1wp-1177-09 Lrs IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION No.1177 OF 2009 M/s Well Wisher Construction and Finance Pvt Ltd. ..Petitioner. vs. City Industrial & Development Corporation & Ors. ..Respondents. Mr Y. S. Jahagirdar, Sr. Advocate with Ms Prachi Darda i/b M/s ALMT Legal for the Petitioner. Mr A.A. Kumbhakoni i/b Mr A.P. Kulkarni, Advocate for respondent No.1. Mr V.S. Gokhale, A.G.P., for Respondent No.4. Mr P.K. Dhakephalkar, Sr. Advocate i/b Mr R.S.Datir, Advocate for Respondent No.3. ALONG WITH WRIT PETITION No. 4933 of 2009 2wp-1177-09 Bhalchandra Shravan Patil. ..Petitioner. vs. The State of Maharashtra & Anr .. Respondents. Mr P. K. Dhakephalkar, Sr. Advocate, i/b Mr Rajesh Datar, Advocate for the Petitioner. Mr V.S. Gokhale, A.G.P.,for Respondent No.1. Mr A.A. Kumbhakoni i/b Mr A.M. Kulkarni, Advocate for Respondent No.2. CORAM: D.K. DESHMUKH AND K.K.TATED,JJ DATED: 7TH DECEMBER,2009 P.C.:- 1. Rule. Returnable forthwith. Heard finally by consent of parties. 2. At the request of the learned counsel for the petitioner in W.P. No.1177/2009, the name of respondent No.2 is permitted to be deleted from the array of the respondents. 3. The following can be taken as admitted facts:- 3wp-1177-09 4. Land Survey No. 135/6 of village Karave, Taluka and District Thane, was acquired for the CIDCO. It appears that, thereafter, an application was made under Section 48 (1) of the Land Acquisition Act, 1894 ( the L.A.Act for short) before the Commissioner. It appears that a no objection certificate for deletion of the land from acquisition supposed to have been issued by the CIDCO was produced before the Competent Authority. The Competent Authority by the order dated 25.4.2008 deleted the land from the acquisition, on finding that possession of the land was not taken from the land owner and compensation was also not paid. The no objection certificate issued by the CIDCO for deletion of the land from acquisition was also referred to. It appears that thereafter the land holder has entered into a contract to transfer the land to the petitioner in W.P.No.1177 of 2009 on 1.7.2008. It is also common ground that a notification deleting the land from acquisition has also been published in the official Gazette on 4wp-1177-09 28.4.2008. In this background, the CIDCO issued letter dated 12.12.2008 to the land holder claiming therein that the no objection certificate which was produced before the Competent Authority, who was considering the application under Section 48 (1) for deleting the land from acquisition, was a fake document. Therefore, the land holder was asked to show cause as to why action in accordance with the law should not be taken and the no objection certificate was also cancelled. The land holder was also directed not to deal with the land which was deleted from acquisition. 4. Writ Petition No.4933/2009 has been filed by the land holder, whereas Writ Petition No.1177/2009 has been filed by the person in whose favour agreement of sale has been entered into. The transferee has also filed a copy of one more letter received from the CIDCO dated 8.12.2008 claiming that the land is owned by the CIDCO and, therefore, no transfer of the land should be effected. Thus, the subject matter of this petition is the letter 5wp-1177-09 from the CIDCO cancelling the no objection certificate which was issued by the CIDCO, issuing show cause notice to the land holder to show cause as to why action in accordance with law should not be taken against the land holder and restraining the land holder as also the transferee from dealing with the land any further. 6. The question that arises for consideration is, whether the CIDCO was justified in cancelling the no objection certificate, after that certificate has been acted upon not only by the person in whose favour the no objection certificate was issued but also by the Authority which was considering application under Section 48 (1) of the L.A.Act? The second question that arises for consideration is, whether it is open to the CIDCO to take any action in accordance with the law against the land holder for allegedly obtaining and producing the no objection certificate which according to the CIDCO is fake? The third question that arises for consideration is, whether the CIDCO has any 6wp-1177-09 authority to restrain the land holder and his transferee from further dealing with the land? 7. So far as the first question is concerned, in view of the order that we propose to make, it is not necessary to decide that question in this petition. So far as the second question is concerned, the CIDCO has issued show cause notice to the land holder and it is for the CIDCO to decide what action in accordance with the law ought to be taken. Therefore, it will not be appropriate for us to decide that question in this petition. So far as the third question is concerned, we have not been pointed out any authority vested in the CIDCO which empowers it to restrain the land holder and his transferee from dealing with the land though the order made by the Competent Authority deleting the land from acquisition stands. In other words, in our opinion, till the order passed by the Competent Authority under Section 48 of the L.A. Act, deleting the land from acquisition stands, there is no authority in law which empowers the CIDCO to direct 7wp-1177-09 the land holder and his transferee not to deal with the land. In our opinion, that direction is clearly without authority of law. When at the time of hearing we pointed out this to the learned counsel appearing for the CIDCO, he submitted that they can issue such direction because according to the CIDCO the order of deletion of the land from acquisition was secured on the basis of a fake document. He also submitted that they have already moved the Competent Authority for recalling of the order passed under Section 48 (1) of the L.A. Act. 8. In our opinion, merely because in the opinion of the CIDCO the order of deletion secured on the basis of fake documents, will not empower the CIDCO to issue any direction which the law does not permit it to issue. However, we have noted the fact that the CIDCO has moved the Competent Authority for recall of the order by which the land was deleted from acquisition, in our opinion, CIDCO will be within its right to pursue that application and the CIDCO may also be justified in moving the 8wp-1177-09 Authority seeking appropriate interim or final order. In our opinion, therefore, to facilitate that it will be in the interest of justice to dispose of these petitions with the following order. ORDER 1.The direction issued by the CIDCO restraining the petitioners in both the petitions from further dealing with the land is set aside. The learned counsel appearing for the petitioners in both the petitions have stated before us that till 10-1-2010 they will not enter into any further transaction in relation to the land which is the subject matter of the writ petitions. The statement is accepted. 2.In the mean time, the CIDCO shall be at liberty to move the Competent Authority or to adopt any other appropriate remedy for seeking appropriate orders. In case, the appropriate orders are passed by the Competent Authority or any other appropriate forum, the matter shall be governed 9wp-1177-09 by those orders. Otherwise, after 10th January, 2010 the petitioners shall be free to deal with their land in accordance with law. Before the Competent Authority or the court where validity of the order passed under Section 48 (1) is questioned, all contentions according to both sides are kept open. 3.The learned counsel for the CIDCO has stated before us that before moving any application before any Authority including the Competent Authority, copy of the application will be served on both the petitioners. Statement made by the learned counsel is accepted. Rule made absolute accordingly. No order as to costs. (D.K. DESHMUKH,J) (K.K.TATED,J)