-1- IN IN IN THE THE THE HIGH COURT OF JUDICATURE AT BOMBAY HIGH COURT OF JUDICATURE AT BOMBAY HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE APPELLATE APPELLATE JURISDICTION JURISDICTION JURISDICTION WRIT WRIT WRIT PETITION PETITION PETITION NO.506 OF 2008 NO.506 OF 2008 NO.506 OF 2008 Nashik Municipal Corporation ...Petitioners v/s The State of Maharashtra and ors. ...Respondents Mr V.A. Gangal for Petitioners. Mr V.S. Masurkar, GP with Mr V.S. Gokhale, AGP for Respondent Nos.1 to 3. Mr Rafiq Dada i/b Mr P.J. Ahuja for Respondent No.4. Mr A.S. Rao for Petitioner. Mr S.M. Shah with Mr R.C. Master for Respondent No.1. CORAM : D.K. DESHMUKH AND J.P. DEVADHAR JJ. DATE : 21ST JULY 2008. -2- P.C. :- 1. By this petition, the petitioners - Nashik Municipal Corporation challenges the order passed by the State Government dated 6th October, 2006. By that order the State Government has rejected the application filed under Section 48 of the Land Acquisition Act for deleting two survey numbers i.e. survey no.195 and survey no.288 from acquisition and has also held that the exemption granted to the respondent no.4-Public Trust under Section 47(2) of the Maharashtra Agricultural Lands (Ceilings on holdings) Act,1961, cannot be withdrawn because it is not established that the Trust has committed breach of any of the condition subject to which the exemption is granted. 2. It is an admitted position that both these survey numbers are owned by the respondent no.4-Trust. So far as the question of deletion of these lands from acquisition under Section 48 of the Land Acquisition Act is concerned, sub-section (1) of Section 48 of the Land Acquisition Act lays down that "Except in the case provided for in section 36, the Government shall be at liberty to withdraw from the acquisition of any land of which possession has not been taken." It is an admitted position on record that possession of the land in survey no.195 was taken by the Corporation in the year 1946 and -3- possession of the land in survey no.288 was taken in the year 2003 and an agreement dated 13th January,2003 was entered into between the petitioner-Corporation and the respondent no.4 Trust and that agreement specifically states that the possession of the land has been taken by the Corporation in anticipation of the Award to be made under Section 11 of the Land Acquisition Act., and therefore, no fault can be found with the order of the State Government declining to make an order under Section 48 of the Land Acquisition Act deleting those two lands from acquisition. What is interesting is that the Corporation has taken possession of both these lands and the Corporation is actually using these lands. The possession was taken by the Corporation by making an expressed promise to the Trust that it will be paid compensation for the land and to this date, admittedly, the compensation has not been paid. The main premise of the Corporation was that if the State Government cancels the exemption granted to the lands of the respondent no.4-Trust from the provisions of the Maharashtra Agricultural Lands (ceilings on holdings) Act,1961, then these lands will be declared as surplus and then the Government may allot these lands to the Corporation and then, the Corporation will not be required to pay any compensation. In our opinion, as the Corporation has taken possession of the land by making an expressed promise to pay compensation, the Corporation was not -4- justified in adopting such method for wriggling out of its obligation to pay compensation. 3. So far as that part of the order of the State Government by which it has declined to cancel the exemption granted to the lands of the respondent no.4 Trust under Section 47 of the Maharashtra Agricultural Lands (Ceilings on holdings) Act,1961 is concerned, there is clear-cut finding recorded that the record does not show that the Trust has committed breach of any of the conditions on which it was granted exemption. What is pertinent to be noted here is that even assuming that the provisions of the Maharashtra Agricultural Lands (Ceilings on holdings) Act,1961 apply, the land of the respondent no.4-Trust viz. Survey no.195 will not be the subject matter of the proceedings under the Maharashtra Agricultural Lands (Ceilings on holdings) Act,1961, the Trust has lost possession in the year 1946 much before the Act came into force and the Maharashtra Agricultural lands (Ceilings on holdings) Act,1961 imposes ceilings on holdings of the land which are in actual and physical possession of the holder. 4. So far land under Survey no.288 is concerned, it is not necessary that in case the lands of the trust are not exempted under the provisions of the Maharashtra Agricultural Lands (ceilings on holdings) Act, the trust -5- will give this land as surplus land. The trust has other lands and therefore, while giving its option in relation to surplus lands it can opt to retain land in survey no.288 to itself so that the Corporation pays compensation to the trust. Therefore, so far as the land under survey no.288 is concerned, it was only the hope of the Corporation that that land will be declared as surplus and then it will be allotted to the Corporation. In our opinion, in any case, the order of the State Government declining to cancel the order of exemption from the provisions of the Maharashtra Agricultural Lands (Ceilings on holdings) Act cannot be challenged by the Corporation because it has no locus to challenge that order. 5. Taking overall view of the matter therefore, in our opinion, the petition has no substance. It cannot be entertained. It is rejected. . Parties to act on the copy of this order duly authenticated by the Sheristedar / Private Secretary as true copy. . Certified copy expedited. ( D.K. DESHMUKH J.) ( J.P. DEVADHAR J.)