1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.3769 OF 2001 ... Dnyaneshwar Math Trust ...Petitioner v/s. 1. State of Maharashtra 2. S.L.A.O. 3. Hindi Prachar Mandal 4. Mr.Sankata Prasad Singh 5. Mr.Chandrajit Singh ...Respondents ... Mr.Jai Chinoy i/b Ashoka Law Firm for the Petitioner. Mr.C.R.Sonawane, AGP for State. Mr.P.M.Pradhan for Respondent No.3. ... CORAM: D.K. DESHMUKH & A.R.JOSHI,JJ DATED: 11th March,2010 JUDGMENT: (PER D.K.DESHMUKH, J.) 1. The Petitioner by this petition challenges the notification issued under 2 Section 6 of the Land Acquisition Act compulsorily acquiring its land . 2. The facts that are relevant and material for deciding this petition are that, the Petitioner is a Public Trust registered under the Bombay Public Trust Act, 1950. It carries on various educational, cultural, social, charitable and educational activities at Dombivli. The Petitioner in the year 1950 by a sale-ded dated 9-4-1930 purchased the plot of land admeasuring 260 sq.meters at Dombivli (West). The Trust in the year 1955 permitted Rashtra Bhasha Shikshan Mandal (RBSM) to run a school on a portion of the aforesaid plot of land. In the year 1967, Civil Suit No.472 of 1967 was filed against the RBSM for a decree of possession. The suit was decreed in favour of the Petitioner on 5-6-1972 by the trial 3 court. First Appeal filed against that decree was dismissed by the Appellate Court on 28-7-1975. Second Appeal preferred against the decree of possession was dismissed by order dated 14-9-1981 passed by this Court. It appears that the Respondent No.3-Hindi Prachar Mandal Trust approached the State Government for acquisition of that land under the Land Acquisition Act for the benefits of the Respondent No.3. A notification under Section 4 of the Land Acquisition Act was issued on 9-5-1984. The Petitioner initiated execution proceedings against the RBSM on 11-6-1984. The present Respondent No.4- Mr.Sankata Prasad Singh obstructed the execution proceedings. The Obstruction Proceedings, however, were rejected by the Executing Court by order dated 8-7-1987. The Appeal was filed against those orders. That Appeal was also dismissed. Writ Petition 4 filed against those orders was also dismissed by this Court. Then, the Respondent No.3 filed Civil Suit No.431 of 1985 claiming an injunction restraining the Petitioner from evicting him and for decree of possession. Though, initially some interim order was made in favour of the Respondent No.3 in that suit, but subsequently it was vacated. Against that order Appeal was filed before the Appellate Court. That was rejected. Writ Petition No.4378 of 1987 filed against that order was also rejected. On 17-6-1991 ultimately possession of the property was handed over to the Petitioner. It appears that while these proceedings were pending, a notification under Section 6 was issued on 7-5-1987 compulsorily acquiring the land for the benefits of the Respondent No.3. Writ Petition No.3869 of 1987 was filed by the Petitioner in this court challenging the 5 acquisition. During the pendency of that Writ Petition, the Land Acquisition Officer passed an award on 17-2-1989. By order dated 1-12-1997, the Joint Director of Education cancelled the recognition and permission granted to the Respondent No.3 for running a school. A writ petition being Writ Petition No.3355 of 1997 was filed in this Court challenging that order. But that Writ Petition was dismissed by the Division Bench of this court by judgment dated 22-4-1998. The Petitioner in the meanwhile made an application under Section 48 of the Land Acquisition Act for deleting the land from acquisition. On that application, an order was made by the Commissioner dated 20th April, 1999 dropping the acquisition proceedings. As the acquisition proceedings were dropped, the Writ Petitions challenging the notification and the award were withdrawn. By order dated 6 7-12-2000 passed in Writ Petition No.144 of 2000, the Division Bench of this court allowed the petition challenging the order by which the acquisition proceedings were dropped on the ground that the order was not published in the official gazette and that the order was made without granting the Respondent No.3 an opportunity of being heard. The Petitioner, therefore, has filed this petition challenging compulsory acquisition of its land. It is to be mentioned here that in the official development plan, Site No.58 which is the suit land was reserved for primary school and the appropriate authority was shown as Respondent No.3. By notification dated 3rd August, 1998 which was published in the official gazette on 13th August, 1998, the Petitioner has been described as an appropriate authority in relation to site No. 7 58, which is reserved for a primary school. One more fact that is to be noted is that it appears that in order to facilitate acquisition of the property for the benefits of the Respondent No.3, by order dated 20th March, 1984 formal grant of Rs.100/- was sanctioned for the building of the school of the Respondent No.3. That order was cancelled by the State Government by order dated 1st December, 1997. 