- 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION No. 1296 OF 2008 Harakchand Misirimal Solanki (Waghresea) Chief Promotor Mohant View C-Operative, ) Housing Society, Age 58 years, Occupation-) Business, Residing at S. No.686, Plot No. 6,) Natekar Colony, Bibvewadi, Pune-411 037 ... Petitioner Vs. 1. The Collector, ) Collector Office, Land Acquisition ) Branch, Pune ) 2. Special Land Acquisition Office No. 15 ) Pune. ) 3. Pune Municipal Corporation ) Through Commissioner, P.M.C. Of ) Pune. ) 4. Assistant Commissioner (Special) ) Land Acquisition and Management, ) Pune Municipal Corporation, Pune. ) 5. The State of Maharashtra ) 6. Divisional Commissioner, Pune Division) Office of Divisional Commissioner, ) Vidhan Bhavan, Pune. . . . Respondents WRIT PETITION No. 1644 OF 2008 - 2 - 1. Padmanagar Constructions Pvt. Ltd. ) Registered under the provisions of ) Companies Act, 1956, having office ) at 9A, Boat Club Road, Pune-411 001) 2. Mr. Kanhaiyalal Nathmal Baldota ) Director, Age-67 years, Occupation- ) Business, having office at 9A, Boat ) Club Road, Pune-411 001. ) Petitioners Vs. 1. The State of Maharashtra, ) through it's Chief Secretary, ) Mantralaya, Mumbai-400 032. ) 2. Urban Development Department ) State of Maharashtra through it's ) Mantralaya, Mumbai-400 032. ) 3. District Collector, Pune. ) 4. Pune Municipal Corporation, ) through it's Commissioner, having ) it's office at Pune Municipal ) Corporation, Shivaji Nagar, ) Pune-411 005. ) 5. Mr. P. R. Thakur, ) Special Land Acquisition Officer ) No.15, Pune Municipal Corporation) Ward Office Building, above State ) Bank of India, Tilak Road, Pune-02 ) 6. Mr. Nitin Kareer, ) Divisional Commissioner, Pune ) Division, Pune, having office at : ) Divisional Commissioner, Council ) - 3 - Hall, Pune-1. ) Respondents WRIT PETITION No. 3648 OF 2007 1. M/s. Golden Erectors, ) Being a registered Partnership firm ) through its partner Mr. Meenalkumar Gadia, Adult, Occupation- Business ) Residing at Row House No. 11, ) E-Wing, Manasi Apartment, Bibewadi Pune 400 037. ) 2. Mrs. Gulabi Motilal Gadia, ) Age about 55 years, Occupation - ) Business, Residing at Row House ) No.11, E-Wing, Manasi Apartment, ) Bibewadi, Pune-400 037. ) Vs. 1. State of Maharashtra ) 2. The Divisional Commissioner, ) Pune Division, Pune. ) 3. The District Collector, Pune ) 4. The Special Land Acquisition Officer No. 15, Pune. ) 5. Pune Municipal Corporation, ) Shivajinagar, Pune 411 005. ) 6. The Commissioner, ) Pune Municipal Corporation, ) Pune 411 005. ) Respondents - 4 - WRIT PETITION No. 1648 OF 2008 1. Kidwai Co-Operative Housing Ltd. ) Registered under the provisions of ) Companies Act, 1956, bearing ) registration No. B/4731 dated ) 15-12-1961 having office at 9A, Boat Club Road, Pune-411 001. ) 2. Mr. Kanhaiyalal Nathmal Baldota ) Director, Age-67 years, Occupation- ) Business, having office at 9A, Boat ) Club Road, Pune-411 001. ) Petitioners Vs. 1. The State of Maharashtra, ) through it's Chief Secretary, ) Mantralaya, Mumbai-400 032. ) 2. Urban Development Department ) State of Maharashtra through it's ) Mantralaya, Mumbai-400 032. ) 3. District Collector, Pune. ) 4. Pune Municipal Corporation, ) through it's Commissioner, having ) it's office at Pune Municipal ) Corporation, Shivaji Nagar, ) Pune-411 005. ) 5. Mr. P. R. Thakur, ) Special Land Acquisition Officer ) No.15, Pune Municipal Corporation) Ward Office Building, above State ) Bank of India, Tilak Road, Pune-02 ) - 5 - 6. Mr. Nitin Kareer, ) Divisional Commissioner, Pune ) Division, Pune, having office at : ) Divisional Commissioner, Council ) Hall, Pune-1. ) Respondents WRIT PETITION No. 1173 OF 2008 1. Mrs. Gulabai Motilal Gadia, ) Gadia, Adult, Occupation- Business ) Residing at Row House No. 11, ) E-Wing, Manasi Apartment, Bibewadi Pune 400 037. 