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Prakash Vasudev Deodhar and others Versus State of Maharashtra and others

1992 (4) TMI 252 - BOMBAY HIGH COURT

W.P. No. 1638 of 1984 - Dated:- 28-4-1992 - M.L. Pendse and B.U. Wahane For the Appellant/Petitioner/Plaintiff: M.V. Paranjape, S.M. Paranjape and R.V. Pai For the Respondents/Defendant: Mrs. V.S. Dighe, A.G.P. for Respondents Nos. 1 to 3, C.J. Sawant, R.M. Sawant for Respondent No. 4 and Deepak R. More for Respondents Nos. 5 to 7 JUDGMENT M.L. Pendse, J. 1. On February 3, 1970 the Commissioner, Bombay Division, Bombay published notification in accordance with provisions of section 4 of the Land .....

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urvey limits of the villages mentioned, excluding the lands occupied by Gaothan sites, lands already notified for acquisition, lands occupied by religious buildings, burial grounds etc. and lands belonging to the Central and State Governments and other statutory corporations are excluded from proposed acquisition. The schedule further recites that the lands within the original municipal limits of Panvel Municipality are excluded, but not the lands which are included in the extended municipal lim .....

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Kolaba Districts were also included. On March 20,1971 the Government published notification constituting respondent No. 4 as a new town development authority for the purposes of acquiring, developing and disposing of lands in the area of the new town. Having regard to the complexity and magnitude of the work involved in the development of the area as the site for the new town, the time required for setting up new machinery for undertaking and completing such work of development and with a view .....

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confers power upon the State Government to acquire any land under the Land Acquisition Act within the area designated under the Act as the site of the new town, as well as any land adjacent to that area which is required for the purposes connected with the development of the new town. The power to acquire lands includes the acquisition which may have commenced before coming into force of the section. The lands are acquired by the State Government under the Land Acquisition Act and on such acqui .....

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e Survey No. 109(l)(b) admeasures 7 Gunthas and 14 Annas. On the portion of these lands the petitioners have constructed a house, cattle shed, well and bathroom-cum-toilet. The area covered by the house property admeasures about 1760 sq. meters. In pursuance of the notification published under section 4 of the Land Acquisition Act, the petitioners were served with notice under section 4(1) of the Land Acquisition Act and the petitioners filed their objections. The objections were duly considered .....

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er section 7 and notices under section 9 were duly served upon the petitioners on April 6, 1973. The petitioners filed their replies on July 3 and July 19, 1973 principally claiming that their lands are not liable to be acquired because the acquisition would deprive them of the shelter. As several lands were proposed to be acquired for development of new town, respondent No. 4 had floated a scheme whereby the owners who would voluntarily surrender their lands were promised 80% compensation as an .....

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ation as the advance amount. The petitioners gave an undertaking that they would not claim any right in the land surrendered. The possession of area of 1 Acre 20 Gunthas was handed over on February 27, 1974 and the Land Acquisition Officer, ultimately declared the award in respect of the area of 1 Acre 20 Gunthas on March 29, 1982. 4. On April 5,1984, the petitioners filed the present petition under Article 226 of the Constitution of India challenging the acquisition proceedings in respect of th .....

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as on assurance that the remaining area, including the area on which the house stands, would be excluded or released from the acquisition. The petitioners claim that the negotiations were fruitful and the officers accepted the proposal and assured the petitioners that the remaining area would be excluded or withdrawn from the proposed acquisition. The petitioners claim that the assurance was not kept and after waiting for a considerable length of time the petitioners addressed letter dated Septe .....

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ursuance of the assurance given by the officers Niphadkar and Gokhale, but the Land Acquisition Officer declined to pay any heed to the request and thereupon the petitioners had no option but to file petition and seek writ of mandamus for a declaration that the land admeasuring 1760 sq. meters stands released from acquisition. The petitioners are also seeking a writ to direct respondents Nos. 1 to 4 to release and exclude the area of 1760 sq. meters from acquisition and prevent the respondents f .....

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nicipal limits and also houses contiguous to the municipal limits, provided the houses were constructed prior to February 4,1970. The petitioners claim that the Deputy Secretary to the Government of Maharashtra, General Administration Department had addressed a letter dated April 20, 1971 to the Collector, Thana and Kolaba in that respect and the respondents are bound to give effect to that policy decision and exclude the land on which the petitioners have erected house. 5. Shri Paranjape, learn .....

