2011(1) ALL MR 648
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(AURANGABAD BENCH)
NARESH H. PATIL AND K.K. TATED, JJ.
Fakhruddin S/O. Hyderali Vs. Union Of India & Ors.
Writ Petition No.3555 of 1994
3rd December, 2010
Petitioner Counsel: Shri. S. P. SONPAWALE
Respondent Counsel: Shri. ALOK SHARMA,Shri. S. V. KURUNDKAR,Shri. S. P. DESHMUKH,Shri. S. R. BARLINGE
Land Acquisition Act (1894), Ss.3(cc), (e), (f), 4, 6 - ESSO Acquisition of Undertaking in India Act (1974), Ss.7(1), (2), (3) - Companies Act (1956), Ss.591, 617 - Authority to initiate proposal for acquisition of land - Interference with - Existence of public purpose for acquisition of land - Absence of serious prejudice caused to the petitioner/owner of the land - The acquisition proceedings could not be said to have been vitiated - Held, no interference is warranted in exercise of extraordinary writ jurisdiction under Art.226 of the Constitution of India. Constitution of India, Art.226. 2009(5) SCC 242, 2003 AIR SCW 4372 and 2009 ALL SCR 731 - Ref. to. (Paras 46 and 47)
State of Punjab Vs. Raja Ram, AIR 1981 SC 1694 [Para 43]
The Collector (District Magistrate), Allahabad Vs. Raja Ram Jaiswal, AIR 1985 SC 1622 [Para 43]
S. Bavajan Sahib Vs. State of Kerala, AIR 1988 Kerala 280 [Para 43]
Metro Theatre Bombay Ltd. Vs. Union of India, AIR 1988 Bom 183 [Para 43]
Shyamnandan Prasad Vs. State of Bihar, 1994 LAC 84 (SC) [Para 43]
Shivaji Maharaj Virajman Marwari Panchayati Mandir Avran Marari Panchayati Bagichi, Durrs Milkana Swath Behat Roa, Sahaanpur Vs. The State of U.P., 1997(1) LAC 296 (All) [Para 43]
Kanaka Gruha Nirmana Sahakara Sangha, Avalahalli, Banglore South Taluk Vs. Kota Srinivasa Murty, 1998(1) LAC 475 (Kar) [Para 43]
K. Kumar Naicher Vs. State of Tamil Nadu, 1998(2) LAC 282 (Mad) [Para 43]
Hindustan Petroleum Corporation Ltd. Vs. Darius Shapur Chenai, 2005(9) SRJ 106 [Para 43]
Ramrao Pralhadrao Deshmukh Vs. State of Maharashtra, 2008(1) ALL MR 234=2007 LAC 773 Bombay [Para 43]
Mohammad Hashim Vs. State of Uttar Pradesh, 1993 L.A.C. 1 [Para 43]
State of Haryana Vs. Raghubir Dayal, 1995 AIR SCW 46 [Para 44]
Sriniwas Ramnath Khatod Vs. State of Maharashtra, 2001 AIR SCW 4799 [Para 44]
Sooraram Pratap Reddy Vs. District Collector, Ranga Reddy, 2009 ALL SCR 731 : (2008)9 SCC 552 [Para 44]
Urmila Roy Vs. Bengal Peerless Housing Development Company Ltd., (2009)5 SCC 242 [Para 44]
Bihar State Housing Board Vs. State of Bihar, 2003 AIR SCW 4372 [Para 44]
State of T.N. Vs. Mahalakshmi Ammal, AIR 1996 SC 866 [Para 44]
Nasik Municipal Corporation Vs. Harbanslal Laikwant Rajpal, AIR 1997 SC 1701 [Para 44]
NARESH H. PATIL, J. :- The petitioner claims to be owner of plot Survey No.5-5-38 (Old No.1919) bearing CTS No.144/53 at Kranti Chowk Aurangabad within the municipal limits of Aurangabad Municipal Corporation. The plot admeasures approximately 2108 square meters. The petitioner contends that a lease of land of the subject plot was executed by him in favour of "ESSO Standard Eastern Inc.", a Corporation, which was operating in India and was dealing in business of petroleum products. The lease was executed on 1-12-1962 between the parties on rent of Rs.250/- per month. The company was running a petrol pump either itself or through some dealer. The lease agreement was to be in operative at the first instance specifically for a period of ten years. Under clause (d) of the agreement it was stipulated that on the written request of the lessee, the lessor would extend the period of lease for a further period of ten years from the expiry of the said term on the same rent. The petitioner stated that on 11-8-1972 the ESSO Company exercised its option and requested to continue the said lease. The lease was continued and by a communication dated 12th May, 1982 the petitioner renewed the lease for a further period of ten years. The Company thereafter again requested to extend the period for further ten years commencing from 12-5-1982 but the petitioner was not ready to continue the lease period. The petitioner sent notice under section 106 of the Transfer of Property Act read with section 80 of the Code of Civil Procedure to the respondent No.1 i.e. Union of India, the Ministry of Petroleum as well as to respondent No.3 Company, namely, Hindustan Petroleum Corporation Limited (HPCL). The petitioner's contention is that the request for extension of lease period by the respondent No.3 through communication dated 12-5-1982 was illegal and the petitioner was terminating said tenancy as the petitioner himself intended to raise some construction on the said plot.