2. Mr. Meenal Motilal ) Gadia, Adult, Occupation- Business ) Residing at Row House No. 11, ) E-Wing, Manasi Apartment, Bibewadi Pune 400 037. ) 3. Mrs. Kalpita Meenal Gadia, ) Age adult, Occupation - ) Business, Residing at Row House ) No.11, E-Wing, Manasi Apartment, ) Bibewadi, Pune-400 037. ) 4. Mr. Motilal H. Gadia, ) Adult, Occupation- Business, ) Residing at Row House No. 11, ) E-Wing, Manasi Apartment, Bibewadi Pune 400 037. Petitioner Vs. 1. State of Maharashtra ) 2. The District Collector, Pune ) - 6 - 3. The Special Land Acquisition Officer No. 15, Pune. ) 4. Pune Municipal Corporation, ) Shivajinagar, Pune 411 005. ) Respondents WRIT PETITION No. 1149 OF 2008 Pannalal Lunkad Charity Sanstha, ) A Charitable Trust registered under the ) provisions of the Bombay Public Trust ) Act, 1950 and having its registered ) office at 429/30, Dias Plot, Gultekadi, ) Pune 411 037 through its Secretary Nitin Mohanlal Jain, Age major, Occupation- ) Business, R/o. 7, Modi Baug, Panna ) Mahal, Shivaji Nagar, Pune 411 016 ) Petitioner Vs. 1. State of Maharashtra ) 2. The Collector, Pune ) Collector Office, Pune. ) 3. The Special Land Acquisition Officer) No. 15, Pune, Municipal ) Corporation's Ward Office, 3rd Floor) above State Bank of India, Tilak road Pune 411 002. ) 4. Pune Municipal Corporation, ) Shivajinagar, Pune 411 005. ) Respondents WRIT PETITION No. 1154 OF 2008 - 7 - 1. Mr. Suryakumar Shankar Nirgudkar) Age-55 years, Occupation- Advocate) R/at : 1206, A/38, Matruvandan ) Bungalow, Shivajinagar, Pune-4 ) 2. Mr. Dhananjay Shankar Nirgudkar ) Age 50 years, Occu.- Advocate ) 3. Mr. Ujwal Shankar Nirgudkar, ) Age-48 years, Occu.- Advocate ) 4. Mr. Vivek Shankar Nirgudkar, ) Age-53 years, Occu.- Business, ) Nos. 2 to 4 R/at : 1038/9, 'Nirgud ) House', Gokhale Road, near Deep ) Bungalow Chowk, Shivajinagar, ) Pune – 411 016. ) Petitioner Vs. 1. Pune Municipal Corporation, ) A Municipal Corporation established the provisions of Bombay Provincial) Municipal Corporation Act, ) Shivajinagar, Pune 411 005. ) 2. Commissioner, ) Pune Municipal Corporation, Pune ) having office at P.M.C. Pune Building Shivajinagar, Pune 411 005. ) 3. The Deputy Conservator of Forest ) Pune Division, Senapati Bapat Road ) Pune – 411 016. ) 4. The Special Land Acquisition Officer ) No. 15, having office at Municipal ) - 8 - Corporation (Regional), Office ) Building, Third Floor, Tilak Road ) Pune – 411 002. ) 5. State of Maharashtra ) 6. Mr. Nitin Kareer, ) Divisional Commissioner, ) Pune Division, Pune, having office ) of Divisional Commissioner, Council ) Hall, Pune-1. ) Respondents WRIT PETITION No. 1227 OF 2008 Mr. Ajay Arun Shirodkar, ) Age : 42 years, Occu.- Service, Residing ) at 42, Saikamal Residency, Ramnagar ) Colony, NDA Road, Bawdhan Pune 21 ) Petitioner Vs. 1. State of Maharashtra ) 2. The District Collector, Pune ) 3. The Special Land Acquisition Officer) No. 15, Pune. ) 4. Pune Municipal Corporation, ) Shivajinagar, Pune 411 005. ) Respondents WRIT PETITION No. 7736 OF 2007 1. Abhay Prithviraj Bothra ) Age adult, Occupation-Business ) 2. Sanjay Prithviraj Bothra, ) Age-adult, Occupation- Business ) Both are residing at A2/2, Rambaug - 9 - Colony, Navi Peth, Pune-411 030 ) Petitioners Vs. 1. The Collector, ) Collector Office, Land Acquisition ) Branch Pune. ) 2. Special Land Acquisition Office ) No. 15, Pune. ) 3. Pune Municipal Corporation ) Through Commissioner, P.M.C. Of ) building, Pune. ) 4. Assistant Commissioner (Special) ) Land Acquisition and Management) Pune Municipal Corporation, Pune) 5. The State of Maharashtra ) 6. Divisional Commissioner, ) Pune Division, Office of Divisional) Commissioner, Vidhan Bhavan, ) Pune. ) Respondents Mr. A. V. Anturkar, a/w Sugandh Deshmukh for the petitioner in W.P. Nos. 3648/2007, 1173/2008, 1227/2008 for the petitioner. Mr. P.J. Thorat for the petitioner in W.P. No. 1149/2008. Ms. Anita Agrawal, for the petitioner in W.P. No. 1154/2008. Mr. C.M. Korde, Sr. Advocate a/w Madhav Jamdar, for the petitioner in W.P. Nos. 1644/2008 & 1648/2008. Mr. S. S. Kulkarni for the petitioner in W.P. No. 1296/2008 and 7736 / 2007. Mr. N. P. Deshpande, AGP for the Respondent State in all the Writ Petitions. Mr. R. G. Ketkar, for the Respondent Pune Municipal Corporation in all the - 10 - Writ Petitions. CORAM : S. B. MHASE, & A. A. KUMBHAKONI, JJ. DATE OF RESERVING THE JUDGMENT : JUNE 12, 2008. DATE OF PRONOUNCING THE JUDGMENT : OCTOBER 24, 2008. 