N. Bhutta & Anr Vs. State of Maharashtra & Ors  INSC 1456 (19 November 1996)
Jeevan Reedy, K.S. Paripoornan B.P. Jeevan Reddy, J.
appeal is preferred against the order of the Bombay High Court dismissing the
review petition filed by the appellant. The review petition was filed by the
appellant against the order dismissing his writ petition by Division Bench. The
matter under the land Acquisition Act, 1894.
notification dated November 29, 1979 issued under Section 4 of the Land
Acquisition Act, 1894 [the Act], two pieces of land were notified for
acquisition for a public purpose, to wit, "for Bombay Electric Supply and
Transport Undertaking for bus station." The two pieces of land notified are
C.T.S. No.218 admeasuring 1759 sq.mtrs. and C.T.S.No. 211 admeasuring 370 sq.mtrs.
The appellant claims to the owner of C.T.S.No. 211. The declaration under
section 6 was made on December
16, 1982. C.T.S.No.
218 belongs to a Church but there are others who claim to have interest in the
said land, viz., Vijayanand Singh and Gayatri Darshan Cooperative Housing
Society. The BEST entered into a settlement with the said two persons whereunder
and extent of 906 sq.mtrs. was given on a perpetual lease to BEST free of any
charge, i.e., Re.1/- per annum. The lease deed executed by the said two persons
in favour of the Bombay Municipal Corporation [representing BEST] is dated August 21, 1986. The remaining portion was to be utilised
by the said persons for their won purposed including construction of a multi-storeyed
complex for the employees of Bombay Municipal Corporation. Under the said
settlement, the said two persons also agreed to construct a bus station, in the
portion leased out to BEST, at their own cost and hand it over to the BEST free
of cost. This settlement was brought to the notice of the Land Acquisition
Officer by the Additional Collector through his letter dated September 5, 1986. On September 18, 1986, the Land Acquisition Officer passed his award wherein he
referred to the aforesaid settlement brought to his notice and, on that basis ,
did not deal with or make any award of compensation with respect to C.T.S.No.
218. His award was confined only to C.T.S.No. 211. When the appellant came to
know of the aforesaid facts, he addressed a letter to the authorities
contending that exclusion on C.T.S.No. 210 from acquisition and passing the
award only with respect to C.T.S.No. 211 was illegal. On November 10, 1986, he filed a writ petition
challenging acquisition of C.T.S.No. 211 on various grounds.
writ petition was summarily dismissed by a learned Single Judge by his order
dated December 8, 1986 against which the appellant
preferred a writ appeal/Letters Patent Appeal No. 1868 of 1986. The Letters
Patent Appeal was allowed and the writ petition restored to file. It came up
for hearing before a Division Bench on June 15, 1995. On that day, the advocate for the
appellant asked for an adjournment and on that being declined, reported
"no instructions". The writ petition was dismissed with costs.
appellant then filed a review petition contending that the statement by his
counsel on June 15, 1995 that he had no instructions was a false one and that
the advocate had not really contracted him. He requested that the writ petition
may be heard on merits. The Division Bench heard the parties at length and
dismissed the writ petition again. It opined that having regard to the fact
that the writ petition again.
opined that having regard to the fact that the acquisition notification was
issued in 1979, that the writ petition has been pending in the High Court since
1986 and more particularly, having regard to the purpose of acquisition, no
interference was warranted under Article 226 of the Constitution. The Division
Bench also went into the merits of the case and rejected both the contentions
of the appellant on that score, viz.,
the public notice under Section 4(1) of the Act was not served upon the
the acquisition proceedings are vitiated by malafides.
plea of malafides put forward by the appellant was based upon the following
facts: the promoters of the Gayatri Darshan Cooperative Housing Society had
entered into an agreement on sale with Vijayanand Singh who claims to be the
owner of C.T.S. No. 218. The society formed by the employees of the Bombay
promoters of the society wanted to purchase the appellant`s plot with a view to
obtain frontage on the road.
negotiations, however, failed whereupon with a view to deprive the appellant of
his title and interest on C.T.S. No. 218, the promoters got the user of the
said plot changed from "residential" and "fish market". The
said change of user in the development plan was approved by BEST and the Corporation
contrary to law. As stated above, the High Court rejected the plea of malafides.
The High Court also observed that one Misquitta claimed to be the owner of
C.T.S. No. 211 and that he had also appeared in the land acquisition
proceedings whereas the appellant entered the picture much later. It is not
even clear, the High Court observed, whether the appellant had any interest in
the said plot on the date of issuance of notification under Section 4.
