1 WP7863/10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.7863 OF 2010 M/s Well Wisher Construction and Finance Pvt.Ltd. ...Petitioners v/s Additional Commissioner, Konkan Division and others ...Respondents Mr Y.S. Jahagirdar, Sr. Counsel with Mr V.P. Sawant i/b M/s ALMT Legal for Petitioners. Mr A.I.I. Patel, AGP for Respondent Nos.1 and 4. Mr A.A. Kumbhakoni with Mr A.M. Kulkarni for Respondent No.2. WITH WRIT PETITION NO.7170 OF 2010 Bhalchandra S. Patil ...Petitioner v/s The State of Maharashtra and others ...Respondents 2 WP7863/10 Mr P.K. Dhakephalkar, Sr. Counsel i/b Mr R.S. Datar for Petitioner. Mr A.I.I. Patel, AGP for Respondent Nos.1 and 3. Mr A.A. Kumbhakoni with Mr A.M. Kulkarni for Respondent No.2. CORAM : D.K. DESHMUKH AND ANOOP V. MOHTA JJ. DATE : 16TH NOVEMBER 2011. P.C. :- 1] Rule, returnable forthwith. Heard finally by consent of the parties. 2] By both these petitions, same order passed by the Additional Commissioner, Konkan Division, Navi Mumbai dated 20th August 2010 is challenged. Therefore, both the petitions can be conveniently disposed off by a common order. 3] The following can be taken as admitted facts. 3 WP7863/10 Land Survey No.135/6 of village Karave, Taluka and District Thane was acquired for the CIDCO. It appears that thereafter an application was made under section 48(1) of the Land Acquisition Act 1894 (the L.A. Act for short) before the Commissioner. It appears that a no objection certificate for deletion of the land from acquisition supposed to have been issued by the CIDCO was produced before the Competent Authority. The Competent Authority by the order dated 24th April 2008 deleted the land from the acquisition, on finding that possession of the land was not taken from the land owner and compensation was also not paid. The no objection certificate issued by the CIDCO for deletion of the land from acquisition was also referred to. It appears that thereafter the land holder has entered into a contract to transfer the land to the petitioner in Writ Petition No.1177 of 2009 on 1st July 2008. It is also common ground that a notification deleting the land from acquisition has also been published in the Official Gazette on 28th April 2008. In this background, 4 WP7863/10 the CIDCO issued letter dated 12th December 2008 to the land holder claiming therein that the no objection certificate which was produced before the Competent Authority, who was considering the application under section 48(1) for deleting the land from acquisition, was a fake document. Therefore, the land holder was asked to show cause as to why action in accordance with the law should not be taken and the no objection certificate was also cancelled. The land holder was also directed not to deal with the land which was deleted from acquisition. 4] Two writ petitions were filed being writ petition No.4933 of 2009 and writ petition No.1177 of 2009 by the present petitioners challenging the letter dated 12th December 2008. Those petitions were disposed off by a common order passed by the Division Bench dated 7th December 2009. Thereafter, the Additional Commissioner, Konkan Division, Navi Mumbai heard the application filed by the CIDCO for recall of the order deleting the land from 5 WP7863/10 acquisition and that application has been disposed off by order dated 20th August 2010. The Additional Commissioner, Konkan Division, Navi Mumbai by that order has held that the original owner of the land who is one of the petitioners before us had made an incorrect statement in his application dated 8th August 1994 that possession of the land which is subject matter of these petitions has not been taken after award was made and he had also made a statement to the same effect in his statement dated 25th March 1997 and it is on the basis of his statement made by the land holder that the possession of the land acquired has not been taken, the CIDCO had issued no objection certificate for deletion of the land from acquisition and acting on that no objection certificate, the order dated 25th April 2008 was made deleting the land from acquisition. 5] We have heard learned counsel for both the sides. It is obvious from the order of the Additional Commissioner, Konkan Division, Navi 6 WP7863/10 Mumbai, which is impugned in the petition, that the Additional Commissioner has held that the order deleting the land from acquisition dated 25th April 2008 was made principally relying on the no objection certificate issued by the CIDCO. He has also held that the CIDCO had issued the no objection certificate only because a representation was made by the owner of the land that possession of the acquired land has not been taken after award was made and therefore the Additional Commissioner has held that for obtaining no objection certificate from the CIDCO, the land holder had resorted to making a false statement that possession of the land was not taken and therefore, the Additional Commissioner has recalled that order. The learned counsel appearing for petitioners submitted that the Additional Commissioner has not as a fact found whether possession was actually taken of the land after award was made by the authorities or not. In our opinion, for the purpose of disposing of the application made by the CIDCO for recall of the order dated 25th April 2008, it was not necessary 7 WP7863/10 for the Additional Commissioner to record that finding. The CIDCO was seeking recall of the order because according to the CIDCO, the land owner had made a false statement before CIDCO that possession of the land was not taken when he himself had previously made a representation that possession was taken. The Additional Commissioner has accepted that case of CIDCO and has recalled the order. Perusal of the order of the Additional Commissioner shows that though he has recalled the order deleting the land from acquisition, he has not disposed off the application made by the land owner for deletion of the land from acquisition. It means that that application is still pending. The Additional Commissioner therefore would now be under a duty to consider that application in accordance with law. Obviously, before taking up that application for consideration on merits, the applicant who has made the application under section 48 of the Land Acquisition Act will have to satisfy the Additional Commissioner that the possession of the acquired land was not actually taken when he made the 8 WP7863/10 application under section 48 of the Land Acquisition Act. In case the Additional Commissioner is satisfied that possession of the acquired land has not been taken, it would be within his jurisdiction to consider the application on merits. Obviously, at that time, the say of CIDCO which is acquiring body and the Land Acquisition Officer will have to be considered. In other words, while considering that application on merits, the Additional Commissioner will have to consider the entire material save and except the no objection certificate which was issued by CIDCO for deletion of the land because by the order which is impugned in the petitions that certificate is held to have been obtained by making false representation. In this view of the matter therefore, following order would meet the ends of justice. 6] Both the petitions are disposed off. However, it is clarified that by the order which is impugned in the petitions, the original application filed by the land holder for deletion of the land 9 WP7863/10 from acquisition has not been disposed off and that the Additional Commissioner, Konkan Division, Navi Mumbai can consider that application on merits on being satisfied by the land holder that possession of the acquired land has not been taken. It is also clarified that the entire material presently available on record save and except the no objection certificate issued by CIDCO but including any documents or affidavits that may be produced by CIDCO and the Land Acquisition Officer, the proceedings in these petitions shall be taken into consideration by the Additional Commissioner. It is also clarified that in case the petitioners in writ petition No.7863 of 2010 apply to the Additional Commissioner for being heard in support of the application filed by the land holder, the Additional Commissioner shall grant an opportunity of being hear to the petitioners in writ petition No.7863 of 2010 before disposing of the application. Considering that the matter is pending for quite some time, the Additional Commissioner is directed to hear and dispose off the application as 10 WP7863/10 expeditiously as possible and in any case within a period of six months from today. It is further directed that during the pendency of the proceedings before the Additional Commissioner, Konkan Division, Navi Mumbai, both the parties shall maintain status- quo in relation to the land which is subject matter of these petitions. Parties to act on the copy of this order duly authenticated by the Sheristedar / Private Secretary of this Court. Certified copy expedited. ( JUSTICE D.K. DESHMUKH ) ( JUSTICE ANOOP V. MOHTA )