Case: Pranita Powerloom Coop.Soc.Ltd Vs. State Of Maharashtra

act as the Cooperative Society was nothing but a company and the necessary condition of the contribution by the State Government was not till then fulfilled as the State Government had indeed not contributed nor had it agreed to contribute so as to give a colour that the land acquisition was for the public purpose.30. On the other hand, it is very surprising that the High Court directed the State Government to issue a Notification under Section 4 ignoring the fact that no contribution was made and it suggested therein by way of sixth clause that the requirement of the government contribution would not come in the way of initiating the acquisition proceedings. The High Court, thus, had left all the questions undecided. All this was pointed out to the High Court in subsequent petition wherein the petitioners-appellants sought the review of the order dated 01.12.06. However, that order is also clearly silent on the questions raised on the spacious ground that all the concerns of the parties could be taken care of in the enquiry under Section 5A. In fact that was the mainstay of the argument of Shri Gupta that even if the petitioners owned the land and even if they were parties who could develop the land for the industrial purposes, yet all that could be taken care of under Section 5A enquiry and they could be provided for the plots by the respondent No.4 Society after the land acquisition process was completed. What we fail to understand is if the direction to initiate Section 4 of the Act itself emanated in an illegal fashion whether the concerned petitioners should be put to a rigmarole of an enquiry under Section 5A. The answer has to be negative.31. The basic contention of the Ichalkaranji Society that it was entitled exclusively to the land acquisition in respect of all the lands in the area is incorrect in law as has been shown in the affidavit on behalf the State of Maharashtra. It is obvious that the State of Maharashtra proceeded to issue the Notification under Section 4 merely because of the direction of the High Court. It is quite another thing that now at this juncture the State of Maharashtra is trying to justify the land acquisition proceedings on the spacious ground that the petitioners-appellants contentions could be considered in the Section 5A enquiry. We do not wish to go into the question as to whether the queries raised by the State of Maharashtra were justified or not. However, we must say that the High Court has not even bothered to consider the order dated 30.08.05 nor has it set it aside specifically. Following queries were made which were found not to have been complied with by the petitioner-Society. They were: "1. For the question of land acquisition, which efforts are made by the Society for acquiring maximum proper place in the area?2. Which efforts have been made by the Society for obtaining such lands by private transactions by giving proper compensation? As to whether those efforts are succeeded?3. How the area proposed for the questioned proposal is proper for the object of acquisition?4. Whether the entire area propose in question is required? Or whether the part of area therein if acquired will be sufficient?5. Which proposal/projects the society has for using the acquired land immediately?6. If the area under acquisition is proper for good agriculture, besides that land, whether any other appropriate land is not available for proposed acquisition?" 32. The communication thereafter mentions that the Ichalkaranji Society had complied with the issues raised at reference No. 3 and 4 only and since the other deficiencies have not been removed the proposal was being cancelled. Even in the earlier paragraphs the attention of the Society was drawn towards the fact that the acquisition could be done only after the nominal compensation of Rs. 100/-, a share of the Government towards expenses of land acquisition. It is further pointed out in the same paragraph that the Association, namely, the petitioner Society would be required to submit a guarantee in triplicate about the availability of funds in the present land acquisition letter and it is only after this compliance that the land acquisition proceedings could be initiated. It is also pointed that the Association i.e. the petitioner-Society could be accepted only as a company and, therefore, it had to submit a report under Rule 4 (3) of the Land Acquisition Company Rules, 1963.33. When we have a glance on the order of the High Court it is clear that the High Court has not considered any of these important objections. In this backdrop, it is pointed out by the learned counsel for the appellant-petitioners that they are the owners of the land and each has the capacity for developing the industrial estate as per the regional plan and, therefore, there was no justification in supporting the acquisition proceedings even without any compliance whatsoever by the respondent No.4 Society or treating the respondent Nos. 4 and 5 to be the only players in the field. It was pointed out that like respondent No.5 i.e. Pride India Cooperative Textile Park, the petitioners-appellant also owned the land and they are all industrial units. Therefore, there was nothing special with the respondent No.5, and if the estate was given to respondent No. 5 i.e. Pride India Cooperative Textile Park merely because their proposal was also pending, the similar direction should have been given to the others whose proposal were either pending or who were capable of making any such proposal. All that was not done and the matters were rushed on the basis of the mere compromise formula which too was suggested by the High Court.34. In these circumstances, we are of the clear opinion that merely because Section 5A enquiry is pending and merely because the objection can be taken by the petitioners, the respondents by themselves will not be able to cure the illegality committed in the issuance of Section 4 Notification.