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ance of the notification published under section 6 of the Land Acquisition Act then the respondents Nos. 1 to 4 shall withdraw or release the remaining area from the proposed acquisition. The learned counsel submitted that though there is no written agreement to that effect, an implied agreement can be spelt out from the steps taken by the petitioners as well as respondents Nos. 1 to 4. The learned Counsel urged that not only there was an agreement between the parties, but the same was acted upo .....

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gotiations were carried out by Gokhale or Niphadkar or by any officer with the petitioners or any assurance was given to release or withdraw from acquisition the remaining area. The returns point out that such negotiations would be in breach of the statutory powers conferred upon the authorities. The returns also point out that there is intrinsic evidence to establish that the claim of the petitioners is entirely false and frivolous. It is not possible to accede to the submission of Shri Paranja .....

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unsel further submitted that only area of 1 Acre 20 Gunthas was surrendered and the possession receipt also refers to the area of 1 Acre 20 Gunthas and not the balance of the land proposed to be acquired. It was further contended that the award is also for the area of 1 Acre 20 Gunthas and nowhere makes a reference that separate award will be passed in respect of the remaining area over which a house is standing. These circumstances, according to Shri Paranjape, are tell-tale circumstances to es .....

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course and the statement of petitioner No. 1 nowhere makes reference to the alleged agreement that the remaining area will be released from acquisition. The possession receipt and the undertaking naturally refer to the area of 1 Acre 20 Gunthas and so also the award declared by the Land Acquisition Officer. The complaint of Shri Paranjape that the award in respect of area of ] Acre 20 Gunthas makes no reference to the fact that separate award will be passed in respect of the remaining area as p .....

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he same in an application filed on December 28, 1983. Shri Sawant also wondered why the petitioners did not adopt any proceedings to enforce the agreement from the years 1974 to 1984. In our judgment, the uncorroborated claim of the petitioners claiming that there was an agreement to release the rest of the area from acquisition is nothing but a figment of imagination. It is true that affidavits of Niphadkar and Gokhale are not filed, but Shri Paranjape very fairly stated that Niphadkar had died .....

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ion 48 of the Land Acquisition Act. Section 48(1) of the Land Acquisition Act provides that the Government or the Commissioner shall be at liberty to withdraw or release from acquisition any land of which possession has not been taken. It is now well settled that the power to withdraw under section 48 is available even after passing of the award, provided possession is not recovered. Shri Sawant submitted, and in our judgment, with considerable merit, that it is not open to exercise powers under .....

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section 6 are published. Shri Paranjape on the other hand submitted that it is not necessary to exercise powers under section 48 of the Land Acquisition Act because section 48 is not the sole repository of the power of withdrawal and such power can be gathered from the provisions of section 21 of the General Clauses Act. The learned counsel also submitted that section 48 does not prescribe the mode in which the withdrawal should be effected, and therefore, it is not necessary for the Government .....

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edings is sufficient. It further recites that the formal declaration of withdrawal in the form of a Government resolution is not the statutory requirement, nor does Collector's action postulate issue of formal executive order. We are unable to accede to the submission of Shri Paranjape. The Supreme Court in the decision reported in AIR 1966 SC 1593, State of Madhya Pradesh and others vs. Vishnu Prasad Sharma and others, examined the question as to the powers of the State Government to withdr .....

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ithdrawal under section 48(1) is not the only way in which a notification under section 4 or section 6 can be brought to an end.... It seems that section 48 refers to the stage after the Collector has been asked to take order for acquisition under section 7 and has issued notice under section 9(1). It does not refer to the stage prior to the issue of the declaration under section 6. The decision of the Supreme Court clearly provides that while the right conferred under section 21 of the General .....

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isition without reference to section 48 of the Land Acquisition Act cannot be accepted. Once notification under section 6 is published and then if the Government desires to withdraw the land from acquisition, the right to seek compensation due for the damage suffered by the owner in consequence of notice under section 9 accrues and the Government is bound to determine the amount in accordance with sub-section (2) of section 48 of the Land Acquisition Act. Till publication of notification under s .....

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ion is not required cannot be accepted. It is undoubtedly true that section 48 does not prescribe for a mode or the manner in which the lands can be withdrawn, but if the steps for acquisition of the lands are taken by following a particular procedure, then the same procedure must be followed for withdrawing what was put in motion. It is incumbent upon the Government to publish notification in the Official Gazette while exercising powers under section 4 and section 6 of the Land Acquisition Act .....

