*1* wp.2095.11.914.sxw kps IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.2095 OF 2011 The Agricultural Produce Market Committee. ..Petitioner ­Versus­ Neelkanth Shivputra Hiremath and others. ..Respondents .......... Mr.Appasaheb S. Desai with Mr.R.S.Ghadge, for the Petitioner. Mr.D.B.Patil, for the Respondent Nos.1 to 5, 7, 9, 10, 11 and 13 to 21. Mr.R.M.Patne, AGP, for the Respondent Nos.23 to 26. .......... CORAM : S.C.DHARMADHIKARI, J. Date : 02nd August, 2011. P.C.: 1 By this Writ Petition under Articles 226 and 227 of the Constitution of India, the Petitioner/Agricultural Produce Market Committee has challenged the order dated 02.03.2011 passed by the Respondent No.24/ Collector, Kolhapur. 2 The Petitioner is an Agricultural Produce Market Committee established and incorporated under the Maharashtra Agricultural Produce Marketing (Development and Regulation) Act, 1963 (in short, APMC Act). The Respondent Nos.1 to 22 are stated to be persons/farmers whose agricultural land is acquired by the Respondent No.23 for the purpose of the Petitioner/APMC. The Respondent No.23 is the Special Land Acquisition Officer whereas the Respondent No.24 is the Collector of Kolhapur district. The Respondent No.25 is the Tahasildar of Gadhinglaj taluka whereas the Respondent No.26 is the State of Maharashtra. Each of these Respondents are duly served. They have filed their affidavits in reply and the Petitioner has also filed rejoinders to them. *2* wp.2095.11.914.sxw 3 In these circumstances, Rule is made returnable forthwith by consent of the parties and this Writ Petition is disposed of finally by this order. 4 It is the case of the Petitioner that in or about 1960, the State of Maharashtra acquired about 19 acres of lands within the municipal limits of Gadhinglaj, for the purpose of the Petitioner. The Petitioner developed the said lands and is carrying on various activities of the Market Committee under the provisions of the APMC Act. It is stated that after developing the lands of 19 acres, the Petitioner was still in need of 25 acres for various purposes which included cattle market, sheep & goat market, vegetable & fruit market, Guest House for merchants and farmers etc., therefore, the Petitioner moved a proposal to the Government to acquire the adjoining lands of the Respondent Nos.1 to 22. In pursuance thereof, the Government acquired the lands of the Respondent Nos.1 to 22 bearing Gat Nos.582 and 583 (part) admeasuring 25 acres and 25.05 guntas at Gadhinglaj in the year 1982. The possession of the land was given to the Petitioner in the year 1993. The land was developed by the Petitioner and the same is being used for cattle market, sheep & goat market. The Petitioner also constructed a shopping complex. 5 It is stated that an application was made to the Collector by the original owners (Respondent Nos.1 to 22) in the year 2005 for restoration of the lands to them on the ground that the same are not used by the Petitioner for the purpose for which they were acquired. In other words, the public purpose for which the lands were acquired has not been adhered to and the lands are being utilized for other gains by the *3* wp.2095.11.914.sxw Petitioner and the same be resumed and handed over back to the erstwhile owners. This application was considered by the Collector who passed the impugned order on 02.03.2011. 6 In the order passed on 02.03.2011, what has been held by the Collector is that the Petitioner/APMC appeared and objected to all this exercise being undertaken, by pointing out that the land has been handed over on 26.03.1993. The Petitioner has, thereafter, carved out the kaccha road. The Petitioner has also constructed a well and installed pump­set and pipeline. The Petitioner has also constructed a water tank for cattle market and also 18 shops. The Petitioner has also leveled the lands. Thus, it is contended that they have incurred expenses to the tune of Rs.57 lacs approximately. They are developing the lands in furtherance of the object of the APMC Act and the purpose for which the Petitioner is established. They have forwarded certain proposals to the Director of Marketing so as to complete the development at site. For all these reasons, the lands should not be resumed and handed back to the original owners. 7 The Collector in his order has referred to the report from the Tahasildar dated 30.11.2006 stating therein that kaccha road has been constructed and a pump­set and pipeline on the well has also been installed. The water tank is also constructed. The platform for cattle market is also constructed. 18 Galas/shops have also been constructed. The balance land is gavatpad and there are trees, therefore, the same remains to be developed. The Tahasildar, therefore, recommended that this undeveloped land may be allotted to the Respondent Nos.1 to 22. However, the Sub­Divisional Officer made a report dated 25.07.2007 to the Collector and pointed out that both Gat Nos.582 and 583 are required *4* wp.2095.11.914.sxw by the Petitioner/APMC and once they have been acquired and handed over for the public purpose of the Petitioner, in law these lands cannot be handed back to the owners although they may not have been presently utilized by the Petitioner. 8 The Collector on perusal of both reports, relied on the findings of the Tahasildar and held that the land deserves to be resumed. He also referred to an application made by Nilkanth Shivputra Hiremath and others that the lands be resumed and handed over back to them. After all this material was placed before the Collector, he came to the conclusion that in view of the judgment reported in AIR 1997 SC 2703 (State of Kerala Vs. M.Bhaskaran Pillai) in Civil Appeal No.3628/1997 decided on 05.05.1997, it would be open for him to direct that these lands should be resumed to the Government and further steps be taken. 