IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE APPELLATE SIDE APPELLATE SIDE WRIT PETITION NO. 4680 OF 2008 WRIT PETITION NO. 4680 OF 2008 WRIT PETITION NO. 4680 OF 2008 Shri Dattu Maruti More & ors. ... Petitioners. V/s. The State of Maharashtra & ors. ... Respondents. R.G.Ketkar i/b. R.S.Khadapkar for the petitioners. V.A.Sonpal, AGP for respondent Nos.1 to 4. Vijay Patil for respondent No.5. CORAM: V.C.DAGA AND CORAM: V.C.DAGA AND CORAM: V.C.DAGA AND MRS.MRIDULA BHATKAR, JJ. MRS.MRIDULA BHATKAR, JJ. MRS.MRIDULA BHATKAR, JJ. DATED: 12th February 2009. DATED: 12th February 2009. DATED: 12th February 2009. P.C.: P.C.: P.C.: ---- ---- ---- . Heard Mr.Ketkar learned counsel appearing for the petitioners and learned A.G.P. Appearing for the State. Perused petition. 2. By this petition, the petitioner is challenging acquisition in respect of northern side of the portion of the land admeasuring 2 hectors and 14 ares out of 4 hectors and 96 ares from Gat No.915; and 53 ares our of 2 hectors 67 ares from Gat No.916 situated at village Chikhali, taluka- Haveli, district- Pune ("subject lands" for short). According to the petitioner, the acquisition proceedings are required to be suitably corrected thereby declaring that the acquisition proceeding did not include the subject lands. The Facts : The Facts : The Facts : --------- --------- --------- 3. The factual matrix reveals that the notification under section 4 of the Land Acquisition Act, 1994 was issued on 9th March, 1970 notifying the subject land needed for the public purpose, namely, planned development of the Chinchwad New Township Area for industrial, commercial and residential purposes. The said notification included Gat No.915 admeasuring 4.96 hector and Gat No.916 admeasuring 53 ares. 4. The petitioners and other land holders had raised objections to the proposed acquisition under section 5A(2) of the Act. Those objections were overruled by the Commissioner. The declaration dated 9th November, 1972 under section 6 of the Act was published in the Maharashtra Government Gazette dated 23rd November, 1992. The second respondent passed an award on 16th May, 1986. - 3 - 5. The petitioners had challenged the acquisition proceedings in respect of the subject lands as also notification under section 4 dated 9th November, 1972; declaration under section 6 dated 9th November, 1972 and award dated 28th October, 1986 together with mutation entries 2018 and 2064 made on 24th January, 1991 by filing Writ Petition No.6031/1982. The said writ petition was disposed by giving liberty to the petitioners to make an application for abandonment of the acquisition under section 48 of the Act before respondent No.4. 6. The application was moved before the Additional Commissioner, Pune Division, Pune under section 48 of the Act. Application came to be disposed of holding that the acquisition cannot be abandoned under section 48 of the Act. 7. This action of the respondents acquiring part of the subject property and refusing to abandon acquisition to that extent is a subject matter of challenge in this petition filed under Articles 226 and 227 of the Constitution of India. - 4 - Reply-in-Opposition : Reply-in-Opposition : Reply-in-Opposition : ------------------- ------------------- ------------------- 8. On being noticed, the respondent No.2 appeared and filed counter affidavit dated 11th August, 2008, whereas respondent No.5 filed affidavit in reply dated 18th August, 2008. The respondent No.1 filed affidavit in answer dated 3rd February, 2009 contending therein that pursuant to the acquisition the possession of the subject lands has already been taken over by the respondents and that the acquisition is complete. In turn, the subject lands being Survey/ Gat Nos.915 and 916 have already been handed over to respondent No.5 for being used for the purpose for which it was acquired. It is, thus, urged that the petitioners have no locus to maintain this petition for want of title. Submissions : Submissions : Submissions : ----------- ----------- ----------- 9. Mr.Ketkar, learned counsel for the petitioner contends that the petitioners are still in actual, physical possession of the subject lands and have not yet handed over the same, consequently, the title is still retained by them as such the petitioners are entitled to maintain this petition. That their application under section 48 of the Act ought to have - 5 - been allowed. 10. Per contra, learned A.G.P., appearing for the State strongly countered the submission made by Mr.Ketkar and urged that once the possession is taken over by the State, then the title of the property vests in the State. Consequently, the petitioners cannot maintain present petition. He further submits that during the course of enquiry under section 5A of the Act, it was open for the petitioners to raise all contentions. The contentions sought to be raised and canvassed in the present petition were never raised by them in the enquiry under section 5A of the Act, as such the petitioners are now precluded from raising altogether new contentions in the writ jurisdiction of this Court. He, thus, submits that the petition is without any substance and liable to be dismissed. Consideration : Consideration : Consideration : ------------- ------------- ------------- 11. Having heard the learned counsel for the rival parties, the submission made by the leaned A.G.P., appearing for the State, needs acceptance in view of the law laid down by the Apex Court in the case of General Manager, Tele-Communications & Anr. v. General Manager, Tele-Communications & Anr. v. General Manager, Tele-Communications & Anr. v. Dr.M.M.Pradhan & Ors. Dr.M.M.Pradhan & Ors. Dr.M.M.Pradhan & Ors., JJ 1995 (8) SCC 1923; wherein - 6 - the Apex Court has observed as under: "3. The crucial question that arises for consideration is whether the High Court was right