Mohammed bhai s/o Miyabhai and others vs State of Maharashtra and others

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1999 Supreme(Bom) 828

IN THE HIGH COURT OF BOMBAY
(AURANGABAD BENCH)
B.H. Marlapalle A.S. Bagga, JJ.
Mohmadbhai s/o Miyabhai others..... Petitioners.
Versus
The State of Maharashtra others..... Respondents.
Writ Petition Nos. 905, 907, 1040, 1360 of 1986 and 1179 of 89 1610 of 1991, decided on 22/25/26 27-10-1999.
Advocates appeared :
D.A. Gursahani, in W.P. No. 905/1986, 1179/1989 and 1610/1991, for petitioners.
Smt. D.V. Tele, A.G.P., in W.P. No. 905/1986, for the respondent Nos. 1, 4 and 5 and in W.P. No. 1360/1986 for respondent Nos. 1 to 3.
K.G. Navander, S.C., in W.P. No. 905, 907 1040/1986, for respondent No. 6.
A.B. Naik, for N.B. Khandare, in W.P. No. 905/1986, for respondent No. 3.
N.K. Kakade in W.P. No. 907 1040/1986, for petitioners.
Smt. J.P. Akolkar, A.G.P., in W.P. No. 907/1986, for respondent Nos. 1, 4 and 5 and in W.P. No. 1610/1991, for respondent Nos. 1 and 3.
A.B. Naik, in W.P. No. 907/1991 1040/1986, for A.S. Bajaj, for respondent No. 3.
A.B. Naik, holding, in W.P. No. 1360/1986, 1179/1989, for A.S. Bajaj, for respondent No. 4 and in W.P. No. 1610/1991, for respondent No. 2.
Smt. R.P. Phatke, A.G.P. in W.P. No. 1040/1986, for respondent Nos. 1, 4 and 5.
M.D. Joshi, in W.P. No. 1360/1986, for petitioner.
Smt. S.L. Deshpande A.G.P. in W.P. No. 1179/1989, for respondent Nos. 1 to 3 and 5.

Headnote:Article 226 and Land Acquisition Act (1 of 1894), Section 11-Writ petition to challenge land acquisition proceedings or award-Once land acquisition proceedings are completed and acquired land has been taken over and award passed challenge to land acquisition proceedings or the award cannot be entertained.-Once the land acquisition proceedings are completed, the acquired land has been taken over and award has been passed, challenge to the land acquisition proceedings or the award cannot be entertained. When the writ petitions were filed, some of the petitioners were in possession of their respective lands. Once the land acquisition proceeding are completed, the land vested in the State, free from all encumbrances and proceedings become final, and therefore, they are not open to challenge in a writ petition filed under Article 226 of the Constitution of India on the ground of non-compliance with any statutory requirement. The remedy available in such cases to the aggrieved landlord is only to claim higher compensation by filing a reference under Section 18 of the Land Acquisition Act 1996 (11) SCC 501, Ref.
       Land Acquisition Act, 1894
       Sections 3(c), 11 and 52-A(2) Special Land Acquisition Officer (CIDCO) appointed to perform functions of Collector-Land Acquisition Cases pertaining to CIDCO (under MRTP Act) transferred by Collector exercising power under Section 52A(2) to Special Land Acquisition Officer (CIDCO)-Award passed by Special Land Acquisition Officer (CIDCO) was passed by competent officer and could not be held to be illegal.
       Sections 4(1) and 11Notification under Section 4(1)-Post notification sale of land under acquisition is illegal and does not bind State-Subsequent owners of land cannot raise a plea that they were not heard and award be declared as illegal.- The purchase of the land covered under the notification under Section 4(1) of the Land Acquisition Act, subsequent to the date of such notification, is illegal and it does not bind the State after such a notification was published. It is now well established that the post notification sale of the land under acquisition is illegal and such a sale does not bin9 the State. (1996) 1 SCC 299 : (1996) 3 SCC 124 : (1996) 10 sec 721, Relied.
       Section 11-Inquiry for passing an Award-No separate notice to persons interested in addition to notice given under Section 9 is necessary while conducting inquiry,-Section 11 falls in Part II of the Land Acquisition Act. The provisions of Part II of the Land Acquisition Act will have to be read in sequence, i.e. one after another and if they are so read, the notices to be issued under Section 9 are required to be followed by the steps to be taken under Section 10 by the Collector and then comes the inquiry which is contemplated under Section 11 of the Land Acquisition Act before an award is passed. Section 11 of the Act does not contemplate any separate notice to be issued while conducting the inquiry for passing an award by the Collector in addition to the notice which was given under Section 9 of the said Act, and therefore, even if it is presumed that the petitioners were not issued a separate notice for conducting an inquiry under Section 11 of the Act so as to pass an award, the award cannot be vitiated.
       Section 16-Possession of land under acquisition-Mode of taking possession,- The normal mode of taking possession is drafting a panchanama in the presence of panchas and taking possession and giving delivery to the beneficiaries is the accepted mode of taking possession of the land. Subsequent thereto, the retention of possession would tantamount only to illegal or unlawful possession. (1996) 4 SCC 212, Relied.

