Allowed

Pimpri Chinchwad New Town Development Authority, Pune v. the State of Maharashtra and Ors.

Bombay HC24 Aug 2005WP/142/2005

Case brief

AI extract

What is this about?

This writ petition challenged an order deleting acquired land from acquisition proceedings after possession had already been taken by the authority. The court held that once possession was taken by an acquiring authority under Section 48, the government could not delete the land, rendering the impugned order illegal and illegal use of jurisdiction.

What did the court decide?

The impugned order dated 27/08/2004 deleting the land from acquisition proceedings was quashed and set aside. The writ petition was allowed.

Pimpri Chinchwad New Town Development Authority, Pune Vs the… — Land Acquisition | Bombay HC (2005)

¶1

:1:

¶2

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

¶3

CIVIL APPELLATE JURISDICTION

¶4

WRIT PETITION NO.142 OF 2005

¶5

PIMPRI CHINCHWAD NEW TOWN ) DEVELOPMENT AUTHORITY, ) Nigadi, Pune - 411 044. )...Petitioner. V/s 1. THE STATE OF MAHARASHTRA ) 2. HONOURABLE MINISTER OF ) STATE FOR REVENUE, Government of) Maharashtra, Mantralaya, ) Mumbai - 400 032. ) ) 3. THE COMMISSIONER, ) (Revenue) ) Pune Division Pune. ) ) 4. THE COLLECTOR, PUNE ) ) 5. Special Land Acquisition ) Officer No.23, New Administra- ) -tive Building Opp. Council ) Hall, Pune 411 011 ) ) 6. Secretary, Urban Development) Department, Mantralaya, Mumbai ) ) 7. INDIRA GANDHI CO-OPERATIVE ) HOUSING SOCIETY LTD., ) C/o. Chairman Shri Dinkar K. ) Kumbhar, 126, 2, Chintamani ) Co-operative Housing Society ) Ltd. Mohananagar Chinchwad, Pune)..Respondents.

¶6

--Mr Vinod Jadhav i/b Mr. Vijay Patil for the petitioner. Mr. V.S. Gokhale for respondent Nos. 1 to 6. ---

¶7

CORAM: R.M.S. KHANDEPARKAR & V. M. KANADE, JJ.

¶8

DATE: 24th August, 2005.

¶9

:2:

¶10

ORAL JUDGMENT: (Per V.M. KANADE, J.)

¶11

1.	Petitioner is	challenging	the order	passed by	the
Minister	for State	(Revenue)	dated	27/08/2004	in
proceedings	No.	LPO	34/2003/748/Ma	tter No.	90/A-3,
Revenue	& Forest	Department,	Mantralaya.	By the	said
order,	the Minister	of State	(Revenue)	deleted	the
land	bearing No.1130	situated	at	Mouje C	hikhali,
Taluka	Haveli, Dis	trict Pune,	which was	acquired	by
the	Government pu	rportedly e	xercising po	wer vested	in

¶12

him under section 48 of the Land Acquisition Act,

¶13

¶14

FACTS:

¶15

2.	Petitioner	is an	authori	ty wh	ich i	s es	tablished
for the	purpose of	setting up	a	new	towns	hip in	Pimpri
Chinchwad	area by	virtue of	n	otification	iss	ued by	the
Government	under	section 1	13(2)	of	the	Ma	harashtra
Regional	Town	Planning Act,	1	966	(For	short "	M.R.T.P.
Act").	The	petitioner -	au	thority	was	established	in
the y	ear 1972.	The	acq	uisition	pr	oceedings	were
initiated	by the	Government	for	the	benefit	of	the
petitioner	since	1972 and	large	tracts	of	land	were
sought	to be	acquired,	admeas	uring	2400	Hectares	in
the	designated	area which		was	declar	ed by	the
Government	covering	about	10	villages	in	and	around

¶16

:3:

¶17

Pimpri	Chinchwad and Nigadi.	In	1974,	a	draft
development	plan which was	prep	ared	under	the
provisions	of the M.R.T.P. Act	was	subm	itted to	the
Government	for obtaining	its		sanction	and,
accordingly,	the plan was finally sanctioned on
08/09/1977.

