Bombay High Court
Rajendra Nivrutti Zurange And Anr vs The State Of Maharashtra Thr. Pri. Sec. ... on 20 October, 2022
Author: Sharmila U. Deshmukh
Bench: Nitin Jamdar, Sharmila U. Deshmukh
skn 1 12-WP-11650.2022.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 11650 OF 2022
WITH
INTERIM APPLICATION NO. 18608 OF 2022
Rajendra Nivrutti Zurange and another. ... Petitioners.
V/s.
The State of Maharashtra and others. ... Respondents.
WITH
WRIT PETITION NO. 12479 OF 2022
WITH
INTERIM APPLICATION NO. 18609 OF 2022
Rajendra Dattatray Dagade and another. ... Petitioners.
V/s.
The State of Maharashtra and others. ... Respondents.
......
Mr.Gaurav Potnis i/b. Ms.Pallavi Potnis for the Petitioners.
Mr.A.A.Kumbhakoni, Advocate General with Mr.P.P.Kakade,
Govt.Pleader, Mr.Akshay Shinde, 'B' Panel Counsel and Mrs.M.S.
Bane, AGP for the State.
Mr.Abhijit Kulkarni with Ms.Sweta Shah and Mr.Aditya Mahadik for
the Respondent- PMC.
......
CORAM : NITIN JAMDAR AND
SHARMILA U. DESHMUKH, JJ.
DATE : 20 October 2022. P.C. :
These writ petitions seek to quash and set aside the notice dated 1 September 2022 issued by the Respondent- Land skn 2 12-WP-11650.2022.doc Acquisition Officer and for a direction to the Respondent- Land Acquisition Officer to comply with the provisions of section 21 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013. Prayer is also made to quash and set aside the notification issued under section 126(4) of the Maharashtra Regional and Town Planning Act, 1966, with section 19 of the Act of 2013. Prayer is also made to restrain the Respondents from declaring an award under the Act of 2013.
2. Writ Petition No.11650/2022 is filed by Rajendra Zurange and another in respect of 890 sq. meters from Survey No.19/2/K and 102.57 sq. meters from Survey Nos.22/1 to 4/27 situated at village- Bavdhan Khurd, taluka- Mulshi, district- Pune. Writ Petition No.12479/2022 is filed by Rajendra Dange and another in respect of 1337.86 sq. meters from Survey No.22/1 to 4/25 and Survey No22/1 to 4/23 situated at village- Bavdhan Khurd, Taluka- Mulshi, District- Pune.
3. After filing the petitions, an award was declared in respect of the subject properties on 16 September 2022 under the Act of 2013. Interim applications are filed seeking leave to amend to challenge the subsequent developments of the declaration of the award.
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4. The learned counsel for the Petitioners, pursuant to the interim application, seeks leave to amend to challenge the award. The learned counsel for the Petitioners also seeks to tender a copy of the rejoinder. Considering the facts and circumstances and the fact that the petition is pending for admission, leave is granted to carry out the amendment. Interim applications are allowed to this extent. The amendment be carried out by 11 November 2022, and a copy of the amended petitions be served on the Respondents. For reply of the Respondents to the amended petitions, stand over to 28 November 2022.
5. The learned counsel for the Petitioners seeks continuation of the ad-interim order. These petitions were filed on 15 September 2022. Petitions were moved on an urgent basis at 10.30 a.m. on 19 September 2022 by the Petitioners, stating that the Petitioners had received a notice stating that they would be taking physical possession at 11.00 a.m. on that day. The learned AGP stated that actual possession by physically dispossessing the Petitioners would not be taken if the Petitioners were in possession on that date. After that, the Petitions have remained pending and are now circulated by the respondents. The writ petitions were not argued on the merits of the claim for an interim order. The interim protection was only a statement made by the learned counsel for the State, according to them, as the matter was presented in the Court and the Petitioners were facing a notice of taking possession on the skn 4 12-WP-11650.2022.doc same date, and it is in that situation that the Petitioners were protected as it is. The learned Advocate General and the learned Counsel for the Municipal Corporation state that the statement is not being continued and the prayer of the Petitioner for interim order be considered on merits. We have heard the parties at length on the interim relief.
