JUDGMENT : 1. Heard learned advocates for the respective parties. 2. These two petitions are disposed of by common judgment as in these two petitions same notifications issued/published under the Land Acquisition Act, 1894 in respect of the properties of the respective petitioners, are challenged. 3. The notification under Section 4(1) of the Land Acquisition Act, 1894 (hereinafter referred to as “the Act of 1894”) was issued by the Commissioner, Nagpur Division, Nagpur on 19th April, 2007 notifying that the land admeasuring 59.50 hectares out of the lands shown in Schedule to the notification was likely to be required for public purpose. Notice under Section 4(1) of the Act of 1894 was sent to the petitioners in the two petitions (landowners) on 30th May, 2007. The notification stated that the lands were urgently required and therefore, the inquiry as per Section 5A of the Act of 1894 was dispensed with. On 22nd November, 2007 notification under Section 6 of the Act of 1894 was published in the official gazette. On 18th December, 2007 notice under Section 9 of the Act of 1894 was given to the petitioners in both these petitions. As per this notice under Section 9 of the Act of 1894 the land owners were required to attend the inquiry. These petitions came to be filed on 7th January, 2008. Initially by order passed on 25th September, 2008, the parties were directed to maintain statusquo, however, by order passed on 17th November, 2008 the order directing the parties to maintain statusquo was vacated. It is undisputed before us that the amount of compensation is deposited before the reference Court and possession of the lands in question is taken by the respondent No.1. 4. The petitioners have challenged the acquisition, substantially on the following grounds:- i. The acquisition of lands in question, dispensing with enquiry under Section 5A of the Act of 1894 is illegal. ii. The urgency clause under Section 17(4) of the Act of 1894 could not have been invoked as the facts on record show that there was no such urgency for acquisition of the lands in question which enabled the State Government to invoke the urgency clause. iii. That the notification under Section 4(1) of the Act of 1894 was issued by the Divisional Commissioner, Nagpur and not by the State Government which is the proper and competent authority to issue notification. iv. iii. That the notification under Section 4(1) of the Act of 1894 was issued by the Divisional Commissioner, Nagpur and not by the State Government which is the proper and competent authority to issue notification. iv. As per Section 126(1) of the Maharashtra Regional and Town Planning Act, 1866(hereinafter referred to as “the Act of 1966”) acquisition can be made by the appropriate authority either by agreement and paying the amount as per the agreement, or in lieu of such amount by granting Floor Space Index or Transferable Development Rights as laid down under Section 126(1)(b) of the Act of 1966, or by making an application to the State Government for acquiring land in question under the Act of 1894 and in the present case the acquisition of the lands in question is not by agreement and it is as per Section 126(1)(c) of the Act of 1966 and therefore, the acquisition should have been by the State Government and as the acquisition is by the Divisional Commissioner it is illegal. v. That as per the development plan the lands in question were designated for the purpose other than the purpose for which they are acquired and as per Section 128 of the Act of 1966 such acquisition can be made only after the State Government is satisfied that the lands in question were needed for the purpose other than the purpose for which they were designated and in the present case the sanction given by the State Government does not show that it reached the satisfaction as required by Section 128 of the Act of 1966. vi. The lands in question are acquired for rerehabilitation of the Project Affected Persons and therefore, the acquisition should have been made by following the procedure as per the provisions of the Maharashtra Project Affected Persons Rehabilitation Act, 1999 and as it is not done, the acquisition is bad in law. vii. The land which is subject matter of Writ Petition No. 36 of 2008 was exempted from the provisions of the Urban Land (Ceiling and Regulation) Act, 1976 with condition that it should be utilized for construction of hospital which is public purpose in itself. vii. The land which is subject matter of Writ Petition No. 36 of 2008 was exempted from the provisions of the Urban Land (Ceiling and Regulation) Act, 1976 with condition that it should be utilized for construction of hospital which is public purpose in itself. The land which is subject matter of Writ Petition No. 1175 of 2008 was exempted from the provisions of the Urban Land (Ceiling and Regulation ) Act, 1976 on condition that the land should be used for carving out and providing small plots or constructing the tenaments on it which itself is a public purpose. That the order granting exemption from the provisions of the Urban Land (Ceiling and Regulation) Act, 1976 prohibited the use of the land for any other purpose and provided that any change in the use of land shall amount to breach of the conditions of grant of exemption. viii. In Writ Petition No. 36 of 2008 an affidavit sworn by the petitioner on 6th April, 2017 is filed stating that Khasra No. 17/12, admeasuring 0.56 hectare, a triangular piece of land is fenced by cement poles and is lying vacant without any development on it. ix. The acquisition of the lands in question is without following process of law and is therefore, in violation of the constitutional right conferred by Article 300A of the Constitution of India. 