- 1 - 2676 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. 2676 OF 1994 Yusuf Ali Abdul Kadar Kachwalla Managing Trust Abdul Kadar Kachwalla. .. Petitioner vs State of Maharashtra & ors ..Respondents Mr.P.K.Dhakephalkar Sr.advocate i.b Pravin Mehta Mithi & Co for Petitioner Mr.Milind More AGP for Respondent nos. 2 and 3 Ms.Geeta Joglekar for Respondent no.4 Mr.F.Divetre Sr.Advocate i.b Mr.Y.E.Memon for Applicant in NM No.623/2010 Mr.D.D.Madon,Sr.Advocate for Respondent in NM No.623/2010 CORAM: D.K.DESHMUKH & N.D.DESHPANDE, JJ DATED: December 21, 2010 P.C. (Per D.K.Deshmukh, J ) 1. By this Petition, the petitioner prays for a direction to the respondents to pay - 2 - 2676 the amount of compensation in accordance with the award made by the Special Land Acquisition Officer,respondent no.3 dated 28th September, 1994 in relation to a land situate in the city of Bombay, Byculla Division. City survey nos.1534, 3/1534,4/1534. According to the Petitioner, the Petitioner claims to be the owner of city survey nos. 1534, 3/1534 and 4/1534. The said land according to the petitioner is reserved for recreation ground in the sanctioned development plan. Therefore, the appropriate authority for acquisition of that land is the respondent no.4- Corporation. The petitioner therefore, served a purchase notice under section 127 of the Maharashtra Regional Town Planning Act, 1966 (hereinafter referred to as MRTP Act) on 31st July, 1990 on the Corporation. On receipt of that purchase notice, the respondent no.4 Corporation initiated steps - 3 - 2676 for acquisition of the said land which was covered by reservation c.c.recreation ground. The respondent no.4-Corporation made an application of acquisition as contemplated by the provisions of M.R.T.P.Act on 3rd January 1991. Pursuant to that application, proceedings were initiated for compulsory acquisition of that land. A Notification under sub-section 4 of section126 was issued on 17th June 1991 and it was also published in the Official Gazette. Thereafter, proceedings were started before the respondent no.3 for making of an award for determination of the compensation. It may be pointed out here that when the application was made by the Corporation for acquisition of the land, the land was occupied by tenants and sub- tenants. Ultimately, the award came to be made on 28th September, 1994. Though the award was made, compensation payable under - 4 - 2676 the award was not offered to the petitioner and therefore this petition was filed. 2. It appears that this petition came up for final hearing before a Division Bench of this court. The Division Bench made an order on 20th October, 2005. In that order, the Division Bench noted that on behalf of the Corporation an affidavit has been filed stating therein that the plot in question is encumbered by 196 residential tenants and 106 industrial/commercial tenants and therefore payment of such huge amount of compensation would be of great prejudice to the Corporation and no fruitful purpose would be served by acquiring the said land by payment of compensation and because of acquisition of the land for using it as a recreation ground the tenants will have to be provided with alternate accommodation. It was stated by the Corporation that - 5 - 2676 therefore, an application has been made by the Corporation to the State government under section 48 of the Land Acquisition Act for releasing the land from acquisition as possession of the land has not been taken by the Corporation. In view of the reluctance of the Corporation to pay the amount of compensation on the ground that it has applied to the State Government for deletion of the land from acquisition, this Court noted that any direction to refrain from exercise of the powers under section 48 would virtually amount to encroaching upon the powers of the acquiring body to exercise its discretion in terms of section 48 to release the land from acquisition. An affidavit had been filed on behalf of the State Government wherein it has been stated that the application made by the corporation under section 48 for deletion of the land from acquisition has been rejected by the - 6 - 2676 Corporation by letter dated 24th October, 1995 and this fact has been communicated to the corporation. 3. We have heard the learned counsel appearing for the Intervenors who are a registered society of persons sitting on the land and the learned counsel appearing for the builder who has been nominated by those persons for development of the land. According to them, the occupants are entitled to be rehabilitated on the land itself and they have a scheme under which they can be rehabilitated on the land and a portion of the land can also be used as a recreation ground. 4. From the record, following can be safely taken as established or admitted position: (i) That the land in question as per - 7 - 2676 Development Plan is reserved for recreation ground; (ii) In law, respondent no.4-Corporation is the appropriate authority for acquisition of the property as it is reserved for recreation ground in the development plan. (iii) the owner issued notice under section 127 to the Corporation for acquisition of the land which was received on 31st July, 1990. (iv) After receiving that notice the corporation applied to the State government for acquisition of the land saying that it would used for the purpose for which it is reserved in the Development Plan. (v) At that time, also land was fully occupied by tenants and sub-tenants. - 8 - 2676 vi) Pursuant to the application made by the Corporation necessary Notifications were issued by the government and proceedings were started for making of the award and final award was made on 28th September, 1994. 