Case: Fakhruddin S/O. Hyderali, Through His Legal Representatives Mustafa S/O Fakhruddin Ambawala Vs. The Union of India Through The Secretary To Government of India Ministry of Petroleum and Others

1) The petitioner claims to be owner of plot Survey(Old No.1919) bearing CTS No.144/53 at Kranti Chowk Aurangabad within the municipal limits of Aurangabad Municipal Corporation. The plot admeasures approximately 2108 square meters. The petitioner contends that a lease of land of the subject plot was executed by him in favour of ESSO Standard Eastern Inc., a Corporation, which was operating in India and was dealing in business of petroleum products. The lease was executed onbetween the parties on rent of Rs.250/per month. The company was running a petrol pump either itself or through some dealer. The lease agreement was to be in operative at the first instance specifically for a period of ten years. Under clause (d) of the agreement it was stipulated that on the written request of the lessee, the lessor would extend the period of lease for a further period of ten years from the expiry of the said term on the same rent. The petitioner stated that onthe ESSO Company exercised its option and requested to continue the said lease. The lease was continued and by a communication dated 12th May 1982 the petitioner renewed the lease for a further period of ten years. The Company thereafter again requested to extend the period for further ten years commencing frombut the petitioner was not ready to continue the lease period. The petitioner sent notice under section 106 of the Transfer of Property Act read with section 80 of the Code of Civil Procedure to the respondent No.1 i.e. Union of India, the Ministry of Petroleum as well as to respondent No.3 Company, namely, Hindustan Petroleum Corporation Limited (HPCL). The petitioners contention is that the request for extension of lease period by the respondent No. 3 through communication datedwas illegal and the petitioner was terminating said tenancy as the petitioner himself intended to raise some construction on the said plot.2) The petitioner states that the respondent No.3 informed that they had already requested for extension of further period fromThe company exercised its power under section 5(2) and 7(3) of the Esso (Acquisition of Undertakings in India) Act 1974. According to the petitioner, the respondent No.3HPCL was successor in title of the Esso company and as per the agreement of lease the respondent No.3 ought to have vacated the premises in the month of December, 1982. It is alleged that the respondent No.3 and its officers were interested in continuing the lease illegally and mala fide only to help respondent No.5 dealer who was running petrol pump on behalf of respondent No.3Corporation. The petitioner states that there was no other reason for respondent No.3 to request for continuation of lease than to favour the dealer. The original petitioner Fakruddin Haidar Ali died and his represented by his legal representative.3) The petitioner further stated that he filed Regular Civil Suit No.587 of 1983 terminating the tenancy. By a judgment and order datedthe Civil Court held that the lease was still subsisting and did not come to an end. The suit was dismissed. Being aggrieved by the said judgment and decree the petitioner preferred an appeal being Regular Civil Appeal No.244 of 1989 before the District Court Aurangabad. By a judgment and order datedthe learned Additional District Judge allowed the appeal of the petitioner. The respondent No.3 being aggrieved by the said judgment and decree preferred Second Appeal No.134 of 1992. The petitioner contends that initially the stay was refused in the proceedings of the second appeal but in the Letters Patent Appeal Stamp No. 17574 of 1992 stay was granted in favour of the respondent No.3company. From the proceedings of LPA it is gathered that by an order datedthe Division Bench of this Court (Coram: V.V. KamatA.A.Halbe, JJ.) passed following order :Heard Shri. P.R. Deshmukh and Mr. Bajaj for parties.In view of order dt. 12.7.93 (copy taken on record) of the S.C., S.A. No.134/92 is expedited and ordered to be heard within 8 weeks, without disturbing earlier order dt.of this Court in this L.P.A., this Appeal now has become infructuous. L.P.A. stands disposed off as such, continuing earlier order till the decision of SA 134/92.4) It is stated that S.L.P. (C) No.8250 of 1993 was preferred against the said order of stay. The Apex Court did not interfere but requested the High Court to dispose of the second appeal within a period of 8 weeks from the receipt of the order of the Apex Court datedThe petitioner contends that a civil application came to be filed in the proceedings of the second appeal being Civil Application No.2936 of 1993 in Second Appeal No.134 of 1992 mainly contending that lease for further period of ten years was also over and therefore the plaint be allowed to be amended directing respondent No.3 to hand over possession of the property. The respondent Nos. 3 and 4 opposed the