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PETITIONER: RAMNIKLAL N. BHUTTA & ANR.

       Vs.

RESPONDENT: STATE OF MAHARASHTRA & ORS.

DATE OF JUDGMENT:       19/11/1996

BENCH: B.P. JEEVAN REEDY, K.S. PARIPOORNAN

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T      B.P. JEEVAN REDDY, J.      Leave granted.      This appeal  is preferred  against  the  order  of  the Bombay High  Court dismissing  the review  petition filed by the  appellant.   The  review  petition  was  filed  by  the appellant against  the order dismissing his writ petition by Division Bench.  The matter  under the land Acquisition Act, 1894.      By a  notification dated November 29, 1979 issued under Section 4  of the  Land Acquisition Act, 1894 [the Act], two pieces of  land were  notified for  acquisition for a public purpose, to  wit, "for  Bombay Electric Supply and Transport Undertaking  for  bus  station."  The  two  pieces  of  land notified are  C.T.S. No.218  admeasuring 1759  sq.mtrs.  and C.T.S.No. 211  admeasuring 370 sq.mtrs. The appellant claims to the   owner  of  C.T.S.No.  211.  The  declaration  under section 6  was made  on December  16,  1982.  C.T.S.No.  218 belongs to  a Church  but there are others who claim to have interest in  the  said  land,  viz.,  Vijayanand  Singh  and Gayatri  Darshan   Cooperative  Housing  Society.  The  BEST entered  into   a  settlement  with  the  said  two  persons whereunder and  extent  of  906  sq.mtrs.  was  given  on  a perpetual lease to BEST free of any charge, i.e., Re.1/- per annum. The  lease deed  executed by  the said two persons in favour of  the Bombay  Municipal  Corporation  [representing BEST] is dated August 21, 1986. The remaining portion was to be utilised  by the  said persons  for  their  won  purposed including construction  of a  multi-storeyed complex for the employees of  Bombay Municipal  Corporation. Under  the said settlement, the  said two persons also agreed to construct a bus station, in the portion leased out to BEST, at their own cost and  hand it  over to  the  BEST  free  of  cost.  This settlement was brought to the notice of the Land Acquisition Officer by the Additional Collector through his letter dated September  5,   1986.  On   September  18,  1986,  the  Land Acquisition Officer  passed his award wherein he referred to the aforesaid  settlement brought to his notice and, on that basis ,  did not deal with or make any award of compensation with respect  to C.T.S.No.  218. His award was confined only