9 It is this order of the Government/Collector which is challenged in this petition by the Petitioner/APMC. 10 Mr.Desai, learned counsel appearing for the Petitioner/APMC, contended that the impugned order is without jurisdiction and wholly illegal. The Collector has no such powers as are assumed by him in terms of the Government Resolution dated 12.03.2004 referred in the impugned order, so also, the judgment of the Honourable Supreme Court. Mr.Desai submits that the Petitioner is a body constituted under the APMC Act for discharging the functions under the APMC Act. The Government is not providing any finance. The Petitioner has to develop its own properties and generate sufficient income for the purpose of its activities and functions. It is not as if the land is not utilized at all. The reports of the *5* wp.2095.11.914.sxw authorities, namely, the Tahasildar and the Sub­Divisional Officer, indicate that substantial portion of the land is developed and utilized and the balance portion, in terms of the applicable policy, is being developed so as to generate more income. In this view of the matter and the Respondent Nos.1 to 22 having no rights in the land, so also, the lands are vesting in the Government and handed over to the Petitioner/APMC, there is no question of any resumption of the said lands. For all these reasons, the impugned order is unsustainable in law and should be set aside. 11 The Writ Petition is resisted by the Respondent Nos.23 to 26, so also, by the Respondent Nos.1 to 22 (private Respondents). The Collector of district has filed the affidavit justifying his order and pointed out that the possession was given to the Petitioner/APMC on 26.03.1993, but an application was made by the Respondent Nos.1 to 22 for restoration of the lands and the Collector has not passed an order of restoration, but has directed resumption of the lands to the Government and for being dealt with thereafter in accordance with law. After tracing the entire history with regard to the acquisition, what has been contended is that there is a Government Resolution dated 10.10.1973. Further there is another Government Resolution dated 12.03.2004. These empower the Collector to take subject action and pass an order impugned in this Writ Petition. However, while dealing with the contentions insofar as the facts are concerned and the proceedings instituted by the Respondent Nos.1 to 22, this affidavit states that the averments in that behalf are correct. The Collector, therefore, justified his ultimate action by this affidavit. 12 There is an affidavit filed by the Respondent Nos.1 to 22 opposing this Writ Petition and they contended that the action of the State *6* wp.2095.11.914.sxw Government is fully justified. It is pointed out by them that the lands in question have not been utilized by the Petitioner/APMC. The Respondent Nos.1 to 22 have been repeatedly requesting the State Government to restore the lands to them. The litigation was initiated. However, they made a request to this Court by filing Writ Petition being No.8372/2004 and that came to be withdrawn on 24.09.2004 with liberty to adopt appropriate proceedings. Pursuant to the liberty given by this Court, the instant application has been made on 15.03.2005 to the Collector, based upon which the impugned order has been passed. It is stated that the Petitioner/APMC is trying to exploit the lands commercially and making profits out of the same. The purpose for which the lands were allotted to the Petitioner has not been fulfilled at all. Now the lands are disposed of in the open market by creating long term leases. In all these circumstances and when the lands have not been given to conduct business and commercial gains, then, the impugned order should not be quashed and set aside. 13 There is a rejoinder affidavit which has been filed by the Petitioner/APMC to oppose the contents of both affidavits. As far as the State’s affidavit is concerned, the Chairman of the Petitioner has stated that the order cannot be sustained because the Government has no such powers as are sought to be assumed in the instant case. Reliance on the Government Resolutions is clearly misplaced. These Government Resolutions cannot empower the Collector to resume the lands which are allotted to the Petitioner and vested in the Petitioner. Further, as far as the Respondent Nos.1 to 22 are concerned, it is stated that their statements are not at all borne out from the record and they have not proved the allegations made. In fact the contents of the Sub­Divisional Officer’s report *7* wp.2095.11.914.sxw would belie that the lands are not being utilized for the purpose for which they were handed over. For these reasons, the impugned order be quashed and set aside. 14 It is on the above basis, I have heard the learned counsel appearing for the respective parties at great length. With their assistance I have perused the petition, affidavits and annexures thereto, so also, the impugned order. I have also perused the judgments of this Court, so also, of the Honourable Supreme Court to which my attention is invited. 15 Upon repeated queries from the Court under what power the subject order is passed, all that is stated is that there is Government Resolution empowering the State to take all such measures including resumption and in any event, the Land Acquisition Act, 1894 has ample powers in that behalf. Therefore, reliance has been placed on Section 44­A falling in Part­VII of the Land Acquisition Act, 1894. 