2. The petitioner states that the respondent No.3 informed that they had already requested for extension of further period from 1-10-1982. The company exercised its power under section 5(2) and 7(3) of the Esso (Acquisition of Undertakings in India) Act 1974. According to the petitioner, the respondent No.3 - HPCL was successor in title of the Esso company and as per the agreement of lease the respondent No.3 ought to have vacated the premises in the month of December, 1982. It is alleged that the respondent No.3 and its officers were interested in continuing the lease illegally and mala fide only to help respondent No.5 dealer who was running petrol pump on behalf of respondent No.3 - Corporation. The petitioner states that there was no other reason for respondent No.3 to request for continuation of lease than to favour the dealer. The original petitioner Fakruddin Haidar Ali died and his represented by his legal representative.
3. The petitioner further stated that he filed Regular Civil Suit No.587 of 1983 terminating the tenancy. By a judgment and order dated 19-8-1989 the Civil Court held that the lease was still subsisting and did not come to an end. The suit was dismissed. Being aggrieved by the said judgment and decree the petitioner preferred an appeal being Regular Civil Appeal No.244 of 1989 before the District Court Aurangabad. By a judgment and order dated 2-11-1991 the learned Additional District Judge allowed the appeal of the petitioner. The respondent No.3 being aggrieved by the said judgment and decree preferred Second Appeal No.134 of 1992. The petitioner contends that initially the stay was refused in the proceedings of the second appeal but in the Letters Patent Appeal Stamp No.17574 of 1992 stay was granted in favour of the respondent No.3 - company. From the proceedings of LPA it is gathered that by an order dated 6-8-1993 the Division Bench of this Court (Coram: V. V. Kamat & A. A. Halbe, JJ.) passed following order:
"Heard Shri. P. R. Deshmukh and Mr. Bajaj for parties.
In view of order dt.12.7.93 (copy taken on record) of the S.C., S.A. No.134/92 is expedited and ordered to be heard within 8 weeks, without disturbing earlier order dt. 15-12-92 of this Court in this L.P.A., this Appeal now has become infructuous. L.P.A. stands disposed off as such, continuing earlier order till the decision of SA 134/92."
4. It is stated that S.L.P. (C) No.8250 of 1993 was preferred against the said order of stay. The Apex Court did not interfere but requested the High Court to dispose of the second appeal within a period of 8 weeks from the receipt of the order of the Apex Court dated 12-7-1993.
5. The petitioner contends that a civil application came to be filed in the proceedings of the second appeal being Civil Application No.2936 of 1993 in Second Appeal No.134 of 1992 mainly contending that lease for further period of ten years was also over and therefore the plaint be allowed to be amended directing respondent No.3 to hand over possession of the property. The respondent Nos.3 and 4 opposed the application. It was then contended by the respondent No.3, according to the petitioner, that the respondent No.3 had already issued notification under section 6 for taking over the premises by way of acquisition. By order dated 6-9-1993 amendment of the plaint as sought for by the petitioner was allowed. Written Statement came to be filed on behalf of respondent No.3.
6. The petitioner specifically alleges that respondent Nos.3 and 4 were acting at the behest of respondent No.5 who was running the petrol pump as a dealer of respondent No.3. Respondent No.4 was then Chief Regional Manager of the HPCL. Respondent Nos.5-A to 5-C are legal representatives of respondent No.5 - the original dealer expired and is represented by his legal representatives.
8. Writ Petition No.7090 of 2005 was filed by Hindustan Petroleum Corporation Limited on 7-10-2005 against an order of issuance of warrant for possession dated 14-9-2005 passed below Exhibit 1 of Regular Darkhast No.46 of 1992 and for other consequential reliefs. By an order dated 11th October, 2005 Division Bench of this Court granted status quo regarding possession which was continued from time to time. By an order dated 21st September, 2007 the petition was admitted and status quo granted earlier was continued by way of ad-interim relief.
Writ Petition No.1748 of 2008 was filed by deceased Fakruddin Hayderali Ambawala raising challenge to the orders dated 29th January 2008 and 12th March, 2006 passed by the Divisional Commissioner. From the proceedings we find that Writ Petition No.1748 of 2008 is still pending admission hearing of this Court.
9. The petitioner contends that Notification under section 4 of the Land Acquisition Act was issued on 9-3-1993 in respect of the subject plot. The Special Land Acquisition Officer had called for objections. Accordingly, the petitioner submitted his objections on 7-4-1993. The petitioner applied for getting copy of notification issued under section 6 of the Land Acquisition Act. It is alleged that at the behest of respondent No.5, the authorities of the respondent Corporation were acting in connivance. The petitioner states that, notification under section 6 was initially issued without mentioning any date and notification number. The petitioner could not even get copy of the said notification. The petitioner alleged that with mala fide intention the subject plot was acquired. The subject plot is situated at a location which has high commercial potentiality and market value and is suitable for business purposes. The petitioner was, therefore, interested to develop his own property. The petitioner states that the said plot was not suitable for running petrol pump.
10. The petitioner contends that the Divisional Commissioner had rejected the objections filed by the petitioner. The petitioner filed a revision application under section 15-A of the Land Acquisition Act (Maharashtra Amendment). In stead of deciding the revision petition by the State Government, the Commissioner wrongly and illegally dealt with the revision petition and dismissed the same.