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]25. It cannot indeed be disputed that the basic order is dated 01.12.06 which undoubtedly was disposed of on the compromise which also appears to have been brought about by the High Court itself. We have noted the basic features of this compromise in paragraph 12 of our judgment. It is extremely strange that the High Court presumed that there were only two players in the field, namely, the Ichalkaranji Society and the Pride India Cooperative Textile Park. The High Court seem to have almost presumed that these two Societies alone mattered in the whole affair and were the only two Societies which were entitled to the land to be acquired by the State Government for establishment of the industrial estate. There can be no dispute that Ichalkaranji Society was established for the purposes of developing industrial estates and that it had done so in the past. There can also be no dispute that it had a long waiting list of about a thousand persons wanting the plots in the industrial estate for establishing industries. The question is whether it had that exclusive right. There is nothing at least brought either to the notice of the High Court or before this Court to suggest that there is any exclusivity in favour of Ichalkaranji Society. Indeed, in the field there were so many other Societies which were also of the same nature. At least three of them were industrial societies they being Chhatrapati Shivaji Powerloom Cooperative Society, Mahalaxmi Sahakari Audyogik Vasahat Maryadit . and Jagjivan Ram Magal Vargiya Charmakar Audyogik Sahakari Sanstha. Their status was also identical as they were registered as industrial cooperative societies as contemplated by Maharashtra Cooperative Societies Act. It is, therefore, clear that the High Court proceeded on the presumption that the only two relevant players in the field were respondent Nos. 4 and 5 herein i.e. Ichalkaranji society and Pride India Cooperative Textile Park and went on to presume that they alone had the exclusive rights of getting the lands from the Government by way of land acquisition. This, in our opinion, is a wrong presumption.26. In the reply affidavit which has been sworn by Shri S.D. Chavan, Special Land Acquisition Officer, Kolhapur, it was specifically urged that specific queries were put to the Ichalkaranji Society vide letter dated 02.03.04 and letter dated 29.09.04 and the Manger of the Ichalkaranji Society had also attended office of the Special Land Acquisition Officer twice in relation to those queries. Those queries were not specifically met by Ichalkaranji Society. It was further pointed out in the affidavit that the land in question was earmarked in the industrial zone in the zone sanctioned Regional plan ofregion. However, the said land had not been reserved only for the Ichalkaranji Society in the said regional plan and, therefore, the Ichalkaranji Society could not exclusively claim the same. In the said affidavit it was again denied that the proposal made by the Ichalkaranji Society was in terms of the Land Acquisition Act and in fact the Ichalkaranji Society was merely relying upon its correspondences with the Industries Department. It was further contended that Ichalkaranji Society was directed to fulfil various queries suggested by State of Maharashtra vide its letter dated 02.03.04. One of the queries was the opinion about the sanction of the Industrial Department of State of Maharashtra and also for the fulfillment of requirement under Section 37 (f) (vii) along with the requirement of the second proviso of Section 6 (1) of the Land Acquisition, 1894 Act i.e. about public purpose. It was pointed out further that the Cooperative Society was covered under the provisions of Section 3 (e) of the Land Acquisition Act and was a company for the purpose of Land Acquisition Act, 1894. It was further pointed out in these queries that unless a nominal contribution by the State Government was made, the said acquisition could not be set up for the public purpose. It was also pointed out further in the said affidavit that though the Director of Industries had asked to reserve the remaining land for the petitioner, it had nothing to do with the Collector since the land was earmarked as an industrial zone in the sanctioned regional plan ofregion and there was no reservation of industrial land for the petitioner in the regional plan after following the necessary procedure under Section 20 of the Maharashtra Regional and Town Planning Act, 1966. It was also pointed out that the information required under Rule 4(3) of the Land Acquisition (Company Rules), 1963 as also the information required under Section 39 of the Land Acquisition Act was not supplied by the Ichalkaranji Society for about one year and that it was also expressed in the affidavit that the petitioner gave the impression that it was not ready to comply with the information under law and, therefore, the Collector in his order dated 30.08.05 cancelled the land acquisition proposal.27. It is also pointed out in the affidavit that all the concerned lands were private lands and could also be developed by their respective owners for industrial purposes. The claim of theSociety that it was a land reserved for them alone, was specifically refuted. It is pointed out that in order to provide such a reservation in favour of Ichalkaranji Society, a Notification in the sanctioned regional plan should have been made after following the legal procedure laid down under Section 20 of the Maharashtra Regional Town Planning Act. Thus, it was clear that the High Court was bound to consider these grounds raised against the claim in the writ petition. The High Court, however, does not seem to have considered any of these questions.28. It is interesting to see how the matter proceeded. On 16.11.06, the High Court passed the order that after hearing the counsel for theSociety and counsel for respondent No.India Cooperative Textile Park, the High Court was of the considered opinion that, at the first instance, the petitioner and the respondent No.5 Society must arrive at a compromise in sharing the proposed land for acquisition and, thereafter, it would be appropriate for them to approach the Collector with these compromise terms reduced in writing so as to enable him to issue a Notification under Section 4 of the Land Acquisition Act, 1894.29. The second order has been passed on 01.12.06 wherein the High Court has recorded the consent terms. The High Court has mentioned