16 As far as reliance placed on the Government Resolution is concerned, annexure­B to the affidavit which has been filed by the State is the Government Resolution dated 12.03.2004. That Government Resolution clearly states, in title itself, that it is issued in pursuance to the judgment of the Honourable Supreme Court in case of M.Bhaskaran Pillai (supra) with regard to the disposal of the un­utilized non agriculture lands. The Government Resolution makes a reference to the earlier resolutions and particularly dated 10.10.1973 and 19.08.1974, a decision of the Honourable Supreme Court in case of M.Bhaskaran Pillai (supra) and a letter/ circular dated 22.08.2002 issued by the State Government. It is stated that in pursuance of the decision of the Honourable Supreme *8* wp.2095.11.914.sxw Court and the direction therein, the Government has issued the Government Resolution dated 12.03.2004 and resolved that the lands which have been acquired for the public purpose, but have not been utilized for the same or if they have been utilized, but still they are surplus or they are no longer required for the public purpose for which they are acquired, then, the District Collector can dispose of such lands which have non agricultural potential or which are non agricultural, by a public auction. A careful reading of this Government Resolution in Marathi language would indicate that the stipulation therein is that such land can be disposed of by public auction and at such auction, erstwhile owners can also participate and after auction is held, the income generated therefrom should be utilized for such public purpose as is envisaged in the Directive Principles of State policy under Articles 37 to 51 of the Constitution of India. 17 If such is the purport of the Government Resolution dated 12.03.2004 which also refers to all prior resolutions and circulars, then, one fails to understand as to how these powers enable the Collector to resume the lands belonging to the Petitioner/APMC. In this case, assuming that the powers were available and assuming that due cognizance could be taken of the request of the Respondent Nos.1 to 22, yet, the Collector should have been aware of the fact that the Petitioner/APMC is a statutory authority and has been incorporated and established under the enactment of the State Legislature. That enactment empowers the APMC to execute contracts, acquire and hold movable and immovable property as well. The property has to be utilized for discharging the obligation and performing the duties and functions under the APMC Act. The facilities and amenities that are to be made available *9* wp.2095.11.914.sxw to the traders, merchants, farmers mandate that the basic requirements in that behalf are provided at site. The Petitioner/APMC throughout contended before the Collector that it has utilized the subject land for the purpose of the market itself. It has set up the cattle market. It has provided the basic amenities such as roads, water supply, construction of platforms etc.. This is to enable the holding of cattle market and it is contended that the cattle market is held once a week. As far as the balance land is concerned, it is contended that on some of the portion the cattle market is being held and other portion is being developed for other purposes of the Petitioner/APMC. The report of the Sub­Divisional Officer confirms all this and it is not denied in the affidavit filed by the Collector. In these circumstances, how could the resumption order be passed and that too when the lands are in possession of the Petitioner/APMC, has not been clarified at all. 18 My attention has been invited by Mr.Desai to the provisions of the Chapters­III and IV of the APMC Act and it has been contended by him that the APMC has powers to set up the market fund. It has powers under which it can borrow, it can also hold property. For discharging its functions, the APMC can take such steps as are permissible in the APMC Act including the execution of contracts. The only condition that is stipulated in the APMC Act is that all such steps have to be taken subject to the powers under Chapter VIII i.e. control of the State Government and the Director of Marketing. 19 In the impugned order, there is absolutely no indication as to when the property is being handed over to the Petitioner/APMC in the year 1993­1995. Whether, it retains the character as a public property or a *10* wp.2095.11.914.sxw land belonging to the State and therefore, being handed over only for management and use by the APMC or that in terms of the provisions of the APMC Act the land belongs or vests in or can be held by the APMC, otherwise is not clarified at all till date. Ultimately, the basic requirement while passing such order is to satisfy oneself, whether, the land still belongs to the State and can be, therefore, disposed of by the Collector in terms of the applicable laws or the Maharashtra Land Revenue Code, 1966 or the Maharashtra Land Revenue (Disposal of Government Lands) Rules, 1971. It is only in terms of the Maharashtra Land Revenue Code and particularly under Section 20 thereof, when the nature of land is Government land or public property, that the resumption is provided. Once a Market Committee is incorporated and when section 12(1) of the APMC Act states that every market committee shall be a body corporate and may in its corporate name sue and be sued and shall be competent to contract, acquire and hold property, both movable and immovable and to do all other things necessary for the purposes for which it is established; then, it is necessary to indicate as to whether, this land can be called as a land belonging to the APMC absolutely or still it retains the character as public or government land. That having not been indicated, the first requirement of the Government Resolution has not been satisfied at all. 20 Further, there is absolutely nothing to indicate as to why the Sub­Divisional Officer’s report is discarded by the Collector. If the Collector is of the opinion that the balance