11. By an order dated 30-7-1996 the petition was allowed to be amended. The petitioner in para 24-A states that after the writ petition was filed, on 2-12-1995 the respondent No.8 had passed award under the proceedings initiated under Land Acquisition Act and the compensation was determined for an amount of Rs.57,69,701/-. A copy of the award was annexed to the petition. The petitioner contends that in respect of the award the petitioner is reserving his right to take appropriate proceedings as advised to him and the amendment was sought for limited purposes to point out as to how the amount is being wasted by public limited company to protect interests of private individual i.e. respondent No.5. The petitioner disputes that possession was taken by private negotiations or otherwise.
12. The petitioner has amended prayer clauses also. In prayer clause (C-1) the petitioner claimed a declaration that the subject acquisition be held to be mala fide and arbitrary and claimed for quashing and setting aside the award dated 2-12-1995. The petitioner prayed for further consequential reliefs in terms of prayer clauses (C-2) and (C-3).
13. The Division Bench of this Court issued notices to the respondents on 19-8-1996. By an order dated 23-12-1996 the Division Bench granted interim relief to the effect that possession of the property involved in the writ petition shall not be taken in pursuance to notice dated 19-12-1996 until further orders.
15. On behalf of respondents Nos.3 and 4 Mr. S. K. Bhatnagar, Senior Regional Manager of respondent No.3 - HPCL filed affidavit-in-reply dated 21st July, 1997. The deponent contended that respondent No.3 is a Government Company under the provisions of Section 617 of the Companies Act 1956 and public sector undertaking of the Government of India and is under the administrative control of Ministry of Petroleum and Natural Gas, Government of India. With effect from 13-3-1974 the right, title, interest and liabilities of the ESSO Standard Incorporated in relation to the Undertakings in India were vested in the Government of India by an Act of Parliament i.e. Esso (Acquisition of Undertakings in India) Act, 1974 (IV of 1974). Prior to 13-3-1974 there existed three companies known as "ESSO Group" viz ESSO Standard Eastern Inc., ESSO Standard Refining Company Limited and Lube India Ltd., simultaneously the Central Government acquired 74% of the paid up equity capital of ESSO Standard Refining Company of India Ltd. and also acquired 24% of the paid up equity capital of Lube India Limited in which company the Central Government was already having 50% equity participation. Thus, all the three companies became Government Companies within the meaning of Section 617 of the Companies Act, 1956. The deponent further contends that, thereafter the Central Government through the Ministry of Petroleum and Chemicals issued a Notification No.GSR-131 (E) dated 14th March, 1974 in exercise of powers conferred by sub-section (1) of Section 7 of the ESSO Act of 1974, directing vesting of right, title, interest and liabilities of these companies in HPCL which came into existence with effect from 15-3-1974.
16. The deponent had refuted the allegations of connivance, mala fides and favouritism. It is contended that the respondent Corporation felt that the land is required in public interest and accordingly steps were taken to acquire the land. The respondent Corporation deposited the entire amount as per the requisition of the State Government and the Collector and accordingly the proceedings were initiated. Section 4 Notification initially was published on 19th March, 1993. Notification under Section 6 of the Land Acquisition Act was published in gazette No.44 dated 4-11-1993, Aurangabad Times dated 15-10-1993, Daily Deogiri Tarun Bharat dated 16-10-1997 and village publication was made on 4-12-1993.
18. The deponent contended that while filing objections under section 5-A the petitioner did not take plea with regard to requirements of Part VII of the Land Acquisition Act. It is contended that, the question as to whether the land is needed for a public purpose is for the State to decide and its decision in that respect cannot be subject matter of judicial review under Article 226 of the Constitution of India. The Award is passed which has become final and conclusive. The deponent prayed for dismissal of the writ petition.
19. The petitioner thereafter filed additional affidavit on 21-6-2006. The petitioner contended that notification under section 9 was published before issuance of declaration of section 6 notification. The declaration under sections 6 and 9 was faulty. The petitioner raised question in respect of panchanama drawn and publication made in this regard.
"9. I say and submit that thereafter declaration under Section 6 was issued by the Divisional Commissioner Aurangabad on 11/10/93. The said notification/declaration under section 6 of the said Act was published in Maharashtra Government Gazette on 4/11/93 and in two daily news papers i.e. Aurangabad Times on 15/10/93 and Daily Devgiri Tarun Bharat on 16/10/93. Subsequently the said declaration under section 6 of the said Act was published at convenient place on CTS 14453 situated at Aurangabad on 4/12/93 and accordingly panchanama was prepared. Hereto annexed and marked as Exhibit R-3 is the true and correct copy of the declaration."
The deponent refuted the allegations made in respect of land acquisition proceedings. The deponent contends that an application was filed by the petitioner under section 48(1) of the Act before the Commissioner Aurangabad for deletion of the land from acquisition which was rejected on 12th March, 2006. The Award was passed within period of limitation prescribed under the Land Acquisition Act. The deponent has annexed with affidavit-in-reply relevant and important documents in respect of communication exchanged between the Corporation and the Government authorities. Agreement executed by HPCL, publication of notifications, panchanamas drawn under sections 4 and 6 and an order passed by the Commissioner dated 12th March, 2006 under Section 48(1) of the L.A. Act.
