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2013 DIGILAW 206 (BOM)

Gulshan Laxman Chaudhari v. State of Maharashtra

2013-01-24

A.P.BHANGALE, A.S.OKA

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JUDGMENT A.S.OKA, J. 1. By this petition under Article 226 of Constitution of India, the petitioner has challenged the legality of the proceedings of acquisition of various lands at villages Gajabandhan – Pathrli, Village Chole and Ajde – Golavali, Taluka Kalyan, District Thane. The acquisition proceedings were initiated by the virtue of Notification under section 4(I) of the Land Acquisition, Act, 1894, (hereinafter referred to as the said Act of 1894) which was published in the Government Gazette dated 30th March, 1961. A Notification under Section 6 of the said Act, 1894 was published in the Government Gazette dated 17th May, 1962. The acquisition was for the development and utilization of the lands as an industrial and residential area. 2. It is alleged in the petition that by applying “urgency” clause under section 17(4) of the said Act of 1894, possession of the lands was taken over and the same was handed over on 27th March, 1963 to the Maharashtra Industrial Development Corporation Limited (the third respondent), which has been incorporated under the provisions of the Maharashtra Industrial Development Act, 1961 (hereinafter referred to as said Act of 1961). 3. The contention raised in the petition is that since the third respondent is a company, the procedure provided in the Part VII of the said Act of 1894 ought to have been followed. Another contention is that in any event, the acquisition could have been made under the said Act of 1961. The case made out in the petition is that late Pandurang Mukadam was the owner of the lands in question situated at village Mauje Ajde Golivali, Taluka Kalyan, District Thane and the petitioners are the legal representatives of said Pandurang. 4. The learned counsel appearing for the petitioners submitted that the acquisition has been completed in the year 1963 and though the petition has been filed in the year 2012, there is more than sufficient explanation for the delay. He pointed out that a ground of fraud on statute has been pleaded. He submitted that the delay will not come in the way of petitioners. He submitted that the lands of the petitioners were neither 'waste' nor 'arable' lands as claimed while invoking urgency clause under section 17(4) of the said Act of 1894. He pointed out that a ground of fraud on statute has been pleaded. He submitted that the delay will not come in the way of petitioners. He submitted that the lands of the petitioners were neither 'waste' nor 'arable' lands as claimed while invoking urgency clause under section 17(4) of the said Act of 1894. He submitted that the lands held by said Pandurang were assessed to land revenue as agricultural lands and the same were not fit for immediate use as nonagricultural or industrial lands or for building purposes or for other industrial purposes. He submitted that most important factual aspect is that the lands held by Pandurang which were acquired were never used for industrial and residential purposes. He submitted that there is a failure on the part of the third respondent to use the acquired lands for the public purpose, for which the same were acquired. He urged that there are gross illegalities committed in as much as the acquisition for the third respondent could have been only under the Part VII of said Act of 1894 relating to the acquisition of land for the companies and that urgency clause under section 17(4) of the said Act of 1894 could not have been invoked. He urged that though the lands held by Pandurang were agricultural lands, the same were taken over by claiming that same were 'waste' or 'arable' lands. He accepted that said Pandurang died in the year 1972 and that he did not raise any objection to the acquisition. He submitted that only in the year 2011, the petitioners who are the legal representative of deceased Pandurang became aware that lands inquestion were owned by said Pandurang before it's acquisition. He pointed out that an attempt was made by the petitioners to obtain information under the Right to Information Act, 2005. He relied upon communication issued by the Area Managercum5/ Information Officer of the second respondent dated 5th September, 2011, on the basis of application made under the Right to Information Act, 2005. He pointed out that except for supplying the information that the land was acquired in the year 1961 under the said Act of 1894, no other information was supplied. He pointed out that except for supplying the information that the land was acquired in the year 1961 under the said Act of 1894, no other information was supplied. He submitted that under the Right to Information Act, shocking information was obtained by the petitioners, which shows that in the year 1991 a Policy was framed by the third Respondent for allotment of the plots out of the acquired lands for various purposes other than industrial or residential use. He submitted that allotment of the lands was sought to be made for various users, apart from industrial and residential user. 5. He relied upon a decision of the Apex Court in the case of M/s.Royal Orchid Hotels Limited and Another. Vs. G. Jayarama Reddy and others (Civil Appeal No.7588/2005 alongwith connected appeal). He submitted that in view of the said decision, the delay will not come in the way of the petitioners apart from the fact that the delay has been adequately explained. 