1 sl36-caf2793group ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION CIVIL APPLICATION NO.2793 OF 2011 IN FIRST APPEAL NO.2465 OF 2005, CIVIL APPLICATION NO.2289 OF 2011 IN FIRST APPEAL NO.1636 OF 2009, CIVIL APPLICATION NO.2798 OF 2011 IN FIRST APPEAL NO.1987 OF 2008, CIVIL APPLICATION NO.2852 OF 2011 IN FIRST APPEAL NO.2947 OF 2006, CIVIL APPLICATION NO.2853 OF 2011 IN FIRST APPEAL NO.2948 OF 2006, CIVIL APPLICATION NO.2966 OF 2011 IN FIRST APPEAL NO.870 OF 2008, CIVIL APPLICATION NO.2974 OF 2011 IN FIRST APPEAL NO.722 OF 2008, CIVIL APPLICATION NO.3048 OF 2011 IN FIRST APPEAL NO.945 OF 2011, CIVIL APPLICATION NO.3052 OF 2011 IN FIRST APPEAL NO.221 OF 2008, CIVIL APPLICATION NO.3054 OF 2011 IN FIRST APPEAL NO.1735 OF 2009, CIVIL APPLICATION NO.3064 OF 2011 IN FIRST APPEAL ST.NO.15836 of 2008, CIVIL APPLICATION NO.3074 OF 2011 IN FIRST APPEAL NO.710 OF 2011, CIVIL APPLICATION ST.NO.12691 OF 2011 IN FIRST APPEAL NO.575 OF 2008 City and Industrial Development Corporation of Maharashtra Ltd. ...Applicant And The State of Maharashtra through Special Land Acquisition 2 sl36-caf2793group Officer,M.C.No.3,Panvel, Tal.Panvel,District Raigad ...Appellant vs. Shree Harishchandra Panglya Thakur ...Respondent Mr.A.R.Patil,A.G.P for the State in all applications Mr.C.M.Lokesh i/b Mr.G.S.Hegde for applicant in C.A.No.3054 of 2011 Mr.A.M.Kulkarni for the applicant in C.A.Nos. 2798/2011, 2289/2011, 2966/2011, 2974/2011, 3048/2011, 3052/2011, 3064/2011, 2852/2011, 2853/2011, 3074/2011, C.A.St.no.12696/2011 and C.A.No.2793/2011 Mr.Sachin Chavan i/b Mr.S.S.Kulkarni for respondent nos.1 to 11 in C.A.No.2798/2011, for res.nos.1 to 4 in C.A.Nos.2289/2011, 2798/2011,2289/2011, for respondent in C.A.Nos.2966/2011, 3048/2011, 3064/2011, 2852/2011 and 2974/2011 and 4391/2008 and for respondent nos.1 and 2 in C.A.No.2853/2011, for respondent nos.1 to 5 in C.A.No.3052/2011 CORAM : A.S.OKA,J. DATE : SEPTEMBER 30, 2011 P.C.: 1 Perused the earlier order dated 11 th August 2011. On the request made by the learned counsel for the applicant and the learned A.G.P time was granted to take instructions. In order dated 11 th August 2011 this Court has noted its prima facie view on the subject matter of the controversy. Thereafter, on 23 rd August 2011, submissions were fully heard. 2 The First Appeals arise out of the Judgments and Awards made by the Reference Court in references under sections 18 or 28 (A-3) of the Land Acquisition Act,1894 (hereinafter referred to as the 3 sl36-caf2793group said Act). In all these cases, the notifications under section 4(1) of the said Act were issued either on 3 rd February 1970 or on 24 th September 1986 for the public purpose of setting up satellite city of Navi Mumbai. The acquired lands are situated at villages Roadpali, Panvel, Taloja, Wadghar, Kharghar and Owe in Taluka Panvel and at village Bhendkhal in Taluka Uran of District Raigad. 3 Paragraphs 2 and 3 of the order dated 11 th August 2011 in Civil Application no.2793 of 2011 read thus : 2 Judicial notice has been taken by the Apex Court of the fact that the vast tracts of lands falling in 96 revenue villages falling in Raigad and Thane districts were notified under section 4(1) of the said Act in the year 1970 for the public purpose of setting up city of New Bombay. The Apex Court has taken the notice of the said fact in its decision in case of Avinash Dhavaji Naik vs. State of Maharashtra [(2009) 11 SCC page 171]. Apart from the notifications issued in the year 1970, a fresh set of notifications were issued in the year 1986 for acquisition of lands in respect of certain villages in District Raigad. The Apex Court in the aforesaid decision has dealt with the lands at village Wahal which were notified under section 4(1) on 3 rd February 1970. The Apex Court has noted that Awards under section 11 of the said Act were made in most of those cases after 1982 only in view of amended section 11-A of the said Act. 4 sl36-caf2793group 3 It must be noted that as a result of acquisition of large tracts of lands in 96 villages, hundreds of references under sections 18 and 28-A were filed and hundreds of Appeals out of awards came up before this Court. Large number of appeals are still pending. However, this Court took up several appeals for final hearing by dividing the Appeals in different groups