¶18

3.	The	land bearing Gat	No.	1130, admeasuring	2
Hectares	situ	ated at village	Chikhali	was notified	for
acquisition		and, accordingly,	a	notification	under
section	4	was issued	on 0	9/03/1970. Th	ereafter,
notification		under section 6	of the	said Act	was
issued	on	23/11/1972 and, fina	lly, an	award was	passed
on	13/08/	1986 in respect	of	the said	land.
Thereafter,		admittedly, on	09/09/1986,	possession	of
the	land	was taken over	by	the Special	Land
Acquisition		Officer, the respo	ndent	No.5 herein,	who
handed	over	the possession	of	the land to	the
petitioner		- authority on the	same	day and since	then

¶19

the land is in possession of the petitioner - authority.

¶20

4.		Thereaf	ter, on	21/01/2	004,	responde	nt N	o.7	filed
an	appl	ication	before	the	Gover	nment	under	secti	on 48
of	the	Land	Acquisition	Act	for	deletion	of	the	land
from	the		acquisition.		The	petitioner		-	authority

¶21

:4:

¶22

filed	their reply	and it	was pointed	out to	the
concerned	authority	that th	e petitioner	had	already
taken	possession of	the land in	1986 and	that the	land
was	already	allotted by the	petitioners	to	several
allottees	and,	as such, the	question of	deletion	of
this	land from	the acqui	sition would	not	arise.
Respondent	No.3,	however, by	his	order	dated
27/08/2004	deleted	the acq	uisition of	the	aforesaid
land	purportedly	by exercising	power vested	in	him
under	section 48(	1) of the	Land Acquisition	Act.	The
petitioner	is ch	allenging the	said order	by	invoking

¶23

writ jurisdiction of this Court under Articles 226 and 227 of the Constitution of India.

¶24

5.	We	have perused	the impu	gned ord	er pass	ed by	the
Minister	for	State	(R	evenue),	Gov	ernment	of
Maharashtra		as also	the affid	avit in	reply	which	is
filed	by	the Governmen	t. In	the	affidavit	in	reply,
it is	categ	orically admit	ted that	the	award	in	respect
of	the	land was	declared	on 13/0	8/1986	and	possession
of the	land	was taken	on	09/09/1986	and	the	possession
was	handed	over to	the petiti	oner -	authority	on	the
same	day.	In the	said	affidavit,	panchana	ma w	hich is
annexed	as	Exhibit-B	to the	Petition	is	not	disputed.
Further,	it i	s stated	that by	virtue	of	Mutation	Entry
No.	993	which was	certified	on 10	/09/1986,	the	name

¶25

			:5:
of th	e peti	tioner	was entered in the 7 x	12		Extract.
A xer	ox	copy	of the Mutation Entry is	annexe	d	at
Exhibit-1	to	t	he affidavit-in-reply filed	by		the
Government	in		which it is clearly stated	that		the
possession	of		the land was taken in the	presence		of
panchas	and	the	panchanama also was prepar	ed in		their
presence	in	res	pect of handing over possess	ion	of	the
land	to t	he p	etitioner - authority. Further,	in		the
said	affidavit,		it is stated that the owners	of		the
land	were	paid	compensation on 06/	02/2004		as
calculated	by	the	Special Land Acquisition	Officer		and
a copy	of	the	bill of payment is annexed	at		Exhibit-2.
Thus,	it	is	an undisputed position that the	land		in
question	was	alread	y acquired in 1986, after	the		award
was p	assed	and	the possession was taken and	it		was
handed	over	to	the petitioner - authority.	The		land,
therefore,		vested	in the petitioner -	authority		after

¶26

the award was passed and possession was handed over to

¶27

them.