5. The submission on behalf of the respondent No.1Maharashtra Airport Development Corporation for whose use the lands in question are acquired has opposed the petitions substantially on the following grounds:- a. There are no pleadings in the petitions to challenge the acquisition on the ground of delay. The delay alleged by the petitioners in the matter is after publication of notice under Section 4(1) of the Act of 1894 and it could have been explained by the respondents had there been pleadings in the petitions to support the contention. b. The notification under Section 4 of the Act of 1894 is published by the Divisional Commissioner, Nagpur and as he is not impleaded as party to these petitions, the challenges raised on behalf of the petitioners to the legality of that notification cannot be examined as the Divisional Commissioner, Nagpur only could have supported his action. b. The notification under Section 4 of the Act of 1894 is published by the Divisional Commissioner, Nagpur and as he is not impleaded as party to these petitions, the challenges raised on behalf of the petitioners to the legality of that notification cannot be examined as the Divisional Commissioner, Nagpur only could have supported his action. c. Though it is argued that the notification under Section 4 of the Act of 1894 could not have been issued by the Divisional Commissioner, there is no such challenge in the petitions. d. Relying on the order issued by the Urban Development Department, Government of Maharashtra on 21st July, 2006 it is submitted that the argument made on behalf of the petitioners that the acquisition is not in consonance with the provisions of Section 126(c) and Section 128 of the Act of 1966 is unsustainable. e. The Maharashtra Project Affected Persons Rehabilitation Act, 1999 is enacted to consolidate and amend the law relating to the rehabilitation of the persons affected by certain projects in the State of Maharashtra and the grievance regarding noncompliance of any provisions of this Act can be made by the “affected persons” as defined under Section 2(2) of the Act of 1999 and the petitioners do not fall in the category of 'affected persons' under the Act of 1999 and therefore, they have no right to raise the challenge that the provisions of the Act of 1999 are not complied with. f. The submission made on the basis of the exemption order issued under the provisions of the Urban Land (Ceiling and Regulation) Act, 1976 is misdirected. g. That as per the conditions incorporated in the orders granting exemption from the provisions of the Urban Land (Ceiling and Regulation) Act, 1976, the petitioners were required to take steps and undertake the construction on the lands in question within 5 years from the date of the order granting exemption, however, it is not done and the submission made on behalf of the petitioners on this point cannot be considered. h. An affidavit sworn on 25th April, 2017 by Shri Subhash Vitthalrao Chahande, Advisor Technical is filed on behalf of the Respondent No.1, stating that entire Survey No. 17/12 and part of Survey No.19/12 and 19/32 falls within the area of proposed Airport, that existing runway is 3200 meters in length, that the length is proposed to be increased by 400 meters which is followed by government land admeasuring 818 meters in length and then there is some obstruction by railway track, highway and metro rail which admeasures 256 meters and after crossing this portion, 120 meters long area is kept for fixing approach lights to the runway. 6. After considering the pleadings, the documents placed on record of the petition and the submissions made by the learned advocates for the respective parties, we find that the acquisition of lands in question is bad in law as the mandatory inquiry under Section 5A of the Act of 1894 was dispensed with without there being urgency of such nature which necessitated invoking of powers under subsection (4) of Section 17 of the Act of 1894. The notification under Section 4(1) of the Act of 1894 was published in the official gazette dated 22nd November, 2007 and the notice under Section 9(1) and 9(2) of the Act of 1894 was issued on 14th December, 2007. There is no explanation on behalf of the respondents justifying the delay. Though it is argued on behalf of the respondent No.1 that there are no pleadings on this point in the petition, in our view, the burden was on the respondents to explain and justify the delay as the respondents dispensed with the mandatory inquiry under Section 5A of the Act of 1894 and deprived the petitioners of the right conferred by Section 5A of the Act of 1894. Therefore, has to be held that the impugned notification suffers from legal infirmity. However, inspite of the above findings we are not inclined to quash the impugned notifications and to grant the prayer made by the petitioners for releasing the lands in question from acquisition. 