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to C.T.S.No.  211. When  the appellant  came to  know of the aforesaid facts,  he addressed  a letter  to the authorities contending that  exclusion on C.T.S.No. 210 from acquisition and passing the award only with respect to C.T.S.No. 211 was illegal. On  November 10,  1986, he  filed a  writ  petition challenging acquisition of C.T.S.No. 211 on various grounds. The writ  petition was  summarily  dismissed  by  a  learned Single Judge  by his  order dated  December 8,  1986 against which the  appellant preferred  a writ appeal/Letters Patent Appeal No.  1868 of  1986. The  Letters  Patent  Appeal  was allowed and  the writ  petition restored to file. It came up for hearing  before a  Division Bench  on June  15, 1995. On that day,  the advocate  for  the  appellant  asked  for  an adjournment  and   on  that  being  declined,  reported  "no instructions". The  writ petition  was dismissed with costs. The appellant  then filed  a review petition contending that the statement by his counsel on June 15, 1995 that he had no instructions was  a false  one and that the advocate had not really contracted  him. He  requested that the writ petition may be heard on merits. The Division Bench heard the parties at length  and dismissed  the writ petition again. It opined that having regard to the fact that the writ petition again. It  opined   that  having   regard  to  the  fact  that  the acquisition notification  was issued  in 1979, that the writ petition has  been pending  in the High Court since 1986 and more  particularly,   having  regard   to  the   purpose  of acquisition, no interference was warranted under Article 226 of the  Constitution. The  Division Bench also went into the merits of  the case and rejected both the contentions of the appellant on  that score,  viz., (1)  that the public notice under Section  4(1) of  the Act  was  not  served  upon  the appellant and  (2)  that  the  acquisition  proceedings  are vitiated by  malafides. The plea of malafides put forward by the appellant  was  based  upon  the  following  facts:  the promoters of the Gayatri Darshan Cooperative Housing Society had entered  into an agreement on sale with Vijayanand Singh who claims  to be  the owner  of C.T.S.No.  218. The society formed by the employees of the Bombay Municipal Corporation. The  promoters   of  the  society  wanted  to  purchase  the appellant‘s plot with a view to obtain frontage on the road. The negotiations,  however, failed  whereupon with a view to deprive  the  appellant    of  his  title  and  interest  on C.T.S.No. 218,  the promoters  got the user of the said plot changed from  "residential"  and  "fish  market".  The  said change of  user in the development plan was approved by BEST and the  Corporation contrary  to law.  As stated above, the High Court  rejected the  plea of  malafides. The High Court also observed  that one Misquitta claimed to be the owner of C.T.S.No. 211  and that  he had  also appeared  in the  land acquisition proceedings  whereas the  appellant entered  the picture much  later. It  is not  even clear,  the High Court observed, whether the appellant had any interest in the said plot on  the date  of issuance of notification under Section 4.      Sri Parag  Tripathi, learned counsel for the appellant, urged the following contentions: (a)  that once  a notification under Section 4(1) of the Act was  issued  with  respect  to  C.T.S.No.  218  as  well  as C.T.S.No. 211,  the Land  Acquisition Officer  was bound  to pass an  award with  respect to  both the pieces of land. He had no  jurisdiction or  authority not  to pass the award in respect of  C.T.S.No.  218  on  the  ground  of  an  alleged settlement reported  to him  by the person for whose benefit it was  being acquired.  Until and unless a notification was issued under  Section 48  of the  Act, the  Land Acquisition

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Officer had  no option  but to pass an award with respect to both the  lands notified.  The illegality  committed by  the Land Acquisition  officer  in  not  passing  an  award  with respect to  C.T.S.No. 218  vitiates the award as a whole; it is liable  to be struck down even with respect to C.T.S. No. 211. (b)  The result  of the  alleged settlement between the BEST and the  two persons  aforesaid [Vijayanand  Singh  and  the Housing Society] is that as against the total extent of 1759 sq.mtrs. in C.T.S.No. 218 notified for acquisition, the BEST is satisfied  with  only  906  sq.mtrs.  Together  with  370 sq.mtrs.  in   C.T.S.No.  211,  the  BEST  would  be  having approximately 1276  sq.mtrs. which  is obviously  sufficient for its  purpose, viz., for establishing the bus station. If an extent  of 1320  sq.mtrs. is sufficient for its purposes, there is  no explanation  why a  larger extent  of 2129  sq. mtrs. was  notified for acquisition. It was not open to BEST [Bombay Municipal Corporation] to give up a part of the land proposed to  be acquired  under a  private treaty  with  the persons interested.  The very  fact that  part of  the  land notified for  acquisition for  an alleged public purpose has been surrendered  to others  including for  the  purpose  of constructing a  residential complex for the employees of the Bombay Municipal  Corporation shows  that the alleged public purpose mentioned in the notification under Section 4 is not real and  is only  a ruse  to  help  the  aforesaid  housing society. The plea of malafides has been erroneously rejected by the High Court. (c)  The malafides of the BEST is also evident from the fact that it  has not yet got possession of even the 906 sq.mtrs. which it  bargained under  the settlement.  A good amount of litigation has  ensued and  is pending  in that  behalf. The church is  disputing the  settlement and  no bus station has been established  so far  on the  land. All  this shows that entire  proposal  for  acquisition  has  failed,  mainly  on account of  the private settlement between BEST and the said two persons.  Acquisition of  C.T.S.No.  211  with  a  small extent of 370 sq.mtrs. Serves no purpose.      On the  other  hand,  Sri  T.R.  Andhyarujina,  learned Solicitor General, supported the validity of the acquisition of C.T.S.No.  211. He  submitted  that  the  settlement  was arrived at  in good  faith and  in the interests of the BEST which is  evident from  the fact that the BEST got an extent of 906 sq.mtrs. free of cost on perpetual lease. In addition to that,  it has also got a bus station to be constructed by the said  two persons  free of  any cost  to the BEST. It is true, the  learned Solicitor  General said  that the  proper course would  have been  to have a notification issued under Section  48   of  the   Act  deleting   C.T.S.No.  218  from acquisition by that was not done because of the constriction of time.  The award  had to be passed on or before September 23, 1986  and waiting  for a  notification under  Section 48 would  have   meant  dropping  the  acquisition  proceedings altogether in  as much  as no  award could  have been passed after  September  23,  1986  by  virtue  of  the  provisions contained in  Section 11  of the Act. It was for this reason that the  award had  to be  and was  passed on September 18, 1986. The  learned solicitor  General further submitted that in the context of the above facts, the circumstance that the award passed  by  the  Land  Acquisition  Officer  does  not pertain to  C.T.S.No. 218  cannot constitute  a  ground  for quashing the  acquisition with  respect to  C.T.S.No. 211 so long as  the public purpose behind its acquisition remained. The malafides  is totally  unacceptable and has unacceptable and has rightly been rejected by the High Court.