1. About 114 years after the enactment of a law which is very commonly enforced and consequently very often analysed-reanalysed 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 - 11 - 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 - 12 - 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. 5 th 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. 2 nd 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. 15 th 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 with the said Act. It further states that actual acquisition will be carried out in accordance with the availability of finance. 6 th August, 2002 : The Commissioner of the said Corporation requested the Secretary of the said Corporation to obtain sanction of the Standing Committee to acquire aforesaid 50 hectors lands, in accordance with the said Act, for the purpose of “Forest Garden”. 6 th August, 2002 : The Standing Committee of the Corporation - 13 - passed a resolution bearing No. 638, approving a proposal to acquire aforesaid 50 hectors of land for “Forest-Garden”. 12 th September, 2002 : A proposal was accordingly made to the Collector. 30 th January, 2003 : The Assistant Municipal Commissioner of the said Corporation applied to the District Collector, Pune for acquiring the lands under the said Act for “Forest-Garden”. 20 th February, 2003 : The Collector sanctioned the said proposal and forwarded it to the Special Land Acquisition Officer (15) Pune for further action. 20 th February, 2004 : The Assistant Director of Town Planning issued no objection letter for such acquisition. 30 th September, 2004 : An appropriate notification under section 4 of the said Act, published in the official gazette. 4 th October, 2004 : The notification under section 4 was published in the local daily newspapers. Notices under section 4(1) of the said Act were also served upon all the interested persons. 28 th December, 2004 : The said notification published on the notice board of the office of Tahsildar, Pune. 29 th December, 2004 : The said notification was published on site. 20 th December, 2004 : The Commissioner issued declaration under section 6 of the said Act. 24 th December, 2005 :The said notification under section 6 published in the local daily newspapers. 26 th December, 2005 :The declaration issued under section 6, dated 20th December, 2005 published in the Official Gazette. 16 th January, 2006 :Notices were issued under section 9 of the said Act to the interested persons, fixing the dates of hearing as 30th - 14 - January, 1st February, 2nd February, 2006, etc. on which dates, the petitioners claimed to have sought for adjournments. 2 nd February, 2006 : The declaration issued under section 6 of the said Act was published at the site and also on the notice boards of Talathi office, Tahsil office, city survey office and the office of acquiring body. 29 th January, 2008 : The Govt. of Maharashtra accorded approval to the proposed award, submitted to it by the Special Land Acquisition Officer. 31 st January, 2008 : Award under section 11 was finally declared under the said Act. On the same day, notices were issued to the petitioners, intimating that possession of the acquired lands will be taken on 20th February, 2005. 19 th February, 2005 : Two petitioners ( i.e. Writ Petition Nos. 1644 and1648 of 2008) submitted letters with the Land Acquisition Officer to the effect that without prejudice to the following, they were ready to hand over the actual possession of their acquired lands. a) To claim that the acquisition proceedings be quashed andthe possession be restored; b) To apply for enhanced compensation; c) To seek transferable development rights (TDR), in lieu of the compensation. 