7. Relying on the judgment given in the case of Darshan Lal Nagpal vs. Govt. Therefore, has to be held that the impugned notification suffers from legal infirmity. However, inspite of the above findings we are not inclined to quash the impugned notifications and to grant the prayer made by the petitioners for releasing the lands in question from acquisition. 7. Relying on the judgment given in the case of Darshan Lal Nagpal vs. Govt. (NCT of Delhi), reported in (2012) 2 SCC 327 , the learned Senior Advocates representing the petitioners have submitted that the acquisition of the land for the purpose, as in the present case, does not justify the exercise of powers by the Government under Section 17(4) of the Act of 1894 and the Court can take judicial notice of the fact that the planning, execution and implementation of the schemes, as in the present case, shall take few years and therefore, the private property cannot be acquired for such purpose by invoking the urgency clause contained in Section 17 of the Act of 1894 and the exclusion of the Rule of audi alteram partem embodied in Section 5A of the Act of 1894 is not warranted in such matters. It is submitted that considering the proposition laid down in the above judgment and as the acquisition of lands in question is illegal, the only consequential order which is possible is that the impugned notifications should be quashed and the respondents be directed to release the lands in question from acquisition. However, we find that in view of the facts of the present case, the judgment given in the case of Anand Singh vs. State of U.P., reported in (2010) 11 SCC 242 and the judgment given in the case of Competent Authority vs. Barangore Jute Factory, reported in (2005) 13 SCC 477 clinch the issue. 8. In the judgment given in the case of Anand Singh (supra), after recording that the notifications under the Land Acquisition Act, 1894 suffered from legal infirmity as the State Government had failed to justify the dispensation of the inquiry under Section 5A of the Act of 1894, the Hon'ble Supreme Court refused to declare the acquisition proceedings invalid and illegal as it found that out of 400 landowners more than 370 had received compensation and out of total cost of Rs.8,85,14,000/- for development on the acquired land an amount of Rs.5,28,00,000/- was already spent and more than 60% of the work was completed. As the existence of houses/structures and buildings over the lands in question as on 22nd November, 2003 and 20th February, 2004 i.e. the date of publication of notice under Section 4 of the Act of 1894, was disputed and as it was found that the possession of the lands in question was not taken, the Hon'ble Supreme Court granted liberty to the landowners to make representation to the State Authorities for release of their lands under Section 48(1) of the Act of 1894. In the judgment given in the case of Barangore Jute Factory (supra) the Hon'ble Supreme Court found that the notification in that case was not as per Section 3A(1) of the National Highways Act, 1956 and therefore, it was invalid and the consequential acquisition was also bad in law. The Hon'ble Supreme Court recorded that taking of possession of the lands in question in that case was also in violation of the statutory provisions. However, as it was found that the acquisition of the land was for construction of national highway and the work was completed during pendency of the proceedings, the Hon'ble Supreme Court refused to quash the notifications and balanced the rights by directing that the compensation should be paid, determining it on the basis of the date on which the possession of the land was taken. 9. In the present case, we find that the above two judgments are relevant as the facts of the present case are close to the two cases decided by the above referred judgments. The affidavit filed on behalf of the respondent No.1Maharashtra Airport Development Corporation, sworn by Shri Subhash Vitthalrao Chahande on 30th March, 2017 states that out of 99 land owners affected by the acquisition of land only two land owners have challenged the notifications and the acquisition. The affidavit states that in 2009-2010 an amount of Rs.16,79,58,345/- was disbursed towards compensation, out of which an amount of Rs.6,59,95,094/- was paid to 34 farmers for 22.43 hectares land, an amount of Rs.6,64,42,650/- for 27.26 hectares of land was deposited in Civil Court under Section 30 of the Act of 1894 and an amount of Rs.3,55,20,601/for 9.73 hectares of land was deposited before the Civil Court under Section 31 of the Act of 1894. It is stated that the respondent No.1 has spent Rs.30.59 crores on the development of infrastructure on the acquired lands. It is stated that the respondent No.1 has spent Rs.30.59 crores on the development of infrastructure on the acquired lands. It is stated that the challenge in these two petitions is in respect of the land which comes to 4.69% of the total acquired land. The respondent No.1 contends that the plots for rehabilitation of the Project Affected Persons have been carved out from the acquired lands. This is disputed by the petitioners. Then in the subsequent affidavit filed on behalf of the respondent No.1, sworn on 25th April, 2017, it is stated that part of the land in question i.e. subject matter of these two petitions, is required for fixing the approach lights to the runway. We find that there is a deviation on this point in the stand of the respondent No.1. 