6. Learned counsel appearing for second and third respondents submitted that the acquisition was completed in the year 1963 and the lands were vested in the State Government. He pointed out the provisions of sections 14 and 15 of the said Act of 1961. He pointed out the objects of the third respondent. He pointed out that industrial area needs several amenities and therefore, allotment of lands has been made for the various purposes. 7. We have carefully considered the submissions. The acquisition proceedings were admittedly completed in the year 1963 during the lifetime of said Pandurang, who is the predecessor of the petitioners. The said Pandurang was alive till 1st June, 1972. During his lifetime, admittedly, said Pandurang did not take any steps for challenging the acquisition. He did not raise any objection to the acquisition. The second petitioner Raghunath is the son of said Pandurang. The case made out in the petition is that till 2011, the petitioners were not even aware that the said Pandurang was the owner of the acquired lands. It is very difficult to believe this factual assertion. Thus this is a case of complete inaction for a period spreading over 50 years on the part of said Pandurang and his legal representatives. It is very difficult to believe this factual assertion. Thus this is a case of complete inaction for a period spreading over 50 years on the part of said Pandurang and his legal representatives. The acquisition for public purpose for the benefit of the third respondent i.e. the Maharashtra Industrial Development Corporation Limited is sought to be disturbed after the lapse of 50 years. 8. The decision of the Apex Court in the case of M/s.Royal Orchid Hotels Limited and another (cited supra), holds that there is no rule of law that whenever there is a delay, the Courts must necessarily refuse to entertain a petition under Article 226 of the Constitution of India. The Apex Court held that each and every case must be dealt with on its own facts. It is held that no hard and fast rule can be laid down in this regard. 9. Looking to the facts of the case in the hand, the gross delay appears to be fatal. Under section 15 of the said Act 1961, the third respondent is entitled to acquire and hold immovable property for the performance of any of its activities. The third respondent is empowered to lease, sale, exchange or otherwise transfer any property held by it. The third respondent has a duty to provide amenities and common facilities in industrial areas and industrial estates. The third respondent is entitled to construct buildings for the housing of the employees of such industries. That is why the acquisition was made in the year 1961 for the benefit of third respondent not only for industrial use, but also for residential use. 10. In the Affidavit of third respondent, it is stated that third respondent has established about 249 Industrial Areas and Industrial Estates in the entire State. It is stated that always a phasewise development of the acquired lands is carried out. In the affidavit, the third respondent has set out the details of the process normally undertaken by the third respondent for development of the lands. It is stated that in industrial areas, approximately 60% of the area is used for Industrial purpose by carving out various plots for Industrial Units. Approximately 25% of the area is used for the purposes of roads, pipe lines, foothpaths etc. It is stated that in industrial areas, approximately 60% of the area is used for Industrial purpose by carving out various plots for Industrial Units. Approximately 25% of the area is used for the purposes of roads, pipe lines, foothpaths etc. Further 5% of the area is required to be kept for amenities such as Post Office, Telephone Exchange, Schools and Colleges, Educational Institution, Training Centre, and Shopping Complexes etc. 10% of the area is required to kept as compulsory open spaces. Moreover, the lands in question were required not only for the purpose of industrial use, but also for residential use. Even in residential area developed by the third Respondent, various amenities are required to be provided. Thus, it appears that acquired lands formed a part of large area acquired by the third respondent for development as an Industrial Area. The third respondent always carries out phasewise development, when the acquisition is of a very large area. Considering the method of phasewise development, one particular area forming part of acquired lands may not be developed for years and that is the reason why even assuming that lands held by Pandurang have not been used for public purpose, there is no illegality. As pointed out earlier, various amenities are required to be provided in the industrial as well as residential area and therefore, allotment of portions of land to private parties for setting up of various activities cannot be rendered illegal. 11. Lastly, we may note that in paragraph no.18.4 of the reply, the third respondent stated that not only that said Pandurang did not challenge the acquisition, but he accepted the compensation during his lifetime. Therefore, the acquisition proceeding for public purpose initiated in the year 1961, which were completed in the year 1963, cannot be disturbed at the instance of the petitioners after lapse of 50 years in this Writ petition filed in the year 2012. 12. Hence, we pass following order. ORDER Writ Petition is rejected.