of Rajasthan, held as follows :
".....that if a person allowed the Government to complete the acquisition proceedings on the basis that the Notification under section 4 and declaration under section 6 were valid and then attacked the Notification on the grounds which were available to him at the time when the Notification was published, it would be putting a premium on dilatory tactics. The length of the delay is an important circumstance because of the nature of the acts done within the interval on the basis of the Notification and declaration and, therefore, a challenge to a Notification under section 4 and a declaration under section 6 of the Act should be made within a reasonable time thereafter. If it is not so done the petition is liable to be dismissed. This appeal must fail for this additional reason because the challenge to two Notifications was after a period of six years and after the whole process of acquisition was over and the State Government has spent a considerable amount in carrying out the public purpose."
11. As stated earlier, the State has not filed any affidavit but from the Award produced in Court it appears that not only section 5A hearing was given to the petitioner, but all other provisions of the said Act which were required to be complied with were complied with. Mr. Jahagirdar commenting on this aspect of the Award remarked; what else was to be expected in the Award ? This comment is required to be examined in the background of there being no challenge whatsoever in any of the petitions to either section 6 Notification dated 7th July, 1979 or even to the Award dated 15th March, 1980. If what was stated in the Award was factually incorrect, nothing prevented the petitioner from ventilating his grievances qua the same in this Court. We are not aware as to what averments have been made in the Execution Darkhast which the petitioner according to him, earnestly pursued. Neither any copy of the application is shown to us nor any other documents, or affidavits filed therein have been brought to our notice. In the absence of this, we are left with no choice but to concern ourselves with the averments made in the petitions and the prayers prayed for from which it is apparent that there is no challenge whatsoever to the validity of section 6 Notification or to the Award.
12. In these circumstances, as far as Writ Petition No. 5960 of 1988 which is under Article 227 of the Constitution of India and wherein the petitioner has inter alia prayed for setting aside of the order dated 5th July, 1988 of the Civil Judge, Senior Division, Kolhapur, is concerned, although we agree with the final decision of the learned Judge, we do not agree with the reasoning and findings given therein. In our opinion, the Execution Darkhast has been rightly dismissed. As far as the order of the State of Maharashtra dated 1st October, 1984 is concerned, which is impugned in both the petitions, we have indicated above that once the acquisition is complete, the reservation loses its significance. There is no point in dereserving the plot after the public purpose is achieved. In view thereof it was meaningless to consider whether any dereservation had taken place by any order, and so, whether the same was legally cancelled. In this view of the matter, we see no substance in both the petitions. We are informed that the petitioner complaining about flouting of interim order passed in Writ Petition No. 5960 of 1988, has taken out contempt petition being Contempt Petition No. 142 of 1995. The same, however, is not before us and, therefore, we are not dealing with the same. The present petitions however, are required to be and are dismissed. Rules granted are discharged. As far as costs are concerned, the petitioner has deliberately suppressed several material facts from the Court which were brought to our notice by the respondents. Although on that ground alone we would have been justified in dismissing the petition, we have not done so and have dealt with all the points raised by the petitioner. The least we can do is to order the petitioner to pay costs. The petitioner is, therefore, directed to pay costs of Rs. 1,500/- each to respondent Nos. 1 to 3 and Respondent No. 4 in both the petitions, thus totalling Rs. 6,000/-.
Petitions dismissed.