1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.7625 OF 2008 1) M/s. Suvidha Developers, A Partnership Firm, Through it's Partner, Rajkumar s/o Manakchand Agrawal, R/o- P.T. Ginning Compound, Mondha Naka, Jalna Road, Aurangabad, 2) Yogesh s/o Vitthal Zaveri, R/o-4-A, Vithalachi Daya, Cannaught Place, CIDCO, Aurangabad 431 003. ...PETITIONER. VERSUS 1) The State of Maharashtra, Through it's Secretary, Urban Development Department, Mantralaya, Mumbai-32, 2) The Collector, Aurangabad, 3) The Special Land Acquisition (Special Ghatak), Aurangabad, Office situated in the premises of Municipal Corporation Guest House, Near Railway Station, Aurangabad, 4) City and Industrial Development Corporation of Maharashtra, Aurangabad, Through it's Administrator. ...RESPONDENTS. 2 ... Shri. A.V. Patil Advocate for Petitioner. Smt.Y.M. Kshirsagar, A.G.P. for Respondent Nos.1 to 3. Shri.A.S. Bajaj Advocate for Respondent No.4. ... CORAM: NARESH H. PATIL AND K.K. TATED, JJ. DATE : 11TH AUGUST, 2010. PER COURT : 1. Heard learned counsel for the parties. 2. The Petitioners seek direction to Respondents to release excess area acquired from the land of the Petitioner bearing Gut No.183 situated at village Tisgaon, Tq. & Dist- Aurangabad, to the extent of 65.5 R in view of the provisions of Section 48 of the Land Acquisition Act, 1894. The Petitioners further seek direction to hold that the Respondents are now entitled to acquire only 49 R land from Gut No.183. The Petitioners prayed for order of injunction. 3 3. This Petition was filed on 17th October, 2008. By an order dated 12th February 2009, notices were issued and ad interim relief in terms of prayer clause (E) was granted. 4. Affidavit in reply is filed by Respondent Nos. 3 and 4 separately. In substance, the learned counsel Shri. Patil for the Petitioners, urged that placing reliance on the policy and scheme exhibited from the CIDCO (Page Nos. 22 to 29), the Petitioners surrendered 25% of land owned by them. The Petitioners claim to be owner of Gut No.183 admeasuring 400 R. Initially they surrendered 131 R land. CIDCO acquired 51 R land, in respect of which an award was passed in the year 1997. The counsel submits that more than 25% of the land holding of the Petitioners in Gut No.183, the CIDCO as a special planning authority, was not entitled to acquire. The Petitioner therefore raises dispute and challenges the proceedings culminated into award passed on 10th January, 2007 which was in respect of 1 Hector 49 R. The counsel 4 for the Petitioners submits that out of that acquisition, 65.5 R is an excess acquisition of land. The counsel submits that the possession of the said land subjected to acquisition, has not yet been handed over to the acquiring body. Learned counsel for the Petitioners submits that the CIDCO failed to abide by its promise and the scheme under which the land owners surrendered 25% of their land. The Petitioner even did not get alternate land from the CIDCO under the policy and scheme. Learned counsel for the Petitioners, in support of his submissions, placed reliance on the Judgment in the case of the Special Land Acquisition Officer Bombay and others vs. M/s. Godrej and Boyce, A.I.R. 1987 Supreme Court, 2421. 5. Shri. Bajaj, learned counsel for CIDCO submits that initially the land owners of Gut Nos. 176, 178, 183 and 184 represented CIDCO and filed certain applications, due to which the CIDCO recorded 25% of land as surrendered from Gut No. 183, considering surrender from all the Gut 5 numbers as stated above. In the light of the initial representation made by the land owners, developers, it would not be permissible for the Petitioners now to contend that CIDCO is not entitled to acquire more than 25% of the land from Gut No.183. The counsel submits that in the light of the requirement and being a special planning authority, CIDCO required acquisition of more lands and accordingly land admeasuring 65.5 R situated in Gut No.183 was acquired and award has been passed on 10th January, 2007. Learned counsel Shri. Bajaj submits that possession of the land in question has already been taken. The counsel placed reliance on Exhibit R-1 (Page 77). 6. We have perused the relevant documents on record, such as, part documents of scheme of CIDCO in respect of surrendering of 25% of land, the communication made by S.L.A.O. to Administrator of CIDCO. Affidavit in reply filed by CIDCO, wherein in Para 3 the deponent contends that: 6 "(3) I say that, the major portion of the land was affected from gut No.184 due to the growth centre and road etc. The land gut No.176 and 178 were situated and located to the adjoining to the developed area MIDC Waluj and having high potentials. There was understanding amongst the owners of the 4 gut numbers and as such nominal land which required for 18 meter road etc. was only surrendered out of the two Gut No.176 and 178 and as remaining required for 25% area was adjusted in other gut numbers. On this specific understanding etc., the permission to sale was given in respect of gut No.176 & 178 in respect of the remaining full area which was sold. I say that, the part of gut No.184 which was surrendered was also sold, malafide, without permission to others thereby 7 depriving the answering Respondent of the land so agreed. I say that, as there was joint surrender and deficit land was available in gut No. 183 and accordingly in the year 1997 itself proceeding for the acquisition of the same was started. I say that, after following due procedure and service of notice under Section 9 of the Land Acquisition Act, etc. award was passed and accordingly notice under Section 12(2) of the Land Acquisition Act was served on the Petitioner. I say that the possession of the land has been handed over on 21/01/2009. The copy of the possession receipt and Panchanama is annexed and marked as Exh.R-1(Colly). " 7. The possession receipt of the said land dated 21st January 2009, is placed on record. Document at Exhibit R-2 (Page 81) is crucial, which is a communication on behalf of Suvidha 8 Developers made by Yogesh Zaveri to CIDCO authorities. Considering these documents placed on record, we do not find that the CIDCO committed illegality or violated mandatory provisions of law. In the light of the facts emerging out of the proceedings of this case, we do not find that the issue in respect of mutual exchange of understanding between different land owners of respective Gut numbers in respect of surrender of 25% of land, needs to be gone into by this Court. On that count, the issue would amount to be a disputed question of fact, which need not be addressed by this Court. The CIDCO is acquiring land for public purposes. 8. For the reasons stated above, we are not inclined to interfere in exercise of our extra ordinary writ jurisdiction under Article 226 of the Constitution of India. The Writ Petition is rejected. 9. After pronouncement of the order, the 9 learned counsel for the Petitioner prays that the CIDCO be directed to maintain status quo as on today as the possession has not been taken. The counsel appearing for the CIDCO disputes this statement and opposes the request made by the counsel. The request made by the counsel for the Petitioner, therefore, stands rejected. [K.K. TATED, J.] [NARESH H. PATIL, J.] asb/AUG10/wp7625.08