on the basis of the villages noticing that in the year 1970, situation of almost all the lands in the 96 villages was more or less same. This Court has delivered large number of Judgments laying down rates of the market value payable in respect of lands in various villages. Only by way of illustration, a reference will have to be made to the decision of Division Bench of this Court in group of appeals i.e. First Appeal no.754 of 1986 (Nama Padu Hudar Vs. State of Maharashtra) and other appeals decided on 25th and 26 th February 1993 by the Division Bench. The Division Bench decided the market value of lands in villages Panvel and Kamothe on the basis of the belting system. Similarly in another group of appeals, a Division Bench by Judgment and Order dated 16 th March 2000 has laid down the market value payable in respect of the lands in villages Pendhar, Taloja, Panchand, Owe, Belpada and Kharghar etc. which were notified on 3 rd February 1970 for the same public purpose. As far as decision in case of Nama Padu Hudar (supra) is concerned, the same has been quoted 5 sl36-caf2793group with approval in at least two Judgments of the Apex Court including the decision in the case of Avinash Dhavaji Naik (supra). There are large number of decisions of this Court relating to other villages. Almost all the decisions have been accepted by the State Government and no appeals have been preferred. 4 The applicant in these applications is the City Industrial Development Corporation of Maharashtra Limited (hereinafter referred to as CIDCO). The Appeals have been preferred by the State Government for challenging the awards in references under section 18 or 28-(A)-3 of the said Act granting enhancement in market value. The prayer made in all applications except Civil Application no.3054 of 2011 is for permitting the applicant CIDCO to intervene. In Civil application no.3054 of 2011 is for impleading the CIDCO as a party to the appeal. It must be stated here that in one of the references arising out of Awards made by the Reference Court relating to land notified under notification dated 24 th September 1986 for the same public purpose of setting up the city of Navi Mumbai, the applicant CIDCO made an application in the reference contending that it was the beneficiary of the acquisition and on the basis of the agreement made between the CIDCO and the State Government, enhanced compensation in references under Sections 18 or 28(A-3) shall be payable by the CIDCO. In the said application, reliance was placed on sub section 2 of section 50 of the said Act. The Trial Court allowed the said application directing impleadment 6 sl36-caf2793group of CIDCO as a party to the reference. The said order was challenged by the claimants by filing a Writ Petition no. 1211 of 2011. By a detailed Judgment dated 7 th November 2009, this Court has set aside the order of the Reference Court directing impleadment of the CIDCO as a party. In paragraphs 14 to 15A of the said decision, this Court has held thus : 14] Thus, in short, the Apex Court has laid down that the body on whose behalf the land was acquired is either a necessary or a proper party to the reference under section 18 of the said Act of 1884. On facts, as already held earlier, the acquisition in the present case is in exercise of the powers under Section 113A by the State Government. The notification under Section 6 of the Act of 1984 makes it very clear that the acquisition is on behalf of the State Government at the cost of the State Government. Moreover, in view of the notification dated 24th March, 1971 the CIDCO being the New Town Development Authority appointed under Section 3A of Section 113 is doing the work of developing and disposing of the land in the area as an agent of the State Government. Therefore, the acquisition cannot be said to be at the instance of the CIDCO. As stated in government resolution dated 12th April 2008, the acquiring body is admittedly the town development department of the State Government. After the acquisition, the acquired land may have been transferred to CIDCO. But as stated earlier , the appointment of the CIDCO being under subsection (3A) of section 113 of the said Act of 1966, the CIDCO acts as an agent of the State Government. The work of development of the site of the New Bombay is