Tripathi, learned counsel for the appellant, urged the following contentions:
once a notification under Section 4(1) of the Act was issued with respect to
C.T.S. No. 218 as well as C.T.S. No. 211, the Land Acquisition Officer was
bound to pass an award with respect to both the pieces of land. He had no
jurisdiction or authority not to pass the award in respect of C.T.S. No. 218 on
the ground of an alleged settlement reported to him by the person for whose
benefit it was being acquired. Until and unless a notification was issued under
Section 48 of the Act, the Land Acquisition Officer had no option but to pass
an award with respect to both the lands notified. The illegality committed by
the Land Acquisition officer in not passing an award with respect to C.T.S. No.
218 vitiates the award as a whole; it is liable to be struck down even with
respect to C.T.S. No. 211.
The result of the alleged settlement between the BEST and the two persons
aforesaid [Vijayanand Singh and the Housing Society] is that as against the
total extent of 1759 sq.mtrs. in C.T.S. No. 218 notified for acquisition, the
BEST is satisfied with only 906 sq.mtrs. Together with 370 sq.mtrs. in C.T.S. No.
211, the BEST would be having approximately 1276 sq.mtrs. which is obviously
sufficient for its purpose, viz., for establishing the bus station. If an
extent of 1320 sq.mtrs. is sufficient for its purposes, there is no explanation
why a larger extent of 2129 sq. mtrs. was notified for acquisition. It was not
open to BEST [Bombay Municipal Corporation] to give up a part of the land
proposed to be acquired under a private treaty with the persons interested. The
very fact that part of the land notified for acquisition for an alleged public
purpose has been surrendered to others including for the purpose of
constructing a residential complex for the employees of the Bombay Municipal
Corporation shows that the alleged public purpose mentioned in the notification
under Section 4 is not real and is only a ruse to help the aforesaid housing
society. The plea of malafides has been erroneously rejected by the High Court.
The malafides of the BEST is also evident from the fact that it has not yet got
possession of even the 906 sq.mtrs.
it bargained under the settlement. A good amount of litigation has ensued and
is pending in that behalf. The church is disputing the settlement and no bus
station has been established so far on the land. All this shows that entire
proposal for acquisition has failed, mainly on account of the private
settlement between BEST and the said two persons. Acquisition of C.T.S.No. 211
with a small extent of 370 sq.mtrs. Serves no purpose.
other hand, Sri T.R. Andhyarujina, learned Solicitor General, supported the
validity of the acquisition of C.T.S.No. 211. He submitted that the settlement was
arrived at in good faith and in the interests of the BEST which is evident from
the fact that the BEST got an extent of 906 sq.mtrs. free of cost on perpetual
lease. In addition to that, it has also got a bus station to be constructed by
the said two persons free of any cost to the BEST. It is true, the learned
Solicitor General said that the proper course would have been to have a
notification issued under Section 48 of the Act deleting C.T.S.No. 218 from
acquisition by that was not done because of the constriction of time. The award
had to be passed on or before September 23, 1986 and waiting for a notification
under Section 48 would have meant dropping the acquisition proceedings
altogether in as much as no award could have been passed after September 23,
1986 by virtue of the provisions contained in Section 11 of the Act. It was for
this reason that the award had to be and was passed on September 18, 1986. The learned solicitor General
further submitted that in the context of the above facts, the circumstance that
the award passed by the Land Acquisition Officer does not pertain to C.T.S.No.
218 cannot constitute a ground for quashing the acquisition with respect to C.T.S.No.
211 so long as the public purpose behind its acquisition remained.
is totally unacceptable and has unacceptable and has rightly been rejected by
the High Court.
of the opinion that the straight-froward course for the Land Acquisition
Officer and for the BEST [Bombay Municipal Corporation] was to press ahead with
the acquisition proceedings even with respect to C.T.S. No. 218 and have it
acquired according to law, along with C.T.S. No. 211. Instead of adopting the
straight-forward course, the BEST entered into a settlement withe the
aforementioned vijayanand Singh and the housing society- and that seems to have
spawned a good amount of litigation. It is said that some suit is still pending
with respect to C.T.S. No. 218.
or may not be. But one thing is clear: all this could have been avoided and the
land could have been acquired for the BEST by pressing ahead with the land
acquisition proceedings, in which case, the land would have vested in the
government free of all claims and which could have in turn been vested in
Bombay Municipal Corporation [BEST]. Not following this course has led to
perhaps avoidable litigation though it si true, the BEST claim to have obtained
half the extent in C.T.S. No. 218 free of cost in addition to the bus station.
We presume that the settlement aforesaid was entered into by Bombay Municipal
Corporation/BEST in good faith and with a view to advance the interests of BEST
and that the error, if any, is an error of judgment.
to the first contention of Sri Parag Tripathi, we agree with the proposition of
law that once a notification under Section 4 and a declaration under Section 6
of the Act is made, the Land Acquisition Officer has no power to decline to
pass the award in respect of the land(s) notified, either partly or wholly.