and justified in interfering with the acquisition. It is seen that out of the extent of Ac.3.589, the claim of the respondents is only Ac.O.240 dec. In other words, only around 1162 sq. yards. All others had accepted the award, a few of them under protest. It is common knowledge that possession would always be taken under a memo and handing over also would also be under memo. It is a recognised usual practice in all the acquisition proceedings. By operation of Section 17(1) even before award could be made, the Land Acquisition Officer is entitled to take possession of the land. He did so. The time mentioned in Section 9 stood expired by them. Even otherwise, award was made on November 2, 1976. By operation of Section 16 of the Act right, title and interest in the land vested in the Government absolutely free from all encumbrances. Thereby the Government became the absolute owner with effect from April 12, 1976. This Court in the case of Satendra Prasad Jain & Ors. v. State of U.P. & Ors. [(1991) 4 SCC 531] had held that once possession has been taken validity of the notification under Section 4(1) and declaration under Section 6 cannot be gone into and Section 11 A does not apply. 4. It is already seen that the possession having already been taken on April 12, 1976 and vested in the government free from all encumbrances and many others having accepted the award and some had received the compensation under protest, the High Court was wholly unjustified in interfering with the acquisition. We have seen the plan produced before us which would indicate that the land acquired comprises the establishment of Officers’ building and 2000 electronic exchange. Under these circumstances, it would be highly inconvenient to exclude this land from acquisition. The purpose of enquiry - 7 - under Section 5A is only to show that any other convenient and suitable land would be available other than the land sought to be acquired, or there is no public purpose. This issue would become an academic, once the construction started and was in progress. The ratio in the case of Oxford English School v. A.Hastings Hope reported in [(1995) 5 SCC 206] has no application to the facts of these appeals. In that case, neither the award was made before the amendment act has come into force nor was possession taken. In these circumstances, this Court held that declaration under Section 6 was invalid and direction given by the High Court to conduct enquiry under Section 5A, after three years had expired, is illegal. Section 4(1) also stood lapsed by operation of proviso to Section 6 of the Act. Therefore, the ratio is clearly inapplicable to the facts of these appeals. 12. At this juncture, it is also relevant to note the law laid down by the Apex Court in the case of Municipal Corporation of Greater Bombay v. I.D.I. Municipal Corporation of Greater Bombay v. I.D.I. Municipal Corporation of Greater Bombay v. I.D.I. Co.Pvt.Ltd Co.Pvt.Ltd Co.Pvt.Ltd, AIR 1997 SC 482, which goes to the root of the tenability of the present petition, which is as under: "16. After the award under Section 11 of the Act was made by the Collector he is empowered under Section 16 to take possession of the land, if the possession was not already taken, exercising power under Section 17(4). Thereupon, the land shall vest absolutely in the government free from all encumbrances. It is well settled law that taking possession of the land is by means of a memorandum (pan-chanama) prepared by the Land acquisition Officer and signed by Panch witnesses called - 8 - for the purpose. Subsequently, the Collector hands over the same to the beneficiary by means of another memorandum of panchnama, as the case may be. But in this case Section 91 of the BMC Act statutorily comes into play which would indicate that the Land Acquisition Officer while making award should intimate to the Commissioner, Municipal Corporation of the amount of compensation determined and all other expenses. The Corporation shall pay over the same to the Land Acquisition Officer. 17. By operation of sub-section (2) thereof, the amount of compensation awarded and all other charges indicated in the acquisition of the property shall be paid by the Commissioner, thereupon the said property shall vest in the Corporation. In other words, on payment of compensation by the Corporation to the Land Acquisition Officer, statutorily the Corporation gets transfer of possession from the State and the acquired property vest in the Corporation free from all encumbrances. Thereby the Corporation becomes the absolute owner of the land free from all encumbrances including tenancy rights, if any, alleged to be held by the respondents. 18. From the facts of this case, it is clear that the owner, a public undertaking of the Madhya Pradesh Government, had received the compensation and handed over the possession to the Land Acquisition Officer of March 4, 1983. The Land Acquisition Officer, thereby, had taken symbolic possession of the land of the 5th respondent owner. The owner and the respondents had reference under Section 18 which was pending. (Emphasis supplied) 13. On the above canvass of settled law, let us turn to the facts of the present case. The possession of the subject lands has already been taken over by - 9 - the State under Panchanama. In turn, the possession of the said land has already been handed over to respondent No.5. The petitioners have also accepted compensation. 14. Once the land stands vested in the Government, then the acquisition cannot be withdrawn [see 1995 6 SCC 31 and (1993) 4 SCC 369]. 15. In the aforesaid view of the matter, petition is without any substance and the same is liable to be dismissed. In the result, petition is dismissed in limine with no order as to costs. (MRIDULA BHATKAR, J.) (V.C.DAGA, J.) (MRIDULA BHATKAR, J.) (V.C.DAGA, J.) (MRIDULA BHATKAR, J.) (V.C.DAGA, J.)