6. On 17 May 2018, the draft development plan for Pune Municipal Corporation for the extended area was sanctioned. On 27 November 2017, a resolution was passed in Meeting 93 under Subject No.4 concerning the construction of the flyover at Bardan/ Kothrud. After considering the recommendations given by the Municipal Commissioner, the plan was revised in respect of the proposed flyover at Chandani Chowk, Pune. This had a reference to the subject lands and a loop in constructing the flyover network. Accordingly, sanction was granted under section 205 of the Maharashtra Municipal Corporations Act, 1949. The Pune Municipal Corporation issued a public notice on 13 March 2018 that the land referred to in the schedule, which refers to the lands in question, is reserved for DP Road, a service road by the Municipal Corporation. The Commissioner Municipal Corporation issued an order on 2 December 2018 under section 205 of the Act of 1949. As per regulation No.14.4.3 of the Development Control Regulations applicable to the city, notwithstanding anything contained in the development plan, the Commissioner may skn 5 12-WP-11650.2022.doc prescribe, after following the procedure under the Act of 1949, regular lines of streets wider than the prevailing regular lines of the respective streets and such lines will have the same effect of road lines in the development plan. The Municipal Corporation submitted a proposal for the acquisition of lands to the office of the Collector. A resolution was passed by the Standing Committee of the Municipal Corporation for acquisition on 14 February 2019. On 31 March 2022, the Collector entrusted the acquisition process to the Special Land Acquisition Officer. A joint measurement was carried out on 26 July 2022. The Municipal Corporation deposited 30% of the amount, i.e. Rs.64719360/- as per the letter dated 27 August 2022, and on 15 September 2022, 70% of the amount, i.e. Rs.50327400/- was deposited. On 30 August 2022, a notice was issued by the Collector, Pune, under section 126(4) of the MRTP Act, read with section 19 of the Act of 2013, regarding the subject lands.
7. On 1 September 2022, the Special Land Acquisition Officer issued a notice under section 21(3)(4) to the interested persons. On 8 September 2022, the Petitioner Zurange appeared and sought time, and time was granted till 12 September 2022. After that, he again asked for time when he was granted time till the end of the day but did not file any objection. Thereafter award was passed on16 September 2022.
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8. The Petitioner contends that the notice under section 21 of the Act of 2013 stipulated a minimum of 30 days' notice. He submitted that the notice under section 21 on 1 September 2022 granted time till 12 September 2022, which is less than 30 days as mandated. He submitted that unless this mandatory requirement is completed, further proceedings under the Act of 2013 of the declaration of the award was not legal and proper. It was also contended that the lands of which the Petitioners are in possession are not the subject matter of the orders passed under section 205 of the Act of 1949, which is sought to be relied upon. This ground is not taken in the petition because the Petitioners were not aware of this stand of the Respondents which has come out first time in the reply. The learned counsel submitted that the special powers under section 40 of the Act of 2013 could not be invoked in this case as the acquisition is under the provisions of the MRTP Act. The learned counsel submitted that since the Petitioners have a good case to succeed on merit to the challenge to the award and the acquisition, the interim order of restraining the Respondents from taking possession, be granted.
9. The learned Advocate General submitted that the foundation of the Petitioners' case based upon Section 21 of the Act of 2013 being mandatory is incorrect. He submitted that section 21 of the Act of 2013 corresponds to section 9 of the Land Acquisition skn 7 12-WP-11650.2022.doc Act, 1894 and section 9 is held to be a directory provision. The learned Advocate General relied upon the decision of the Supreme Court in the case of May George v. Special Tahsildar and others 1. The learned Advocate General submitted that all the process under section 205 of the Act of 1949 was duly complied with by the Municipal Corporation. The amount of compensation has been deposited by the Municipal Corporation, and after following the due procedure and after giving notice, the lands have been acquired under the award dated 16 September 2022. Learned Advocate General submitted that there is no case on merit for the Petitioners. Learned Advocate General have shown us the photographs of the situation at the site and map of proposed network of flyovers to decongest the traffic in that area.