3. We have heard the learned Counsel appearing for the Petitioner and the learned Counsel appearing for the Respondents, including Respondent No.3. 4. Perusal of Notification issued under Section 4 of the Land Acquisition Act dated 9th May, 1984 shows that there are two reasons given by the Special Land Acquisition Officer 8 for proposing to acquire the land. First reason was Whereas, it appears to the Special Land Acquisition Officer, Special Unit, Town Planning and Valuation Department, Thane, that the lands specified in the schedule hreto are likely to be needed for the Hindi Prachar Mandal Trust, Dombivali, for construction of a School Building. This was said because in the draft Development Plan, Site No.58 i.e. the suit land was reserved for school and the appropriate authority was shown as Respondent No.3. i.e. Hindi Prachar Mandal Trust. However, by notification dated 3rd August, 1998, which is published in the official gazette dated 13th August, 1998, the Development Plan has been modified and now the relevant entery reads the appropriate authority in respect of Site No.58 is changed from Hindi Prachar Mandal Trust to that of Dnyaneshwar Math Trust in 9 Development Plan . Thus, now in the Development Plan appropriate authority in relation to Site No.58 is not the Respondent No.3, but it is the Petitioner, and therefore that first reason given for acquiring the land compulsorily for the benefits of the Respondent No.3 does not any more exist. Now, in relation to Site No.58, the Petitioner who is the owner of the land itself is the appropriate authority. It is further to be seen that in paragraph 38 of the Petition, the Petitioner has stated that by order dated 26th May, 1997 recognition to the school of the Respondent No.3 has been cancelled by the Education Department, and that by letter dated 19th July, 1997 the Respondent No.3 has been asked to close down the school. It appears that these orders were challenged by the Respondent No.3 before this court by filing Writ Petition No.3355 of 1997. That 10 Writ Petition has been decided by the Division Bench of this Court by order dated 22-4-1998. Perusal of that judgment shows that recognition was cancelled because of failure of the Respondent No.3 to comply with the conditions of recognition despite several notices and show cause notices given by the authorities. The court found that deficiencies pointed out by the authorities still exist in the school of the Respondent No.3, and therefore, recognition was rightly cancelled. In paragraph 39 of the petition, reference has been made to the judgment of the Division Bench in Writ Petition No.3355 of 1997. 5. The second reason which weighed with the Special Land Acquisition for acquiring the land compulsorily, as can be seen from the notification under Section 4 referred to 11 above, is that Whereas the compensation to be awarded for the said lands are to be paid partly out of public revenue. Now, as a reason of cancellation of the order dated 28th March,1984 by order dated 1st December, 1997 no grant for the purpose of building is being paid by the Government to the Respondent No. 3. Therefore, no part of the compensation to be paid for acquiring the land is going to be paid from the public fund, and therefore, really speaking now there will be no public purpose for acquiring the land. It has come on record that the Petitioner itself is a Public and Charitable Trust. It owns the land adjoining to Site No.58, which is suit site and on that land the Petitioner is presently running a school. In our opinion, therefore, as the Petitioner itself is running a school on the adjoining plot of the land, there can be no justification for acquisition of Site 12 No.58 for establishing another school when the land is likely to be needed by the Petitioner itself for expansion of its own school. 6. In our opinion, looking at the matter from any point of view, there is no justification to uphold the compulsory acquisition of the land for the benefits of the Respondent No.3. In our opinion, petition deserves to be allowed. It is accordingly allowed. Rule made absolute in terms of prayer clause (a). No order as to costs. ( D.K. DESHMUKH,J.) ( A.R.JOSHI,J)