21. The respondent Nos.5A to 5C filed affidavit-in-reply dated 24-7-2007. They refuted allegations of mala fides and influence exercised by deceased respondent No.5. The deponent contends that respondent No.3 is a Central Government Public Sector Undertaking, a Government Company within the meaning of Section 617 of the Companies Act, 1956. The procedure under the Land Acquisition Act had been scrupulously followed by the authorities. The procedural rigors provided in Part VII of the Land Acquisition Act and the rules are not applicable to the present acquisition. The acquisition is in public interest and, therefore, they claim dismissal of the petition.
22. The learned counsel for the petitioner, Shri. Sonpawale, submitted that without obtaining permission from Central Government, respondent No.3 - HPCL had no authority to request the State Government for acquisition of the subject plot under the provisions of the Land Acquisition Act. There was no public interest and public purpose involved in acquisition of the subject plot. The land acquisition proceedings were initiated, according to the counsel, on the apprehension of respondent Nos.3, 4 and 5A to 5C that they may suffer eviction orders under the civil proceedings initiated in Regular Civil Suit No.587 of 1983 by the petitioner. Therefore, the land acquisition proceedings are affected due to mala fides. The counsel submitted that for the benefit of original respondent No.5 the respondent Nos.3 and 4 initiated land acquisition proceedings which is unbecoming of a public sector undertaking like HPCL. The counsel submitted that pending civil proceedings the respondent No.3 was not entitled in law to proceed for acquisition of the land. In respect of the steps taken by the Special Land Acquisition Officer it was submitted that the record was manipulated to suite the purposes. In the submission of the counsel, notice under section 6 was in fact a publication of Section 9 notification. Section 9 notice was published prior to Section 6 notification. The petitioner was not provided with a copy of notice of section 6 inspite of repeated requests. There was no Inward/Outward number to the correspondence made between the authorities of the State. There was no communication made by the Commissioner in this regard to the lower officers.
23. The Commissioner had no power to decide the revision under section 15-A of the Land Acquisition Act. It was the State Government alone which was empowered to decide his revision petition. The Commissioner being interested party in the acquisition ought not to have decided the revision petition, according to the counsel. The decision given under provisions of section 5-A was not communicated to the petitioner. Though the HPCL had other plot available, with mala fide intention, the subject plot was acquired to benefit the respondent No.5. The learned counsel submitted that, no orders were passed under section 7 of the Land Acquisition Act. Therefore, the land acquisition proceedings are vitiated. HPCL had no power and was not entitled to request for acquisition of the land in absence of request made by the Central Government or the authorization given to the company. The counsel, therefore, submitted that the entire land acquisition proceedings are vitiated and therefore prayed for allowing the petition by setting aside the award passed by the Special Land Acquisition Officer.
24. The learned counsel Shri. Sunil Deshmukh, appearing for respondent Nos.3 and 4 submitted that the provisions of section 3(e) of the Land Acquisition Act excludes Part VII of the Land Acquisition Act which does not apply to the present proceedings. Publication of Sections 6 and 9 Notifications was made properly and in accordance with law. The land acquisition proceedings were initiated properly. The respondent No.3 HPCL had every authority in law to request for acquisition of the subject property as it is a Government company and is entrusted with the powers to request accordingly. The counsel submitted, in alternative, that, even if there is irregularity in respect of publication of notifications under sections 6 and 9, it would not vitiate the land acquisition proceedings. No prejudice was/is caused to the petitioner in that regard. The counsel referred to the Land Acquisition Manual and more particularly Sections 3(f), 3(e) and Chapter VII of the Land Acquisition Act. The counsel disagreed with the submissions that the acquisition was made mala fide by the Company to benefit private persons and there was no public purpose involved in it.
25. The learned Additional Government Pleader Shri. S. V. Kurundkar appearing for the State submitted that no mala fide could be attributed to the authorities who initiated the land acquisition proceedings. The Award was already passed and, therefore, the petitioner was not entitled to raise challenge to the Award on the grounds raised in this petition.
26. The learned counsel Shri. S. R. Barlinge appearing for respondent Nos.5-A to 5-C submitted that the allegations made in the petition in respect of mala fides are not substantiated. There were no specific allegations in the petition as to how the respondent No.5 influenced the Union of India. The petitioner raised disputed questions of fact which cannot be gone into in the proceedings of writ petition.
It was submitted that, the land was not acquired to benefit respondent No.5 - Dealer of the Company. The Company had every authority and right to appoint another dealer if the Company so desires. The counsel prayed for dismissal of the petition.
27. In reply to the arguments advanced, learned counsel for the petitioner Shri. Sonpawale submitted that there are allegations of mala fide that is why respondent No.4 was made party in person. The Union of India preferred not to file affidavit-in-reply. The consent of the Union of India for acquisition was necessary. The counsel raised objection to the proceedings under Section 5-A of the Act. It was submitted that possession of the property was not handed over to the HPCL.