¶28

It would be relevant to consider provisions of

¶29

section 48 of the Land Acquisition Act. Section 48

¶30

reads as under:-

¶31

	"48.		Completition	of	acq	uisition	not
compulsory,		but	compensatio	n to	b	e	awarded
when	not		completed.- (1)	Except	in	the	case
provided	for		in section	36,	the	Go	vernment
shall	be	at	liberty to	withdra	w	from	the

¶32

:6:

¶33

	acquisition of any land	of which p	ossession
	has not	been	taken.
	(2) Whenever the Govern	ment withdraws fro	m 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 i	ncurred 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."
7.	From the perusal of the said	section, it will	be
clear	that the Government does	have discretion	to
delete	any land from the acqu	isition proceedings	as
long	as the possession of the land	is not taken	over
by	the acquiring authority or is	handed over to	the
concerned	authority for whose benefi	t the land ha	s to
be	acquired. In the present case,	it is an	admitted
position	that the possession of the	land was	taken
over	by acquiring authority o	n 09/09/1986	and,
therefore,	after the said date, it	was not open	for

¶34

the Government to delete the land from the acquisition

¶35

proceedings.

¶36

8.	It is	a	well	settl	ed	position	in law	tha	t the
manner	of	taking	posses	sion	by	panc	hanama	has	been
accepted	as	the	standard		mode	in	which	the	possession

¶37

:7:

¶38

is tak	en	and the	Supreme	Co	urt	has, in numb	er		of
cases,	laid	down that	this	is	a	normal mode of			taking
possession		by drafting	a	pach	anama	in the prese	n	ce	of
panchas.		Further, the	provis	ions	of	section 16	o	f	the
said	Act	also clearly	lay	dow	n	that once the a	w	ard	is
passed	and	the po	ssession	of	the	land is taken,			the
land	vests	in the	Gover	nment	a	bsolutely and			merely
because	n	otice as en	visaged	und	er	section 45 has			not
been	served	, it do	es not	pr	event	the vesting of			the
property	i	n the Gov	ernment.		In	our view,		th	erefore,
the	impu	gned order	passed	by		the Minister is			patently
illegal	and	he has	exercise	d	juri	sdiction which i	s		not
vested	in	him by la	w.	It	was	not open for		res	pondent
No.	2	to consid	er whe	ther	noti	ce was served in			the
manner	prov	ided under	se	ction	45	or not after			the
entire		acquisition p	roceedings		had	been completed			and

¶39

the possession had been taken over by the acquiring

¶40

authority.

¶41

It must be also noted here that in the affidavit in reply which is filed on behalf of the Government, the Special Land Acquisition Officer Nayana Bondarde has not controverted the factual averments which are made in the Petition and has also not given any

¶42

justification for the order passed by the respondent

¶43

No.2.

¶44

:8:

¶45

In the result, we have no hesitation in holding that the impugned order passed by respondent No.2 dated 27/08/2004 annexed at Exhibit-G to the Petition,

¶46

is clearly illegal. The said impugned order is,

¶47

therefore, quashed and set aside.

¶48

Petition is allowed in the above terms.

¶49

(R.M.S. KHANDEPARKAR, J.)

¶50

(V.M. KANADE, J.)

Pimpri Chinchwad New Town Development Authority, Pune v. the State of Maharashtra and Ors.

Case brief

What is this about?

What did the court decide?

Pimpri Chinchwad New Town Development Authority, Pune v. the State of Maharashtra and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Jagannath Ganpat Purav Vs the Maharashtra State Electricity Board and Ors.

Shri v.R.Joshi Vs Maharashtra State Textile Corpn.Ltd. and Anr.

Ali Ahmed Khan and Anr. Vs Municipal Corpn. of Gr. Bombay and Ors. and Mrs. Fahmida and Ors.

Prasad Vijay Inamdar Vs Maharashtra Public Service Commission and Ors.

Shri Arun Harishchandra Todekar and Ors. Vs the State of Maharashtra and Ors.

Shaniwar Laxman Patil and Ors. Vs the Central Railways and Ors.