( 1 ) W.P. No. 8469/2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD. WRIT PETITION NO. 8469 OF 2010 1. Sudhir Bhagwan Borawake, Age : 51 years, Occupation : Agriculture / Business, R/o. Borawake Mala, Ward No.7, Belapur Road, Shrirampur, Taluka : Shrirampur, District : Ahmednagar. 2. Bhaskar Vishnu Borawake, Age : 71 years, Occupation : Agriculture / Business, R/o. Borawake Mala, Ward No.7, Belapur Road, Shrirampur, Taluka : Shrirampur, District : Ahmednagar. 3. Karbhari Yadav Bombale, Age : 70 years, Occupation : Agriculture / Business, R/o. Bombale Wasti, Ward No.7, Belapur Road, Shrirampur, Taluka : Shrirampur, District : Ahmednagar. 4. Chandrakant Marotirao Raskar, Age : 65 years, Occupation : Agriculture / Business, R/o. Raskar Vasti, Ward No.7, Belapur Road, Shrirampur, Taluka : Shrirampur, District : Ahmednagar. .. Petitioners. ( 2 ) W.P. No. 8469/2010 versus 1. The State of Maharashtra, Through its Chief Secretary, Housing Development Department, Mantralaya, Mumbai - 32. 2. Deputy Secretary, Housing Development Department, Mantralaya, Mumbai - 32. 3. Satish s/o. Nanasaheb Mandhre, .. Respondents Age : 32 years, (No.3 - Occupation : Agriculturist, Intervenor) R/o. Sahakar Bank Colony, Ward No.7, At Post : Shrirampur, District : Ahmednagar. ....................... Mr. R.B. Raghuwanshi, Advocate, with Mr. D.S. Bagul, Advocate, for the petitioners. Mr. N.B. Khandare, Government Pleader, for respondent nos.1 and 2. Mr. P.R. Patil, Advocate, for respondent no.3 / Intervenor. ........................ ( 3 ) W.P. No. 8469/2010 CORAM : B.R. GAVAI & R.M. BORDE, JJ. DATE : 3RD DECEMBER 2010 ORAL JUDGMENT (Per B.R. Gavai, J.) : 1. Rule. Rule made returnable forthwith. Heard by consent. 2. This is a classic case wherein the helpless citizens are required to approach this Court, for implementation of the consent terms which were recorded before this Court and which have become a decree and order of this Court, as back as on 1st December 1999. 3. The facts, in brief, giving rise to the present petition are as under : (a) The petitioners are agriculturists who own certain agricultural land at Shrirampur (District : Ahmednagar). A notification under Section 41 of the Maharashtra Housing and Area Development Act, 1976 (For short, hereinafter referred to as "the said Act"), came to be published by the State Government on 16th May 1980. Challenging the said ( 4 ) W.P. No. 8469/2010 notification, the petitioners and various other persons, whose lands were also subject matter of the said notification, filed various petitions before this Court. It appears that during the pendency of the said petitions, efforts were made to settle the matter amicably and the consent terms which were duly signed by the Chief Officer of the Nashik Housing and Development Board, Nashik; Sub-Divisional Officer, Shrirampur; Desk Officer in the Department of Housing Development and Special Assistance, Mantralaya, Mumbai, and the land owners were recorded and in pursuance thereof, the Court disposed of the petitions, being Writ Petition Nos. 142/1989, 143/1989, 144/1989, 145/1989, 146/1989, 147/1989, 148/1989, 149/1989 and Writ Petition No. 328/1991. (b) It will be relevant to refer to certain clauses of the said consent terms. Clauses 2, 3, 4, 5 and 6 of the consent terms read thus : "2. That, it has been agreed by the parties, that although land admeasuring 47.75 hectares is acquired, 5 gunthas of land of each land owner totaling thereby 6 hectares (15 acres) land is to be acquired and remaining land is to be released from acquisition. To have compact piece of land for convenient implementation of housing schemes each of the petitioners has no objection ( 5 ) W.P. No. 8469/2010 to acquire the 6 hectares (15 acres) of land as shown by green coloured boundary line on the plan annexed hereto. However, to compensate the land owners affected by the acquisition, each of the petitioners whose lands are to be released from acquisition and not to be taken in possession will pay or compensate them directly in proportion to their agreed share. 3. That, the respondents agree to restrict their activities only to 6 hectares of land described in schedule-II and shown in green coloured boundary line on the plan annexed herewith subject to joint measurement on site by D.I.L.R., Ahmednagar, and agree to delete 35.87 hectares lands from acquisition by issuing a corrigendum to the aforesaid notification and publishing the same in Govt. Gazette as per the provisions of the said Act, as far as possible within a period of 90 days from the date of order of the Hon'ble High Court as per consent terms or within the period extended by mutual agreement. 