10. The learned counsel for the Municipal Corporation submitted that the area in question is at a junction of six main roads to heavy traffic coming together, and only these two small parcels of land in question have remained to be taken in possession to complete Chandani Chowk Project which is an absolute necessity. The learned counsel submitted that all the legal procedures are followed. He submitted that it is not that the steps are taken overnight, but the process commenced on 27 November 2017 when a resolution was passed by the Municipal Corporation.
1 (2010) 13 SCC 98 skn 8 12-WP-11650.2022.doc 11. Under section 205 of the Act of 1949, upon
authorization by the Corporation on that behalf, the Commissioner has the power to make a new public street, construct bridges and subways and divert or turn the existing public streets. The order passed by the Commissioner in respect of the subject lands for a network of flyovers and loops was upon due authorization by the Municipal Commissioner by passing a resolution as far back as November 2017. As per the provisions of Regulation 22.4.3 of the DCR referred to, steps being taken under section 205 of the Act of 1949 and consequent after that become part of the development plan. The resolution was passed on 27 November 2017, declaring the road as a public street. It is asserted by the Municipal Corporation that pursuant to the public notice dated 5 November 2018, the Petitioners had initially agreed to cooperate with the negotiations. It is asserted that the Petitioners were well aware that their lands were affected by the project; however, they did not challenge any of the orders. We find no challenge raised to the action taken by the Municipal Corporation under section 205 of the Act of 1949 to date by the Petitioners. The notification has been duly issued under section 126(4) of the MRTP Act, read with section 19 of the Act of 2013. We find merit in the contention of the learned Advocate General that the ratio laid down in the case of May George in relation to Section 9 of the Act of 1894 applies to Section 21 of the Act of 2013 as well. In this decision, the hon'ble Supreme court has held that even a failure to issue a notice under section 9 of the skn 9 12-WP-11650.2022.doc Act of 1894 would not affect the title of the Government. Prima facie, therefore, we find that the Respondents have followed due process before declaring the award.
12. In the reply filed by the Land Acquisition Officer, it is stated that after the passing of the award on 16 September 2022, the possession of the land Survey No.19/2K is obtained, and only the actual physical possession of the land belonging to the Petitioners has remained to be obtained which is obstructing the implementation of the process of road construction. It is stated that the total amount of compensation under the award of Rs.114262964, out of which Rs.93768830 are already paid to the land owners. It is stated that if the Petitioners seek enhancement of compensation, they can initiate necessary action as per section 64 of the Act of 2013.
13. Regarding the position on site and grave prejudice to the general public, a reply affidavit is filed by the Deputy Municipal Commissioner of Pune Municipal Corporation. In the affidavit, the Deputy Municipal Commissioner has placed on record the prejudice due to the interim protection sought by the Petitioners. The Deputy Commissioner has stated as under:
"14. I say that, Chandani Chowk junction is the place where 6 main roads of heavy traffic come together. I say that the Petitioners land comes under the plan of connecting road of Mulshi to Mumbai. Because the subject connecting road is not completed, the traffic from Mulshi comes directly to Chandani Chowk, which results skn 10 12-WP-11650.2022.doc in traffic jams and chaos at Chandani Chowk and general public has to face the traffic jams for 2-3 hours every day for the distance of around 5-6 Kms. I say that if the said connecting road is constructed, the traffic coming from Mulshi can be diverted to Mumbai with the help of these connecting road, which will certainly release the traffic burden on the Chandani Chowk area. I say that Chandani Chowk area is always jammed due to the traffic coming from different directions. That after the Chandani Chowk Flyover work is undertaken, due to work at place also the traffic is affected roads are jammed with traffic. It is adversely affecting the overall development of the project at the cost of the precious public time and money going in vain.
15. I say that if the interim order granted by this Hon'ble Court is not vacated, it will create an adverse effect on the project work. I say that it is not only creating a traffic chaos to public but many fatal accidents may occur, if the construction is prolonged. After a certain time, all vehicles tend to cross the junction without following traffic rules and due to long traffic jams, the situation goes beyond control is the experience of persons controlling traffic in this area. I say that the said subject matter is not only about the development and prosperity of the city but it has become the concerning topic about the public safety. The said acquisition is for the public purpose and for the said reason appropriate orders may be passed in the public interest.