JUDGMENT - B.H. MARLAPALLE, J.:---Writ Petition No. 905/86: The petitioner No. 1 claims to be the owner of lands located in Survey Nos. 16, 17 and 91 of village Mukundwadi, taluka and District Aurangabad. The Government of Maharashtra issued notifications on 30th October, 1972, 3rd February, 1973 and 4th May, 1973 under section 40(1)(b) of the Maharashtra Regional and Town Planning Act, 1966 (hereinafter referred to as the M.R.T.P. Act for short) and constituted and appointed City and Industrial Development Corporation of Maharashtra as a Special Planning Authority for the development of Aurangabad Notified Area specified in the schedule which included the land of the petitioner. On 24-5-1973 the Special Planning Authority issued a Notification under section 126 and reserved, allotted and designated the area including the lands of the petitioner and prepared a Development Plan. On 16th October, 1975 the Planning Authority modified the Development Plan of 1973 and published a final notification under section 126(2) of the .M.R.T.P. Act and in the schedule thereof lands in Survey No. 16 admeasuring 8 H and 17 R, Survey No. 17 (P.T) admeasuring 8 H and 29 R and Survey No. 91 admeasuring 5 H. and 26 R were sought to be acquired. It is pertinent to note at this stage that by Government Notification dated 30th August, 1971 issued under section 151(1) of the M.R.T.P. Act, the powers exercisable by the State Government under sub-section (2) and (4) of section 126 of the M.R.T.P. Act were delegated to the Commissioners of the divisions and, therefore, the final notification under section 126(2) dated 16th October, 1975 came to be published by the Divisional Commissioner at Aurangabad. The corrigendum to the said notification was issued by the competent authority and the same has been published in the Government Gazette dated 9-9-1976 wherein it has been shown that the area sought to be acquired from Survey No. 17 P.T was reduced from 8 H and 29 R to 8 H and 3 R.

2. The petitioner No. 1 was issued notice under section 9(3) and (4) of the Land Acquisition Act on 20-9-1976. It appears that thereafter, the petitioner No. 1 alienated part of the land under acquisition from Survey No. 17 in favour of the petitioners No. 2 and 3 i.e. by a sale deed dated 8-12-1980 in favour of the petitioner No. 3 and by another sale deed dated 11-12-1979 in favour of the petitioner No. 2 to the extent of 2 acres, 20 gunthas and 2 acres respectively. The petitioner No. 1 along with other owners whose lands were sought to be acquired pursuant to the notification dated 24th May, 1973, had filed objections for the said proposal. By the notification dated 16-10-1975 the Special Land Acquisition Officer, CIDCO was vested with the powers of Collector for the purpose of acquisition of land mentioned in the schedule thereto. It appears that subsequently, by exercising powers under section 52-A(2) of the Land Acquisition Act, the Collector has delegated powers in favour of the Land Acquisition Officer, Sharda Colony, Aurangabad. The said Officer has thereafter, passed award in respect of the lands under acquisition on 23rd September, 1986.

3. This petition has been filed on 22nd September, 1986 and by an order dated 22-9-1986 this Court had granted interim stay of delivery of possession till 29-9-1986 and on 29-9-1986, the petition was admitted by vacating the order of interim relief. The petitioners have challenged the notification dated 16th October, 1975 and the notices issued under section 9 of the Land Acquisition Act. In addition, the petitioners have challenged the Constitutional validity of sections 125, 126, 128 and 129 of the M.R.T.P. Act. The challenge to the Constitutional validity of sections 125, 126, 128 and 129 has not been seriously pressed and the arguments have been mainly advanced in respect of the first prayer namely quashing of the notification dated 16th October, 1975 and the notices issued under section 9 of the Land Acquisition Act.

4. Writ Peti

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1999 Supreme(Bom) 828

Cases Referred (7)