land is lying un­utilized or the APMC does not seem to be utilizing it for the purpose for which it is established, then, he could have made appropriate report to the State Government and particularly to the Director of Marketing. It was then open to the State Government and the Director of Marketing to take steps *11* wp.2095.11.914.sxw as are provided in Chapter­VIII of the APMC Act and if it was of the opinion that any lease is created or the land is utilized for private gains, then, such individual order of allotment and decisions in furtherance thereof could have been quashed and set aside, of course in accordance with law and after due notice and hearing the APMC. That was the course open to set right the things and to ensure that the APMC does not function de hors the provisions of the APMC Act or the local authority like the APMC which has been handed over public property for use of the public, does not mismanage it or mal­administer the affairs generally. The powers of supersession of the APMC are always available. It is such power which could have been utilized if the State was of the opinion that the lands are put to commercial use and income or profit is being generated by charging market rates. Thus, if the State is of the opinion that the lands are being handed over for private use by the APMC, it could have taken necessary measures to prevent such acts. Surely this was the course open, but not directing that the lands should be resumed under the Government Resolution. Reading of the said Government Resolutions and the judgment of the Honourable Supreme Court, leave me in no manner of doubt that the law is not that such lands can be given to the owners from whom they have been acquired. Paragraph­3 of the decision in the case of M.Bhaskaran Pillai (supra), would indicate that the Honourable Supreme Court did not lay down any principle of law which enables the States to handover these lands back to the erstwhile owners. In paragraph­4 what has been held is that in case there is no other public purpose for which the land is needed, then, instead of disposal by way of sale to the erstwhile owners, the land should be put to public auction and the amount fetched in the public auction can be better utilized for the public purpose envisaged in the Directive Principles of the Constitution. However, this *12* wp.2095.11.914.sxw judgment is not an authority on the point that when the private lands are acquired for the public purpose under the Land Acquisition Act and thereafter, handed over to the authority or agency like the APMC for whom they were acquired and held by such entity, they can be resumed by taking steps as laid down in paragraph­4 of the judgment. In such circumstances, resorting to this judgment is not permissible. 21 Reliance placed by the Respondent Nos.1 to 22 on a decision of the learned Single Judge of this Court in Maharashtra State Electricity Board v/s State of Maharashtra and others, reported in AIR 1997 Bombay 267, does not advance their case any further. There is no question of going into the issue of legality and validity of the Government Resolution dated 10.10.1973 and 12.03.2004. Therefore, this judgment is of little assistance. This decision must be read in the context of the Government Resolutions and further decisions of the Honourable Supreme Court which have been relied upon. By no stretch of imagination, the Respondent Nos. 1 to 22 on the strength of this judgment can seek a relief that that the lands be handed back to them. They have limited opportunity of participating in the bid or auction which will be held of such lands. 22 Equally, Mr.Patne’s reliance on the Land Acquisition Act, 1894 and particularly part­VII thereof, is misplaced. Section 44­A of the Land Acquisition Act, 1894 speaks of restriction on transfer in respect of the acquisition of land for the Companies. In such circumstances, the Government could not have resorted to Part­VII of the Land Acquisition Act. Therefore, reliance on this provision is also misplaced. Incidentally, expression “company” is defined under Section 3(e) of the Land Acquisition Act to mean a company as defined in section 3 of the *13* wp.2095.11.914.sxw Companies Act, 1956 other than a Government company referred to in clause (cc) of section 3; a society registered under the Societies Registration Act, 1860 or under any corresponding law for the time being in force in a State other than a society referred to in clause (cc) and a co­ operative society within the meaning of any law relating to co­operative societies for the time being in force in the State. As far as section 3 is concerned, after clause (e) in Maharashtra, clause (ee) has been inserted and it has been clarified that the expression “local authority” includes the Trust constituted under the Nagpur Improvement Trust Act, 1936. It has not been argued before me that the APMC is covered by this definition or Part VII of the Land Acquisition Act. In these circumstances, even this provision is of no assistance. 23 As a result of the above discussion, the impugned order is quashed and set aside. The application made by the Respondent Nos.1 to 22 based upon which the lands have been resumed, is dismissed. But, it is clarified that it would be open for both, the State and private Respondents to take such measures as are permissible in law including seeking compensation for wrongful act committed by the Petitioner/APMC. All pleas are kept open including that this order does not prevent the State to take action under Chapter VIII of the APMC Act or take such decisions as are necessary including to quash and set aside the individual allotments made by the Petitioner/APMC. All contentions in that behalf are kept open. 24 Rule is made absolute accordingly. No costs. (S.C. Dharmadhikari, J)