application. It was then contended by the respondent No.3, according to the petitioner, that the respondent No.3 had already issued notification under section 6 for taking over the premises by way of acquisition. By order datedamendment of the plaint as sought for by the petitioner was allowed. Written Statement came to be filed on behalf of respondent No.3.6) The petitioner specifically alleges that respondent Nos.3 and 4 were acting at the behest of respondent No.5 who was running the petrol pump as a dealer of respondent No.3. Respondent No.4 was then Chief Regional Manager of the HPCL. RespondentNos.5A to 5Care legal representatives of respondent No.5the original dealer expired and is represented by his legal representatives.7) For the purposes of reference, proceedings of Writ Petition No.7090 of 2005 and Writ Petition No.1748 of 2008 were also placed before us along with proceedings of Second Appeal No.134 of 1992.8) Writ Petition No.7090 of 2005 was filed by Hindustan Petroleum Corporation Limited onagainst an order of issuance of warrant for possession datedpassed below Exhibit 1 of Regular Darkhast No.46 of 1992 and for other consequential reliefs. By an order dated 11th October 2005 Division Bench of this Court granted status quo regarding possession which was continued from time to time. By an order dated 21st September 2007 the petition was admitted and status quo granted earlier was continued by way ofrelief. Writ Petition No.1748 of 2008 was filed by deceased Fakruddin Hayderali Ambawala raising challenge to the orders dated 29th January 2008 and 12th March 2006 passed by the Divisional Commissioner. From the proceedings we find that Writ Petition No.1748 of 2008 is still pending admission hearing of this Court.9) The petitioner contends that Notification under section 4 of the Land Acquisition Act was issued onin respect of the subject plot. The Special Land Acquisition Officer had called for objections. Accordingly, the petitioner submitted his objections onThe petitioner applied for getting copy of notification issued under section 6 of the Land Acquisition Act. It is alleged that at the behest of respondent No.5, the authorities of the respondent Corporation were acting in connivance. The petitioner states that, notification under section 6 was initially issued without mentioning any date and notification number. The petitioner could not even get copy of the said notification. The petitioner alleged that with mala fide intention the subject plot was acquired. The subject plot is situated at a location which has high commercial potentiality and market value and is suitable for business purposes. The petitioner was, therefore, interested to develop his own property. The petitioner states that the said plot was not suitable for running petrol pump.10) The petitioner contends that the Divisional Commissioner had rejected the objections filed by the petitioner. The petitioner filed a revision application under sectionof the Land Acquisition Act (Maharashtra Amendment). In stead of deciding the revision petition by the State Government, the Commissioner wrongly and illegally dealt with the revision petition and dismissed the same.11) By an order datedthe petition was allowed to be amended. The petitioner in parastates that after the writ petition was filed, onthe respondent No.8 had passed award under the proceedings initiated under Land Acquisition Act and the compensation was determined for an amount of Rs.A copy of the award was annexed to the petition. The petitioner contends that in respect of the award the petitioner is reserving his right to take appropriate proceedings as advised to him and the amendment was sought for limited purposes to point out as to how the amount is being wasted by public limited company to protect interests of private individual i.e. respondent No.5. The petitioner disputes that possession was taken by private negotiations or otherwise.12) The petitioner has amended prayer clauses also. In prayer clausethe petitioner claimed a declaration that the subject acquisition be held to be mala fide and arbitrary and claimed for quashing and setting aside the award datedThe petitioner prayed for further consequential reliefs in terms of prayer clauses3) The Division Bench of this Court issued notices to the respondents onBy an order datedthe Division Bench granted interim relief to the effect that possession of the property involved in the writ petition shall not be taken in pursuance to notice dateduntil further orders.14)By an order datedthe Division Bench of this Court admitted the petition and vacated the order passed onon the respondentHPCL filing undertaking.15) On behalf of respondents Nos.3 and 4 Mr. S.K. Bhatnagar, Senior Regional Manager of respondent No.3ly dated 21st July 1997. The deponent contended that respondent No.3 is a Government Company under the provisions of Section 617 of the Companies Act 1956 and public sector undertaking of the Government of India and is under the administrative control of Ministry of Petroleum and Natural