20 th February, 2008 :- In the aforesaid cases only accordingly, the possession of acquired lands was obtained. However in some of the cases, as detailed hereunder separately, actual possession of the acquired land was not obtained. 4. The Writ Petitions from this group have been filed on the - 15 - following dates- i) 2 nd May 2007: W. P. No. 3648 of 2007. ii) 4 th October 2007: W. P. No. 7736 of 2007. iii) 18 th February, 2008 : W. P. Nos. 1149/08, 1154/08, 1227/08, 1173/08. ii) 21 st February, 2008 : W.P.Nos.1296/08, ii) 1 st March, 2008 : Writ Petition Nos. 1644/08, 1648/08. Thus it is clear that two Writ Petitions have been filed before the declaration of the award dated 31st January 2008 and the balance Petition have been filed within a very short time thereafter. 5. When the aforesaid group of matters was placed before us for final hearing, it was heard for considerable length of time, on 2nd April, 21st April, 22nd April and 23rd April, 2008. During the course of hearing when the notification issued under section 6 was being read out and submissions in that regard were being made by the parties, we noticed that it contained a sentence to the effect - “R;kl Hkwlaiknu vf/kfu;e dye 7 [kkyh laiknuklkBh vkns'k ?ks.;klkBhgh funsZf'kr dj.;kr ;sr vkgs++ +” The appropriate translation of this sentence would be thus : “He is also directed to take order for acquisition under section 7 of the Land Acquisition Act.” (emphasis ours) We therefore obviously tried to find out from the record and the parties as to whether any such order was in fact “taken” or not and if so taken, the particulars as also a copy thereof. However it was conceded by - 16 - the Respondents that no such order was ever taken till then. 6. In this background, the petitioners sought leave, which have been granted by us, to amend the writ petitions, for raising issues relating to non-compliance with the directions contained in section 7 of the said Act, in as much as the respondents admitted during the course of hearing through their learned counsel that the Collector (in this case the Special Land Acquisition Officer (15), Pune) had not taken any such order for the acquisition of the land, specifically in terms of the aforesaid directions contained in the notification issued under section 6 of the said Act. On behalf of the State, when these petitions were pending as part-heard, following steps have been taken, in addition to filing replies to the amended portions of the petition. 25 th April, 2008 : In accordance with the communication sent by the learned AGP appearing in this group on behalf of the State, the Special Land Acquisition Officer (15) Pune issued letter to the Divisional Commissioner Pune, seeking orders contemplated by section 7 of the said Act with retrospective effective. . On the same date, the Collector also issued letter to the Dy. Commissioner (Entertainment Tax) recommending that the proposal so made by the Special Land Acquisition Officer be granted. . On the same date, the Commissioner issued order contemplated by section 7 of the said Act, directing the Special Land Acquisition Officer - 17 - (15) Pune to take further action for acquisition of the lands. By this communication, the Commissioner also granted post facto sanction and that too with retrospective effect, to everything that was done by that time from 20th December, 2005, by the Land Acquisition Officer (15) Pune for the acquisition of the lands in issue. 28 th December, 2008 : Copy of the said order was communicated to the Special Land Acquisition Officer. 30 th April, 2008 : The learned AGP produced copies of these documents evidencing these developments that had occurred. 2 nd May, 2008 : The petitioners again amended the writ petitions and thereby impugned the aforesaid actions that were taken by the Respondents to get over the objections that were raised by the petitioners in regard to the non-compliance with procedure contemplated by section 7 of the said Act. . The respondents filed affidavits in reply to these amended portions of the petitions, justifying their actions. 