1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO. 646 OF 1994 Thakubai W/o Piraji Pawar, Aged 78 years, Occupation Agriculturist, resident of Supa, Taluka Parner, District Ahmednagar. .. PETITIONER. VERSUS 1. The State of Maharashtra, (Industrial Energy & Labour Development) Through Government Pleader, High Court Building, Aurangabad. 2. Sub Divisional Officer, Nagar Division, Collectorate Ahmednagar. 3. M.I.D.C. Regional Office, Kubera Chambers, Shivajinagar, Pune-5. 4. Maharashtra Industrial Development Corporation through its’ Chief Executive Officer, having its office at Andheri East, Bombay- 400 093. ..RESPONDENTS ... Shri R.R. Mantri, Advocate for Petitioner Shri K.G. Patil, A.G.P. for respondent /State Shri S.S. Dande, Advocate for respondent Nos. 3 & 4 WITH WRIT PETITION NO. 733OF 1994 1] Patilba Shankar Magar, Aged 60 years, Sinced died through L.Rs. 2 1-a] Smt. Mangalbai W/o Patilba Magar, Age 50 years, Occu. Agri., 1-b] Narayan S/o Patilba Magar, Age 31 years, Occu. Agri. 1-c] Dattatrya S/o Patilba Magar, age 28 yers, Occu. Agri. 1-d] Vilas S/o Patilba Magar, Age 24 yrs, Occu. Agri. All R/o Supa, Tq. Parner Dist. Ahmednagar. 2] Vithal Shankar Magar Aged 45 years, 3] Tukaram Shankar Magar, Age 40 years, All agiculturists, resident of Supa, Taluka Parner, Dist. Ahmednagar. .. PETITIONERS. VERSUS 1. The State of Maharashtra, (Industrial Energy & Labour Development) Through Government Pleader, High Court Building, Aurangabad. 2. Sub Divisional Officer, Nagar Division, Collectorate Ahmednagar. 3. Regional Office M.I.D.C. Kubera Chambers, Shivajinagar, Pune-5. 4. Maharashtra Industrial Development Corporation through its’ Chief Executive Officer, having its office at Andheri East, Bombay- 400 093. ..RESPONDENTS 3 CORAM :- B.R.GAVAI AND S.V. GANGAPURWALA JJ. DATE OF RESERVING JUDGEMENT : 8th July,2010. DATE OF PROUNCEMENT OF JUDGEMENT 6th August,2010 JUDGMENT: (Per S.V. Gangapurwala, J.) Both the Writ Petitions involve common questions of law and are based on similar facts except the description and area of land as such are decided together. The facts are referred from Writ Petition No. 646 of 1994. 2. The petitioner contends and claims to be owner of perennially irrigated bagayat land Gut No. 235 of Village Supa, admeasuring 7 Hector 93 Are. The petitioner assails the notification dated 17/08/1991 issued by respondent NO. 1 under Section 1(3) of the Maharashtra Industrial Development Act, 1961 (here-in-after referred as ‘said Act, 1961’), Notification dated 30/11/1993 issued by the respondent No. 2, thereby acquiring petitioner’s land Gut No. 235 of Village Supa to the extent of 5 Hector 04 are land, the notice dated 14/01/1994 directing petitioner to hand over possession of said 5 Hector 04 Are land 4 3. We have heard Shri Mantri, learned counsel for the petitioner. Shri Dande, learned counsel for respondent No. 3 and the learned A.G.P. for respondent Nos. 1 & 2, and perused the documents relied by the parties. 4. Shri Mantri, learned counsel for the petitioner canvassed before us following propositions. i] The procedure as is contemplated in Section 32 of Act, 1961 has not been followed, thereby vitiating the whole process of acquisition. ii] As per Section 42 of the Act, 1961, the powers were delegated to the Sub Divisional Officer, Nagar Division and once powers were delegated to the Sub Divisional Officer, it is only he who could have taken a decision under Section 32(3) of the said Act, 1961, and Government after delegating the powers could not retain the power to take the 5 decision. iii] Objections were heard by Shri Rokade, opinion / report was given by another authority and the decision was taken by the Government. Such a procedure is against the mandate of Sub-Section 3 of Section 32 of the Act, 1961. iv] The Sub Divisional Officer has given opinion in his report that lands of the petitioner may not be acquired. In view of the same State should have released the total land of petitioner from acquisition. v] The petitioner would be rendered land less, if his Bagayat land would be acquired. 5. Per contra Shri Dande, learned counsel submitted that :- i] Section 32(3) lays down that the authorities should consider the objection, and thereafter, pass the order. The 6 objections have been considered. All the provisions have been scrupulously followed. The Bagayat land of the petitioner has been left out from the acquisition. ii] The land is acquired for public purpose. That part of the land which is Bagayat land is already released from acquisition. The remaining land is not a Bagayat land as per the report of respondent No. 3. iii] The land vests with respondent No. 3, there are many applications pending with respondent No. 3 for allotment of industrial plots. Because of stay granted by this Court plots could not be carved out. 6. The issuance of notification under Section 1(3) of the said Act, 1961 is not disputed. It is also not disputed that the powers were delegated to the Sub Divisional Officer for exercising the powers under Section 32,33,33(2), 36,38 of the Act, 1961. The Sub Divisional 7 Officer issued personal notice under Section 32(2) to the petitioner calling for the objections. Pursuant thereto petitioner submitted her objection. The respondent also issued notice under Section 32(3) of the said Act, 1961 to remain present for personal hearing. The petitioner was given personal hearing by the Sub Divisional Officer. The Sub Divisional Officer submitted his report observing that land of the petitioner is Bagayat and must not be acquired. Respondent No. 3 had made a report that only 2 Hector and 59 Are is Bagayat and remaining land is barren. Thereafter, notification under Section 32(5) of the Act, 1961 is published by respondent No.2 on 30thApril,1993,for acquiring petitioner’s land to the extent of 5 Hector and 04 Are. Thereafter,notice was given by respondent No. 2 to deliver the possession of the land. 7. The bone of the contention of the petitioner is that, though this notifications are issued but there is a failure on the part of the respondent to follow the statutory procedure under section 32(2) and 32(3) of the Act, 1961. 