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    We are  of the opinion that the straight-froward course for the  Land Acquisition  Officer and  for the BEST [Bombay Municipal  Corporation]   was  to   press  ahead   with  the acquisition proceedings  even with  respect to C.T.S.No. 218 and have  it acquired according to law, along with C.T.S.No. 211. Instead  of adopting  the straight-forward  course, the BEST entered  into a  settlement  withe  the  aforementioned vijayanand Singh  and the housing society- and that seems to have spawned  a good  amount of  litigation. It is said that some suit  is still  pending with  respect to C.T.S.No. 218. May be or may not be. But one thing is clear: all this could have been  avoided and the land could have been acquired for the  BEST  by  pressing  ahead  with  the  land  acquisition proceedings, in  which case,  the land  would have vested in the government  free of  all claims  and which could have in turn been vested in Bombay Municipal Corporation [BEST]. Not following  this   course  has   led  to   perhaps  avoidable litigation though  it  si  true,  the  BEST  claim  to  have obtained half  the extent  in C.T.S.No.  218 free of cost in addition to  the bus station. We presume that the settlement aforesaid   was    entered   into    by   Bombay   Municipal Corporation/BEST in  good faith  and with  a view to advance the interests  of BEST  and that  the error,  if any,  is an error of judgment.      Coming to  the first  contention of Sri Parag Tripathi, we  agree   with  the   proposition  of   law  that  once  a notification under Section 4 and a declaration under Section 6 of  the Act  is made,  the Land Acquisition Officer has no power to decline to pass the award in respect of the land(s) notified, either partly or wholly. Unless and until the land (s) are  denotified under and in accordance with Section 48, the Land  Acquisition Officer  has to  pass  an  award  with respect to  the lands  notified. Sri  Tripathi may  also  he right  in  saying  that  Land  Acquisition  Officer  had  no jurisdiction to  take notice  of a  private  settlement  and making it  a basis for not passing the award with respect to C.T.S.No. 218. But the question is whether it can be said in the  facts   and  circumstances   of  this  case,  that  the acquisition of  C.T.S.No. 211 is liable to be quashed on the said ground.  We think not. We have already held that in the absence of any material to the contrary, we must assume that the said  settlement was arrived at keeping in view the best interests of BEST. Even the 906 sq.mtrs. of land obtained on perpetual lease under the settlement is meant for being used for the  purpose stated in the notification under Section 4. There is also no material to show that the purpose stated in the said  notification is  not true  or real.  The fact that instead of  1759 sq.mtrs.,  BEST got only 906 sq.mtrs. under the settlement  does not  establish the absence of the need. It may  well be  a case of adjusting to the realities of the situation. In  such a situation, it is difficult to say that the acquisition  of C.T.S.No.211  is either  unnecessary  or that it  is neither  be consistent  with law nor with public interest. It  should also be remembered in this context that the appellant  is not  disputing the purpose of acquisition. His only  contention is  that since  the award has "deleted" C.T.S.No. 218, the land C.T.S.No. 211 should also be deleted - an  argument which  we have  rejected. Indeed,  he had not challenged the acquisition from 1979 to 1986. only after the award was passed, did he choose to challenge the acquisition on the  aforesaid grounds.  Accordingly, we reject the first contention of Sri Tripathi.      So far  as the  plea of a malafides is concerned, we do not find any adequate material to record a finding in favour of the  appellant. There  is no  material to  hold that  the