Unless and until the land (s) are denotified under and in accordance with
Section 48, the Land Acquisition Officer has to pass an award with respect to
the lands notified. Sri Tripathi may also he right in saying that Land
Acquisition Officer had no jurisdiction to take notice of a private settlement
and making it a basis for not passing the award with respect to C.T.S. No. 218.
But the question is whether it can be said in the facts and circumstances of
this case, that the acquisition of C.T.S. No. 211 is liable to be quashed on
the said ground. We think not. We have already held that in the absence of any
material to the contrary, we must assume that the said settlement was arrived
at keeping in view the best interests of BEST. Even the 906 sq.mtrs. of land
obtained on perpetual lease under the settlement is meant for being used for
the purpose stated in the notification under Section 4.
is also no material to show that the purpose stated in the said notification is
not true or real. The fact that instead of 1759 sq.mtrs., BEST got only 906 sq.mtrs.
under the settlement does not establish the absence of the need.
well be a case of adjusting to the realities of the situation. In such a
situation, it is difficult to say that the acquisition of C.T.S.No.211 is
either unnecessary or that it is neither be consistent with law nor with public
interest. It should also be remembered in this context that the appellant is
not disputing the purpose of acquisition.
only contention is that since the award has "deleted" C.T.S.No. 218,
the land C.T.S.No. 211 should also be deleted - an argument which we have
rejected. Indeed, he had not challenged the acquisition from 1979 to 1986. only
after the award was passed, did he choose to challenge the acquisition on the
aforesaid grounds. Accordingly, we reject the first contention of Sri Tripathi.
as the plea of a malafides is concerned, we do not find any adequate material
to record a finding in favour of the appellant. There is no material to hold
that the acquisition notifications was issued at the instance of the
aforementioned employees of the housing society or for that matter at the
instance of Vijayanand Singh. There is no material to hold that the BEST was
acting at the instance of the said persons or that there was no real or genuine
need for a bus station there. We are also not able to say that the change of
user has any relevance to the plea of malafides put forward by the appellant.
we must also refer to the lack of diligence on the part of the appellant. His
writ petition was pending since 1786. It came up for hearing in 1995. His
counsel asked for an adjournment which was declined whereupon the counsel
stated that the appellant had taken away all the papers and has not given him
any instructions in the matter.
reported "no instructions". The Division Bench was of the opinion
that it was only apply to protract and delay the disposal of the writ petition.
It dismissed the same. When a review petition was filed by the appellant with a
certain explanation. We cannot say that the High Court was not justified in
doing so. Be that as it may, the High Court also went into the merits of the
case though it was not obliged to do so in a review petition. On merits also,
it found no case for the appellant. We too have come to the same conclusion.
parting with this case, we think it necessary to make a few observations
relevant to land acquisition proceedings. Our country is now launched upon an
ambitious programme of all-round economic advancement to make our economy
competitive in the world market. We are anxious to attract foreign direct
investment to the maximum extent. We propose to compete with china
economically. We wish to attain the pace of progress achieved by some of the
Asian countries, referred to as "Asian tigers", e.g., South Korea, Taiwan and Singapore. It is, however, recognised on all
hands that the infrastructure necessary for sustaining such a pace of progress
is woefully lacking in our country. The means of transportation, power and
communications are in dire need of substantial improvement, expansion and modernisation.
These things very often call for acquisition of land and that too without any
delay. It is, however, natural that in most of these cases, the persons
affected challenge the acquisition proceedings in courts. These challenge the
acquisition proceedings in courts. These challenges are generally in shape of
writ petitions filed on High Courts. Invariably, stay of acquisition is asked
for and in some cases, orders by way of stay or injunction are also made.
Whatever may have been the practices in the past, a time has come where the
courts should keep the larger public interest in mind while exercising their
power or grant in stay/injunction. The power under Article 226 is
discretionary. It will be exercised only in furtherance of interests of justice
and not merely on the making out of a legal point. And in the matter of land
acquisition for public purposes, the interests of justice and the public
purposes, the interests of justice and the public interest coalesce. They are
very often one and the same. Even in civil suit, granting of injunction or
other similar orders, more particularly of an interlocutory nature, is equally
discretionary. The courts have to weigh the public interest vis-a-vis the
private interest while exercising the power under Article 226 - indeed any of
their discretionary powers. It may even be open to the High Court to direct, in
case it finds finally that the acquisition was vitiated on account of
non-compliance with some legal requirement that the persons interested shall
also be entitled to a particular amount of damages to be awarded as a lumpsum
or calculated at a certain percentage of compensation payable.
are many ways of affording appropriate relief and redressing a wrong; quashing
the acquisition proceedings is not the only mode of redress. To wit, it is
ultimately a matter of balancing the competing interests. Beyond this, it is
neither possible nor advisable to say. We hope and trust that these
considerations will be duly borne in mind by the courts while dealing with
challenges to acquisition proceedings.
appeal fails and is dismissed. There shall, however, be no order as to costs.