the lands covered as also the map provided wherein the lands acquired by the 5th respondent as also the land claimed by the petitioner were shown in different colours. In all these consent terms which we have seen, specifically, there is not even a stray reference to the Government or to any other private party who admittedly owned some of the lands mentioned therein. Lastly, the order came to be passed on 01.12.06 accepting the said terms. What surprises us is the apathy on the part of the High Court to decide the question raised by the Government in its reply affidavit and to point out whether thecould claim an exclusive right of the land acquisition along with 5th respondent when there was no reservation in its name under the provisions of Maharastra Regional and Town Planning Act. Such reservation, undoubtedly, required the procedure to be followed by Section 20, which objection was specifically raised in the affidavit by the State Government. It is on that the State Government asserted that there could not be any exclusivity in favour of theso as to claim the compulsory acquisition in its favour. Again the High Court completely ignored the fact that this was not at least till that time an acquisition under Chapter II of the act as the Cooperative Society was nothing but a company and the necessary condition of the contribution by the State Government was not till then fulfilled as the State Government had indeed not contributed nor had it agreed to contribute so as to give a colour that the land acquisition was for the public purpose.30. On the other hand, it is very surprising that the High Court directed the State Government to issue a Notification under Section 4 ignoring the fact that no contribution was made and it suggested therein by way of sixth clause that the requirement of the government contribution would not come in the way of initiating the acquisition proceedings. The High Court, thus, had left all the questions undecided. All this was pointed out to the High Court in subsequent petition wherein thesought the review of the order dated 01.12.06. However, that order is also clearly silent on the questions raised on the spacious ground that all the concerns of the parties could be taken care of in the enquiry under Section 5A. In fact that was the mainstay of the argument of Shri Gupta that even if the petitioners owned the land and even if they were parties who could develop the land for the industrial purposes, yet all that could be taken care of under Section 5A enquiry and they could be provided for the plots by the respondent No.4 Society after the land acquisition process was completed. What we fail to understand is if the direction to initiate Section 4 of the Act itself emanated in an illegal fashion whether the concerned petitioners should be put to a rigmarole of an enquiry under Section 5A. The answer has to be negative.31. The basic contention of the Ichalkaranji Society that it was entitled exclusively to the land acquisition in respect of all the lands in the area is incorrect in law as has been shown in the affidavit on behalf the State of Maharashtra. It is obvious that the State of Maharashtra proceeded to issue the Notification under Section 4 merely because of the direction of the High Court. It is quite another thing that now at this juncture the State of Maharashtra is trying to justify the land acquisition proceedings on the spacious ground that the petitioners-appellants contentions could be considered in the Section 5A enquiry. We do not wish to go into the question as to whether the queries raised by the State of Maharashtra were justified or not. However, we must say that the High Court has not even bothered to consider the order dated 30.08.05 nor has it set it aside specifically.The communication thereafter mentions that the Ichalkaranji Society had complied with the issues raised at reference No. 3 and 4 only and since the other deficiencies have not been removed the proposal was being cancelled. Even in the earlier paragraphs the attention of the Society was drawn towards the fact that the acquisition could be done only after the nominal compensation of Rs.a share of the Government towards expenses of land acquisition. It is further pointed out in the same paragraph that the Association, namely, the petitioner Society would be required to submit a guarantee in triplicate about the availability of funds in the present land acquisition letter and it is only after this compliance that the land acquisition proceedings could be initiated. It is also pointed that the Association i.e. thecould be accepted only as a company and, therefore, it had to submit a report under Rule 4 (3) of the Land Acquisition Company Rules, 1963.33. When we have a glance on the order of the High Court it is clear that the High Court has not considered any of these important objections. In this backdrop, it is pointed out by the learned counsel for the appellant-petitioners that they are the owners of the land and each has the capacity for developing the industrial estate as per the regional plan and, therefore, there was no justification in supporting the acquisition proceedings even without any compliance whatsoever by the respondent No.4 Society or treating the respondent Nos. 4 and 5 to be the only players in the field. It was pointed out that like respondent No.5 i.e. Pride India Cooperative Textile Park, the petitioners-appellant also owned the land and they are all industrial units. Therefore, there was nothing special with the respondent No.5, and if the estate was given to respondent No. 5 i.e. Pride India Cooperative Textile Park merely because their proposal was also pending, the similar direction should have been given to the others whose proposal were either pending or who were capable of making any such proposal. All that was not done and the matters were rushed on the basis of the mere compromise formula which too was suggested by the High Court.34. In these circumstances, we are of the clear opinion that merely because Section 5A enquiry is pending and merely because the objection can be taken by the petitioners, the respondents by themselves will not be able to cure the illegality committed in the issuance of Section 4 Notification.