16. I say that the project Road and flyover of Chandani Chowk area is an effective solution to the traffic jams of the Chandani Chowk area. Acquisition of about 180 properties by and/or at the behest of PMC is already complete for development of the subject project and flyovers in the Chandani Chowk area. I say that only two skn 11 12-WP-11650.2022.doc properties, i.e. of Petitioners in above two Writ Petitions at this junction have not come in possession of authorities, which is the reason that bye-pass could not be made operational. I say that the Central Governrment also has given top priority to this project initiated by the National Highways Authority of India."
The learned counsel for the Municipal Corporation has shown us the photographs of the chaotic situation on the site.
14. This concern placed on record by the Respondent cannot be brushed aside. As stated the subject matter is not only about the development of the city but concerns a grave issue of public safety arising from vehicular pollution and accidents. The petitioners have invoked the equity jurisdiction of this Court and are seeking interim order, which would severely impact a multitude of people who suffer daily in their commute. It is, in this regard, the learned Advocate General has placed reliance on the observations of the Supreme Court in the case of Ramniklal N. Bhutta v. State of Maharashtra2, which read thus:
"10. Before parting with this case, we think it necessary to make a few observations relevant to land acquisition proceedings. Our country is now launched upon an ambitious programme of all-round economic advancement to make our economy competitive in the world market. We are anxious to attract foreign direct investment to the maximum extent. We propose to compete with China economically. We wish to attain the pace of progress achieved by some of the Asian countries, 2 (1997) 1 SCC 134 skn 12 12-WP-11650.2022.doc referred to as "Asian tigers", e.g., South Korea, Taiwan and Singapore. It is, however, recognised on all hands that the infrastructure necessary for sustaining such a pace of progress is woefully lacking in our country. The means of transportation, power and communications are in dire need of substantial improvement, expansion and modernisation. These things very often call for acquisition of land and that too without any delay. It is, however, natural that in most of these cases, the persons affected challenge the acquisition proceedings in Courts. These challenges are generally in the shape of writ petitions filed in High Courts. Invariably, stay of acquistion is asked for and in some cases, orders by way of stay or injunction are also made. Whatever may have been the practices in the past, a time has come where the courts should keep the larger public interest in mind while exercising their power of granting stay/injunction. The power under Article 226 is discretionary. It will be exercised only in furtherance of interests of justice and not merely on the making out of a legal point. And in the matter of land acquisition for public purposes, the interests of justice an the public interest coalesce. They are very often one and the same. Even in a civil suit, granting of injunction or other similar orders, more particularly of an interlocutory nature, is equally discretionary. The courts have to weigh the public interest vis-a-vis the private interest while exercising the power under Article 226 - indeed any of their discretionary powers. It may even be open to the High Court to direct, in case it finds finally that the acquistion was vitiated on account of non-compliance with some legal requirement that the persons interested shall also be entitled to a particular amount of damages to be awarded as a lump sum or calculated at a certain percentage of compensation payable. There are many ways of affording appropriate relief and redressing a wrong; quashing the acquisition proceedings is not the only mode of redress. To wit, it is ultimately a matter of balancing the competing interests.
skn 13 12-WP-11650.2022.doc Beyond this, it is neither possible nor advisable to say. We hop and trust that these considerations will be duly borne in mind by the courts while dealing with challenges to acquisition proceedings."
The observations of the Supreme Court as above will have to be kept in mind while considering equitable relief in the matters such as the present one.
15. Furthermore, as regards the oral contention of the Petitioners that their lands do not fall within the revised plan and pursuant to an action under section 205 of the Act of 1949, the learned counsel for the Municipal Corporation, on instructions, makes a statement that only possession of those lands which are forming part of the revised plan pursuant to the action under section 205 of the Act of 1949 will be taken and nothing outside the same. In view of this statement, which we accept, this apprehension of the Petitioners is also taken care of.
TRUPTI SADANAND BAMNE 16. In light of the above discussion, interim relief is refused.
Digitally signed by TRUPTI SADANAND BAMNEDate: 2022.10.22 17. Stand over to 28 November 2022.
13:06:59 +0530(SHARMILA U. DESHMUKH, J.) (NITIN JAMDAR, J.)