1 WP No.3555/1994 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD Writ Petition No.3555 Of 1994 * Fakhruddin s/o. Hyderali ] (Died), through his ] legal representatives ] Mustafa s/o Fakhruddin ] Ambawala, ] Age 40 years, ] Occupation : Service ] R/o City Chowk, ] Aurangabad ] At present ] R/o. Aden (ARY), YAMAN. ] .. Petitioner. Versus 1) The Union of India, ] Through the Secretary ] to Government of India ] Ministry of Petroleum, ] New Delhi. ] ] 2) The State of Maharashtra ] ] 3) Hindustan Petroleum ] Corporation Limited, ] Regd. Office 17- ] Jamshetji Tata Road, ] Bombay - 400 020 ] (A Government of India ] Enterprise). ] ] 4) Shri. U.M. Ghadge, ] The Chief Regional Manager, ] Hindustan Petroleum, ] 1 RB Motilal Road, ] Pune - 411 001. ] 2 WP No.3555/1994 5) Abbas s/o Abdul Husain ] deceased through his ] legal heirs: ] ] 5A) Abdul Hussain s/o Abbas ] Age 50 years, ] Occupation: Business. ] ] 5B) Aqill Hussain s/o Abbas ] Age 38 years, ] Occupation: Business ] ] 5C) Saifuddin s/o Abbas ] Age 35 years, ] Occupation Business ] ] 5A to 5C residents of ] c/o Abdul s/o Hussain Abbas, ] R/o Panchaki Road, ] Opposite Government ] Medical College, ] Near Nawakhanda ] Aurangabad. ] ] 6) The Collector, ] Aurangabad, ] District Aurangabad. ] ] 7) The Commissioner, ] Aurangabad Division, ] Aurangabad. ] ] 8) The Special Land ] Acquisition Officer, ] B & C, Aurangabad, ] District Aurangabad. ] .. Respondents. -------- 3 WP No.3555/1994 Shri. S.P. Sonpawale, Advocate for petitioner. Shri. Alok Sharma, Assistant Solicitor General for Union of India - respondent No.1. Shri. S.V. Kurundkar, Additional Government Pleader, for respondent Nos.2,6,7 and 8. Shri. S.P. Deshmukh, Advocate, for respondent Nos.3 and 4. Shri. S.R. Barlinge, Advocate, for respondent Nos.5-A to 5- C. -------- CORAM: NARESH H PATIL & K.K. TATED, JJ. Date on which judgment reserved: 28th October 2010. Date on which judgment pronounced: 03rd December 2010. JUDGMENT (Per NARESH H PATIL, J.): 1) 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 4 WP No.3555/1994 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 5 WP No.3555/1994 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 6 WP No.3555/1994 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.) 7 WP No.3555/1994 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 8 WP No.3555/1994 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. 7) For the purposes of reference, proceedings of Writ Petition No.7090 of 2005 and Writ Petition No.1748 of 2008 were also placed before us along with proceedings of Second Appeal No.134 of 1992. 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 9 WP No.3555/1994 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 10 WP No.3555/1994 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 WP No.3555/1994 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 12 WP No.3555/1994 (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. 14) By an order dated 16-6-1998 the Division Bench of this Court admitted the petition and vacated the order passed on 23-12-1996 on the respondent - HPCL filing undertaking. 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, 13 WP No.3555/1994 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 14 WP No.3555/1994 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. 17) The deponent specifically contended that the provisions of Part VII of the Land Acquisition Act are not applicable as the acquisition is needed for public purpose of Government company. 18) The deponent contended that while filing objections under section 5-A the petitioner did not take 15 WP No.3555/1994 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. 20) On behalf of respondent Nos.6 to 8 Mr.Gotiram Dhingu Rathod, Special Land Acquisition Officer, filed affidavit-in-reply. In para 9 the deponent contends :- 16 WP No.3555/1994 "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. 17 WP No.3555/1994 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 18 WP No.3555/1994 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. 19 WP No.3555/1994 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 5A 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. 20 WP No.3555/1994 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. 21 WP No.3555/1994 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. 22 WP No.3555/1994 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. 28) Learned Assistant Solicitor General for Union of India, Shri. Alok Sharma, submitted that the acquisition proceedings were rightly initiated and were in accordance with law. 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 23 WP No.3555/1994 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