10. The petitioner in Writ Petition No. 36 of 2008 has filed an affidavit sworn on 17th April, 2017 stating that the submissions made on behalf of the respondent No.1 about the use/proposed use of land is not correct. The petitioner has stated that on 22nd February, 2008, in reply to a query under the Right to Information Act, 2005 the Airport Authority of India has given reply that Khasra No. 17/12 is very close to the extended center line of runway 1432 and Khasra No.19/12 and 19/32 are not in the extended centre line of runway No.1432. It is further stated that height of the overbridge which is constructed can be the obstacle for approach lights if the overbridge crosses highway and the runway lighting cables cannot cross the NIT overbridge and the railway track. In the affidavit, the petitioner has stated that the respondent No.1 had earlier shown that the land of the petitioner is to be used for rehabilitation of the project affected persons, however, now the stand is changed. 11. We find that there is dispute about the present status of the lands in question. In the affidavit filed on behalf of the respondent No.1 on 30th March, 2017 it is stated that 1616 plots are carved out from the acquired land and 980 plots are distributed to the persons who are to be rehabilitated. 11. We find that there is dispute about the present status of the lands in question. In the affidavit filed on behalf of the respondent No.1 on 30th March, 2017 it is stated that 1616 plots are carved out from the acquired land and 980 plots are distributed to the persons who are to be rehabilitated. However, the petitioner in Writ Petition No. 36 of 2008 has filed affidavit on 6th April, 2017 stating that the plots are not carved out from the land of the petitioner and the respondent No.1 has not spent any amount and development activities are not carried out on the land of the petitioner. It is stated that there is no change in the status of the land of the petitioner and a triangular piece of land is lying as it is, fenced by the cement poles. There are disputed questions of fact involved. 12. The objection raised on behalf of the respondent No.1 to the maintainability of the petitions on the ground that the Divisional Commissioner is not impleaded as party relying on the judgment given in the case of Udit Narain Singh Malpaharia vs. Additional Member Board of Revenue, reported in AIR 1963 SC 786 and the judgment given in the case of Vishwambhar vs. Laxminarayan, reported in (2015) 9 SCC 1 , in our view, is not required to be dealt with in view of our conclusions recorded above. Similarly, as we find that the impugned notifications suffer from legal infirmity, relying on the judgments given in the case of Anand Singh and Barangore Jute Factory (supra), we decline to quash the impugned notifications and to grant prayer directing the respondents to release the lands in question from acquisition. We have not adverted to the other points raised on behalf of the petitioners. 13. Thus, though we find that the impugned notifications suffer from legal infirmity, considering the facts of the case and the proposition laid down in the judgments given in the case of Anand Singh and Barangore Jute Factory (supra), we refuse to quash the notifications and to grant prayer of the petitioners. 13. Thus, though we find that the impugned notifications suffer from legal infirmity, considering the facts of the case and the proposition laid down in the judgments given in the case of Anand Singh and Barangore Jute Factory (supra), we refuse to quash the notifications and to grant prayer of the petitioners. However, to subserve the ends of justice following order is passed :- i. The petitioners in these two petitions will be at liberty to make representation to the authorities under Section 48(1) of the Act of 1894 for release of their lands acquired pursuant to the impugned notifications. OR IN THE ALTERNATIVE ii. The petitioners in both these petitions may inform the respondents that they are not intending to submit application under Section 48(1) of the Act of 1894 and if such application is made by either of the petitioner or both of them, such petitioner/petitioners will be entitled for compensation for their lands acquired pursuant to the impugned notifications, the compensation to be determined by considering the date on which the possession of lands in question was taken as the relevant date. iii. If the petitioner/petitioners choose to file application under Section 48(1) of the Act of 1894 and if the application is rejected, such petitioner/petitioners will be entitled for the compensation determined by considering the date on which possession is taken as the relevant date. The petitions are partly allowed in the above terms. In the circumstances, the parties to bear their own costs.