7. These matters have been argued at length by the learned counsels appearing on behalf of the various petitioners and the respondents. Instead of setting out herein separately arguments advanced on behalf of each of the petitioners and replies given thereto by each of the respondents, for the better understanding thereof, we will like to refer to these arguments point-wise or issue-wise and deal with the same at appropriate places. These arguments have lead us to decide the following issues. - 18 - a) Whether proceedings for acquisition of land for the purpose of “Forest Garden” can be initiated by the Commissioner of a Municipal Corporation with the mere approval of the Standing Committee of such Corporation or is it mandatory that the General Body of such Corporation should resolve accordingly, in view of the provisions of the Bombay Provincial Municipal Corporation Act, 1949 (hereinafter referred to as the “BPMC Act” for the sake of brevity) ? b) What is the true and correct scope of provisions of Section 7 of the Land Acquisition Act 1894 (hereafter referred to as ‘the said Act’ for the sake of brevity) ? c) Whether the award is declared in breach of provisions of Section 5-A of the said Act ? d) Whether action under Section 9 of the said Act can be initiated before completion of all the steps to be taken under Section 6 of the said Act ? e) When does the time start to run under Section 11- A of the said Act for making an award under Section 11 of the said Act ? AND Whether the award declared on 31st January 2008, in view of the facts and circumstances of the present case is beyond time, as contemplated by provisions of Section 11A of the said Act and as to whether the entire proceedings for acquisition of the lands in issue have lapsed ? f) Whether the acquisition proceedings are unsustainable on the ground that the same are - 19 - initiated without complying with the provisions of Section 128 of the Mahrashtra Regional and Town Planning Act 1960 Act ? g) Whether the Land Acquisition Officer (15) Pune was not legally competent to conduct the land acquisition proceedings in issue in the present cases ? h) Whether those Writ Petitions that are filed after the declaration of award under Section 11 of the said Act are not maintainable ? i) Whether the High Court cannot interfere with the acquisition proceedings once an award is declared under Section 11 of the said Act ? j) Whether the Writ Petitions are liable to be dismissed merely on the ground of delay and latches ? k) Whether these Writ Petitions are liable to be dismissed solely on the ground that some other Writ Petition(s) filed by some other holders of the some other lands was dismissed earlier by the Division Bench of this Court ? General observations and clarifications 8. At the outset, we must refer to an important, crucial and admitted fact which has been stated in the affidavit-in-reply filed by the Officer on special duty, Land Acquisition Department of the said Corporation, in Writ Petition No. 1296 of 2008 (page 99). The paragraph (XI) of this affidavit states that total land sought to be acquired, admeasures - 20 - 43.93 Hectares and that possession of land admeasuring 41.13 Hectares has already been taken and in turn handed over to the said Corporation. It is further stated that the total area of the land under litigation in this group of matters is hardly 2.80 Hectares i.e. About 6.37 % of the total land under acquisition. These factual assertions are not controverted by any of the petitioners and therefore we take these facts as admitted facts. . It is thus, clear that the present group of matters does not cover the entire land acquired by the acquisition proceedings in issue. Therefore, we make it abundantly clear at the threshold of this judgment itself that the directions that will be issued hereunder will not govern such lands which though are covered by the award dated 31st January, 2008, are not the subject matter of any of the petitions that fall in the present group of matters. In other words this