Full Judgment Text
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PETITIONER:
RAMNIKLAL N. BHUTTA & ANR.
Vs.
RESPONDENT:
STATE OF MAHARASHTRA & ORS.
DATE OF JUDGMENT: 19/11/1996
BENCH:
B.P. JEEVAN REEDY, K.S. PARIPOORNAN
ACT:
HEADNOTE:
JUDGMENT:
J U D G M E N T
B.P. JEEVAN REDDY, J.
Leave granted.
This appeal is preferred against the order of the
Bombay High Court dismissing the review petition filed by
the appellant. The review petition was filed by the
appellant against the order dismissing his writ petition by
Division Bench. The matter under the land Acquisition Act,
1894.
By a notification dated November 29, 1979 issued under
Section 4 of the Land Acquisition Act, 1894 [the Act], two
pieces of land were notified for acquisition for a public
purpose, to wit, "for Bombay Electric Supply and Transport
Undertaking for bus station." The two pieces of land
notified are C.T.S. No.218 admeasuring 1759 sq.mtrs. and
C.T.S.No. 211 admeasuring 370 sq.mtrs. The appellant claims
to the owner of C.T.S.No. 211. The declaration under
section 6 was made on December 16, 1982. C.T.S.No. 218
belongs to a Church but there are others who claim to have
interest in the said land, viz., Vijayanand Singh and
Gayatri Darshan Cooperative Housing Society. The BEST
entered into a settlement with the said two persons
whereunder and extent of 906 sq.mtrs. was given on a
perpetual lease to BEST free of any charge, i.e., Re.1/- per
annum. The lease deed executed by the said two persons in
favour of the Bombay Municipal Corporation [representing
BEST] is dated August 21, 1986. The remaining portion was to
be utilised by the said persons for their won purposed
including construction of a multi-storeyed complex for the
employees of Bombay Municipal Corporation. Under the said
settlement, the said two persons also agreed to construct a
bus station, in the portion leased out to BEST, at their own
cost and hand it over to the BEST free of cost. This
settlement was brought to the notice of the Land Acquisition
Officer by the Additional Collector through his letter dated
September 5, 1986. On September 18, 1986, the Land
Acquisition Officer passed his award wherein he referred to
the aforesaid settlement brought to his notice and, on that
basis , did not deal with or make any award of compensation
with respect to C.T.S.No. 218. His award was confined only
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to C.T.S.No. 211. When the appellant came to know of the
aforesaid facts, he addressed a letter to the authorities
contending that exclusion on C.T.S.No. 210 from acquisition
and passing the award only with respect to C.T.S.No. 211 was
illegal. On November 10, 1986, he filed a writ petition
challenging acquisition of C.T.S.No. 211 on various grounds.
The writ petition was summarily dismissed by a learned
Single Judge by his order dated December 8, 1986 against
which the appellant preferred a writ appeal/Letters Patent
Appeal No. 1868 of 1986. The Letters Patent Appeal was
allowed and the writ petition restored to file. It came up
for hearing before a Division Bench on June 15, 1995. On
that day, the advocate for the appellant asked for an
adjournment and on that being declined, reported "no
instructions". The writ petition was dismissed with costs.
The appellant then filed a review petition contending that
the statement by his counsel on June 15, 1995 that he had no
instructions was a false one and that the advocate had not
really contracted him. He requested that the writ petition
may be heard on merits. The Division Bench heard the parties
at length and dismissed the writ petition again. It opined
that having regard to the fact that the writ petition again.
It opined that having regard to the fact that the
acquisition notification was issued in 1979, that the writ
petition has been pending in the High Court since 1986 and
more particularly, having regard to the purpose of
acquisition, no interference was warranted under Article 226
of the Constitution. The Division Bench also went into the
merits of the case and rejected both the contentions of the
appellant on that score, viz., (1) that the public notice
under Section 4(1) of the Act was not served upon the
appellant and (2) that the acquisition proceedings are
vitiated by malafides. The plea of malafides put forward by
the appellant was based upon the following facts: the
promoters of the Gayatri Darshan Cooperative Housing Society
had entered into an agreement on sale with Vijayanand Singh
who claims to be the owner of C.T.S.No. 218. The society
formed by the employees of the Bombay Municipal Corporation.
The promoters of the society wanted to purchase the
appellant‘s plot with a view to obtain frontage on the road.
