1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.2467 OF 2003 Pimpri Chinchwad New Town Development ] Authority, Nigadi, Pune – 411 044. ] ..PETITIONER. -Versus- 1. The State of Maharashtra. ] 2. Honourable Minister for ] Revenue, Government of ] Maharashtra, Mantralaya, ] Mumbai – 400 032. ] 3. The Commissioner ] (Revenue), ] Pune Division, Pune. ] 4. The Collector, Pune. ] 5. Kanchananagar Sahakari Griha ] Rachna Sanstha (Ltd.), through ] D.P. Pande, Block Type – 4, ] Sasoon Hospital Colony, ] Residing at Post Nigadi, ] Taluka – Haveli, District – Pune. ] ..RESPONDENTS. ... Mr.Vijay Patil, Advocate for the petitioner. Mr.V.A. Sonpal, A.G.P., for respondent Nos.1, 3 & 4. Mr.R.D. Soni, Advocate i/b. Smt.Aparna Shinde, Advocate for respondent No.5. ... CORAM : BILAL NAZKI, AND SMT.V.K.TAHILRAMANI,JJ DATE OF RESERVING THE JUDGMENT : 21ST APRIL, 2009 DATE OF PRONOUNCING THE JUDGMENT : 30th JUNE, 2009. 2 JUDGMENT [PER SMT.V.K.TAHILRAMANI,J.] :- 1. This Petition filed under Article 226 of Constitution of India, 1950 impugns the order dated 25.5.2002 passed by the Hon’ble Minister for Revenue, Maharashtra State. By the said order, application under Section 48 of the Land Acquisition Act, 1894 ( hereinafter referred to as “the Act”, for brevity) filed by respondent No.5 – Co-operative Housing Society came to be allowed and the land from Survey No.19/1 (part) and 19/3 (part) situated at village Rahatani, Taluka – Haveli, District – Pune came to be deleted from acquisition. 2. The petitioner – Pimpri Chinchwwad New Town Development Authority came to be established by the Government of Maharashtra some time in the year, 1972, vide its notification under Section 113(2) of the Maharashtra Regional Town Planning Act, 1966 and it was named as a Planning Authority for establishing the new township (Pimpri-Chinchwad) in the neighbourhood of Pune City vide notification dated 9.3.1970 issued under Section 4 of the Act land including Survey No.19/1 (part) & 19/3 (part) of village Rahatani came to be acquired by the State Government. A declaration under Section 6 of the Act was published on 29.1.1973 and finally Land Acquisition Officer passed his award on 23.9.1986. Shri.Dhondiba Kokane and others, claiming to be original owners of the said land, had filed Regular Civil Suit No.116 of 1999 in the Court of Civil Judge, Senior Division at Pune challenging the award dated 23.9.1986 and due to interim order the possession of the acquired land could not be taken over by the Special Land Acquisition Officer. 3. The land falls in Sector No.38 of the sanctioned development plan submitted 3 by the petitioner and it developed several plots and allotted them to various parties. It appears that on or about 15th February, 2000, respondent No.5 Society submitted an application to respondent No.2 i.e. Hon’ble Minister for Revenue, Government of Maharashtra praying for deletion of the land under acquisition. The Society claimed that by way of registered sale-deeds, it had purchased the subject land during the period from 8.8.1989 to 10.10.1997 and thus the members had become owners of the land. It also submitted that similar applications were allowed by the State Government in the past in respect of some lands from Survey No.210 & 211 of village Wakad in Pune. On these grounds, the Society prayed for withdrawal of acquisition in respect of land admeasuring 1 H 40 Ares from Survey No.19/1 & 19/3 of village Rahatane. The petitioner authority contends that application under Section 48 could not have been entertained and the impugned order is illegal, without any jurisdiction and void ab-initio. It may be mentioned here that while admitting this Petition on 18th July, 2003, the impugned order was stayed. 4. Affidavit-in-reply has been filed on behalf of the State Government and it has been contended that as the possession of the land could not be taken over by the Land Acquisition Authority because of the order passed by the Civil Court at Pune, an application under Section 48 was maintainable and it has been rightly entertained by relying upon the law laid-down by the Supreme Court in the case of The Special Land Acquisition Officer, Bombay and others Vs. M/s. Godrej and Boyce reported in AIR 1987 SUPREME COURT 2421. The respondent No.5 Society has also filed affidavit and while adopting the 4 averments made in the State Government affidavit, it has been contended that the Society and/or its members are bonafide purchasers and hence they could validly submit an application under Section 48 of the Act as the Land Acquisition Officer had not taken possession of the land on account of the interim order passed by the Civil Court in a Suit filed by the original land owner. The respondents had, therefore, prayed for dismissal of the Petition. 5. Section 48 of the Act reads as under :- “48.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.” 6. This Court while allowing Writ Petition No.3031 of 2004 [Pimpri Chinchwad New Town Development Authority, Nigadi, Pune Vs. The State of Maharashtra & others], vide its judgment dated 24th March, 2009 while 5 elaborating the scheme of Section 48(1) of the said Act stated as under :- “Section 48(1) lays down that the Government has powers, except in cases provided in Section 36 of the Land Acquisition Act, to withdraw from acquisition of any land. But this does not mean that whenever some third party comes with an application that the Government should pass such an order, the Government should pass such an order. The section further postulates that the Government can exercise its powers before the possession of the land under acquisition has been taken. In order to appreciate the power that the Government enjoys under Section 48 of the Land Acquisition Act, one has to go through the scheme of the Land Acquisition Act. Section 4 of the Act gives power to the Government to acquire lands which are likely to be needed for any public purpose. So the whole power of the Government to acquire land is based upon its need to acquire such land for public purpose. Therefore, it must be understood that the power under Section 48 of the Act can be utilised for withdrawing from acquisition if the public purpose for which the land was sought to be acquired is vanished or the acquisition is not going to serve any public purpose. There is nothing on record to show that the public purpose for which the land was acquired in the year 1986, for which the proceedings were initiated in the year 1972 and the public purpose was mentioned in Section 4 Notification specifically, it was the development of new township had been served. It must also be remembered that once land is acquired by the State Government, the State Government becomes absolute owner in 6 terms of Section 16 of the Land Acquisition Act, which lays down that “When the Collector makes an award under section 11, he may take possession of the land, which shall thereupon vest absolutely in the Government, free from all encumbrances”. 