2008 Supreme(Bom) 679

2008(4) ALL MR 589
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
A. M. KHANWILKAR & R.C. CHAVAN, JJ.
Damodhar Laxmanrao Kumbodh (deceased) & Ors. - Appellants
Vs.
State of Maharashtra & Ors. - Respondents
Writ Petition No.3831 of 2000
Decided on 6th May, 2008.

Headnote:Land Acquisition Act, 1894 - Section 4-Acquisition of land-Notification under Section 4 of Act published-Transfer of land thereafter-State not bound by such transfer-Transferee not acquires any title-Acquisition proceedings cannot be challenged by such transferee.-The Senior Advocate for the petitioners contended that the decision is unhelpful, since in that case possession was already taken and land vested in the State while in the case at hand possession is yet to be taken. In Court’s view, this does not alter the position that after notification under Section 4 is published transfer does not bind the State and qua the State transferee does not acquire any title.

       It may be seen that in Nandatai’s case, document creating title in her was prior to the date of Section 4 notification. Yet only because it was not recorded as owner, she was held disentitled to question the acquisition proceedings. It is thus clear that transferees (petitioner Nos. 4 to 8) cannot have a standing to challenge proceedings commenced by notification under Section 4 issued before transfer in their favour.

       Land Acquisition Act, 1894 - Section 4-Issuance of notification under Section 4 of Act-A formal expression of intent of authority-Indicating course which authority desires to take-It cannot exhaustively enumerate process of information of opinion that preceded his decision.-A notification under Section 4 of the Act is a formal expression of intent of the authority, indicating what course the authority desires to take. Therefore, it cannot exhaustively enumerate the process of formation of opinion that preceded his decision. She further submitted that adding requirements as to what must be enumerated in the notification would amount to prescribing what statute does not contemplate.

       Land Acquisition Act, 1894 - Section 4-Land acquisition proceedings-Notification under Section 4 of Act-Challenged-Defence of locus of applicant-Not raised in replies-Failure to raise defence-Restrained party from raising contention on related facts-Defence based on implications of law on admitted facts not barred.-It may be seen that in Nandatai’s case, document creating title in her was prior to the date of Section 4 of notification. Yet, only because she was not recorded as owner she was held disentitled to question the acquisition proceedings. It is thus clear that transferees (petitioner Nos. 4 to 8) cannot have a standing to challenge proceedings commenced by notification under Section 4 issued before transfer in their favour.

       Land Acquisition Act, 1894 - Sections 4, 5 and 17-Acquisition of land-Issuance of notification under Section 4 of Act-Urgency for-Test of-Pre-notification delay-Not indicative of absence of urgency-Non-issuance of declaration under Section 6 of Act simultaneously or soon thereafter-Also not indicative of absence of urgency.-Applying principles emerging from those judgments to the decision relating to invocation of powers under Section 17(4) for doing away with enquiry under Section 5-A of the Act, the following requirements/ tests emerge :-

       (1) Urgency in completing a project cannot be equated to urgency which make it necessary to even skip enquiry under Section 5-A of the Act.

       (2) The question of subjective satisfaction of an authority in forming the opinion that enquiry under Section 5-A should be done away with is one of fact, to be determined with reference to totality of circumstances.

       (3) Pre-notification delay is not necessarily indicative of absence of urgency.

       (4) Failure to issue declaration under Section 6 simultaneously, or soon thereafter too is not necessarily indicative of absence of urgency.

       (5) Skipping enquiry under Section 5-A should not be routinely resorted to or allowed by Courts, since it is the only opportunity afforded to owner of property to raise his objections to compulsory acquisition.

       Land Acquisition Act, 1894 - Sections 4, 6, 5-A and 17-Subsequent encumbrance.-Acquisition of land was opposed on ground that notice under Section 6 is defective and subsequent to notice, interest has been created in favour of different persons. It was held that once notification has been published any subsequent encumbrance on that is not binding on Court. Person who acquired interest later have no locus to challenge acquisition proceeding. As to notification under Section 4 record shows that notices were duly published.