4. That, the petitioners agree to accept the amount of acquisition for 6 hectares of land as shall be determined under the provisions of Section 44 of the Maharashtra Housing & Area Development Act, 1976. 5. That, the petitioners agree to hand over the possession of the land admeasuring 6 hectares (15 acres) peacefully and without encumberence immediately after these writ petitions are disposed of in view of these consent terms without insisting for payment of amount of ( 6 ) W.P. No. 8469/2010 acquisition, which shall be determined in due course. However, the respondents shall take immediate steps for determination of amount of acquisition after taking over the 6 hectares land in possession. 6. That, the petitioners agree that, they shall not claim any amount by way of compensation, damages or, on any other account whatsoever for the land admeasuring 35.87 hecatares which is agreed to be deleted from acquisition as mentioned in para above and also shall not claim any other benefit from the respondents by way of tenement/plots etc. in the proposed housing and area development scheme. " (c) It could, thus, be clearly seen that though initially 47.75 hectares of land was sought to be acquired, it was decided that 5 Gunthas land of each land owner, totaling thereby 6 hectares (15 acres) land was to be acquired and the remaining land was decided to be released from acquisition. It was further decided to have compact piece of land for convenient implementation of housing schemes, each of the petitioners had given no objection to acquire the 6 hectares (15 acres) of land, as shown by green coloured boundary line on the plan annexed to the consent terms. It was further decided to compensate the land owners affected by the acquisition, each of the petitioners whose lands were to be released from acquisition and not to be taken in possession, ( 7 ) W.P. No. 8469/2010 would pay or compensate them directly in proportion to their agreed share. (d) As per Clause 3 of the consent terms, it was further agreed that after joint measurement, the respondents would issue a corrigendum to the aforesaid notification dated 16th May 1980 and publish the same in the Government Gazette as per the provisions of the said Act, as far as possible, within a period of 90 days from the date of order of this Court, as per consent terms or within the period extended by mutual agreement. The petitioners had agreed vide Clause 4 of the consent terms, to accept the amount of acquisition for 6 Hectares of land, as shall be determined under the provisions of Section 44 of the said Act. Under Clause 5 of the consent terms, the petitioners had agreed to hand over possession of the land admeasuring 6 Hectares (15 acres) peacefully and without encumbrance immediately after the writ petitions were disposed of and, that too, without insistence for payment of amount of compensation which was to be determined later on. The petitioners had further agreed that they shall not claim any compensation or damages pertaining to the land admeasuring 35.87 hectares which was agreed to be deleted from acquisition. 4. The said consent terms, as could be seen from the ( 8 ) W.P. No. 8469/2010 order in the aforesaid Writ Petitions, were recorded by this Court, vide order dated 1st December 1999. It will be relevant to reproduce paragraphs 3, 4 and 5 of the said order passed by this Court, which read thus : "3. ........................................................ The affidavit filed by the Chief Officer, Nasik Housing and Area Development Board, Nasik , does indicate that the Board has shown its willingness to bring down its requirement of the land from 47 Hectares to 6 Hectares, out of the land covered under the acquisitions impugned in these petitions and it has been further stated in the said affidavit that at one stage when the Government had also approved the proposal forwarded by the MHADA in that regard, the petitioners backed out and refused to sign the compromise. 4. The learned Counsel for the petitioners have put in some efforts to prevail over the petitioners and make them appreciate that the compromise proposed would be in their interest. Accordingly, the consent terms which were drafted by the MHADA have been signed by the land holders / petitioners before us acknowledging their acceptance of the said consent terms. The consent terms are also signed by the Chief Officer, MHADA and the Desk Officer, Department of Housing, Government of Maharashtra, and the Sub-Divisional Officer, Shrirampur Division, on behalf of the Collector, Ahmednagar. The consent terms are taken on ( 9 ) W.P. No. 8469/2010 record and marked as "Annexure X" 5. In view of the said consent terms, it is clear that MHADA propose to acquire only 6 hectare land instead of the original proposal of 47.75 hectares of land and the petitioners have agreed to release the said land admeasuring 6 hectares, as per the modalities set out in the consent terms. It is, therefore, clear that in view of these consent terms, signed by the parties, the challenge raised in the petitions does not survive and the petitions are, therefore, disposed of as infructuous. Interim orders, if any, stand vacated. Rule discharged with no order as to costs." 