7. The above said Writ Petition was also filed by the present petitioner challenging the order passed passed under Section 48(1) of the Act in respect of the land acquired by the very same notification dated 9.3.1970 admeasuring 6 H 46 Rs from Survey No.209 of village Wakad, Pune. In this Writ Petition by judgment dated 24th March, 2009, the order of deletion from acquisition passed by the Hon’ble Minister for Revenue on 23.1.2004 came to be set-aside. Similar order was passed in Writ Petition No.142 of 2005 on 24th August, 2005 and therein also the petitioner was the present petitioner. In Writ Petition No. 142 of 2005 the order directing deletion from acquisition of land admeasuring 2 H from Gat No.1130 of village Chikhali, Pune passed by the Hon’ble Minister for Revenue was set-aside. In normal course, this Petition may have succeeded by following the earlier orders passed in Writ Petition No.142 of 2005 and Writ Petition No.3031 of 2004. However, the respondent contended that the said orders cannot be made applicable in the instant Petition as in the present Petition the possession of the land was not taken over by the Land Acquisition Officer. 8. Admittedly, the possession of the land could not be taken over by the Special Land Acquisition Officer in view of the injunction passed by the Civil Court. 7 However, that by itself cannot be a reason to allow the deletion of the subject land from acquisition. The judgment relied upon by the Minister in the impugned order could not have been made applicable in the facts of this case mainly for two reasons mentioned hereinafter. It is well settled and much before the Suit in the present case was filed before the Civil Court that land acquisition proceedings or the award passed by the Special Land Acquisition Officer cannot be challenged in the Civil Suit. Secondly, the land acquisition officer has passed the award on 23.9.1986 and the Suit was filed for the first time in 1999 i.e. after 13 years of passing of the award. In our opinion, this declaratory suit was hit by limitation. More particularly, the land acquisition proceedings were concluded by passing of the award on 23.9.1986 and hence the original owners seized to have any title over the subject land. Even otherwise, they had no authority in law to enter in the said transaction either with the Society or its members beyond the period from 8.8.1989 to 10.10.1997 or infact any time after the award was passed. Consequently the sale transactions are vitiated and they are a nullity in the eyes of law. 9. Thirdly the application under Section 48(1) of the Act on the basis of which the impugned order was passed was not filed by the original owners. The said application was filed by the present respondent No.5 Society and/or its members. The Society or its members had no legal title despite a registered sale-deed in their favour for the simple reason that the land acquisition officer has passed his award on 23.9.1986 and alienation of the land thereafter is barred in law. Thus, the application filed under Section 48(1) of the Act was 8 not maintainable and it could not have been entertained and allowed on the sole ground that it was filed by the party which had no valid and legal title over the said land. An application under Section 48(1) of the Act cannot be filed by anybody other than the owner of the land. Respondent No.5 or its members cannot be held to be the owners of the land and, therefore, the impugned order has been passed in an application which was not maintainable. Lastly it is seen that the land in question was acquired under the Land Acquisition Act, 1894. By operation of Section 16 of the Land Acquisition Act, it stood vested in the State free from all encumbrances. It is settled law that if the land is acquired for a public purpose, after the public purpose was achieved, the rest of the land could be used for any other public purpose. In case there is no other public purpose for which the land is needed, then the land should be put to public auction and the amount fetched in the public auction can be better utilised for the public purpose envisaged in the Directive Principles of the Constitution. This view has been taken in the decision in the case of State of Kerala and others Vs. M. Bhaskaran Pillai & another reported in (1997) 5 SCC 432 and in Writ Petition No.3031 of 2004 (supra). Both these decisions lay down that when the acquisition of the land is complete and if the Government does not feel any need to utilise it for the purpose for which it was acquired, the Government can utilise the land for any other public purpose. If no public purpose can be served by utilising the land, the land should be sold by public auction and should not be assigned to erstwhile owners. 10. In the premises, this Petition must succeed and the impugned order dated dated 9 25.5.2002 passed by the Hon’ble Minister for Revenue, Maharashtra State is hereby quashed and set-aside. Respondent No.4 is directed to take appropriate steps to take possession of the subject land and hand it over to the petitioner as expeditiously as possible and in any case within two months of this order. Rule made absolute in above terms. There shall be no order as to costs. [BILAL NAZKI,J] [SMT.V.K.TAHILRAMANI,J.]