Gas, Government of India. With effect fromthe right, title, interest and liabilities of the ESSO Standard Incorporated in relation to the Undertakings in India were vested in the Government of India by an Act of Parliament i.e. Esso (Acquisition of Undertakings in India) Act, 1974 (IV of 1974). Prior tothere existed three companies known as "ESSO Group" viz ESSO Standard Eastern Inc., ESSO Standard Refining Company Limited and Lube India Ltd., simultaneously the Central Government acquired 74% of the paid up equity capital of ESSO Standard Refining Company of India Ltd. and also acquired 24% of the paid up equity capital of Lube India Limited in which company the Central Government was already having 50% equity participation. Thus, all the three companies became Government Companies within the meaning of Section 617 of the Companies Act, 1956. The deponent further contends that, thereafter the Central Government through the Ministry of Petroleum and Chemicals issued a Notification(E) dated 14th March 1974 in exercise of powers conferred by sub section (1) of Section 7 of the ESSO Act of 1974, directing vesting of right, title, interest and liabilities of these companies in HPCL which came into existence with effect fromThe deponent had refuted the allegations of connivance, mala fides and favouritism. It is contended that the respondent Corporation felt that the land is required in public interest and accordingly steps were taken to acquire the land. The respondent Corporation deposited the entire amount as per the requisition of the State Government and the Collector and accordingly the proceedings were initiated. Section 4 Notification initially was published on 19th March 1993. Notification under Section 6 of the Land Acquisition Act was published in gazette No.44 datedAurangabad Times datedDaily Deogiri Tarun Bharat datedand village publication was made onThe deponent specifically contended that the provisions of Part VII of the Land Acquisition Act are not applicable as the acquisition is needed for public purpose of Government company.18) The deponent contended that while filing objections under sectionthe petitioner did not take plea with regard to requirements of Part VII of the Land Acquisition Act. It is contended that, the question as to whether the land is needed for a public purpose is for the State to decide and its decision in that respect cannot be subject matter of judicial review under Article 226 of the Constitution of India. The Award is passed which has become final and conclusive. The deponent prayed for dismissal of the writ petition.19) The petitioner thereafter filed additional affidavit onThe petitioner contended that notification under section 9 was published before issuance of declaration of section 6 notification. The declaration under sections 6 and 9 was faulty. The petitioner raised question in respect of panchanama drawn and publication made in this regard.20) On behalf of respondent Nos.6 to 8 Mr.Gotiram Dhingu Rathod, Special Land Acquisition Officer, filedIn para 9 the deponent contendsI say and submit that thereafter declaration under Section 6 was issued by the Divisional Commissioner Aurangabad on 11/10/93. The said notification/declaration under section 6 of the said Act was published in Maharashtra Government Gazette on 4/11/93 and in two daily news papers i.e. Aurangabad Times on 15/10/93 and Daily Devgiri Tarun Bharat on 16/10/93. Subsequently the said declaration under section 6 of the said Act was published at convenient place on CTS 14453 situated at Aurangabad on 4/12/93 and accordingly panchanama was prepared. Hereto annexed and marked as Exhibitis the true and correct copy of the declaration."The deponent refuted the allegations made in respect of land acquisition proceedings. The deponent contends that an application was filed by the petitioner under section 48(1) of the Act before the Commissioner Aurangabad for deletion of the land from acquisition which was rejected on 12th March 2006. The Award was passed within period of limitation prescribed under the Land Acquisition Act. The deponent has annexed withrelevant and important documents in respect of communication exchanged between the Corporation and the Government authorities. Agreement executed by HPCL, publication of notifications, panchanamas drawn under sections 4 and 6 and an order passed by the Commissioner dated 12th March 2006 under Section 48(1) of the L. A. Act.21). The respondentNos.5A to 5C7. They refuted allegations of mala fides and influence exercised by deceased respondent No. 5. The deponent contends that respondent No.3 is a Central Government Public Sector Undertaking, a Government Company within the meaning of Section 617 of the Companies Act, 1956. The procedure under the Land Acquisition Act had been scrupulously followed by the authorities. The procedural rigors provided in Part VII of the Land Acquisition Act and the rules are not applicable to the present acquisition. The acquisition is in public interest and, therefore, they claim dismissal of the petition.

