1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. CIVIL APPLICATION NO.10670 OF 2009 IN WRIT PETITION NO.3782 OF 1994. Shree Devi Mahadeo Mandir, Kesharsingpura, Tq. & Dist. Aurangabad. ... APPLICANT (Intervenor). VERSUS Mukundwadi Co-operative Grih Nirman Society Ltd., Kesharsingpura, Aurangabad and others. ... RESPONDENTS. ... Shri R.L. Kute, Advocate for applicant. Shri A.B. Kale, Advocate for R.No.1. Shri N.B. Khandare, Govt. Pleader for State. ... WITH CIVIL APPLICATION NO.10672 OF 2009 IN WRIT PETITION NO.3782 OF 1994. Maharashtra State Electricity Distribution Company Ltd. ... APPLICANT VERSUS Mukundwadi Co-operative Grih Nirman Society Ltd., Kesharsingpura, Aurangabad and others. ...RESPONDENTS. ... Shri S.M. Godsay, Advocate for applicant. Shri A.B. Kale, Advocate for R.No.1. Shri N.B. Khandare, Govt. Pleader for State. ... 2 WITH WRIT PETITION NO.3782 OF 1994. Mukundwadi Co-operative Grih Nirman Society Ltd., Kesharsingpura, Aurangabad. ...PETITIONER. VERSUS The State of Maharashtra and ors. ...RESPONDENTS. ... Shri A.B. Kale, Advocate for petitioner. Shri N.B. Khandare, Government Pleader for Respondents No.1, 3 and 4. Shri S.N. Pagare, Advocate for R.No.2. Shri S.M. Godsay, Advocate for R.No.5. CORAM : A.M. KHANWILKAR AND S.S. SHINDE, JJ. DATE : 4th MARCH, 2010. PER COURT: Heard learned Counsel for the parties. 2. The applicant asserts that they were in possession of land admeasuring 3 acres 6 gunthas as service Inam land situated at Kesharsingpura, District Aurangabad. The said land was mash (livelihood). The property which is subject matter of the writ petition bearing CTS No.20183 is shown as trust property. The State Government has granted Sanad of CTS No.20183 admeasuring 3 10457.9 Sq. Mtrs. in the name of Manik Vaijnath Dolare, Ambadas Vaijnath Dolare and Madhav Vaijnath Dolare. The applicant has been granted above mentioned survey number as Inam property and therefore, claims to be interested in the present writ petition which challenges the action of acquisition of the said land including the award passed on 29th January, 2987. Considering the interest of the applicant in the said property, we allow this Civil Application No. 10670 of 2009 for intervention. The petitioners in Writ Petition No.3782 of 1994 shall carry out necessary amendment within one week from today. CIVIL APPLICATION NO.10672 OF 2009 3 The Civil Application NO.10672 of 2009 is filed by Maharashtra State Electricity Distribution Company Ltd., whose intervention application has already been allowed in the writ petition and is party thereto. By this application, it is stated that the applicant Company is in dire need of the property in 4 question as it intends to start Drum Project i.e. erection of 33/11 KV Sub Station and the area required for erection of such Project is 4000 Sq. Mtrs., which is selected from CTS NO.18090 to 18092 and 20183, the latter being the property already acquired by the State. The applicant has stated that the applicant is funded by US Government as well as aid given by the Central Government and is expected to complete the project within specified time. It is stated that the Applicant has already commenced the work of the project and invested over Rs.120 Crores by now out of the estimated amount of Rs.167.81 Crores. Considering the said urgency, the applicant has moved this application for vacating the order of status quo granted by this Court on 26th October, 1994, which is operating in favour of the petitioners. The applicant has also prayed that the applicant may be permitted to take the land in possession for the purpose of implementation of the said Drum Project subject to the final outcome of the writ petition. 4. Considering the relief claimed in this 5 application and the public interest in starting the Drum Project, we thought it appropriate to proceed with the hearing of the writ petition itself. Accordingly, the writ petition was ordered to be placed for hearing alongwith these applications. We have spent some time on considering the arguments of both sides. The respondents are relying on the decision of the Apex Court in the case of State of Maharashtra and another vs Sant Joginder Singh Kishan Singh and others, reported in AIR 1995 SC 2181 to contend that the sole question that needs to be addressed in this petition as to whether the provisions of Section 11A of the Land Acquisition Act, 1894 will have any application to the acquisition initiated under the provisions of Maharashtra Regional and Town Planning Act, 1966, is already answered against the petitioners. For which reason, the petition should be dismissed. 5. The petitioners, on the other hand, are relying on a later decision of the Apex Court in the case of Lok Sewa Shikshan Mandal vs A.R. Mundhada Charitable Trust and Others, reported in 6 (2007) 9 SCC 779, which has taken a converse view that Section 11A of the Act of 1894 is attracted and the land owner is entitled to take advantage of the said provision subject to application thereof to the acquisition in question. The learned Counsel for the petitioners however, placed reliance on another decision of the Apex Court in the case of Girnar Traders vs State of Maharashtra and others, reported in (2007)7 SCC 555 and submits that the correctness of the view expressed in the case of Joginder Singh (supra) is already pending before the larger Bench of the Apex Court for reconsideration. 6. The learned Counsel appearing for the MSED Co. Ltd. submits that realizing the intricacies of the issues that would arise in the present situation, the Company has been advised to consider of initiating fresh process of acquiring the subject land to the extent of the requirement of the Company which steps however, can be without prejudice to the rights and contentions of the parties in the present writ petition. The Company is prepared to pay compensation to the 7 land owners at the prevailing market rate and may not insist for taking earlier acquisition proceedings to its logical end, even though award has been passed in respect of the said land. The State has no difficulty in considering the proposal of the Company to take recourse to such measure for an early resolution of the entire dispute, if it is in larger public interest. 7. The land owners as well as newly added Respondent (intervenor) through Counsel submit that if the Company intends to take recourse to such action, they may have no objection whatsoever provided they are offered fair market price for the land to be acquired for and on behalf of the Company. They submit that the excess land out of CTS No.20183 will however, have to abide by the decision in the present petition. 8. Since the parties are wiling to consider the above options, in our opinion, the present writ petition can be kept pending. We are conscious of the fact and agree with the submissions of the 8 Government Pleader that the opinion expressed by the Division Bench in case of Girnar Traders (supra) expressing doubt about the correctness of the view taken by the co-ordinate Bench of the Apex Court in case of Joginder Singh (supra) cannot be the basis to bring home the point which is canvassed by the petitioners as that opinion cannot be taken as binding precedent. Even so, since the parties are considering the options noted above, we would think it appropriate to defer the hearing of the writ petition as any decision taken in the present case is bound to be taken up in appeal by either party and the matter would, in any case, remain pending before the Apex Court till the issue is finally answered. On the other hand, if the arrangement which is acceptable to the parties, as noted earlier, is to be given effect to and acted upon, at least the land to the extent of requirement of the Company, would immediately become available by issuance of fresh notification under Section 6 of the Act of 1894 and also by invoking urgency clause and taking possession of the land to the extent of the description of the land in such 9 fresh notification. On issuance of fresh section 6 notification in respect of the land in dispute, the order of status quo shall automatically stand vacated without further reference to the Court to the extent of land specified in such notification. 9. In view of above, the civil application filed by the Company is disposed of on the said terms. The writ petition is ordered to be placed for hearing as per its turn. It will be open to the parties to get the matter pre-poned as soon as the issue relating to the application of Section 11A of the Act of 1894 is authoritatively answered by the Apex Court. [ S.S. SHINDE ] [ A.M. KHANWILKAR ] Judge. Judge. kadam/*