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acquisition notifications  was issued at the instance of the aforementioned employees  of the housing society or for that matter at  the instance  of Vijayanand  Singh. There  is  no material to hold that the BEST was acting at the instance of the said  persons or  that there was no real or genuine need for a  bus station  there. We  are also not able to say that the change  of  user  has  any  relevance  to  the  plea  of malafides put forward by the appellant.      Lastly, we  must also refer to the lack of diligence on the part  of the  appellant. His  writ petition  was pending since 1786.  It came  up for  hearing in  1995. His  counsel asked for  an adjournment  which was  declined whereupon the counsel stated  that the  appellant had  taken away  all the papers and has not given him any instructions in the matter. He reported "no instructions". The Division Bench was of the opinion that  it was  only apply  to protract  and delay the disposal of the writ petition. It dismissed the same. When a review petition  was filed  by the  appellant with a certain explanation. We  cannot say  that the  High  Court  was  not justified in  doing so.  Be that  as it  may, the High Court also went  into the  merits of  the case  though it  was not obliged to  do so  in a  review petition. On merits also, it found no  case for  the appellant.  We too  have come to the same conclusion.      Before parting with this case, we think it necessary to make  a   few  observations  relevant  to  land  acquisition proceedings. Our  country is  now launched upon an ambitious programme of  all-round economic  advancement  to  make  our economy competitive  in the  world market. We are anxious to attract foreign  direct investment to the maximum extent. We propose to  compete with  china  economically.  We  wish  to attain the  pace of  progress achieved  by some of the Asian countries, referred to as "Asian tigers", e.g., South Korea, Taiwan and  Singapore. It  is, however,  recognised  on  all hands that  the infrastructure necessary for sustaining such a pace  of progress  is woefully lacking in our country. The means of  transportation, power  and communications  are  in dire  need   of  substantial   improvement,  expansion   and modernisation. These  things very often call for acquisition of land  and that  too without  any delay.  It is,  however, natural that  in most  of these  cases, the persons affected challenge  the  acquisition  proceedings  in  courts.  These challenge  the  acquisition  proceedings  in  courts.  These challenges are generally in shape of writ petitions filed on High Courts.  Invariably, stay  of acquisition  is asked for and in  some cases,  orders by way of stay or injunction are also made. Whatever may have been the practices in the past, a time  has come  where the  courts should  keep the  larger public interest  in mind  while exercising  their  power  or grant in  stay/injunction. The  power under  Article 226  is discretionary. It  will be  exercised only in furtherance of interests of  justice and  not merely on the making out of a legal point.  And in  the matter  of  land  acquisition  for public purposes,  the interests  of justice  and the  public purposes, the  interests of  justice and the public interest coalesce. They  are very  often one  and the  same. Even  in civil suit,  granting of injunction or other similar orders, more particularly  of an  interlocutory nature,  is  equally discretionary. The  courts have to weigh the public interest vis-a-vis the  private interest  while exercising  the power under Article  226  -  indeed  any  of  their  discretionary powers. It  may even be open to the High Court to direct, in case it  finds finally  that the acquisition was vitiated on account of  non-compliance with  some legal requirement that the  persons   interested  shall   also  be  entitled  to  a

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particular amount  of damages  to be awarded as a lumpsum or calculated at  a certain percentage of compensation payable. There are  many ways  of affording  appropriate  relief  and redressing a  wrong; quashing the acquisition proceedings is not the  only mode  of redress.  To wit,  it is ultimately a matter of balancing the competing interests. Beyond this, it is neither  possible nor advisable to say. We hope and trust that these  considerations will be duly borne in mind by the courts  while   dealing  with   challenges  to   acquisition proceedings.      The  appeal   fails  and  is  dismissed.  There  shall, however, be no order as to costs.