being carried out by the CIDCO on behalf of the State Government. Therefore, the acquisition of land in exercise of powers under section 113A of the said Act of 1966 cannot be said to have been made for the benefit of or on behalf of CIDCO. Therefore, none of the aforesaid decisions will apply in the present case. At least, till 1st April, 2008, the compensation amount in respect of the land acquired for the project of New Bombay was being paid by the State Government and now the decision of the State Government says that the CIDCO will pay the compensation amount “on account of the State Government”. Even assuming that the Government decision of April, 2008 brings about certain change , the said decision is of no relevance here as the acquisition has been initiated and an award has been made much prior to the said decision. Even assuming that the acquisition is governed by the government resolution dated 12th April 2008, the enhanced compensation will be payable by the CIDCO on account of the State Government. In the circumstances, the CIDCO is neither the acquiring body nor the authority which is liable to pay compensation. 14A] Now an argument made by the learned counsel for the third respondent that the CIDCO is a "person interested" will have to be considered. The said argument was advanced as under the clause “b” of section 20 of the said Act of 1894 a person interested is required to be issued a notice of the reference. Section 20 of the said 7 sl36-caf2793group Act of 1894 read thus: “20.Service of Notice. The Court shall thereupon cause a notice specifying the day on which the Court will proceed to determining the objection, and directing their appearance before the Court on that day, to be served on the following persons, namely: (a) the applicant; (b) all persons interested in the objection, except such (if any) of them as have consented without protest to receive payment of the compensation awarded; and (c) in the objection is in regard to the area of the land or to the amount of compensation, the Collector.” Clause “b” contemplates a notice to all persons interested in the objection. In a reference under section 18, the objections contemplated are as regards (a) the measurement of the land acquired ,(b) the amount of compensation,(c) the persons to whom it is payable, or (d) the apportionment of the compensation among the persons interested. In the facts of the case, the CIDCO is not concerned with any of the four categories of objections which can be raised in a reference under section 18. The CIDCO is not interested even in the amount of compensation as the same is payable by the State Government. A reference will have to be made to clause “b” of section 3 of the said Act of 1894 which reads thus: “(b) the expression “person interested” includes all persons claiming an interest in compensation to be made on account of the acquisition of land under this Act: and a person shall be deemed to be interested in land if he is interested in an easement affecting the land;” A person can be said to be a person interested provided that he is the person claiming an interest in the compensation to be made on account of acquisition . Thus, the person who claims to be entitled to compensation or a share in the compensation can only be a person who can be said to be claiming interest in the compensation. Here the CIDCO is not claiming interest in the compensation. In fact, the CIDCO has no concern with the payment of compensation. Therefore, the CIDCO cannot claim right of audience on the ground that it is a "person interested". 15] Only possible provision under which the CIDCO could have claimed is Section 50 of the said Act of 1894 which reads thus: “50.Acquisition of land at cost of a local authority or Company (1)Where the provisions of this Act are put in force for the purpose of acquiring land at the cost of any fund controlled or managed by a local authority or of any 8 sl36-caf2793group Company, the charges of any incidental to such acquisition shall be defrayed from or by such fund or Company. (2) In any proceeding held before a Collector or Court in such cases the local authority or Company concerned may appear and adduce evidence for the purpose of determining the amount of compensation: Provided that no such local authority or Company shall