Reasoning:
29) We would now address the substantial grounds raised by the petitioner. Thelearned counsel for the petitioner submitted that, element of public purpose was absent in the acquisition of the subject land as no land could be acquired for the purposes of establishing a petrol pump which would be allotted to be run by a third party.It is alleged that to benefit the respondentdealer the land was acquired. A Corporation cannot acquire land on behalf of the State or Union, according to the counsel. We may refer to the provisions of Section 3(cc), (e) and (f) of the Land Acquisition Act, 1894. The provisions of Section 3(cc) refer to the expression "corporation owned or controlled by the State". In Section 3(e) expression "Company" is defined which means a company as defined in section 3 of the Companies Act, 1956, other than a Government company referred to in clause (cc). In section 3(f) while defining "public purpose" clause (iv) stipulates that it would include the provision of land for a corporation owned or controlled by the State. Proposal was initiated by the respondent Corporation as a Government Company having 51% share of the Union of India and in the light of the provisions of the Land Acquisition Act, 1894 and the Esso (Acquisition of Undertakings in India) Act, 1974 (for short, "the Act of 1974") and considering the purpose for which the land was acquired i.e. for public purpose for retail outlet to cater need of motoring public being purpose of the Union, we are of the view that element of public purpose was existing while the proposal was initiated for acquisition of the subject land. The submissions raised by the counsel for the petitioner on this ground are notThe learned counsel for the petitioner submitted that the HPCL was not entitled in law to initiate land acquisition proceedings in absence of specific consent of the Union of India. The counsel referred to the provisions of the Act of 1974.We have perused the same. Esso was a foreign company within the meaning of Section 591 of the Companies Act 1956 incorporated under the laws of the State of Delaware in the United States of America. The Government Company means a company as defined in Section 617 of the Companies Act. Under the Act of 1974 right, title and interest of Esso Company were acquired in order to ensure that the ownership and control of the petroleum products distributed and marketed in India by the said company are vested in the State. Section 7(1),(2) (3) of the Act of 1974 reads as under:"7.(1) Notwithstanding anything contained in sections 3,4 and 5, the Central Government may, if it is satisfied that and Government company is willing to comply, or has complied, with such terms and conditions as that Government may think fit to impose, direct, by notification, that the right, title and interest and the liabilities of Esso in relation to any undertaking in India shall, instead of containing to vest in the Central Government, vest in the Government company either on the date of notification or on such earlier or later date (not being a date earlier than the appointed, day) as may be specified in the notification.(2) Where the right, title and interest and the liabilities of Esso in relation to its undertakings in India vest in a Government company under subsection (1) the Government company shall, on and from the date of such vesting, be deemed to have become the owner, tenant or lessee, as the case may be, in relation to such undertakings, and all the rights and liabilities of the Central Government in relation to such undertakings shall, on and from the date of such vesting, be deemed to have become the rights and liabilities, respectively of the Government company.(3) The provisions of(2) of section 5 shall apply to a lease or tenancy, which vets in a Government company, as they apply to a lease or tenancy vested in the central Government and reference therein to the Central Government:shall be construed as a reference to the Government Company."31) Considering the provisions of the said Act, it is clear that all the rights and liabilities of the Central Government in relation to such undertaking shall on and from the date of such vesting be deemed to become rights and liabilities respectively of the Government company. In the light of the provisions of the Act of 1974 and the Land Acquisition Act 1894 we do not find that the HPCL had no authority in law to initiate proposal for acquisition of land on behalf of the Union ofThe learned counsel for the petitioner submitted that in view of pendency of civil proceedings filed by the petitioner, owner of the subject land, for possession of the subject land by filing Regular Civil Suit No.587 of 1983, the HPCL or the Union of India had no authority to initiate proposal for acquisition of land.It is alleged that the acquisition proceedings were initiated deliberately to scuttle the probable eviction orders by the Civil Court. The steps taken by the HPCL are full of mala fides. The HPCL was interested to benefit the respondent dealer of the company who was running petrol pump on the subject site. After considering the original record and the documents placed before us, and in view of the rival contentions of the contesting parties, we do not find that the move to initiate land acquisition proceedings was to favour the respondent dealer.33) As regards pendency of the civil suit from the record we find that Second Appeal No.134 of 1992 filed by the HPCL is still pending. The submission of the learned counsel for the petitioner to the effect that there