:1: :1: :1: srp. HIGH COURT OF JUDICATURE AT BOMBAY HIGH COURT OF JUDICATURE AT BOMBAY HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 114 OF 2009. WRIT PETITION NO. 114 OF 2009. WRIT PETITION NO. 114 OF 2009. Shri. Dinshaw Nozer Mazda. ..Petitioner. Versus. State of Maharashtra & Others. ..Respondents. --- Mr. A. V. Anturkar i/b Mr. S. B. Deshmukh for the petitioner. Mr. V. P. Malvankar, A.G.P. for the respondent nos. 1 to 3. CORAM: S. B. MHASE & CORAM: S. B. MHASE & CORAM: S. B. MHASE & D.B.BHOSALE, JJ. D.B.BHOSALE, JJ. D.B.BHOSALE, JJ. DATE: January 12, 2009. DATE: January 12, 2009. DATE: January 12, 2009. P.C. P.C. P.C. 1. Heard learned counsel for the petitioner. 2. In this matter the acquisition is being challenged after more than 40 years. Learned counsel for the petitioner is fair enough to state that the judgments of this Court and the judgments of the Apex Court do not permit interference in such matters at the hands of the High Court. However, he further submits that bulk of the land was acquired stating that it was required for the establishment of the new gaothan (village site) for the village Kopare. However, the land has not been utilised for the years together and thereafter only a part of the land, namely, only 15-hectares and 45-Ares has been utilised for the said :2: :2: :2: gaothan. As against that the acquired land of the petitioner is 34-hectares. 3. Grievance of the learned counsel for the petitioner is that even though the Government is possessed of the power to acquire the land and has the authority to acquire the land, by utilising the said power and authority the Government cannot acquire the land in excess of the its requirement for the specified purpose. In the present case for the establishment of the gaothan of village Kopare, when actually required land is 15-hectares only. 4. The grievance of the petitioner is that this 15-hecgares land is also given by the government to the builders and the builders are allowed to sell away 70% of the tenements in the open market and only 30% of the tenements are for the housing of the villagers. 5. Thus, the grievance is that out of 15 - hectares again a bulk of the land is given to the builders for his business purpose and not for the resettlement of the villagers. Taking these facts into consideration, learned counsel for the petitioner submits that the authority to acquire the land has been misutilised by the government and the utilisation of the authority in such a fashion is not contemplated under the law. He submits that though the property right is not a :3: :3: :3: fundamental right, but it is the constitutional right under Article 304-A and therefore the same cannot be allowed to be prejudiced by an authority of law under the acquisition law. Therefore, his submission is that allotment of the land to the builders and non utilisation of the rest of the land when it was not required by the government is something which requires to be considered under the constitutional scheme. He is very much on the power and requirement and he submits that if there is excess land, why it should not be returned to the erstwhile original owner of the property; at the most the owner can be asked to return the purchase price or can be asked to pay the market price for the return of property. These submissions, as we have stated earlier, cannot be considered by us in view of the settled position of law from the various judgments of the Apex Court to which the learned counsel for the petitioner also concedes. However, we have recorded these submissions since the learned counsel for the petitioner desires to test this before the Apex Court. Ultimately we reject the petition. (D.B.BHOSALE, J.) (S.B.MHASE, J.) (D.B.BHOSALE, J.) (S.B.MHASE, J.) (D.B.BHOSALE, J.) (S.B.MHASE, J.)