8 Though the powers were delegated to Sub Divisional Officer, it is the State Government who has taken the decision and there is no application of mind, the same is not permissible. 8. The similar question and situation had arisen before the Coordinate Bench at Nagpur, in a case of “Ganpat Balaji Parate V/s. State of Maharashtra and others, reported in Mh.LJ. 1515” after taking resume of various Judgments of the Apex Court observed thus :- “ Submission that in view of Rule 28 of the Rules delegating the powers under Section 32 of the Act, the State Government cannot exercise them does not appeal to us, considering the uniform polity decision adopted by the State Government on the subject. The said policy decision is that the LAO is to hear objections as required under sub-section (3) of section 32 after issuing notice under sub-section (2) and to submit the report along with the record to the Government for final orders. The State Government is to take the final decision after going through the entire 9 material including the report. The above policy decision seems to be in substantial compliance with the letter and spirit of section 32, the Rules and the law relating to the delegation. Very high stakes are involved in selecting the land and hence the policy decision of not leaving the final decision of the LAO appears to be reasonable and in the public interest. Hearing of objections in matters like this is a long drawn time consuming process and haring by the State would inconvenience the State machinery as well as the public and hence that part of the function is to be performed by the LAO. A golden mean was perhaps sought to be achieved by the above policy decision.” “ Law on the point of retention of authority of the delegatee is stated in the case of Godavari Vs. State of Maharashtra, AIR 1966, SC 1404, wherein the following observations in the case of Huth Vs. Clarke, (1890) 25 QBD 391, have been quoted with approval (para 6): “Delegation, as the word is generally used, does not imply a parting with powers by the person who grants the delegation, but 10 points rather to the conferring of an authority to do things which otherwise that person would have to do himself.” “ In this contest, learned counsel for the petitioners invited our attention to the case of Mahadayal Premchandra vs. Commercial Tax Officer, AIR 1958 SC 667. In that case, Commercial Tax Officer without exercising his own judgment in the matter of assessment asked for instructions of the Assistant Commissioner. The instructions were duly given by the Assistant Commissioner. Commercial Tax Officer did not agree with the opinion contained in the instructions and yet he made assessment on the basis of directions of the Assistant Commissioner. The correspondence between the two was behind the back of the assessee. As a result, appellant was not given opportunity to meet the opinion of the superior authority. In this background the assessment order was quashed on the ground that the entire procedure was contrary to the principles of natural justice and was unfair. The second case to which our attention was drawn is Orient Paper 11 Mills Ltd. Vs. Union of India, 1979 (3) SCC 76. It relates to Central Excise and Salt Act. The assessment was made not on the basis of the independent judgment of the assessing officer but on the basis of instructions from the Collector. The said assessment order was quashed and matter was remanded to the original authority for writing his own independent judgment. We have noticed the background on these two cases only to point out the ratio of the above cases will have no application at all to the point involved”. “ Is it a fair procedure to follow that one Officer hears personally and other takes the final decision. The answer to this question cannot be uniform and will depend upon the nature and purpose of the enquiry. If there is a lis between the parties, the function is essentially judicial and law prohibits delegation, this procedure may not be permissible. Functions like deciding suitability of land for a public purpose like establishing an Industrial Estate is not strictly judicial. Delegation of even a part of the power under section 32 is permissible under section 42 of the 12 Act. A procedure of hearing by one authority and the decision by the other is not unknown in the laws relating to acquisition. Take for example, sections 4 to 6 of the Land Acquisition Act. It is true that no such provision exists in the Act, but that factor by itself is not decisive in the matter. State Government considers the report of the LAO as well as the material placed on record and hence there is nothing unfair in the procedure”. “ For the same reasons we see nothing unfair in not granting personal hearing once again before the State. After all there is limited scope in deciding individual objections to the acquisition of land for projects like as Industrial Estate”. 9. We have considered the said Judgment and having consciously applied our mind to the present case, we are also of the view that no illegality can be found in the procedure adopted by the respondents. 10. The next contention of Shri Mantri that sub Divisional Officer had given a report that 13 petitioner’s land may not be acquired but still contrary decision was taken by the respondent State and same is illegal, does not appeal to us. It would be perfectly permissible for the State Government to take decision upon consideration of all the facts. In the present case, upon considering the report of respondent Nos. 2 & 3, the State Government thought it fit to release 2 Hector 14 Are land and acquire an area of 5 Hector 64 are land only. This Court cannot enter into the disputed question of fact regarding the extent of the Bagayat land held by the petitioner, nor this Court would sit as an appellate authority over the decision of the authorities regarding viability of land for acquisition. 11. In the light of the above, the writ petitions being sans merit are dismissed. Rule is discharged, however, with no order as to cost. [S.V. GANGAPURWALA, J ] [B.R.GAVAI, J ] SDM* 646.94 WP(J)