29. We would now address the substantial grounds raised by the petitioner. The learned counsel for the petitioner submitted that, element of public purpose was absent in the acquisition of the subject land as no land could be acquired for the purposes of establishing a petrol pump which would be allotted to be run by a third party. It is alleged that to benefit the respondent - dealer the land was acquired. A Corporation cannot acquire land on behalf of the State or Union, according to the counsel. We may refer to the provisions of Section 3(cc), (e) and (f) of the Land Acquisition Act, 1894. The provisions of Section 3(cc) refer to the expression "corporation owned or controlled by the State". In Section 3(e) expression "Company" is defined which means a company as defined in section 3 of the Companies Act, 1956, other than a Government company referred to in clause (cc). In section 3(f) while defining "public purpose" clause (iv) stipulates that it would include the provision of land for a corporation owned or controlled by the State. Proposal was initiated by the respondent Corporation as a Government Company having 51% share of the Union of India and in the light of the provisions of the Land Acquisition Act, 1894 and the Esso (Acquisition of Undertakings in India) Act, 1974 (for short, "the Act of 1974") and considering the purpose for which the land was acquired i.e. for public purpose for retail outlet to cater need of motoring public being purpose of the Union, we are of the view that element of public purpose was existing while the proposal was initiated for acquisition of the subject land. The submissions raised by the counsel for the petitioner on this ground are not convincing.
30. The learned counsel for the petitioner submitted that the HPCL was not entitled in law to initiate land acquisition proceedings in absence of specific consent of the Union of India. The counsel referred to the provisions of the Act of 1974. We have perused the same. Esso was a foreign company within the meaning of Section 591 of the Companies Act 1956 incorporated under the laws of the State of Delaware in the United States of America. The Government Company means a company as defined in Section 617 of the Companies Act. Under the Act of 1974 right, title and interest of Esso Company were acquired in order to ensure that the ownership and control of the petroleum products distributed and marketed in India by the said company are vested in the State. Section 7(1), (2), (3) of the Act of 1974 reads as under :
"7. (1) Notwithstanding anything contained in sections 3, 4 and 5, the Central Government may, if it is satisfied that and Government company is willing to comply, or has complied, with such terms and conditions as that Government may think fit to impose, direct, by notification, that the right, title and interest and the liabilities of Esso in relation to any undertaking in India shall, instead of containing to vest in the Central Government, vest in the Government company either on the date of notification or on such earlier or later date (not being a date earlier than the appointed, day) as may be specified in the notification.
(2) Where the right, title and interest and the liabilities of Esso in relation to its undertakings in India vest in a Government company under sub-section (1) the Government company shall, on and from the date of such vesting, be deemed to have become the owner, tenant or lessee, as the case may be, in relation to such undertakings, and all the rights and liabilities of the Central Government in relation to such undertakings shall, on and from the date of such vesting, be deemed to have become the rights and liabilities, respectively of the Government company.
(3) The provisions of sub-section (2) of section 5 shall apply to a lease or tenancy, which vets in a Government company, as they apply to a lease or tenancy vested in the central Government and reference therein to the Central Government: shall be construed as a reference to the Government Company."
31. Considering the provisions of the said Act, it is clear that all the rights and liabilities of the Central Government in relation to such undertaking shall on and from the date of such vesting be deemed to become rights and liabilities respectively of the Government company. In the light of the provisions of the Act of 1974 and the Land Acquisition Act 1894 we do not find that the HPCL had no authority in law to initiate proposal for acquisition of land on behalf of the Union of India.
32. The learned counsel for the petitioner submitted that in view of pendency of civil proceedings filed by the petitioner, owner of the subject land, for possession of the subject land by filing Regular Civil Suit No.587 of 1983, the HPCL or the Union of India had no authority to initiate proposal for acquisition of land. It is alleged that the acquisition proceedings were initiated deliberately to scuttle the probable eviction orders by the Civil Court. The steps taken by the HPCL are full of mala fides. The HPCL was interested to benefit the respondent dealer of the company who was running petrol pump on the subject site. After considering the original record and the documents placed before us, and in view of the rival contentions of the contesting parties, we do not find that the move to initiate land acquisition proceedings was to favour the respondent dealer.
33. As regards pendency of the civil suit from the record we find that Second Appeal No.134 of 1992 filed by the HPCL is still pending. The submission of the learned counsel for the petitioner to the effect that there was no interim relief passed in the proceedings of the second appeal is not correct. In the proceedings of the Letters Patent Appeal by an order dated 6-8-1993 Division Bench of this Court while disposing of the Letters Patent Appeal continued the order of stay granted on 15-12-1992 till decision of the second appeal. Therefore, it cannot be said that the HPCL was under threat of execution of eviction decree. The submissions and allegations made on that ground are not sustainable.
34. The learned counsel submitted that the provisions of Sections 6 and 9 of the Land Acquisition Act were not followed in letter and spirit. It is the contention of the counsel that Section 9 notice was published prior to notice of Section 6 of the Act. We have perused the record, the panchanamas, the endorsements made by the officers concerned. We do not find that any manipulation was done in respect of publication of notice. The counsel for the respondent HPCL submitted that, improper service of section 9 notice would not vitiate the acquisition proceedings. In the affidavit-in-reply filed on behalf of respondent Nos.6 to 8 it is contended that notification declaration under section 6 of the Land Acquisition Act was published in Maharashtra Government Gazette on 4-11-1993 and in two daily newspapers i.e. Aurangabad Times on 15-10-1993 and Daily Deogiri Tarun Bharat on 16-10-1993. Subsequently the said declaration under section 6 of the Act was published at convenient place on CTS 14453 situated at Aurangabad on 4-12-1993 and accordingly panchanama was prepared. Award under section 11-A of the Act was passed on 2-12-1995 amounting to Rs.56,16,701/- only. We do not find any convincing ground and material to reject the averments made by the deponent on oath.