5. It could, thus, be clearly seen that the initial willingness was shown by the Board to bring down requirement of land from 47 hectares to 6 hectares. It can be seen that this Court has recorded from the affidavit in reply on behalf of the Board, that initially the petitioners had backed out and refused to sign the compromise. However, it appears that thereafter the learned Counsel appearing for the petitioners therein, prevailed upon the petitioners and made them understand, that the compromise arrived at, was in their interest and only after that the consent terms were recorded and signed by all the parties. Perusal of paragraph 5 of the order would reveal that the petitions have been disposed of, specifically taking into consideration that the MHADA proposes to acquire only 6 ( 10 ) W.P. No. 8469/2010 hectares of land instead of original proposal of 47.75 hectares of land, and that the petitioners had agreed to release the land admeasuring 6 hectares. 6. It appears that thereafter though the petitioners were persuading the State Government to issue corrigendum to the notification, as agreed, for some or the other reason, it was not published in the Government Gazette. In the meantime, a public interest litigation, by way of Writ Petition No. 1812/1004 (For short, hereinafter referred to as "the said Petition (PIL)") was filed before this Court. It appears that initially the petitioners were not joined as party respondents in the said petition and when the notice was issued by this Court on 27th September 2005, the Court granted leave to join the prospective purchasers. The Court had also granted status quo in the meantime. 7. It appears that thereafter, the said Petition (PIL) was heard, along with Writ Petition No. 1129/2006, by the Division Bench of this Court on 21st February 2006. The detail arguments were heard by this Court. The main contention raised by the petitioner in the said Petition (PIL), who has been permitted to intervene in the present petition, was that once the land is acquired, it becomes vested in the authority and then it cannot be released without following the procedure prescribed ( 11 ) W.P. No. 8469/2010 by law. In the affidavit which was filed on behalf of the State Government in the said petition (PIL), it was specifically stated that the compromise arrived at, between the parties in the earlier Writ Petitions, was after due deliberations by the Board, President of the Municipal Council and the petitioners. It was further stated that the Sub-Divisional Officer had actually handed over possession of 5.14 hectares of land to the Maharashtra Housing And Area Development Authority (For short, "MHADA"). The main contention of the present petitioners, who were respondents in the said Petition (PIL), was that once the issue was concluded by consent terms before this Court, the petitioner therein could not be permitted to re-agitate the said issue. 8. The Division Bench by its order dated 21st February 2006, in the said Petition (PIL), vacated the interim relief which was granted earlier, by an elaborate reasoned order. The Division Bench, in the said order, in paragraph 6, has specifically referred to the order passed by the Division Bench dated 1st December 1999, which has also been referred herein above, by us. This Court, in paragraph 10 of the order, has specifically observed, that the land owners have given up their right to challenge the entire process of acquisition. It will be relevant to reproduce paragraph 11 of the said order passed by the Division ( 12 ) W.P. No. 8469/2010 Bench in the said Petition (PIL), dated 21st February 2006, which reads thus : " The another important aspect of the order of status quo is, who will suffer irreparable loss, if the status quo is continued and the simple plain answer to this question is that the owners of the land will suffer irreparable loss. The petitioner, individually personally has no concern with the land owned by the owners or which was the land subject matter of the Notification and which will be the matter of subsequent consent terms. He has filed this petition as public interest litigation, but the sufferers will be the owners of the land and the loss, they will suffer, cannot be compensated in terms of money. This is for three reasons, firstly, the owners had filed 