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f the Land Acquisition Act. It is also desirable that the people at large are made aware of the fact of withdrawal so as to enable them to deal with the lands. In our judgment, as in the present case section 6 notification was published on December 28, 1972 and section 9 notices were served on the petitioners on April 6,1973 it was not open for the petitioners to claim that by an agreement reached with Niphadkar and Gokhale the land stands withdrawn from acquisition. Once notices were served und .....

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t respondents Nos. 1 to 4 are guilty of discriminatory treatment and have acted arbitrarily in releasing lands from acquisition of some owners in the area. Shri Paranjape submitted that respondents Nos. 1 to 4 are arbitrarily implementing acquisition project without application of mind and in support of the submission it was claimed with reference to paragraph 13B of the petition that certain lands of Platewell Industries at Kalambodhi and lands of Hendre Industries at Ambetkar were excluded aft .....

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Survey No. 230. The learned counsel pointed out the location of these survey numbers from the map annexed to the petition and the mere perusal establishes that these lands, about which the petitioners make complaint, are situated within the original municipal limits of Panvel, while the lands of the petitioners are outside the municipal limits. The notifications under sections 4 and 6 of Land Acquisition Act specifically exclude house properties situated within original limits of Panvel Municipa .....

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to the facts of the present case and therefore it is not necessary to set out the facts and the conclusions reached in those cases. 8. Shri Paranjape then contended that it is not permissible for the Land Acquisition Officer to pass awards piecemeal in respect of the lands of the petitioners and on that count also it must be held that the lands excluding ] Acre 20 Gunthas which were surrendered stand released or even otherwise the Lands Acquisition Officer had no jurisdiction to pass award in r .....

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in AIR 1968 SC 1138, Udai Ram Sharma and others vs. The Union of India and others. The Supreme Court observed: There is nothing arbitrary or irrational about the objects of the Act which are- (a) to amend the Principal Act for the future by empowering the making of more than one declaration under section 6; (b) to validate completed acquisitions on the basis of more than one declaration under that section; and (c) to authorise more than one declaration under the said section in cases where ther .....

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t, which provides period of limitation for declaration of the award. The amendment to the Land Acquisition Act in the year 1967 makes the decisions of Calcutta and Patna High Courts clearly redundant. Shri Sawant referred to an unreported decision of the Division Bench of this Court in Writ Petition No. 1709 of 1979 delivered on August 7, 1982and where the notification involved in the present case was also in question. The Division Bench observed that it is open for the Government to publish mor .....

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ision taken by the State Government and reflected in the letter dated April 20, 1971 addressed to the Collector, Thana and Kolaba by the Deputy Secretary to the Government of Maharashtra, General Administration Department. The letter, inter alia, recites that village Gaothans in municipal limits have been excluded from land acquisition. The letter further states that considerable residential development has taken place beyond the municipal limits and the original Gaothans and therefore the Gover .....

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ounsel submitted that the petitioners' house is within the municipal limits or in any event is contiguous to the existing municipal limits and was constructed prior to February 4, 1970, and therefore, it is not open for the respondents 1 to 4 to continue the acquisition proceedings and dispossess the petitioners. The submission was controverted by Shri Sawant by pointing out that the State Government was not competent to issue the letter dated April 20, 1971 and interfere with the acquisitio .....

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matically stand excluded. The learned counsel urged that powers under section 48 for withdrawal of lands from acquisition can be exercised with reference to a particular land and it is not open by executive fiat to pass general orders. Shri Sawant also submitted that even assuming that the directions contained in the letter are binding and amount to withdrawal of the acquisition, still the land in dispute in the present petition does not-f all within the conditions laid down in the letter, and t .....

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sections 114 and 154 of the Maharashtra Regional and Town Planning Act. Sub-section (2) of section 114, inter alia, provides that the State Government may give directions to any development authority for restricting the exercise by it of any of its powers under the Act or for requiring it to exercise those powers in any manner specified in the directions. Section 154 prescribes that every development authority shall carry out such directions or instructions as may be issued from time to time by .....

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thorities constituted under the Land Acquisition Act and who are performing the statutory duties. It is not permissible for the State Government to regulate the exercise of statutory duties under provisions of the land Acquisition Act by issuance of executive directions or instructions. That would clearly amount to interference with the statutory exercise and more so, if the instructions are not for furtherance of the object but for purposes de hors the Act. in this connection it would be approp .....

