2012(2) ALL MR 552
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (NAGPUR BENCH)
S.A. BOBDE AND M.N. GILANI, JJ.
Parmanand Shamrao Potdukhe & Ors. Vs. Special Land Acquisition Officer & Ors.
Writ Petition No. 1010 of 1992
17th October, 2011
Petitioner Counsel: Mr. H.V. THAKUR
Respondent Counsel: Mrs. B.H. DANGRE Ms. K. SATPUTE
(A) Maharashtra Regional and Town Planning Act (1966), S.126 - Acquisition of land - After award was passed Municipal Council resolved not to proceed with acquisition of particular survey number - Resolution does not contain survey number of petitioner's land - However the amount of compensation withdrawn by Municipal Council was also meant for petitioner's land - Held, mere withdrawal of compensation amount cannot be taken to mean that petitioner's land was excluded from acquisition. (Paras 3, 4)
(B) Maharashtra Regional and Town Planning Act (1966), S.126 - Acquisition of land - Land was acquired for primary school - Municipal Council intending to use land for dispensary - Public purpose may undergo change as per change in need of town - Acquisition not liable to be vitiated on this ground. 1996 (11) SCC 501 Rel.on. (Paras 5, 6)
Municipal Corporation of Greater Bombay Vs. Industrial Development Investment Co. Pvt. Ltd. and others, (1996) 11 SCC 501 [Para 6]
2.The petitioners are owners of Survey No. 34/3, area 0.41 ares situated at Mouza Chandrapur, Rayatwari, Patwari Halka No. 8, Bandobust No. 29, Tq. & District Chandrapur. The land is situated in the area called Ram Nagar. Acquisition proceedings were initiated under Section 126 of the Maharashtra Regional & Town Planning Act, 1966 (hereinafter referred to as "the Act") in respect of the said land for the purpose of construction of a primary school. The adjoining land, i.e. Survey No. 34/1 was also made the subject of the acquisition for the same purpose. Apparently, on 4.9.1997 after the award was passed, the Municipal Council, Chandrapur passed a Resolution that it does not wish to proceed with the acquisition of adjoining Survey No. 34/1 admeasuring 2387 sq. meters and demanded a sum of Rs. 5.32 Lakhs back from the Land Acquisition Officer who had been earlier given that amount for the acquisition of land. Relying on this Resolution, Shri H.V. Thakur, the learned Counsel for the petitioners, submitted that the Municipal Council has abandoned the acquisition in respect of the petitioners' land also, i.e. Survey No. 34/3 and the respondents are, therefore, not entitled to take over possession of the land, which according to the petitioners, has not yet vested in them.
3.It is not possible to accept this contention. The Resolution does not state anywhere that the respondents do not wish to acquire the petitioners' land which is Survey No. 34/3. The Resolution only refers to Survey No. 34/1 in respect of which the Municipal Council decided to abandon acquisition. Shri H.V. Thakur, the learned Counsel for the petitioners, however, submitted that the Resolution shows that the respondents have demanded back the entire amount of Rs.5.32 Lakhs which was meant for acquisition of both the lands, i.e. adjoining land Survey No. 34/1 and the petitioners' land Survey No. 34/3 and, therefore, the respondent Municipal Council must be taken to have abandoned the acquisition in respect of the petitioners' land also.
4.We find that merely because the Resolution demands the entire sum back from the Land Acquisition Officer, it does not change the main thrust of the Resolution and that is that the Municipal Council has resolved to abandon the acquisition of Survey No. 34/1 only which is clearly mentioned therein. Indeed, it was contended on behalf of the Municipal Council, Chandrapur by Ms. Satpute, the learned Counsel that the amount of Rs.5.32 Lakhs is mentioned by mistake. We, therefore, reject this contention on behalf of the petitioners.
5.It was next contended on behalf of the petitioners that though the stated purpose of acquiring the petitioners' land was for construction of a primary school, in the present Draft Development Plan published in April, 2011, the reservation of the land is shown for the purpose of dispensary which is not the same purpose for which it was acquired, namely, for a primary school. According to the petitioners, as a matter of law, the stated public purpose of the acquisition must continue to exist till the award is passed and the possession is taken and since the Municipal Council has evinced an intention to reserve the land in question for another public purpose, i.e. for dispensary, the acquisition is vitiated.
6.It is not possible to accept this contention since the public purpose may undergo a change because of change in the need of the town or city and yet the purpose for which the land is acquired may remain a public purpose. In any case, such a contention has been rejected by the Supreme Court in Municipal Corporation of Greater Bombay .vs. Industrial Development Investment Co. Pvt. Ltd. and others reported in (1996) 11 SCC 501 wherein in paragraph no.22 the Supreme Court has observed as follows :
"22. It is thus wellsettled legal position that the land acquired for a public purpose may be used for another public purpose on account of change or surplus thereof. The acquisition validly made does not become invalid by change of the user or change of the user in the Scheme as per the approved plan. It is seen that the land in Block 'H' which was intended to be acquired for original public purpose, namely, the construction of Sewage Purification Plant, though was shifted to Block 'A', the land was earmarked for residential, commercialcumresidential purposes or partly for residential purpose etc. It is the case of the appellant that the Corporation intends to use the land acquired for construction of the staff quarters for its employees. It is true that there was no specific plan as such placed on the record, but so long as the land is used by the Corporation for any designated public purpose, namely, residentialcumcommercial purpose for its employees, the later public purpose remains to be valid public purpose in the light of the change of the user of the land as per the revised approved plan. It is true that in the original scheme the residential quarters for the staff working in the Sewage Purification Plant were intended to be constructed and the same purpose is sought to be served by the acquisition of the land by using the land in Block "A". Nonetheless the acquired land could be used by the Corporation for residentialcumcommercial purpose for its employees other than those working in the Sewage Purification Plant. It would not, therefore, be necessary that the original public purpose should continue to exist till the award was made and possession taken. Nor is it the duty of the Land Acquisition Officer to see whether the public purpose continues to subsist. The award and possession taken do not become invalid or ultra vires the power of the Land Acquisition Officer. On taking possession, it became vested in BMC free from all encumbrances including tenancy rights alleged to be held by the respondents. Possession and title validly vesting in the State, becomes absolute under Section 10 of the Act and thereafter the proceedings under the Act do not become illegal and the land cannot be revested in the owner. Only before taking possession, the Government can withdraw from inquiry under Sections 45(1) of the Act or the High Court under Article 226 of the Constitution may quash it on the legal and valid grounds. If the award under Section 11A was not made within two years from the date of the publication of the declaration under Section 6, as enjoined under Section 11A of the Land Acquisition Act, whether the notification under Section 4(1) would lapse. This Court in Satendra Prasad Jain v. State of U.P. had held that after the land stood vested in the State, even if the authorities failed to comply with the statutory requirement, it does not have the effect on the vesting of land in the State. Thereby the notification under Section 4(1) and the declaration under Section 6 do not stand lapsed. The same view was reiterated by another Bench in Awadh Bihari Yadav v. State of Bihar. The High Court, therefore, was not right in exercise of power under Article 226 of the Constitution in granting declarations as mentioned in the beginning or in making order of injunction against the appellants pending writ petitions. It is an equally settled law that a tenant cannot challenge the notification under Section 4 and declaration under Section 6 of the Act when the landlord himself had accepted the award and received compensation."