6 - 7 writ petitions before this Court, challenging the acquisition under different provisions of law. So, it cannot be said that they had consented to the acquisition. Secondly, in spite of their challenge, they entered into consent terms to which MHADA, Government and other Authorities were parties. They agreed to give a certain portion of their land per acre and accordingly, gave 6 hectares to the MHADA to achieve its object. They filed consent terms in the High Court; a Division Bench of this Court took cognizance of the consent terms, took them on record and disposed of the petitions, as having become infructuous. Thirdly, the possession of all these lands was with the respective owners on account of the interim stay, granted in those petitions to them by this Court. Now, in this ( 13 ) W.P. No. 8469/2010 background, if the status quo is not vacated, all the owners from Sr. Nos.9 to 165 will not be able to develop their property; they will not be able to deal it in any manner whatsoever. There may be persons, who want to dispose of the property for raising funds to meet their family needs, to pay off the loans or to construct houses for their own purpose or for earning from the said construction. All of them will not be able to do any of such thing from such property, which is their own. If the status quo is continued till the disposal of the petition, it is not certain, when the petition will come up for hearing. It may take a decade or more because, at this juncture, we are dealing with the petitions of 1993 for final hearing i.e. after 13 years. So, for 10 and/or 13 years or more the property of the land owners will be locked and this becomes more serious when the Government, MHADA and other Authorities were parties to the consent terms and when the petitions of the petitioners, challenging the acquisition, were disposed of as having become infructuous. Now, by no order of this Court those consent terms can be set aside and the petitions of the land owners can be restored to their original position. " (Emphasis supplied) It can, thus, be clearly seen that the Division Bench itself has observed that by an order of this Court, the consent terms which were entered into, by the parties, cannot be set aside and the petitions of the land owners can be restored to their original ( 14 ) W.P. No. 8469/2010 position. In paragraph 12 of the said order, this Court has specifically taken into consideration the contention raised by the petitioner therein i.e. intervenor herein, that he is looking after the welfare of the citizens at large, living at Shrirampur. This Court has further taken into consideration the conduct of the present intervenor in the Writ Petition, in not joining the original land owners. It would be relevant to reproduce paragraph 12 of the said order, which reads thus : " The Counsel for the land owners contended that the petitioner is looking after the welfare of the citizens at large, living at Shrirampur, knowing everything relating to the acquisition. He was also knowing that 47 hectares of land was subject matter of acquisition, which was owned by different individuals, whose number exceeded more than 150 but, still none of them are joined by him in the petition and ex-parte status quo was obtained. We have taken note of this argument. It is true that none of these land owners were joined in the petition, when the status quo order was granted in favour of the petitioner. " 9. The said order came to be challenged before the Apex Court and the Apex Court, vide order dated 10th May 2006, ( 15 ) W.P. No. 8469/2010 dismissed Special Leave Petition No. 8103/2006 filed by the present respondent / Intervenor. It appears that despite this position, the Chief Officer of the Municipal Council had not granted permission to the land owners to make construction. As such, the said persons were required to file Civil Application No. 5661/2006 in Writ Petition No. 1812/2004. The observations of the Division Bench, while disposing of the said Civil Application, vide order dated 22nd August 2006, would be relevant for the purpose of the present petition. The Division Bench has observed thus : " It is not necessary to go into that question because whatever submissions were made before us with reference to the respective rights, were considered by us and order came to be passed. The order is absolutely clear and interpretation of the Chief Officer is wrong. All the respondents have a right to enjoy the property in the manner in which they like. Therefore, not only the Chief Officer but all the Government officers dealing with their applications for development of the property or otherwise should take a note that there is no stay against them and consequentially no authority, including the respondents 1 to 8, can refuse to act if the original respondents apply for permission under different statutes. " It is, thus, clear that the Division Bench while issuing clarification, made it clear that the clarification was not only for ( 16 ) W.P. No. 8469/2010 the purpose of the applicants but it was for all other original respondents. 