35. The learned counsel for the petitioner submitted that the objections raised under section 5-A of the Act were not dealt with. The deponent on behalf of respondent Nos.6 to 8 i.e. the Special Land Acquisition Officer averred on oath that the objections were called under section 5-A of the Act and accordingly the objector filed the same on 9-7-1993, hearing was accorded by the Divisional Commissioner to the affected party and accordingly on 24-6-1994 the objections raised by the petitioner under section 5-A came to be decided. We find that the mandatory requirements under section 5-A were also complied with.
36. The learned counsel for the petitioner further submitted that, he had demanded copies of notification under section 6 and other relevant documents but they were not provided to him deliberately. The correspondence referred to by the counsel for the petitioner between the Government officers, according to the counsel, did not have inward/outward numbers. The Commissioner did not communicate any response under section 6 of the Act to the lower officers.
37. From the record and the reply filed and the submissions advanced by the counsel for the contesting respondents we do not find that, any prejudice is caused to the petitioner's case on that ground. If any irregularity had occurred in regard to the correspondence then the same does not go to the root of the matter to vitiate the entire acquisition proceedings.
38. The learned counsel for the petitioner submitted that, the revision petition filed under section 15-A of the Act ought not to have been decided by the Commissioner as it is the State Government which has powers to decide the same. The counsel for the petitioner further submitted that the Commissioner is an interested party in land acquisition proceedings. We are of the view that the petitioner had submitted to the jurisdiction of the Commissioner and now the petitioner cannot raise issue in respect of jurisdiction of the Commissioner in entertaining the revision filed under Section 15-A of the Land Acquisition Act. The contentions on that ground are rejected.
39. The learned counsel further submitted that the HPCL had alternative plot which could have been utilised for running a petrol pump. Some photographs are also placed on record. On the said plot regional administrative building was proposed and it is informed that administrative building of the HPCL was constructed on the said plot.
40. It has come on record that, award was also passed in respect of the subject land on 2-12-1995. Notice under section 12(2) was issued to the petitioner on 29-2-1996. Copy of the award was delivered to the petitioner on 25-3-1996. During the course of hearing the learned counsel submitted that reference petition under section 18 of the Act was preferred and accordingly reference proceedings are pending in the civil Court. The petitioner had applied for deletion of the land from acquisition under section 48(1) of the Land Acquisition Act on 12-12-2005. The petitioner was heard and by an order dated 12-3-2006 the Divisional Commissioner rejected the said application.
41. The learned counsel for the petitioner submitted that, there is non compliance of the provisions of Section 7 of the Land Acquisition Act, inasmuch as the Collector Aurangabad did not obtain order from the Commissioner for acquisition of the land. From the record we find that there is substantial compliance of the provisions of Section 7 of the Act.
42. Considering the record and the contentions raised in that regard there is no glaring infirmity in the acquisition proceedings. The same are not vitiated. The acquisition proceedings are not actuated by mala fides. The HPCL had authority to initiate the process. There was no objection by the Union of India in this regard. In the order passed by the Divisional Commissioner dated 12-3-2006 in respect of proceedings under section 48(1) of the Act by the original land holder it has been observed that, the land which was required by the HPCL could be acquired by the Divisional Commissioner under the delegated powers by the Central Government.
State of Punjab Vs. Raja Ram, AIR 1981 SC 1694.
This case was cited in respect of provision of Section 3(e) of the Land Acquisition Act which defines expression "Company".
The Collector (District Magistrate), Allahabad Vs. Raja Ram Jaiswal, AIR 1985 SC 1622.
This case was relating to publication of notification in locality. Publication of substance of notification being a mandatory requirement. It was observed that if powers are exercised for extraneous and irrelevant purpose the notification would be illegal.
S. Bavajan Sahib Vs. State of Kerala, AIR 1988 Kerala 280.
This case was cited in respect of computation of period of limitation of two years from the date of declaration for making the award.
Metro Theatre Bombay Ltd. Vs. Union of India, AIR 1988 Bombay 183.
In this case the learned Single Judge of Bombay High Court observe that, there could not be any blanket proposition that under no circumstances section 4 notification can be challenged. If it is mala fide it can be challenged. If the said decision to acquire land could be shown to be not in good faith, one need not wait till Section 6 notification was issued and the same could be challenged.
Shyamnandan Prasad Vs. State of Bihar, 1994 LAC 84 (SC).
Shivaji Maharaj Virajman Marwari Panchayati Mandir Avran Marari Panchayati Bagichi, Durrs Milkana Swath Behat Roa, Sahaanpur Vs. The State of U.P. 1997(1) LAC 296 (All).
Kanaka Gruha Nirmana Sahakara Sangha, Avalahalli, Banglore South Taluk Vs. Kota Srinivasa Murty, 1998(1) LAC 475 (Kar).
This case was cited in respect of seeking prior approval of Government for acquisition of land for cooperative housing society. Absence of approval vitiate acquisition proceeding, according to the Division Bench.