5. After the award was made, the Corporation on realising that the land is fully occupied did not make payment of compensation and it moved the State government by making an application under section 48 of the Land Acquisition Act for deletion of the land from acquisition.The State government rejected that application by its reply dated 24th October, 1995. That order of the State Government is not challenged by the Corporation. 6. In the light of these admitted and - 9 - 2676 established facts, what is to be seen is what is the consequence of rejection of the application made by the Corporation under section 48 to the State government. Section 48 of the Land Acquisition Act reads as under : Completion of acquisition not compulsory,but compensation to be awarded when not completed-(1) 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. (2) Whenever the Government withdraws from any such acquisition, the Collector shall determine the amount of compensation due for the damage suffered by the owner in consequence of the notice or of any proceedings thereunder, and shall pay such amount to the person interested, together with all costs reasonably incurred by him in the prosecution of the proceedings under this Act relating to the said land. (3) The provisions of Part III of this Act shall apply, so far as may be, to the determination of the compensation payable under this section. - 10 - 2676 7. A perusal of the above quoted provision shows that except in cases provided in section 36, in all other cases, the State government has the power to direct withdrawal of any land from acquisition. This power can be exercised by the State government in relation to only that land of which possession has not been taken and this is a statutory administrative power vested in the State government by section 48. Therefore, once that power is exercised by the State government on an application made by somebody or otherwise, the power will get exhausted and cannot be again exercised unless there is a change in the situation. Therefore, once the State government rejected the application made by the Corporation to delete the land from - 11 - 2676 acquisition the corporation cease to have any option but, to proceed further with acquisition of the land. In our opinion, therefore the award made by the Land Acquisition Officer would bind the Corporation and therefore, it will be obliged to pay compensation determined by the award to the owner and thereafter the Corporation shall be free to deal with the land in accordance with law. The land owner had given notice under section 127 of the Town Planning Act. The situation that existed in relation to the land at that stage was that the land was fully occupied by tenants and sub-tenants, still the Corporation moved the State Government to initiate proceedings for acquisition of the land. Had the Corporation not moved the State Government for acquisition of the land, after receiving notice from the land owner under Section 127 of the Town Planning - 12 - 2676 Act, by operation of law on expiry of the time specified in Section 127 the reservation of the land would have lapsed and the land owner would have been in a position to take steps to use the land free from any reservation. Because of the conduct of the Corporation of moving the State Government for compulsory acquisition of the land, the land continued under reservation and that prevented the land owner from using the land for any other purpose. The Corporation, in our opinion, therefore, in this situation now cannot say that it does not want to acquire the land. In our opinion, therefore, we would not be justified in denying the reliefs claimed by the land holders for payment of compensation as determined by the Land Acquisition Officer in the award in the absence of any challenge being raised to the validity of the award either by the occupants or by the Corporation. In the - 13 - 2676 order dated 28th October, 2005 the Division bench has opined that it will have to be examined whether the award is vitiated by fraud or collision. According to the award, it is the State Government or the Corporation which would be liable to pay compensation. Neither the State government nor the Corporation even after order dated 28th October, 2005 pointed out anything which will even indicate that there is any collision or fraud involved in the making of the award. The occupants who are presently sitting on the land have also not raised any such doubts or challenged the award. Thus, presently there is nothing that would indicate any fraud or collusion involved in the award. In this situation, in our opinion, we would not be justified in denying the reliefs claimed by the Petitioner in this petition. - 14 - 2676 8. In our opinion, therefore Petition will have to be granted and it is accordingly granted and the respondent no.4-Corporation is directed to make payment of the amount to which the Petitioner will be entitled under the award dated 28th September, 1994 as expeditiously as possible and in any case within a period of three months in accordance with the Award and the law. 9. In so far as the submissions made on behalf of the occupants and builders are concerned, in our opinion, in this petition no direction in their favour can be issued. However, they shall be at liberty to approach the Corporation and the State government with an appropriate scheme in accordance with law. If such an approach is made, the State government and the Corporation are bound to consider the same in accordance with law and the award. - 15 - 2676 Petition is disposed of with no order as to costs. D.K.Deshmukh, J N.D.Deshpande, J - 16 - 2676