10. It appears that on 10th October 2005, the State of Maharashtra, in accordance with the consent terms recorded before this Court, had issued a notification, thereby deleting the lands which were agreed to be deleted from the acquisition. However, taking advantage of the fact that the said notification was issued on 10th October 2005, i.e. during the period when the status quo was operating (between 27th September 2005 to 21st February 2006), in the said Petition (PIL), the present intervenor filed a Contempt Petition, being Contempt Petition No. 81/2006 before this Court. It is not in dispute, that neither the present petitioners, nor the other persons who were beneficiaries of the consent terms recorded by this Court, were made party to the said Contempt Petition. It appears that realizing that there was a technical lapse on the part of the State Government, the State Government vide notification dated 14th January 2010, withdrew the notification dated 10th October 2005. Consequently, the Contempt Petition came to be disposed of vide order dated 19th January 2010. 11. In this factual background, the petitioners are before this Court, seeking a writ of mandamus, that the State ( 17 ) W.P. No. 8469/2010 Government be directed to publish a notification in the Government Gazette, thereby issuing corrigendum to the notification dated 16th May 1980 and delete their lands from the acquisition, as was agreed before this Court. 12. Mr. R.B. Raghuwanshi, learned Counsel appearing for the petitioners, submits that when the consent terms are filed before this Court, the respondent / State Government was bound to comply with the same and publish a notification, as agreed. He submits that the lis between the parties is concluded, in so far as the petitioners, the State Government and the Housing Board are concerned and the same cannot be reopened at the instance of someone. 13. Mr. N.B. Khandare, learned Government Pleader appearing for respondent nos.1 and 2, states that in view of various orders passed by this Court, in the said Petition (PIL), as well as, in Contempt Petition filed by the intervenor, the State Government was under a bona fide impression that the notification cannot be issued and, therefore, the act of the State Government cannot be considered to be mala fide one. 14. Mr. P.R. Patil, learned Counsel appearing for respondent no.3 / Intervenor, who has filed the said Petition ( 18 ) W.P. No. 8469/2010 (PIL), submits that in view of Section 41(3) of the said Act, the land exclusively vests in the State Government. He submits that once the notification is issued, thereafter it is not permissible for the State Government to withdraw from the said acquisition. He, therefore, submits that the act of the respondent / State, in agreeing to withdraw from the acquisition, is against public interest and, therefore, a writ, as sought, cannot be issued. 15. Undisputedly, the lis between the land owners on one hand, and the State Government and the Housing Board, on the other hand, has reached a finality in view of the consent terms agreed between them and which have been recorded by the Court in its order dated 1st December 1999. It appears that due to persuasion by the Counsel, the land owners were persuaded to accept the proposal of the Board and to arrive at a compromise. The said compromise has received seal of the Court and, therefore, has now become order of the Court. 16. An attempt made by the present intervenor, to put a hurdle in the issuance of the notification, has also not found favour by this Court. The Division Bench of this Court, by an elaborate order, in the said Petition (PIL), dated 21st February 2006, has in clear terms, observed that by no order of this Court those consent terms can be set aside and the petitions of the land ( 19 ) W.P. No. 8469/2010 owners can be restored to their original position. The Special Leave Petition, challenging the said order passed by the Division Bench of this Court, has also been dismissed. The Division Bench, by a further order dated 22nd August 2006, has clarified that there was no stay against the land owners and that the authorities could not refuse to act if the original respondents (in the said Petition (PIL)) apply for permission under different statutes. 17. When a compromise is arrived at, between the parties and which has been recorded by this