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2003 DIGILAW 263 (MP)

M P HASTA SHILPA CO OPERATIVE HOUSING SOCIETY BHOPAL v. STATE OF M P

2003-02-11

ARUN MISHRA

body2003
Judgment ( 1. ) PETITIONER in the instant writ petition has claimed a writ of certiorari for quashing the land acquisition proceedings including award passed by the Land acquisition Officer. Mandamus is also sought requiring the State Govt. to afford opportunity of being heard to the petitioner before any decision is taken by any Cabinet Committee in the matter under the provisions of the Urban land Ceiling Act. ( 2. ) PETITIONERS submit that petitioner No. 1 is a Housing Society; registered in the year 1997. It has 500 members. Petitioners claim to be in possession of land. Petitioners submit that an application under Section 20 of the Urban Land Ceiling Act, was presented before the competent authority for grant of exemption. The proceedings under Section 20 of the Urban Land ceiling Act are quasi judicial in nature. Under the Land Ceiling Act exemption was decided to be granted at the State Level Committee. Petitioners were given notice of hearing in the matter of exemption. Thus, once the order has been passed of exemption under the Urban Land Ceiling Act, 1976. State is bound by the order. Once the proceedings under Section 20 were pending under the Urban Land Ceiling Act; all other proceedings ought to have been stayed. The petitioners society have the licence of colonizer issued under the m. P. Vinirdishta Bhrashta Aacharan Adhiniyam, 1984. The said license was obtained in order that the petitioners may be able to provide plots at economical and cheaper rates. Petitioners did not challenge the acquisition of land under Land Acquisition Act on the ground that land acquisition can not be justified as the proceedings under Section 20 were pending before the State govt. The two questions arise whether the acquisition proceedings under the land Acquisition Act can be justified as long as the proceedings under Section 20 of the Urban Land Ceiling Act were pending before the State Govt. The land acquisition proceedings stands vitiated inasmuch as the urgency is not born out from the order passed by the Land Acquisition Officer. The Land acquisition Officer has not applied his mind whether the provisions of Section 17 (1) read with Section 17 (4) to be invoked while issuing the notification under Section 4 of the Land Acquisition Act. The Land Acquisition Officer was supposed to decide the question of urgency himself and not at the dictate of the Commissioner. The Land acquisition Officer has not applied his mind whether the provisions of Section 17 (1) read with Section 17 (4) to be invoked while issuing the notification under Section 4 of the Land Acquisition Act. The Land Acquisition Officer was supposed to decide the question of urgency himself and not at the dictate of the Commissioner. Question of urgency was not properly decided. It was for the Land Acquisition Officer to record the satisfaction not for the Commissioner. State Govt. is reviewing the decision taken by the Revenue Minister in the matter of exemption under Land Ceiling Act. Petitioners have also prayed for allotment of house sites for the members of petitioners society. ( 3. ) THE respondents adopted the return filed in W. P. No. 1708/1990 and it is stated that no orders were passed by the Minister. An application was made under Section 20 of the Urban Land Ceiling Act on 5-7-1983. No order has been passed by the Govt. The noting made by the Minister on the note-sheet were not final or conclusive. According to Section 3 (60) of the general Clauses Act, 1897, the State Govt. means the governor. Even otherwise, the orders under Article 166 of the Constitution of India were required to be passed in the name of the Governor. No such order was communicated to the petitioners and hence the question of review does not arise. The Land Acquisition proceedings are justified because the land in question was needed for "gas affected persons" of Bhopal. This Gas Tragedy was an unprecedented one and brought the enormous calamity on many persons of Bhopal. Their rehabilitation was an urgency by itself and, therefore, the application of Section 17 (4) of the Land Acquisition Act can not be said to be either avoidable or unnecessary or illegal. Therefore, the Land Acquisition proceedings were justified. The possession was taken over and handed over to the M. P. Housing Board on 25-1-1990. Thereafter the writ petition has been filed. ( 4. ) SHRI A. G. Dhande, learned Senior Counsel appearing for the petitioners, has submitted that the order of exemption passed by the Revenue minister is final and binding. Thus, the proceedings for land acquisition be also quashed including the award passed. ( 5. ) MS. Thereafter the writ petition has been filed. ( 4. ) SHRI A. G. Dhande, learned Senior Counsel appearing for the petitioners, has submitted that the order of exemption passed by the Revenue minister is final and binding. Thus, the proceedings for land acquisition be also quashed including the award passed. ( 5. ) MS. Seema Agrawal, learned Counsel appearing for the respondents, has placed reliance on a decision of the Apex Court in Municipal council, Ahmednagar and another Vs. Shah Hyder Beig and others, (2000) 2 scc 48 , to contend that once the proceedings of land acquisition have attained finality, award has been passed. Writ petition can not be filed assailing the same at a later stage. ( 6. ) IN the instant case it is not in dispute that award was passed on 11-5-1989. Notification under