be entitled to demand a reference under section 18. In the present case, admittedly, land is not being acquired at the cost of any fund controlled or managed by the CIDCO. As held earlier, the acquisition cannot be said to be on behalf of CIDCO or for benefit of CIDCO in as much as while developing the site of New Bombay, the CIDCO is acting as an agent of the State Government. Therefore, subsection (2) of Section 50 will have no application in the present case. 15A] Keeping in mind the aforesaid legal and factual position , now a reference will have to be made to the impugned order. The only ground on which the CIDCO is ordered to be impleaded is that the CIDCO is a local authority, and therefore, it is a proper party to the reference. The local authority can become necessary or proper party provided subsection 1 of Section 50 is applicable which is not the case here. In the circumstances, the impugned order will have to be quashed and set aside being completely illegal. Therefore, the petition must succeed. 5 It is stated that though a Letters Patent Appeal is pending against the said decision of this Court, as of today the decision still operates in the field. 6 Thus, in case of references in respect of land notified under section 4(1) of the said Act on 24 th September 1986, this Court has held that the applicant CIDCO is not entitled to be made a party. In case of acquisition based on notification dated 3 rd February 1970, the position is worst for the Applicant CIDCO. The notification under section 113 (3-A) of the Maharashtra Regional Town Planning Act, 1966 appointing CIDCO as New Town Development 9 sl36-caf2793group Authority for development of city of Navi Mumbai was subsequently issued on 20 th March 1971. Admittedly, in the notification dated 3 rd February 1970, there is no reference to the CIDCO. In the present civil applications, the prayer is that the CIDCO may be permitted to intervene in the appeals preferred by the State Government for challenging the Awards of enhancement of market value. The issue whether the applicant can be impleaded as a party on the basis of sub section 2 of section 50 of the said Act has been already concluded by the aforesaid Judgment dated 7 th November 2009. In the present case, prayer for intervention is made only on the basis of Government Resolution (for short GR ) dated 12 th August 2010 issued by the Urban Development Department of the State Government. The GR records the decision of the State Government that the State Government has authorised CIDCO to effectively represent the State Government in references under sections 18 and 28 of the said Act. Recitals in the said GR make a reference to the earlier GR dated 12 th April 2008 which provides that the compensation payable on account of acquisition of lands for New Bombay Project shall be paid by the CIDCO. In fact, the GR specifically refers to the aforesaid Judgment of this Court dated 7 th November 2009. Thus, on plain reading of the GR, the only authority conferred by the GR on CIDCO is to effectively represent the State Government in references under section 18 and 28 (A-3) of the said Act. The effect of GR is not that the CIDCO is conferred with the status of a local authority or company within the meaning of sub section 1 of section 50 of the said Act. The only 10 sl36-caf2793group mode by which the CIDCO can represent the State Government is by appointing an Advocate or Counsel to represent the State Government. The effect of the resolution is that the State Government will allow the CIDCO to engage an Advocate or a Counsel of its choice to represent the State Government in the proceedings under section 18 or section 28 (A-3) of the said Act of 1894. After having failed to establish its right under sub section 2 of section 50 of the said Act of 1894, now the CIDCO cannot seek to intervene in the appeal. The GR dated 12 th August 2010 represents internal arrangement between the State Government and the CIDCO to ensure that the references under sections 18 or 28 (A) 3 are properly contested. No right is created by the GR to enable the CIDCO to intervene in the references or Appeals arising out of references. 7 Subject to what is observed above, prayer made in this application deserves to be rejected. Accordingly, applications are rejected. JUDGE