K. Kumar Naicher Vs. State of Tamil Nadu, 1998(2) LAC 282 (Mad).
This judgment was cited in respect of publication of notification under section 4 at convenient place in locality which is a mandatory provision and violation of the same would make the notification bad in law.
Hindustan Petroleum Corporation Ltd. Vs. Darius Shapur Chenai, 2005(9) SRJ 106.
The counsel submitted that there has to be a reasoned order if the objections filed by the owner is to be rejected.
Ramrao Pralhadrao Deshmukh Vs. State of Maharashtra, 2007 LAC 773 Bombay : [2008(1) ALL MR 234].
This judgment is delivered by Division Bench (Coram: Naresh H. Patil & R. M. Borde, JJ). This case was cited in respect of procedure to be adopted as regards declaration and publication of notification under sections 4 and 6 and the issue in respect of mala fide.
The learned counsel further has referred to the reported judgment in Mohammad Hashim Vs. State of Uttar Pradesh, 1993 L.A.C.1 in respect of non-application of mind by the State in issuing section 4 notification to acquire the land being subject of litigation.
State of Haryana Vs. Raghubir Dayal, 1995 AIR SCW 46. The Apex Court observed, in the facts of the said case, thus :
"5. The use of word "shall" is ordinarily mandatory but it is sometimes not so interpreted if the scope of the enactment, on consequence to flow from such construction would not so demand. Normally, the word "shall" prima facie ought to be considered mandatory but it is the function of the Court to ascertain the real intention of the legislature by a careful examination of the whole scope of the statute, the purpose it seeks to serve and the consequences that would flow from the construction to be placed hereon. The word "shall" therefore, ought to be constructed not according to the language with which it is clothed but in the context in which it is used and the purpose it seeks to serve. The meaning has to be ascribed to the word "shall" as mandatory or as directory, accordingly. Equally, it is settled law that when a statute is passed for the purpose of enabling the doing of something and prescribes the formalities which are to be attended for the purpose, those prescribed formalities which are essential to the validity of such thing would be mandatory. However, if by holding them to be mandatory, serious general inconvenience is caused to innocent persons or general public, without very much furthering the object of the Act, the same would be construed as directory."
Sriniwas Ramnath Khatod Vs. State of Maharashtra, 2001 AIR SCW 4799. Para 9 of the report reads thus :
"9. In support of this submission reliance was placed upon the case of Eugenio Misquita Vs. State of Goa reported in (1997)8 SCC 47. In this case it was inter alia held as follows :-
"7. It is now well settled that the last of the dates in the series of the publications made under Section 4(1) of the Act is the relevant date to reckon the starting point of limitation for the purpose of proviso to Section 6(1)(ii). Now, the question is which is the relevant date to reckon the last date for the purpose of clause (ii) of the first proviso to Section 6(1). In other words, whether the modes of publication prescribed under Section 6(2) obviously for the purpose of reckoning limitation under Section 11-A of the Act have any part to play in the matter of computing the period prescribed under clause (ii) of the first proviso to Section 6(1).
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17. In the light of the law laid down by this Court, we have no hesitation to hold that the declaration published under Section 6 of the Act was well within one year and the challenge to the same has been rightly rejected by the High Court. However the view taken in the judgment of the High Court under appeal that the relevant date for reckoning the period of limitation will be the date of making of the declaration under Section 6, may not be correct. As held in Krishi Utpadan Mandi Samity case [(1995)2 SCC 497] mere making of declaration is not enough. The making of declaration under Section 6 is complete for the purpose of clauses (i) and (ii) of the proviso to Section 6(1) when it is published in the Official Gazette."
Relying heavily on the above observations it has been submitted that this Court has already held that the relevant date for reckoning of limitation is not the date of making of the declaration under section 6. It is submitted that this Court has held that a declaration under Section 6 is complete only when it is published in the Official Gazette."
Sooraram Pratap Reddy Vs. District Collector, Ranga Reddy, (2008)9 SCC 552 : [2009 ALL SCR 731].
The Apex Court in this case dealt with issue of eminent domain, existence of public purpose. Paragraphs 115 and 117 of the report read thus:
"115. Reference was also made to Pratibha Nema Vs. State of M.P. There, a piece of dry land of the appellants and others was notified for acquisition under Section 4 of the Act for public purpose, namely, for establishment of Diamond Park. The acquisition was challenged on the ground that it was not for public purpose but was meant only to benefit a company and its associates, and as such it was in colourable exercise of power and ultra vires the Act. Referring to earlier decisions of this Court and drawing distinction between acquisition by the State for "public purpose" covered by Part II and acquisition for a "company" under Part VII, the Court stated :
"22. Thus the distinction between public purpose acquisition and Part VII acquisition has got blurred under the impact of judicial interpretation of relevant provisions. The main and perhaps the decisive distinction lies in the fact whether the cost of acquisition comes out of public funds wholly or partly. Here again, even a token or nominal contribution by the Government was held to be sufficient compliance with the second proviso to Section 6 as held in a catena of decisions. The net result is that by contributing even a trifling sum, the character and pattern of acquisition could be changed by the Government. In ultimate analysis, what is considered to be an acquisition for facilitating the setting up of an industry in the private sector could get imbued with the character of public purpose acquisition if only the Government comes forward to sanction the payment of a nominal sum towards compensation. In the present state of law, that seems to be the real position". (emphasis supplied).