Section 4 was issued in the year 1987. Commissioner, Bhopal, granted the permission to invoke Section 17 (1) excluding inquiry under Section 5a while considering urgent nature of the purpose for which the acquisition was made. ( 7. ) WRIT petition has been filed on 26-7-1990 whereas the award has been passed on 11-5-1989, ie. , one year two months before. There is nothing to doubt that possession was taken over and handed over to the M. P. Housing board on 25-1-1990. Thus, the decision of Municipal Council, Ahmednagar (supra) is attracted to the instant cas6. The Apex Court has held that in such a circumstances writ petition is not maintainable. ( 8. ) IN Municipal Council, Ahmednagar and another Vs. Shah Hyder beig and others, AIR 2000 SC 671 , Para 17, the Apex Court held as under :- "17. In any event, after the award is passed no writ petition can be filed challenging the acquisition notice or against any proceeding thereunder. This has been the consistent view taken by this Court and in one of the recent case [c. Padma Vs. Dy. Secretary to the Govt of T. N. , reported in (1997) 2 SCC 627 ]. In any event, after the award is passed no writ petition can be filed challenging the acquisition notice or against any proceeding thereunder. This has been the consistent view taken by this Court and in one of the recent case [c. Padma Vs. Dy. Secretary to the Govt of T. N. , reported in (1997) 2 SCC 627 ]. This Court observed as below:-"the admitted position is that pursuant to the Notification published under Section 4 (1) of the Land Acquisition Act, 1894 (for short "the Act") in GOR No. 1392 Industries, dated 17-10-1962, total extent of 6 acres 41 cents of land in Madhavaram village, Saidapet Taluk, Changalpatta District in Tamil Nadu was acquired under Chapter VII of the Act for the manufacture of Synthetic Rasiua by Tvl. Reichold Chemicals India Ltd. , madras. The acquisition proceedings had become final and possession of the land was taken on 30-4-1964. Pursuant to the agreement executed by the company, it was handed over to Tvl. Simpson and General Finance Co. which is a subsidiary of reichold Chemicals India Ltd. It would appear that at a request made by the said company, 66 cents of land out of one acre 37 cents in respect of which the appellants originally had ownership, was transferred in G. O. Ms. No. 816 Industries, dated 24-3-1971 in favour of another subsidiary company, Shri Rama Vilas service Ltd. , the 5th respondent which is also another subsidiary of the company had requested for two acres 75 cents of the land; the same came to be assigned on leasehold basis by the Government after resumption in terms of the agreement in G. O. Ms. No. 439 Industries, dated 10-5-1985. In G. O. Ms. No. 546 Industries, dated 30-3-1986, the same came to be approved of. Then the appellants challenged the original G. O. Ms. No. 1392 industries, dated 17-10-1962 contending that since the original purpose for which the land was acquired had ceased to be in operation, the appellants are entitled to restitution of the possession taken from them. The learned Single Judge and the division Bench have held that the acquired land having already vested in the State, after receipt of compensation by the predecessor -in -title of the appellants, they have no right to challenge the notification. Thus, the writ petition and the writ appeal came to be dismissed. " ( 9. The learned Single Judge and the division Bench have held that the acquired land having already vested in the State, after receipt of compensation by the predecessor -in -title of the appellants, they have no right to challenge the notification. Thus, the writ petition and the writ appeal came to be dismissed. " ( 9. ) PETITIONER has not challenged the Notification under Section 4 and declaration issued under Section 6 of Land Acquisition Act timely and waited for the award to be passed. Thus, the writ petition is not maintainable for quashing the award. Writ petition suffers from laches. ( 10. ) COMING to the question whether the land acquisition under Land acquisition Act is subject to the provisions of Section 42 of Urban Land Ceiling and Regulation Act, 1976 since repealed, in my opinion, the submission is devoid of substance. The provisions of Land Acquisition Act are independent. Power of exemption under Section 20 of Urban Land Ceiling and Regulation act is to operate in different sphere; when the State Govt. has conceded to the necessity of the land to be acquired under the Land Acquisition Act, in my opinion, the proceedings under the Urban Land Ceiling and Regulation Act does not come in the way of land acquisition on facts also no order of exemption is passed by State Govt. ( 11. ) NO order passed even by the Revenue Minister has been placed on record. In view of the finding above as to the acquisition of the land; and once possession is taken, award is passed, becomes final absolute can not be restored back or defeated by the provisions of exemption under the Urban land Ceiling Act in any manner. ( 12. ) IN the instant case, the order itself is said to have been passed by the Revenue Minister subsequent in the point of time to the passing of the award. When the land stood vested in the State and handed over to the M. P. Housing Board, possession was handed over, in my opinion, it was not open to the Revenue Commissioner to exercise the power to grant any exemption. ( 13. ) THUS, for the aforesaid reasons, I find no substance in the writ petition. The same is dismissed. No order as to costs. Security if deposited be refunded to petitioner. Writ Petition dismissed.