1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Appeal against Order No.27 of 2009 (Nagpur Housing and Area Development Board through its Chief Officer v. Manilal s/o Jamnadas Lodhiya and others) Office Notes, Memoranda of Coram, appearances, Court's orders or directions Court's or Judge's orders and Registrar's order Shri P.C. Madkholkar, Advocate for Appellant. Shri M.P. Khajanchi, Advocate for R- 1 to 3 and 5. Coram : R.C. Chavan, J. Dated : 16 th July, 2009 1. This appeal is directed against the order of the learned District Judge-2, Chandrapur, allowing Regular Civil Appeal No.50 of 2008 and remanding the suit back to the Trial Court for final disposal on merits. 2. The respondents had filed Regular Civil Suit No.32 of 1990 before the Civil Court at Chandrapur questioning acquisition of lands by HUDCO, i.e. now MHADA, under the notification dated 20-2-1986 on the ground that the proposed acquisition is void. The present appellant, defendant in the suit, did not file any written statement. 2 3. Some other persons whose lands were covered by the preliminary notice dated 17-4-1984 under sub-section (1) of Section 41 of the Maharashtra Housing and Area Development Act, 1976 and final notification dated 20-2-1986, had filed writ petitions before this Court. This Court allowed the petitions and quashed the preliminary notice as well as the final notification, particularly on the ground that it was necessary for the State Government to place material incorporating details of plans, proposals or projects in the preliminary notice itself, or make it available to the would-be objectors, so that they could show cause why their lands should not be acquired. The State Government had not done so. The Court held that absence of this material would result in denial of adequate and sufficient opportunity to the objectors to raise the objections. The respondents herein were not parties to those writ petitions. 4. The judgment of this Court allowing the writ petitions was challenged by the appellant before the Supreme Court and the Supreme Court, while upholding the judgment of this Court, observed in para 3 of the order reported at Maharashtra Housing and Area Development Authority and another v. Gangaram and others, reported at (1994) 2 3 SCC 489, as under : “3. ...In this background, it is difficult to uphold the validity of the preliminary notice dated April 17, 1984. In the light of this finding and in the light of the above view, the decision of the Bombay High Court in the impugned judgments cannot be said to be vitiated by any error of law warranting interference. It is made clear that this decision would apply to the notifications issued under Section 41 and published on and from January 12, 1994 and all notifications issued earlier would not become invalid or illegal. Equally all acquisitions relating to the proposals which became final, are not liable to be reopened, even though no approved scheme by the Board and accepted by the Government was in existence before publishing notification under Section 41. The appeals are accordingly dismissed but in the circumstances without costs.” 5. The appellant had filed an application before the learned Civil Judge, Senior Division, Chandrapur, praying for dismissal of 4 suit on the basis of this judgment. It was contended by the appellant that since the Supreme Court had given prospective effect to the judgment of this Court, disposing of bunch of writ petitions by judgment in Maharashshtra Housing and Area Development Authority and another v. Gangaram and others, reported at (1994) 2 SCC 489, all acquisitions, which had become final, were not liable to be re-opened and, therefore, acquisition of plaintiffs’ land was saved. The learned Civil Judge allowed this application and dismissed the suit. 6. On appeal, the learned District Judge-2, Chandrapur, by his impugned order, remanded the suit back to the Trial Court for disposal on merits, holding that the suit was not liable to be dismissed and that the judgment of the Supreme Court could not have been interpreted to mean that the acquisition of the plaintiffs’ land had become final. This is why the appellant is before this Court. 7. I have heard the learned counsel for the appellant and the learned counsel for the respondents. 8. The contention of the learned counsel for the appellant that ordinarily a judgment of this Court would govern only the party or the subject-matter, which is before this Court, is 5 unexceptionable. However, in this case, it is not that the plaintiffs’ land was sought to be acquired by a preliminary notice or a final notification, which was different than the one, which was subject-matter of Writ Petition No. 1825 of 1986 and other petitions, which were decided by the judgment in Shyamrao Rajeshwarrao Potdukhe and others v. State of Maharashtra and others, reported at 1993 Mh.L.J. 841. The very same notice and notification were questioned before this Court not on the ground of any peculiarity of the parties or the properties, which were subject- matter of the notice and notification, but on the ground that in the absence of a scheme or a project, the landholders could not be held to have sufficient opportunity to raise the objection. Thus the finding of this Court was not restricted to the case of the parties, which were before the Court, but hit the notification itself, because it did not contain details about the project or the scheme. 9. It is true that the Supreme Court has made it clear that the judgment of this Court would apply to the notifications issued under Section 41 of the Maharashtra Housing and Area Development Act and published on and from 12-1-1994. Therefore, had the land of the plaintiffs in Regular Civil Suit No.32 of 1990 before the Civil Court at Chandrapur 6 been subject-matter of any other notice or notification issued after 12-1-1994, it would have decidedly been saved. But it is seen from even the objection raised by the appellant before the Trial Court that the land in question had been included in the very same notice dated 17-4-1984, about which the Apex Court finds that it was difficult to hold the validity of the preliminary notice dated 17-4-1984. 10. The learned counsel for the appellant submitted that the owners of the other lands included in the same notification had filed Writ Petition No.1055 of 2001 before this Court on the basis of the judgment of the Supreme Court and this petition was disposed of by this Court on 22-4-2002 with the order, which reads as under : “ In view of the decision of the Supreme Court as stated in the affidavit in reply filed by the Principal Secretary to Govt. of Maharashtra, Housing Department, the challenge of the petitioner to the acquisition of the land does not survive. Insofar as the anxiety of the learned counsel for the petitioner as to whether the petitioner has been awarded the compensation or not, is 7 a different issue and in case the petitioner has not received any compensation for the same, he can agitate the matter before the competent authority or approach this Court. With these observations, the petition is disposed of.” 11. The learned counsel for the appellant submitted that in view of this, the question as to whether the owners of other lands included in the notice dated 17-4-1984 can take benefit of the judgment of the Supreme Court is settled once for all and, therefore, it would not be open to say that the plaintiff in Regular Civil Suit No.32 of 1990 can still take the advantage of the judgment of the Supreme Court. 12. I am afraid that the learned counsel for the appellant is mixing up two different questions. It is not that the plaintiffs have sought a prompt decree of their suit on the basis of the judgment of the Supreme Court. It is the appellant, who has sought dismissal of the suit on the basis of the judgment of the Supreme Court, which invalidates the very same notice, which has been questioned in the suit. Therefore, the question is not whether the plaintiffs would be immediately entitled to a 8 decree, but the question is whether the suit of the plaintiffs could be thrown out at threshold without a trial and without finding out whether their lands were saved in view of the judgment of the Supreme Court. It may be reiterated that acquisitions relating to proposals, which became final, were not liable to be re-opened. Since the acquisition in respect of the plaintiffs’ land is not shown to have become final by any different notification than the one dated 20-2-1986, which flows from notice dated 17-4-1984 and since the plaintiffs had already challenged it before writ petitions were decided by this Court by judgment in Shyamrao Rajeshwarrao Potdukhe and others v. State of Maharashtra and others, reported at 1993 Mh.L.J. 841, it may be possible to contend that the acquisition was subject to a challenge before a Court and had not attained finality. The learned District Judge was right in setting aside the order of the learned Trial Judge dismissing the suit at threshold. The appellant would have an opportunity to raise all the objections before the Trial Court and also to point out that the acquisition has become final. 9 13. In view of this, the appeal is dismissed. Judge. pdl