Harakchand Misirimal Solanki (Waghresea) Chief Promotor Mohant View C-Operative, Housing Society vs The Collector, Collector Office, Land Acquisition Branch

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2008 Supreme(Bom) 1551

2009(1) ALL.M.R. 799
High Court of Judicature at Bombay
THE HONOURABLE MR. JUSTICE S.B. MHASE & THE HONOURABLE MR. JUSTICE
A.A. KUMBHAKONI
Harakchand Misirimal Solanki (Waghresea) Chief Promotor Mohant View C-Operative, Housing Society & Others – Appellant
Versus
The Collector, Collector Office, Land Acquisition Branch & Others – Respondent
Writ Petition Nos.1296 of 2008, 1644 of 2008, 3648 of 2007, 1648 of 2008, 1173 of 2008,
1149 of 2008, 1154 of 2008, 1227 of 2008, 7736 of 2007
Date of Judgment : 24-10-2008

Advocates Appeared:For the Petitioners:A.V. Anturkar, a/w Sugandh Deshmukh, P.J. Thorat, Ms. Anita Agrawal, C.M. Korde, Sr. Advocate a/w Madhav Jamdar, S.S. Kulkarni, Advocates. For the Respondents:N.P. Deshpande, AGP, R.G. Ketka, Advocate.

Headnote:(A)Land Acquisition Act (1894), Ss.4, 6, 7 - Bombay Provincial Municipal Corporation Act (1949), Ss.63(1b), 66(10) and (22) Before acquiring land for development of “Forest Gardens”, the Corporation shall consider and decide various questions like the necessity of forest gardens, the number of forest gardens, land required for it and many other questions.
       (B)Bombay Provincial Municipal Corporation Act (1949), Ss, 63, 66:- Section 69 deals with things that the Corporation is duty bound to provide to its citizens while Section 66 covers such things which the Corporation may provide atits discretion. Establishment of “Forest Gardens” may fall under the Section 66(ib) or it may be under Section 66(10), but not under Section 66(22) as it refers to botanical or zoological collections which can be preserved only in art museums or art libraries.
       (C)Bombay Provincial Municipal Corporation Act (1949), Ss.63, 66:- It is only after the Bombay Municipal Corporation comes to the conclusion that it wants to establish a Forest garden, the land can be acquired for the purpose of Forest Garden. The decision may be taken by the Corporation in its General Body meeting normally pr of the bye-laws so permit the Standing committee .
       (D)Bombay Provincial Municipal Corporation Act (1949), Ss,77, 78 – Section 77 of the Act deals with acquisition of the land by agreement, but not where the land is acquired by compulsion under Land Acquisition Act.
       (E)Bombay Provincial Municipal Corporation Act (1949), S.78:- Where there is sufficient compliance with Section 78 of the Act in so far as the Commissioner of the Bombay Municipal Corporation has taken the decision to establish Forest Garden, formal acquisition of the land by the Collector under Land Acquisition Act is proper and justified.
       (F)Land Acquisition Act (1894), S,7:- Taking an order for acquisition of the land under Section 7 is a substantive requirement, but not a formal or formal requirement. Though there is no clear provisions in the section or the Act making it mandatory to take such orders from the Government, the subsequent actions of the Collector will become meaningful and purposeful only on taking such an order and hence has to be read into the Act.
       (G)) Interpretation of Statute:- There is no universal rule in interpreting a provision as a mandatory or directory provision, but it depends upon the circumstances of each case. The requirement of taking orders from the Government under Section 7 of Land Acquisition Act is interpreted as a mandatory requirement.
       (H)Land Acquisition Act (1894), S.5-A:- Compliance with principles of natural justice under this provision.
       (I)Land Acquisition Act (1894), Ss,7, 11:- The orders to be taken by the Government under Section 7 shall be an order passed with application and supported by reason. The Collector can not obtain such order subsequent to the acquisition with retrospective effect or ratifying his action. The previous orders issued by the Government or its authenticated officer under Section 11 is not sufficient compliance.
       (J)Constitution of India Article 226 :- Writ petitions challenging land acquisition proceedings filed after inordinate delay is not maintainable.

Judgment :

1. About 114 years after the enactment of a law which is very commonly enforced and consequently very often analyzed-reanalyzed as also interpreted-reinterpreted by various Courts in the country, including the Supreme Court, in this group of matters, we have an occasion, for the first time since its enactment, to interpret the provisions of section 7 of the Land Acquisition Act, 1884 (hereinafter referred to as the “said Act”) as also pronounce upon the true and correct scope thereof. In the submission of the learned counsels appearing on behalf of all the parties in this group of matters, neither any High Court nor the Supreme Court previously had an occasion to deal with such an issue.

2. The respondent herein, the Municipal Corporation of the city of Pune (hereinafter referred as the “said Corporation” for the sake of brevity) established under the Bombay Provincial Municipal Corporation Act 1949 (Hereinafter referred to as ‘the BPMC Act’ for the sake of brevity) is said to have decided to set up what is titled as “Forest Garden” (in local language Marathi -“ou&m|ku”), comprising of 50 hectares of land, situate at Pachgaon, Mauze Parvati Pune. An award under section 11 of the said Act has been declared, for acquiring the lands on which such “Forest Garden”

is to be set up. This group of petition challenges the acquisition proceedings and in turn the award so made on 31st May, 2008 for acquiring survey Nos. 67 to 73.

3. Some of the Writ Petitions from this Group have been filed before declaration of the award, whereas some have been filed after the declaration of the award. In some petitions, admittedly possession is already obtained by the Land Acquisition Officers and has already been handed over to the said Corporation, whereas in some cases the possession is not so obtained, particularly in view of the interim orders passed by this Court preventing dispossession of such petitioners from the acquired sites. The factual details in this regard we will give little later. Hereunder we are setting out as usual first the chronology of events with some particulars. One of the defenses of the respondents to the Writ Petitions is that these petitions are filed with gross delay and latches and that on that ground itself, the same are liable to be dismissed.

1997:- The revised development plan for the area of which the land under acquisition forms part, was brought into the force. In this development plan prepared under the Maharashtra Regional Town Planning Act, 1966 (hereinafter referred to as the “MRTP Act”), the land under acquisition is shown in the “Hill Top-Hill Slope” zone. Consequently in the Development Control Regulations (DCRs) only restricted development has been permitted in this zone. 5th July, 2000:- The Garden-Superintendent of the said Corporation sent a letter to the Assistant Municipal Commissioner (Special) of the said Corporation, requesting that the lands set out in this letter be acquired for developing “Forest Gardens” at three places in the city of Pune. One of the locations set out is “Pachgaon- Parvati” and the lands therefrom admeasuring 50 hectares are described as bearing Survey Nos. 67 to 73 (which includes all the land in issue in this group of matters), excluding area of Shahu College, area of Forest Department and area of temple. The other two places are:-

(i) About 110 to 125 acres situated at Parvati Hill.

(ii) About 100 acres from Chatushrungi Hill.

2nd February, 2002: The Chief Garden Superintendent of the said Corporation issued a follow up letter, reiterating request made by the aforesaid letter dated 5th July, 2000. 15th June, 2002: The Dy. Municipal Commissioner (Special) sent a letter to the Commissioner of the said Corporation requesting to sign a letter enclosed with it. This letter to be signed was a letter to be sent for obtaining approval of the Standing Committee of the said Corporation, for acquiring the aforesaid 50 hectors land from “Pachgaon-Parvati” in accordance

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