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f Executive of the State. The Supreme Court observed that no one is above law and in a democracy what prevails is law and rule and not the height of the person exercising the power. The Supreme Court in the decision reported in AIR 1989 SC 2262, Senior Supdt. of Post Offices and others vs. Izhar Hussain, observed: A statutory rule cannot be modified or amended by executive instructions. A valid rule having some lacuna or gap can be supplemented by the executive instructions, but a statutory rule .....

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e letter dated April 20, 1971 was addressed to the Collectors. The notification under section 6 was followed by declaration under section 7 and service of notice under section 9 on April 6, 1973. It is therefore obvious that the executive instructions issued by the State Government were not considered as binding by the authorities exercising statutory powers. Shri Paranjape submitted that the authorities were bound by the executive instructions, which are in a shape of guidelines as to which pro .....

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behest of the Government after publication of section 6 notification is only by adopting steps under section 48 of the Act. The submission of Shri Paranjape that after April 20, 1971 the right to acquire lands which satisfies the conditions set out in the letter is wiped out cannot be accepted. The right to acquire land is on the doctrine of eminent domain and the acquisition is carried out in accordance with the statutory provisions under the Land Acquisition Act. Once the Commissioner is sati .....

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idelines and such instructions cannot bind the Land Acquisition authorities. The submission of Shri Paranjape that the land stands automatically withdrawn in view of the guidelines contained in the letter dated April 20, 1971 therefore cannot be accepted. 10. Even assuming that the guidelines contained in the letter dated April 20, 1971 are binding on the land acquisition authorities, Shri Sawant submitted that the case of the petitioners does not satisfy the requirements set out in the letter, .....

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Portion of Panvel Village specified in Schedule A of Government Notification, Urban Development, Public Health and Housing Department No. DTM-1260/43518-A dated 23rd September 1964 to the limits of Panvel Municipality under the said Notification; approximate area notified is 2013 Acres 25 Gunthas and 3 1/2 Annas i.e. 814 Hectares and 88.63 Ares. This clearly establishes that the area excluded from the Panvel Village by the notification is that area which was covered by the original municipal li .....

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he lands of the petitioners stand excluded. The assumption of the learned counsel that the house of the petitioners is contiguous to the existing municipal limits is not correct. With reference to the map produced by the petitioners Shri Sawant submitted that the house of the petitioners is situated at the distance of half kilometer from the municipal limits, while Shri Paranjape submitted that it is at a distance of 500 sq. meters. The expression "contiguous" is extremely vague and th .....

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es the claim of respondent No. 4 that the petitioners' property does no attract the conditions for exclusion as prescribed for by the letter dated April 20, 1971 deserves acceptance. In our judgment, the petitioners are not entitled to a declaration that the lands stand excluded in view of the guidelines. The reference to the properties excluded made in the petition are those properties which are situated within the original limits of Panvel Municipality and those properties cannot be compar .....

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rea will be disposed of by respondent No. 4 while developing the township. Shri Paranjape submitted that the development can continue without any obstruction even if the lands of the petitioners are excluded or withdrawn from the acquisition. Shri Sawant controverted the submission by pointing out that it is absolutely necessary for the State Government to acquire all the lands comprised in 95 villages which are situated partly in Thana District and partly in Raigad District. Shri Sawant submitt .....

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ill be required to be disposed of and for that purpose have enacted that New Bombay Disposal of Lands Regulations, 1975 in exercise of powers conferred by Sub-clause (a) of Clause (1) of section 159 of the MRTP Act. The Regulations, inter alia, provide that the Corporation shall divide the lands vested in it into disposable plots having regard to their size and use and shall demarcate them accordingly. Chapter III of the Regulations enables the Corporation to dispose of the plots from time to ti .....

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respondent No. 4 is witling to give the land to the petitioners on lease on payment of premium. Shri Paranjape complained that the premium settled by the Corporation is extremely heavy and has no relation whatsoever to the compensation which will be payable for acquisition of properties under the Land Acquisition Act. Shri Sawant pointed out that the development of the new township follows what is known in the language of the town planning as the node pattern'. The site for the new township .....

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such a node and not with reference to a village in a node, much less a specific plot of land. The node is reckoned as an unit in the calculation of costs and the cost for acquisition of all the lands in a node and other development is distributable in its totality over the disposable land. Shri Sawant is right in his submission that the premium is determined with reference to the amenities available to the land in a particular node. Shri Paranjape submitted that the petitioners are willing to c .....

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