was no interim relief passed in the proceedings of the second appeal is not correct. In the proceedings of the Letters Patent Appeal by an order datedDivision Bench of this Court while disposing of the Letters Patent Appeal continued the order of stay granted ontill decision of the second appeal. Therefore, it cannot be said that the HPCL was under threat of execution of eviction decree. The submissions and allegations made on that ground are notThe learned counsel submitted that the provisions of Sections 6 and 9 of the Land Acquisition Act were not followed in letter and spirit. It is the contention of the counsel that Section 9 notice was published prior to notice of Section 6 of the Act.We have perused the record, the panchanamas, the endorsements made by the officers concerned. We do not find that any manipulation was done in respect of publication of notice. The counsel for the respondent HPCL submitted that, improper service of section 9 notice would not vitiate the acquisition proceedings. In thefiled on behalf of respondent Nos.6 to 8 it is contended that notification declaration under section 6 of the Land Acquisition Act was published in Maharashtra Government Gazette onand in two daily newspapers i.e. Aurangabad Times onand Daily Deogiri Tarun Bharat onSubsequently the said declaration under section 6 of the Act was published at convenient place on CTS 14453 situated at Aurangabad onand accordingly panchanama was prepared. Award under section11A of thewas passed onamounting to Rs.56,16,701/only. We do not find any convincing ground and material to reject the averments made by the deponent onThe learned counsel for the petitioner submitted that the objections raised under sectionof the Act were not dealtwith. The deponent on behalf of respondent Nos. 6 to 8 i.e. the Special Land Acquisition Officer averred on oath that the objections were called under sectionof the Act and accordingly the objector filed the same onhearing was accorded by the Divisional Commissioner to the affected party and accordingly onthe objections raised by the petitioner under sectioncame to be decided. We find that the mandatory requirements under sectionwere also compliedwith.36) The learned counsel for the petitioner further submitted that, he had demanded copies of notification under section 6 and other relevant documents but they were not provided to him deliberately.The correspondence referred to by the counsel for the petitioner between the Government officers, according to the counsel, did not have inward / outward numbers. The Commissioner did not communicate any response under section 6 of the Act to the lower officers.37) From the record and the reply filed and the submissions advanced by the counsel for the contesting respondents we do not find that, any prejudice is caused to the petitioners case on that ground. If any irregularity had occurred in regard to the correspondence then the same does not go to the root of the matter to vitiate the entire acquisitionThe learned counsel for the petitioner submitted that, the revision petition filed under sectionof the Act ought not to have been decided by the Commissioner as it is the State Government which has powers to decide the same. The counsel for the petitioner further submitted that the Commissioner is an interested party in land acquisition proceedings.We are of the view that the petitioner had submitted to the jurisdiction of the Commissioner and now the petitioner cannot raise issue in respect of jurisdiction of the Commissioner in entertaining the revision filed under Sectionof the Land Acquisition Act. The contentions on that ground areThe learned counsel further submitted that the HPCL had alternative plot which could have been utilized for running a petrol pump. Some photographs are also placed on record.On the said plot regional administrative building was proposed and it is informed that administrative building of the HPCL was constructed on the said plot.40) It has come on record that, award was also passed in respect of the subject land onNotice under section 12(2) was issued to the petitioner onCopy of the award was delivered to the petitioner onDuring the course of hearing the learned counsel submitted that reference petition under section 18 of the Act was preferred and accordingly reference proceedings are pending in the civil Court. The petitioner had applied for deletion of the land from acquisition under section 48(1) of the Land Acquisition Act onThe petitioner was heard and by an order datedthe Divisional Commissioner rejected the said application.41)The learned counsel for the petitioner submitted that, there is non compliance of the provisions of Section 7 of the Land Acquisition Act, inasmuch as the Collector Aurangabad did not obtain order from the Commissioner for acquisition of the land.From the record we find that there is substantial compliance of the provisions of Section 7 of the Act.42) Considering the record and the contentions raised in that regard there is no glaring infirmity in the acquisition proceedings. The same are not vitiated. The acquisition proceedings are not actuated by mala fides. The HPCL had authority to initiate the process. There was no objection by the Union of India in this regard. In the order passed by the Divisional Commissioner datedin respect of proceedings under section 48(1) of the Act by the original land holder it has been observed that, the land which was required by the HPCL could be acquired by the Divisional Commissioner under the delegated powers by the Central Government.