The negotiations, however, failed whereupon with a view to
deprive the appellant of his title and interest on
C.T.S.No. 218, the promoters got the user of the said plot
changed from "residential" and "fish market". The said
change of user in the development plan was approved by BEST
and the Corporation contrary to law. As stated above, the
High Court rejected the plea of malafides. The High Court
also observed that one Misquitta claimed to be the owner of
C.T.S.No. 211 and that he had also appeared in the land
acquisition proceedings whereas the appellant entered the
picture much later. It is not even clear, the High Court
observed, whether the appellant had any interest in the said
plot on the date of issuance of notification under Section
4.
Sri Parag Tripathi, learned counsel for the appellant,
urged the following contentions:
(a) that once a notification under Section 4(1) of the Act
was issued with respect to C.T.S.No. 218 as well as
C.T.S.No. 211, the Land Acquisition Officer was bound to
pass an award with respect to both the pieces of land. He
had no jurisdiction or authority not to pass the award in
respect of C.T.S.No. 218 on the ground of an alleged
settlement reported to him by the person for whose benefit
it was being acquired. Until and unless a notification was
issued under Section 48 of the Act, the Land Acquisition
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Officer had no option but to pass an award with respect to
both the lands notified. The illegality committed by the
Land Acquisition officer in not passing an award with
respect to C.T.S.No. 218 vitiates the award as a whole; it
is liable to be struck down even with respect to C.T.S. No.
211.
(b) The result of the alleged settlement between the BEST
and the two persons aforesaid [Vijayanand Singh and the
Housing Society] is that as against the total extent of 1759
sq.mtrs. in C.T.S.No. 218 notified for acquisition, the BEST
is satisfied with only 906 sq.mtrs. Together with 370
sq.mtrs. in C.T.S.No. 211, the BEST would be having
approximately 1276 sq.mtrs. which is obviously sufficient
for its purpose, viz., for establishing the bus station. If
an extent of 1320 sq.mtrs. is sufficient for its purposes,
there is no explanation why a larger extent of 2129 sq.
mtrs. was notified for acquisition. It was not open to BEST
[Bombay Municipal Corporation] to give up a part of the land
proposed to be acquired under a private treaty with the
persons interested. The very fact that part of the land
notified for acquisition for an alleged public purpose has
been surrendered to others including for the purpose of
constructing a residential complex for the employees of the
Bombay Municipal Corporation shows that the alleged public
purpose mentioned in the notification under Section 4 is not
real and is only a ruse to help the aforesaid housing
society. The plea of malafides has been erroneously rejected
by the High Court.
(c) The malafides of the BEST is also evident from the fact
that it has not yet got possession of even the 906 sq.mtrs.
which it bargained under the settlement. A good amount of
litigation has ensued and is pending in that behalf. The
church is disputing the settlement and no bus station has
been established so far on the land. All this shows that
entire proposal for acquisition has failed, mainly on
account of the private settlement between BEST and the said
two persons. Acquisition of C.T.S.No. 211 with a small
extent of 370 sq.mtrs. Serves no purpose.
On the other hand, Sri T.R. Andhyarujina, learned
Solicitor General, supported the validity of the acquisition
of C.T.S.No. 211. He submitted that the settlement was
arrived at in good faith and in the interests of the BEST
which is evident from the fact that the BEST got an extent
of 906 sq.mtrs. free of cost on perpetual lease. In addition
to that, it has also got a bus station to be constructed by
the said two persons free of any cost to the BEST. It is
true, the learned Solicitor General said that the proper
course would have been to have a notification issued under
Section 48 of the Act deleting C.T.S.No. 218 from
acquisition by that was not done because of the constriction
of time. The award had to be passed on or before September
23, 1986 and waiting for a notification under Section 48
would have meant dropping the acquisition proceedings
altogether in as much as no award could have been passed
after September 23, 1986 by virtue of the provisions
contained in Section 11 of the Act. It was for this reason
that the award had to be and was passed on September 18,
1986. The learned solicitor General further submitted that
in the context of the above facts, the circumstance that the
award passed by the Land Acquisition Officer does not
pertain to C.T.S.No. 218 cannot constitute a ground for
quashing the acquisition with respect to C.T.S.No. 211 so
long as the public purpose behind its acquisition remained.
The malafides is totally unacceptable and has unacceptable
and has rightly been rejected by the High Court.
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We are of the opinion that the straight-froward course
for the Land Acquisition Officer and for the BEST [Bombay
Municipal Corporation] was to press ahead with the
acquisition proceedings even with respect to C.T.S.No. 218
and have it acquired according to law, along with C.T.S.No.