117. The counsel for the appellants referred to Amarnath Ashram Trust Society Vs. Governor of U.P. In that case, land was sought to be acquired for playground for students of Amarnath Vidya Ashram (Public School), Mathura. Notification under Section 4 of the act was issued stating that the land was to be acquired for "public purpose". The landowner challenged the acquisition contending that the land was acquired for a society and since procedure prescribed in Part VII was not followed, the acquisition was bad in law. Upholding the contention, quashing the proceedings and referring to Pandit Jhandu Lal this Court observed:
"6. It is now well established that if the cost of acquisition is borne either wholly or partly by the Government, the acquisition can be said to be for a public purpose within the meaning of the Act. But if the cost is entirely borne by the company then it is an acquisition for a company under Part VII of the Act. .... Admittedly, in the present case the entire cost of acquisition is to be borne by the appellant Society and, therefore, it is an acquisition for a company and not for a public purpose. That is also borne out by the notification issued under Section 6 of the Act which states 'that the land mentioned in the schedule below is needed for the construction of playground for students of Amar Nath Vidya Ashram (Public School), Mathura in District Mathura by the Amar Nath Ashram Trust, Mathura'. Therefore, simply because in the notification issue under Section 4 of the Act it was stated that the land was needed for a public purpose, namely, for a playground for students of Amar Nath Vidya Ashram (Public School), Mathura, it cannot be said that the acquisition is for a public purpose and not under Chapter [Part] VII for the appellant Society in view of subsequent events and the declaration made under Section 6." (emphasis supplied)."
Urmila Roy Vs. Bengal Peerless Housing Development Company Ltd., (2009)5 SCC 242.
Bihar State Housing Board Vs. State of Bihar, 2003 AIR SCW 4372.
State of T. N. Vs. Mahalakshmi Ammal, AIR 1996 SC 866. Paragraph 9 of this judgment reads thus :
"9. It is well settled law that publication of the declaration under Section 6 gives conclusiveness to public purpose. Award was made on September 26, 1986 and for survey No.2/11 award was made on August 31, 1990. Possession having already been undertaken on November 24, 1986, it stands vested in the State under Section 16 of the act free from all encumbrances and thereby the Government acquired absolute title to the land. The initial award having been made within two years under Section 11 of the Act, the fact that subsequent award was made on 31st August, 1990 does not render the initial award invalid. It is also to be seen that there is stay of dispossession. Once there is stay of dispossession, all further proceedings necessarily could not be proceeded with as laid down by this Court. Therefore, the limitation also does not stand as an impediment as provided in the proviso to Section 11-A of the Act. Equally, even if there is an irregularity in service of notice under Sections 9 and 10, it would be a curable irregularity and on account thereof, award made under Section 11 does not become invalid. Award is only an offer on behalf of the State. If compensation was accepted without protest, it binds such party but subject to Section 28-A. Possession of the acquired land would be taken only by way of memorandum, Panchanama, which is a legally accepted norm. It would no be possible to take any physical possession. Therefore, subsequent continuation, if any, had by the erstwhile owner is only illegal or unlawful possession which does not bind the Government nor vested (sic) under Section 16 divested in the illegal occupant. Considered from this perspective, we hold that the High Court was not justified in interfering with the award."
Nasik Municipal Corporation Vs. Harbanslal Laikwant Rajpal, AIR 1997 SC 1701. Paragraph 5 of the judgment reads thus :
"5. It is then contended by Mr. U. R. Lalit that the respondents had not been given the information of the notification under Section 9 of the Land Acquisition Act. Therefore, the award is bad in law. We find no force in the contention. In the absence of notice or failure to serve notice, the award does not become invalid. Due to the fact that immediately after the award and before the publication of the award, the writ petition came to be filed on September 25, 1980, we direct the appellants to make an application within six weeks under Section 18(1) of the Land Acquisition Act seeking reference. The Land Acquisition Officer is directed to refer the matter to the competent Civil Court for disposal within two months according to law."
We have perused the judgments cited before us by the learned counsel appearing for the contesting parties.
“MINISTRY OF PETROLEUM AND CHEMICALS NOTIFICATION
G.S.R. 131(E).— In exercise of the powers conferred by sub-section (1) of section 7 of the Esso (Acquisition of Undertakings in India), Act, 1974 (4 of 1974) the Central Government being satisfied that Esso Standard Refining Company of India Limited, a Government Company, is willing to comply with the terms and conditions imposed by the Central Government, hereby directs that the right, title and interest and the liabilities of Esso Eastern Inc., in relation to its undertakings in India, shall, instead of continuing to vest in the Central Government, vest, with effect from the 15th day of March, 1974, in Esso Standard Refining Company of India Limited.
S.M.H. Burney, Addl. Secy.”
46. We find that there existed public purpose for acquisition of the land and, therefore, in absence of serious prejudice caused to the petitioner, the acquisition proceedings could not be said to have been vitiated.
47. After perusing the record and considering the pleadings and the submissions advanced on behalf of the contesting parties we are of the view that no interference is warranted in exercise of extraordinary writ jurisdiction under Article 226 of the Constitution of India.