211. Instead of adopting the straight-forward course, the
BEST entered into a settlement withe the aforementioned
vijayanand Singh and the housing society- and that seems to
have spawned a good amount of litigation. It is said that
some suit is still pending with respect to C.T.S.No. 218.
May be or may not be. But one thing is clear: all this could
have been avoided and the land could have been acquired for
the BEST by pressing ahead with the land acquisition
proceedings, in which case, the land would have vested in
the government free of all claims and which could have in
turn been vested in Bombay Municipal Corporation [BEST]. Not
following this course has led to perhaps avoidable
litigation though it si true, the BEST claim to have
obtained half the extent in C.T.S.No. 218 free of cost in
addition to the bus station. We presume that the settlement
aforesaid was entered into by Bombay Municipal
Corporation/BEST in good faith and with a view to advance
the interests of BEST and that the error, if any, is an
error of judgment.
Coming to the first contention of Sri Parag Tripathi,
we agree with the proposition of law that once a
notification under Section 4 and a declaration under Section
6 of the Act is made, the Land Acquisition Officer has no
power to decline to pass the award in respect of the land(s)
notified, either partly or wholly. Unless and until the land
(s) are denotified under and in accordance with Section 48,
the Land Acquisition Officer has to pass an award with
respect to the lands notified. Sri Tripathi may also he
right in saying that Land Acquisition Officer had no
jurisdiction to take notice of a private settlement and
making it a basis for not passing the award with respect to
C.T.S.No. 218. But the question is whether it can be said in
the facts and circumstances of this case, that the
acquisition of C.T.S.No. 211 is liable to be quashed on the
said ground. We think not. We have already held that in the
absence of any material to the contrary, we must assume that
the said settlement was arrived at keeping in view the best
interests of BEST. Even the 906 sq.mtrs. of land obtained on
perpetual lease under the settlement is meant for being used
for the purpose stated in the notification under Section 4.
There is also no material to show that the purpose stated in
the said notification is not true or real. The fact that
instead of 1759 sq.mtrs., BEST got only 906 sq.mtrs. under
the settlement does not establish the absence of the need.
It may well be a case of adjusting to the realities of the
situation. In such a situation, it is difficult to say that
the acquisition of C.T.S.No.211 is either unnecessary or
that it is neither be consistent with law nor with public
interest. It should also be remembered in this context that
the appellant is not disputing the purpose of acquisition.
His only contention is that since the award has "deleted"
C.T.S.No. 218, the land C.T.S.No. 211 should also be deleted
- an argument which we have rejected. Indeed, he had not
challenged the acquisition from 1979 to 1986. only after the
award was passed, did he choose to challenge the acquisition
on the aforesaid grounds. Accordingly, we reject the first
contention of Sri Tripathi.
So far as the plea of a malafides is concerned, we do
not find any adequate material to record a finding in favour
of the appellant. There is no material to hold that the
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acquisition notifications was issued at the instance of the
aforementioned employees of the housing society or for that
matter at the instance of Vijayanand Singh. There is no
material to hold that the BEST was acting at the instance of
the said persons or that there was no real or genuine need
for a bus station there. We are also not able to say that
the change of user has any relevance to the plea of
malafides put forward by the appellant.
Lastly, we must also refer to the lack of diligence on
the part of the appellant. His writ petition was pending
since 1786. It came up for hearing in 1995. His counsel
asked for an adjournment which was declined whereupon the
counsel stated that the appellant had taken away all the
papers and has not given him any instructions in the matter.
He reported "no instructions". The Division Bench was of the
opinion that it was only apply to protract and delay the
disposal of the writ petition. It dismissed the same. When a
review petition was filed by the appellant with a certain
explanation. We cannot say that the High Court was not
justified in doing so. Be that as it may, the High Court
also went into the merits of the case though it was not
obliged to do so in a review petition. On merits also, it
found no case for the appellant. We too have come to the
same conclusion.
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, 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
challenge the acquisition proceedings in courts. These
challenges are generally in shape of writ petitions filed on
High Courts. Invariably, stay of acquisition 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 or
grant in 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 and the public
purposes, the interests of justice and the public interest
coalesce. They are very often one and the same. Even in
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 acquisition was vitiated on
account of non-compliance with some legal requirement that
the persons interested shall also be entitled to a
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particular amount of damages to be awarded as a lumpsum 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. Beyond this, it
is neither possible nor advisable to say. We hope and trust
that these considerations will be duly borne in mind by the
courts while dealing with challenges to acquisition
proceedings.
The appeal fails and is dismissed. There shall,
however, be no order as to costs.